AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268
| Citation: | AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 | |
| AB (DECEASED), JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA), AB (DECEASED), JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA #2), PC (DECEASED) AND OTHERS ON BEHALF OF THE NJAMAL PEOPLE #10 and FF (DECEASED) AND OTHERS (NOMADS) ON BEHALF OF THE WARRARN PEOPLE v THE STATE OF WESTERN AUSTRALIA & ORS | ||
| File numbers: | Part WAD 77 of 2005 Part WAD 82 of 1998 | |
| Judge: | BENNETT J | |
| Date of judgment: | ||
| Catchwords: | NATIVE TITLE – Application for determination of native title – claim for rights and interests by reason of licence or permission given by the relevant normative society – whether the relevant normative society was the language group or a broader Pilbara society – whether licence or permission given – whether licence or permission gave recipients rights or interests in land pursuant to the traditional laws and customs – whether rights or interest granted by “permission” are rights or interests ‘in relation to land’ or personal rights – whether persons with “permission” have connection with land – whether applicants had been incorporated into the relevant society – whether the applicants are a “group” – whether applicants are a “traditional group” – whether evidence supports individual rights and interests NATIVE TITLE - Application for determination of native title – claim for exclusive possession of claim area – required evidence for a right of exclusive possession – whether there has been “real” acknowledgment or observance of the right in the absence of an ability to enforce – whether applicants are “gatekeepers” of claim area in the Griffiths v Northern Territory (2007) 165 FCR 391 sense – whether traditional laws and customs of ownership of land by local descent groups have been adapted – whether particular exclusive rights can be claimed in the absence of a right of exclusive possession –whether applicants had a right to be accompanied on land – whether right to be accompanied is a right of exclusive possession NATIVE TITLE - Extinguishment – section 47A of the Native Title Act 1993 (Cth) – whether land was held expressly for the benefit of Aboriginal people – meaning of ‘expressly for the benefit of … Aboriginal peoples’ – whether pastoral lease and special lease were granted, or land was held under leases, expressly for the benefit of Aboriginal peoples | |
| Legislation: | Native Title Act 1993 (Cth) ss 13, 23B, 47A, 61, 84D(4), 223(1), 225 and 238 Land Administration Act 1997 (WA) s 267(2)(a) | |
| Cases cited: | Akiba v Queensland (No 3) (2010) 204 FCR 1 applied Alyawarr v Northern Territory (2004) 207 ALR 539 cited Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116 cited Attorney-General (NT) v Ward (2003) 134 FCR 16 cited Bodney v Bennell (2008) 167 FCR 84 considered Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 related Brown (on behalf of the Ngarla People) v Western Australia (No 2) (2010) 268 ALR 149 related Brown (on behalf of the Ngarla People) v State of Western Australia (No 3) [2010] FCA 859 related Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154 related Commonwealth v Akiba (2012) 204 FCR 260 applied Commonwealth v Clifton (2007) 164 FCR 355 cited Commonwealth v Yarmirr (2001) 208 CLR 1 cited County Securities Pty Ltd v Challenger Group Holdings Pty Ltd & Anor [2008] NSWCA 193 cited Dale v Moses [2007] FCAFC 82 cited Daniel v Western Australia [2003] FCA 666 considered Daniel v State of Western Australia [2005] FCA 536 cited De Rose v South Australia [2002] FCA 1342 cited De Rose v South Australia (2003) 133 FCR 325 considered De Rose v South Australia (No 2) (2005) 145 FCR 290 considered Fejo v Northern Territory (1998) 195 CLR 96 cited Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 cited Gumana v Northern Territory of Australia (2005) 141 FCR 457 considered Gumana v Northern Territory (No 2) [2005] FCA 1425 cited Gumana v Northern Territory (2007) 158 FCR 349 cited Griffiths v Northern Territory (2007) 165 FCR 391 considered Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 considered Hayes on behalf of the Thalanyji People v Western Australia [2008] FCA 1487 cited Hayes v Northern Territory (1999) 97 FCR 32 considered Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365 cited Hunter v State of Western Australia [2009] FCA 654 cited James on behalf of the Martu People v Western Australia [2002] FCA 1208 cited Jango v Northern Territory (2006) 152 FCR 150 cited Jango v Northern Territory (2007) 159 FCR 531 considered Lardil v Queensland [2004] FCA 298 cited Lennon v South Australia [2011] FCA 474 cited Mabo v Queensland (No 2) (1992) 175 CLR 1 cited Mason v Tritton (1994) 34 NSWLR 572 discussed Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382 cited Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 considered Moses v Western Australia (2007) 160 FCR 148 applied Neowarra v Western Australia [2003] FCA 1401 cited Neowarra v Western Australia [2003] FCA 1402 considered Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 considered Risk v Northern Territory [2006] FCA 404 considered Rubibi v Western Australia (No 4) (2004) 138 FCR 536 cited Rubibi Community v Western Australia (No 5) [2005] FCA 1025 cited Rubibi Community v Western Australia (No 7) [2006] FCA 459 considered Sampi v Western Australia (2010) 266 ALR 537 cited Thudgari People v State of Western Australia [2009] FCA 1334 cited Western Australia v Sebastian (2008) 173 FCR 1 considered Western Australia v Ward (2002) 213 CLR 1 considered Western Australia v Ward (2000) 99 FCR 316 cited Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) (2008) 181 FCR 300 cited | |
| 13 - 16 and 19 - 22 September 2010, 29 and 30 November 2010; 1 and 2 December 2010, 20 – 24 June 2011 | ||
| Date of last submissions: | 26 August 2011 | |
| Place: | Perth | |
| Division: | GENERAL DIVISION | |
| Category: | Catchwords | |
| Number of paragraphs: | ||
| Solicitor for the First and Second Applicants | Pilbara Native Title Service | |
| Counsel for the Fourth Applicant and Second Respondent | Mr G McIntyre SC with Mr P Sheiner | |
| Solicitor for the Fourth Applicant and Second Respondent | Roe Legal Services | |
| Counsel for the First Respondent: | ||
| Solicitor for the First Respondent: | State Solicitor for Western Australia | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | Part WAD 6185 of 1998 and Part WAD 0077 of 2005 and Part WAD 82 of 1998 |
| Bennett J | |
| DATE OF ORDER: | |
| WHERE MADE: | PERTH |
THE COURT ORDERS THAT:
1. These reasons be kept confidential to the legal advisers for the parties and other persons subject to the restricted evidence regime until further order.
2. The parties consult as to any matters within these reasons that should be confidential and notify my Associate of proposed redactions on or before 28 November 2012.
3. With respect to settling the form of the Determination, the parties consult as to a proposed form of Determination to give effect to these reasons. By 25 January 2013, the parties notify my Associate as to this form of Determination if it has been agreed, or if it has not been agreed, each party is to notify my Associate of its proposed form of Determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | Part WAD 6185 of 1998 and Part WAD 0077 of 2005 and Part WAD 82 of 1998 |
| BETWEEN: | AB (DECEASED), JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA) First Applicants AB (DECEASED), JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN ON BEHALF OF THE NGARLA PEOPLE (NGARLA #2) Second Applicants FF (DECEASED) AND ORS (NOMADS) ON BEHALF OF THE WARRARN PEOPLE v STATE OF WESTERN AUSTRALIA AND ORS Fourth Applicants |
| AND: | STATE OF WESTERN AUSTRALIA AND ORS Respondents |
| JUDGE: | Bennett J |
| DATE: | 21 November 2012 |
| PLACE: | PERTH |
INDEX
WARNING: These reasons, by the agreement of the parties, contain names of recently deceased Aboriginal persons. Care should be taken with reading or publishing these reasons.
REASONS FOR JUDGMENT
1 The first and second applicants (together, the Ngarla or the Ngarla people) claim native title over certain land in Western Australia. The fourth applicants (the Warrarn) claim native title over an area that overlaps with the Ngarla claim.
2 This proceeding is the third of a set of three separate proceedings before the Court in which the Ngarla people seek recognition of native title rights and interests under the Native Title Act 1993 (Cth) (the NTA). The three proceedings arise out of two separate native title determination applications on behalf of the Ngarla people (WAD 6185 of 1998 and WAD 77 of 2005).
3 The first proceeding, Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (Brown (No 1)), was resolved by way of consent determination. In that consent determination some areas, designated Determination Area B and set out in the second schedule to the determination, were specifically excluded.
4 In the second proceeding, Brown (on behalf of the Ngarla People) v Western Australia (No 2) (2010) 268 ALR 149 (Brown (No 2)) and Brown (on behalf of the Ngarla People) v State of Western Australia (No 3) [2010] FCA 859 (Brown (No 3)), preliminary questions regarding those parts of Determination Area B that were the subject of two mineral leases, the Mineral Leases (Special Agreement) ML235SA (Lease 235) and Mineral Leases (Special Agreement) ML249SA (Lease 249), were determined. An appeal from Brown (No 2) was upheld by the majority of the Full Court on the question of the extinguishing effect at common law of the mineral leases (Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154 (Brown (FC)).
5 The third proceeding concerns part of WAD 6185 of 1998 and WAD 77 of 2005, being the area that overlaps with the Warrarn native title claim, constituted by order made on 1 November 2007 (the Overlap Area). The Warrarn native title claim (WAD 82 of 1998) is a native title determination application lodged on behalf of the Warrarn.
6 The third proceeding was created by a process of combination, of part WAD 6195 of 1998, part WAD 77 of 2005 and Part WAD 82 of 1998. By order made on 1 November 2007, the parts of each of these claims concerning the Overlap Area is to be dealt with in the same proceeding (Ngarla Overlap Proceeding). The applicants in WAD 6185 of 1998 are described as the first applicants in the Ngarla Overlap Proceeding, the applicants in WAD 77 of 2005 are described as the second applicants in the Ngarla Overlap Proceeding and the applicants in WAD 82 of 1998 are described as the fourth applicants in the Ngarla Overlap Proceeding. These reasons address the determination of the Ngarla Overlap Proceeding.
7 The Overlap Area is in the Pilbara region of Western Australia (the Pilbara). The active parties to this proceeding are
the Ngarla;
the Warrarn (also sometimes referred to as the Nomads, although that term has a different and broader meaning when used in references to historical events);
the second respondent, Strelley Pastoral Pty Ltd (Strelley Pastoral Company), which is in effect owned by the Warrarn and supports the Warrarn claim; and
the first respondent, the State of Western Australia (the State).
8 The claimants in WAD 6003 of 2000 (Njamal #10) were previously a party to the Ngarla Overlap Proceeding, but withdrew their claim on 20 August 2010, so far as it claimed rights in respect of the Overlap Area.
9 At the close of oral submissions, the parties filed an agreed document, the Parties’ Summary of Issues dated 23 June 2011 (Summary of Issues). The parties agreed that this document fulfilled the role of a pleading and that, in effect, it acted as an amending document that replaced any previous statement of issues in the proceeding including any previous pleadings. The Full Court in Jango v Northern Territory (2007) 159 FCR 531 at [75]–[76] considered that a “points of claim” document fell within the term “pleading”, that its essential function was to define the case being advanced and that it could limit the range of matters that could be put before the Court. While there are, to some extent, inconsistencies between the Summary of Issues and the Warrarn Form 1, the parties agreed that this document should effectively replace previous pleadings and the final written submissions were made in accordance with it (see Neowarra v Western Australia [2003] FCA 1401 at [20]). I consider that the Summary of Issues fulfils the role of a pleading in this proceeding and I will proceed to decide the case in accordance with it, rather than the Form 1.
The issues in dispute in this proceeding
10 It is not in dispute that, subject to any question of extinguishment, the Ngarla hold the same non-exclusive native title rights and interests in relation to the Overlap Area as they hold in relation to the area the subject of the Brown (No 1) consent determination, namely the non-exclusive right to:
(a) access, and to camp on, the Overlap Area;
(b) take flora, fauna, fish, water and other traditional resources (excluding minerals) from the Overlap Area;
(c) engage in ritual and ceremony on the Overlap Area; and
(d) care for, maintain and protect from physical harm, particular sites and areas of significance to the Ngarla People on the Overlap Area.
11 The State admits the rights claimed by the Ngarla in relation to the rights (a) to (d) above. The Warrarn admit all rights claimed by the Ngarla, save that the Warrarn contend that ‘there is an intramural allocation of rights’ as between the Ngarla and the Warrarn. The agreement of the parties in respect of the rights (a) to (d) above is supported by the anthropological report of Dr Smith relied on by the Ngarla and the witness statements and oral evidence of the various Ngarla witnesses.
12 I am satisfied that there is sufficient basis on which to make a determination in favour of the Ngarla as to these rights for the reasons set out in Brown (No 3) at [3]–[4].
13 However, the Ngarla claim additional rights in the Overlap Area, including a right of exclusive possession. The State disputes that the Ngarla have any rights of exclusive possession in the Overlap Area.
14 In summary, the main issues in this proceeding are:
Whether the Warrarn have any native title rights and interests in relation to the Overlap Area. The Warrarn contend that they have native title rights and interests allocated under the native title held in common with the Ngarla, on the basis of a standing licence or permission given to them by the Ngarla. The Warrarn claim that these rights and interests have been allocated to them under the laws and customs acknowledged and observed by the relevant society at sovereignty, whether this be a Ngarla society or a “broader society”. The State and the Ngarla disagree with the Warrarn’s claim to native title. I will consider the question of the relevant society in Part 5 and the Warrarn claim in Part 6 below.
Whether the Ngarla people hold any greater or additional native title rights and interests than those recognised in Brown (No 1). In particular, the Ngarla contend that they have the right to exclusive possession, a right to prevent or exclude particular activities and a right to be accompanied. The State disagrees. The Warrarn do not dispute the Ngarla contention, save that they submit that there is an intramural allocation of rights as between the Ngarla and the Warrarn. I will consider this issue in Part 7 below.
What is the extent of any extinguishment of native title by the laws or acts of the Crown in the Overlap Area? In particular, does s 47A of the NTA apply to disregard any prior extinguishment? The Ngarla submit that s 47A does apply. The State and the Warrarn dispute that contention. I will consider this issue in Part 8 below.
15 Before I consider these issues, it is important to set out in further detail:
the applications and claimed area (Part 1);
relevant background facts (Part 2);
the legal principles governing the determination of native title rights and interests (Part 3); and
key areas of evidence and conclusions on that evidence (Part 4).
16 There are particular areas of evidence that are highly gender restricted to men. I have not accessed that part of the transcript. By the agreement of the parties, I have relied upon the summary of the effect of that evidence, as provided by the parties in written submissions. Particular parts of these reasons will be redacted upon publication. While according to Aboriginal cultural and customary concerns, the names of recently deceased persons should not generally be used, the parties have agreed that in the context of detailed written reasons for judgment, it is appropriate to identify the witnesses. Persons reading these reasons should be warned that they contain the names of recently deceased persons.
17 As a general note, a number of Aboriginal words or names in this proceeding appear to have multiple acceptable spellings. For example, the State generally refers to ‘Mikurrunya’ and the Ngarla refer to ‘Mikurrnya’ when referring to the same site. Additionally, the parties have used spellings in submissions when referring to evidence that is not identical to the spelling used in the evidence. Therefore, in these reasons, I have generally adopted one spelling of a word for consistency and where a word or name in submissions differs from the evidence, I had adopted the spelling used in submissions.
18 There is a degree of repetition of evidence in these reasons. This is because some evidence relates to different submissions and matters relied upon by the parties. The evidence will be considered in each context.
19 The Overlap Area, as constituted by the Order made on 1 November 2007, generally consists of those land and waters within land claimed by the Ngarla which are also the subject of the Warrarn claim. Schedule 1 to that Order describes the Overlap Area as follows:
The Ngarla Overlap proceeding comprises all of the land and waters bounded by the following description:
Land and waters within applications WAD 6185 of 1998 and WAD 0077 of 2005 which are also the subject of WAD 0082 of 1998, being:
All those lands and waters commencing at a point on a western boundary of pastoral lease 3114/1281 (Strelley) at Latitude 20.448278 South, Longitude 118.871155 East, and extending generally northerly, generally easterly and generally southerly along boundaries of that pastoral lease to a point on an eastern boundary at Latitude 20.499104 South, Longitude 119.184376 East. Thence generally westerly passing through the following co-ordinate positions:
| LATITUDE (SOUTH) | LONGITUDE (EAST) |
| 20.420334 | 118.972580 |
| 20.442694 | 118.964722 |
| 20.441334 | 118.887665 |
Thence south westerly back to the commencement point.
Exclusion – Excludes any land and waters covered by Reserve 38564 that fall within the external boundary.
20 The parties agree that a number of areas have been excluded from the Ngarla and Warrarn native title claims being land and waters where previous exclusive possession acts have occurred (and where native title has been wholly extinguished). As listed in the Summary of Issues, these agreed areas are as follows:
1. Special Lease 3116/3449 granted pursuant to section 116 of the Land Act 1933 (WA) and the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) for the special purpose of the construction upgrading re-alignment operation and use of a railway on 26 April 1966 [subsequently the subject of Special Lease 3116/6235; currently the subject of Lease GE J/998591].
2. Special Lease 3116/4543 granted pursuant to section 116 of the Land Act 1933 (WA) for the special purpose of mining operations (railway re-alignment) on 8 April 1971 [subsequently the subject of Special Lease 3116/5872; currently the subject of Lease GE J/998590].
3. Road No. 432 (with a width of 20.12 metres), known as the Condon and Roebourne Road, dedicated pursuant to the Roads Act 1888 (WA), gazetted on 22 June 1894, p587.
4. Road No. 6441 (with a width of 20.12 metres) set aside, taken or resumed under section 17 of the Public Works Act 1902 (WA), gazetted on 29 April 1921, p699.
5. Road No. 14821 (with a width of 125.29 metres) dedicated pursuant to section 288 of the Local Government Act 1960 (WA), gazetted on 17 November 1972, p4383.
6. Roads No. 107/106 (with a width of 20.12 metres) dedicated pursuant to section 106 of the Land Act 1933 (WA), gazetted on 1 November 1968, p3267; and
7. Any public work as that expression is defined in the NTA and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (including the land and waters on which a public work is constructed, established or situated as described in section 251 of the NTA) and to which section 12J of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) or s 23C(2) of the NTA applies.
21 It is also agreed by the parties that no public works exist in the area of Mikurrunya Hills sites registered with the Department of Indigenous Affairs (DIA Site ID 9904, Site No. P02286) insofar as the registered site boundary is north of the Great Northern Highway.
22 The Ngarla claim is for communal rights and interests and is made on behalf of the community being:
The cognatic descendants of persons recognised under the traditional laws and customs to be members of the Ngarla language group (including persons who have been adopted into the group according to those laws and customs), in particular the descendants of the following individuals:
a. Paparumarra (Alec);
b. Miriny-Mirinymarra (Horse-boy Jimmy;)
c. Yintilypirna (Shaw River Smiler);
d. Jarnpa (the father of Warrjirungu);
e. Wangkunuru (Cissie);
f. Makanykarra (Willy);
g. Jurrayingki (Frank);
h. Kurlijirri (De Grey Smiler); and
i. Yilpiwarna (Arthur Kitil); and
Persons who have been adopted or otherwise incorporated into the Ngarla group under traditional laws and customs, specifically: Wiparu (Stephen Stewart) and his children, Stephen Stewart Jnr and Margaret Stewart.
The rights and interests claimed
23 Leaving aside any question of extinguishment, the rights and interests claimed by the Ngarla confer possession, occupation, use and enjoyment of the Overlap Area to the exclusion of all others. The rights and interests claimed are:
(1) The right to possess, occupy, use and enjoy the Overlap Area.
(2) The right to make decisions about the use and enjoyment of the Overlap Area by others.
(3) The right to control the access of others to the Overlap Area.
(4) The right to control the taking, use and enjoyment by others of the resources of the Overlap Area.
24 If the Ngarla do not now have exclusive possession, in the alternative to [23] above, again leaving aside any question of extinguishment, the Ngarla claim particular exclusive and non-exclusive rights and interests as follows:
(1) Non-exclusive rights to:
(a) Access, and to camp on, the Overlap Area.
(b) Take flora, fauna, fish, water and other traditional resources (excluding minerals) from the Overlap Area.
(c) Engage in ritual and ceremony on the Overlap Area.
(d) Care for, maintain and protect from physical harm, particular sites and areas of significance to the Ngarla on the Overlap Area.
(e) Be accompanied on to the Overlap Area by those people who, though not native title holders and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Overlap Area, are:
(i) spouses of Ngarla;
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Overlap Area
(2) Exclusive rights to:
(a) Prevent Aboriginal people who are not Ngarla from:
(i) opening Law or other ceremonial grounds in the Overlap Area; or
(ii) accessing Law or other ceremonial grounds in the Overlap Area contrary to traditional law and custom.
(b) Prevent Aboriginal people who are not Ngarla from gathering resources from the Overlap Area for use in ceremonies or cultural activities.
(c) Control access by others to the land and waters comprising the Mikurrnya site.
25 Insofar as s 47A of the NTA does not apply and native title has been partially extinguished, the Ngarla claim the non-exclusive rights listed in [24](1) above.
26 It is an agreed fact, and has been established on the evidence, that a society at sovereignty and today exists over the Overlap Area which includes the Ngarla people. The parties agree that the Ngarla people have since sovereignty been an identifiable community, which has:
continued to acknowledge and observe traditional laws and customs, including in relation to the Overlap Area; and
by those traditional laws and customs, maintained a connection to the Overlap Area from sovereignty to the present.
27 The existence of native title held by the Ngarla people is not in dispute, except as to:
whether the Ngarla people have exclusive possession, or exclusive rights, in respect of the Overlap Area or whether they have some or all of the particular exclusive rights claimed by the Ngarla people. The State disputes that the Ngarla have a right to exclusive possession, and further contends that the particular exclusive rights listed in [23](1) to (4) and [24](2) above are not separate rights, submitting that a right of exclusive possession is not divisible into separate particular rights.
Whether, as the Ngarla contend, their native title rights and interests also include an additional, non-exclusive right, being the right to be accompanied by certain people on the Overlap Area. This is contested by the State, which submits that the right to be accompanied onto the Overlap Area is a right of exclusive possession.
Whether the Ngarla native title rights and interests, are subject to the asserted ‘intramural allocation of rights as between the Ngarla people and the [Warrarn]’, which qualifies the Warrarn’s acceptance of the Ngarla claims.
28 The Ngarla and the State agree that the society which existed at sovereignty in the Overlap Area, and has continued to exist to the present, is a Ngarla society, the members of which are the Ngarla claim group. As is discussed below, the Warrarn contend either that the Warrarn have been allocated rights by, or have been incorporated into, the Ngarla society or, in the alternative, that the society which existed at sovereignty was a broader Pilbara society.
The Warrarn native title claim
The claim group and individual claimants
29 The Warrarn claim is, first, for group rights and interests. As stated in the Summary of Issues the Warrarn description of the group or class of persons seeking native title rights and interest is all those persons who satisfy each of the following criteria (Warrarn Group):
(1) Participated in and/or have been initiated into the Law at Strelley and/or Kajarinya
(2) Have a long term physical association with the Overlap Area.
(3) Either or both:
(a) Possess religious and geographic knowledge of the Overlap Area;
(b) Have their spiritual essence derived from places in the Overlap Area in accordance with traditional law and custom.
(4) Do not have a descent based connection to the Ngarla or Njamal Language Groups
(5) Are recognized as leaders in the Law practiced (sic) in the area which includes the Overlap Area by other Aboriginal persons including those who have descent based connections to the Overlap Area
30 In their final written submissions, the Warrarn amended these membership criteria for the Warrarn Group. The nature of the modification was to remove the additional or alternative reference to Kajarinya in (1) and to amend (4) to make the subject of the connection the “Overlap Area”, rather than the relevant language groups. The parties agreed that any change to the Summary of Issues required leave of the Court. The Warrarn have not sought leave. However, I will consider the evidence and submissions in their totality and, if this proposed modification is relevant to a conclusion, I will discuss it.
31 In the alternative to the claim for group or class rights and interests, the Warrarn seek the recognition of individual native title rights and interests on behalf of the following individuals: Monty Hale, Kevin Fred, Gladys Jack, Bruce Thomas, Polly Jack, Topsy Yarbala (Bamba), Kathleen Thomas, Selena Brown, Elsie Ginger, May Chapman, Mary Rowlands, Nancy Judamia and Elizabeth Bunwarrie (Warrarn Named Individuals).
The rights and interests claimed
32 The rights and interests claimed by the Warrarn are the ‘rights and interests held by the native title holding group including the Ngarla albeit that the particular rights and interests held by the [Warrarn] as allocated by the Ngarla are’:
(1) The right to carry out the obligations:
(a) To establish or open and maintain and protect law grounds within the Overlap Area.
(b) To look after sites of importance and cultural significance in accordance with the traditional laws acknowledged and traditional customs observed in the Overlap Area, including the men’s restricted site at Tabba Tabba Creek, the Minyiburu site, the Mikurrunya site and the men’s restricted Yaya site.
(c) To conduct ceremonies and rituals within and in the Overlap Area.
(d) To teach children and kin and initiate them into the Law associated with places within the Overlap Area.
(2) In order to carry out the obligations set out in subparagraphs [(1)(a)] to [(1)(d)] above, the rights to:
(a) Reside with their families and kin in the Overlap Area.
(b) Hunt, collect and prepare foods and obtain and use resources (including water and ochre, but not including gas, petroleum or minerals) with their families and kin in and about the Overlap Area for residential purposes and for carrying out the obligations set out in subparagraphs [(1)(a)] to [(1)(d)] above.
(c) Create, collect, store, keep safe and preserve objects used in ritual and ceremony and create shrines to ancestral beings within the Overlap Area.
(d) Participate with their families and kin in ceremonies and rituals within the Overlap Area.
(e) Participate, with the native title holders with descent based connections and other leaders in the Law, in decisions about the use, enjoyment and management of the land and waters of the Overlap Area.
The current basis of the Warrarn claim
33 The Warrarn claim that the laws and customs of the normative society at sovereignty and presently existing allow the Ngarla people to allocate rights to the Warrarn. The Warrarn claim that they hold native title rights in relation to the Overlap Area by virtue of holding an interest which is analogous to a licence or standing permission afforded to the Warrarn by the Ngarla under traditional laws and customs of the relevant society in the Overlap Area. The Warrarn contend that by virtue of the licence or permission, the relevant society includes the Warrarn and that the communal native title rights include rights and interests exercisable by them.
34 The Warrarn contend that it is not necessary for the Court to determine the relevant society in the Overlap Area at the time of sovereignty. Whether this society is the Ngarla or a broader society, the Warrarn claim that they have been allocated rights and interests pursuant to a licence or permission granted under the traditional laws and customs of that society. However, if the Court concludes that the relevant society was the Ngarla society, the Warrarn contend that the rights and interests claimed by them are afforded to them within a normative society that comprises the Ngarla people. If, however, the Court is not able to reach this conclusion, because the Warrarn are not part of the normative society to which the Ngarla belong, then the Warrarn contend in the alternative that the relevant normative society is a broader society that extends beyond the Ngarla or, in the alternative, is a society that encompasses the Warrarn.
35 It is not in dispute between the parties that some form of permission has been granted by the Ngarla to the Warrarn in the past and that some form of permission persists at present in relation to at least some of the Warrarn in relation to the Overlap Area. However, the nature and extent of the permissions are in dispute. In particular, the State disputes that whatever occurred should be characterised as “permission” and both the Ngarla and the State dispute that the Warrarn have native title rights and interests in the Overlap Area, including by virtue of a licence or standing permission.
36 Even if a right which arises by reason of permission or a licence given to the Warrarn could give rise to native title rights and interests, the Ngarla and the State point out that such a licence or permission had not been granted from sovereignty so that, in any event, the Warrarn are not part of the relevant society that held native title in the Overlap Area at sovereignty. Further, or alternatively, the State and the Ngarla contend that any licence or permission given by the Ngarla does not give rise to the particular native title rights and interests claimed by the Warrarn.
37 Therefore, the Warrarn’s case rests on the following primary contentions which the Ngarla and the State dispute:
The Warrarn have a licence or permission pursuant to the traditional laws and customs of the relevant normative society in the Overlap Area that gives rise to native title rights or interests.
By reason of this licence or permission, which was granted by the society that was the relevant society at sovereignty, the Warrarn have acquired native title rights that date back to sovereignty.
In the alternative, the normative society by which the Warrarn derive native title under the traditional laws and customs is a “broader society” which is not limited to the Ngarla and, in the alternative, includes the Warrarn.
38 The question of permission given by the Ngarla to the Warrarn has been treated on the basis that, under traditional law and custom, it was necessary for the Warrarn to have the permission of the Ngarla, as the land owners, to carry out the claimed activities. The State maintains the position that a need for permission imports the concept of exclusive possession, which they deny exists. The State refers instead to acknowledgment. It is necessary to consider this aspect of the case on the basis as argued, that is, whether or not the relevant permissions had be given, on the assumption that it was required. The question then arises, which is considered later in these reasons, whether the Ngarla have exclusive possession of the Overlap Area and permissions are then discussed in that context.
The changing basis of the Warrarn claim
39 The basis of the Warrarn claim has changed a number of times during the course of the proceeding. This has made the Warrarn claim somewhat confusing and difficult to deal with. However, as the Full Court in De Rose v South Australia (2003) 133 FCR 325 (De Rose (No 1)) noted:
In evaluating the competing arguments, it is necessary to appreciate the way in which the appellants ultimately put their case. There may well have been some variations in their approach during the trial and even on the appeal but, as the joint judgment in [Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422] (HC) pointed out (at [30]), shifts in emphasis in native title claims are not unusual and, when the issues are novel, are perhaps to be expected.
40 The Warrarn previously (in their Form 1), appeared to base their claim on an alleged transfer of native title rights by the Njamal people to the Warrarn in 1956 at Kajarinya Law Ground. The Form 1 said that in 1956, the Njamal people transferred their rights and responsibilities with respect to traditional laws and customs of the claim area to the Warrarn Group and that native title in the claim area was passed to the Warrarn Group. Affidavits of Warrarn witnesses referred to a transfer of Law and land. However, during the hearing, counsel for the Warrarn said that the characterisation of the Warrarn claim as a clear transfer of right is an ‘ex post facto interpretation of what occurred. … it’s become a sort of a folklore issue for that group, that something happened there’. Rather, the Warrarn then said that the Court should look at the events subsequent to 1956 and conclude that whatever happened there, and however precise one can render that transaction, it seems to have had the result that a number of senior people in the Warrarn Group continued to practise the Law. What resulted from these events, the Warrarn now say, was not that there was a transfer of land or Law, but that that the Warrarn were added to the leaders of the Law. As leaders of the Law, the Warrarn contend, they have a standing licence in respect of the Overlap Area for particular claimed rights and interests.
41 The Warrarn Form 1 relied upon the Njamal people, rather than the Ngarla, for the allocation of Warrarn native title rights and interests. The Form 1 claimed that the rights and interests had been passed from the Njamal people, and that the Warrarn are ‘successors, in accordance with Nyamal traditional laws and customs, to the original Aboriginal owners of the land’.
42 At one stage, it appeared that the Warrarn contended that the Overlap Area fell within a Njamal ‘corridor to the sea’ and was traditionally part of Njamal country. The Warrarn also at one stage denied that the Ngarla were the relevant normative society in the Overlap Area. Since that time, the Warrarn no longer contend that the Overlap Area is traditionally Njamal country and have since accepted that the Ngarla people constitute a relevant normative society, relying on the Ngarla for the “permissions”, rather than the Njamal people.
43 In an earlier statement of contentions the Warrarn introduced the “broader society” argument. The descriptions of the members of and the geographical extent of this “broader society” have changed at various times during the proceeding. The “broader society” argument is raised in the alternative.
44 In the August 2010 Parties’ Substituted Agreed Statement of Issues, the Warrarn relied on an additional transfer of rights and responsibilities in 1980 at Warralong. In that document, the Warrarn claimed that they had been incorporated into the group that holds native title rights in interests as a result of the 1956 ceremony at Kajarinya, the opening of Strelley Law ground in 1972, the 1980 Warralong ceremony, their activities in relation to the Overlap Area and the Law and acceptance of those activities by the Ngarla and Njamal. The Warrarn later changed their incorporation claim to one of incorporation by reason of licence or permission granted under traditional laws and customs.
45 At one stage, the Warrarn raised an argument based on equitable estoppel. This was to the effect that the Ngarla are estopped from denying the Warrarn their claimed rights, as the Warrarn would suffer detriment if the Ngarla were to act contrary to the Warrarn’s expectation. However, in closing submissions the Warrarn said that they did not proceed with this basis of their claim, because in the present circumstances, they did not need to, as ‘at the present time, what we have is on the evidence apparently a continuing permission’ pursuant to the Ngarla native title that runs parallel to the pastoral lease. There is no current threat from the Ngarla to stop the Warrarn continuing in occupation. The Warrarn final written submissions and the Summary of Issues do not encompass such an argument. It has been discontinued and I will not deal with it further.
46 The Warrarn Group criteria include the criterion that the persons are recognised as being leaders in the Law practised in the area which includes the Overlap Area. The Warrarn say that the rights to reside and carry out activities in the Overlap Area flow from the obligations attendant on the role of a leader under traditional laws and customs acknowledged and observed by the Warrarn and Ngarla. Earlier in the proceeding, the Warrarn filed a Statement of Contentions in relation to the Determination to be made under section 225 of the Native Title Act (filed 30 April 2010). This document sought a determination of native title in favour of a core group of people identified as leaders in the Law, including two persons, Lindsay Hardcase and Bill Williams, who specifically deny that they are part of the Warrarn claim. However, these persons were not referred to as part of the claim group in the Summary of Issues or the final Warrarn Submissions.
47 Following the giving of primary evidence, the Warrarn filed a document that outlined the basis upon which it was contended that the Warrarn Leaders Group constitutes a group or individuals that hold native title, including a draft Form 1. The submissions in that document are similar to the final submissions and the final oral submissions were conducted partly on the basis of that Form 1. However, following the agreement reached as to the Summary of Issues, the Form 1 was not considered as filed.
48 Additionally, the Warrarn have changed the description of the individuals and the claim group on a number of occasions during the course of the proceeding (see below at [644]).
49 Due to the changing nature of the Warrarn claim, I have assumed that the Warrarn claim is based upon the characterisation of that claim that has been put forward in the Warrarn final submissions and, in particular, in the Statement of Issues.
50 The Overlap Area is located in the northwest Pilbara region of Western Australia. The Pilbara comprises a number of language groups. Generally to the west of the Ngarla are the Kariera (or Kariyarra) people, to the south are the Njamal (or Nyamal) and to the east are the Nyangumarta (or Njangomada or Nyangamarta). The socio-linguistic groups in the Pilbara are often divided in the anthropological literature into “riverline” “river” or “coastal” people and “desert” people. The “riverline” peoples include the Ngarla and Njamal and the “desert” peoples include the Nyangumarta, Mangala, Wanman (or Warnman) and Manjildjara. Some Nyangumarta people are “coastal”. Importantly for these reasons:
The Ngarla group takes its name from the Ngarla language. Alternative spellings of Ngarla include Ngerla, Nala, Njarla, Ngala and Ngurla. The Ngarla claimants are Ngarla wanparta, meaning Aboriginal people who identify themselves as, and are identified by neighbouring Aboriginal people in the Pilbara as, Ngarla. The Ngarla use indicators, including geographical indicators, to explain how they are similar to and distinct from other Pilbara Aboriginal groups, including ngaru kartikapu, meaning ‘from the coast side’ or ‘we are a sea people’.
The Warrarn Group are substantially descended from Aboriginal persons who are associated with other language groups in the surrounding region. The Warrarn are associated with the ‘Nomads’ group who have been resident in the claim area for approximately 60 years. The individuals in the Warrarn claimant group are mostly from “desert” language groups, including Mangala, Nyangumarta and Wanman. The Warrarn or their immediate ancestors moved from their traditional country and took up residence on or around Strelley, Lalla Rookh, or Coongan/Warralong Stations which they purchased during the 20th Century.
Aboriginal witnesses in this proceeding commonly identified themselves by reference to language groups, including Ngarla and Njamal.
51 It became apparent during the course of the evidence that the Warrarn are not a separate language group and that the word “Warrarn” means “country” in the Nyangumarta language. There are only 13 individuals presently identified as members of the Warrarn Group in the Warrarn claim for individual rights and interests. Although the terms “Warrarn” and “Nomads” have sometimes been used interchangeably in this proceeding, there is difficulty in equating the Warrarn with the Nomads. That is, not all members of the Nomads group are leaders in the Law, one of the group membership criteria for the Warrarn. However, all of the Warrarn are members of the Nomads group.
52 The Parties’ Agreed Statement of Facts are in Annexure A to these reasons (Agreed Facts). By way of a brief summary:
Sovereignty was asserted by the British Crown in respect of Western Australia on 2 May 1829. European contact with the Pilbara pre-dates the assertion of sovereignty.
The period between 1850 and 1870 saw considerable development and expansion and the rise of a valuable pearling industry. Following the expedition of Francis Thomas Gregory in 1861, pastoral leases in the area increased.
The Aboriginal populations in the Pilbara significantly declined in the period between 1865 and 1911. Disease and conflict with European settlers were significant factors. By the late nineteenth century, the numbers of Ngarla people had significantly diminished.
In the early to mid twentieth century, Aboriginal people began migrating to the Pilbara region from the Western Desert. Initially, the desert migrants would periodically return to their traditional territory, often during the summer break period given to pastoral station workers. However, as station settlements became permanent and were viewed as “home” by the new migrants, desert people often stopped returning to their traditional territory.
The pastoral industry, pearling industry and mining industry relied heavily upon Aboriginal labour.
In the 1940s, there were a number of Aboriginal pastoral workers’ strikes. One of the catalysts was the differential treatment in respect of pay and conditions experienced by Aboriginal pastoral workers. These strikes were organised with the assistance of a non-Aboriginal man, Don William McLeod. Aboriginal people who had migrated to the pastoral stations during the 20th century and the local Aboriginal people, including the Ngarla and Njamal people, began campaigning for better wages and conditions on the pastoral stations.
Many of the Aboriginal People involved in these strikes chose not to return to pastoral stations when the strike was over, opting instead to remain in self-managed co-operative ventures established during the strike movement and to seek employment outside the pastoral industry, including kangaroo shooting and mining.
In 1948, with the assistance of Don McLeod, a company, Northern Development and Mining Company Pty Ltd (NDM), was formed to conduct the strike group’s business and mining operations at various locations in the Pilbara. NDM was ultimately liquidated, and the Department of Native Affairs set up the Pilbara Natives Society. Mr McLeod was asked by the remnants of the strike group to return and formed a new company, Pindin, which was set up in 1955.
However, in 1959, a “split” formed within the Pindin group between Mr McLeod and his largely Desert Aboriginal followers and Peter Coppin and Ernie Mitchell (Njamal men) and their largely riverline/coastal Aboriginal followers. The McLeod faction purchased and moved to Strelley Station, later acquiring the Coongan/Warralong Station.
Special Lease 3116/9217 (the Special Lease) was granted to the Strelley Housing Society Incorporated (Strelley Housing) for the special purpose of housing, agriculture and grazing. It was registered on 21 May 1986 and was granted for a term of 50 years commencing on 1 April 1985. In August 1994, the purpose for which the leased land was to be used was changed to residential.
Pastoral Lease 3114/1281 (the Pastoral Lease) was issued to the Strelley Pastoral Company on 31 January 1994 and registered on 11 July 1994. It has a term commencing on 31 January 1994 and expiring on 30 June 2015. At all times since 31 January 1994, the Strelley Pastoral Company has been the lessee of Pastoral Lease 3114/1281.
53 The sites in the Overlap Area to which evidence was particularly directed are at Strelley Station, Strelley Law ground, Kajarinya, Warralong, Tabba Tabba Creek and Mikurrunya.
54 Strelley Station was established in approximately 1904. The transfer to Strelley Pastoral Company was registered in 1975. Members of the Warrarn native title group have been residing in, and working on, Strelley Station from approximately 1972, after their original offer to purchase was made. Strelley Station is on both Ngarla and Njamal territory and part of Strelley Station is within the Overlap Area.
55 Strelley Law ground, located within Strelley Station, was opened in 1973 and was closed some time between 1978 and 1980. It is within both Ngarla and Njamal territory and the main person to open the ground was Peter Coppin, a Njamal elder. It seems that the permission of both Ngarla and Njamal was sought to open the Strelley Law ground. The State and the Ngarla say that the Strelley Law ground is outside the Overlap Area. The Warrarn say that whether Strelley Law ground is in Ngarla or Njamal country remains ambiguous on the evidence.
56 Kajarinya (also known as Kajarrinya) was established in the early 1950s with the knowledge of the Ngarla people and operated as a Law ground for a short period in the 1950s during the pastoral strikes. Law ceremonies at Kajarinya were conducted with the permission of the Ngarla. Kajarinya is located on Tabba Tabba Creek and is outside the Overlap Area. Evidence about the opening of Kajarinya is men’s restricted evidence. The State disputes that what occurred at the establishment of this Law ground constituted “permission”.
57 Warralong Station was also purchased by Strelley Pastoral Company in the 1970s. The Warralong Law ground had been a Law ground before the strikes. It was re-opened after the purchase of Warralong Station by Strelley Pastoral Company by Peter Coppin, a Njamal elder. It is in Njamal country and is outside the Overlap Area.
58 There is a site known as Mikurrunya (also Mikurr, Mikurunya and Mikurrnya). Both Warrarn and Ngarla witnesses gave evidence about the significance of this place. It is referred to as ‘the place of jealousy’ by Bruce Thomas and Elizabeth Bunwarrie (Warrarn) and as ‘the three sisters’ by Charlie Coppin (Ngarla) and Joe Taylor (Njamal). The Ngarla and the State say that the Warrarn and Ngarla have different stories and understanding which apply to this site.
59 Within the Overlap Area, the Warrarn contend that there are sites of importance and cultural significance, including a men’s restricted site at Tabba Tabba Creek and a ******** ground nearby, a men’s restricted Yaya site and a Minyiburu site. The Warrarn submit that the trees along the bed of Tabba Tabba Creek are a source of ritual objects. The Ngarla and the State submit that these sites are not recognised under Ngarla traditional law and custom as traditional sites.
60 Evidence was given by the following people. The following short description of each person is drawn from the description given by the parties, the transcript and from the witnesses’ affidavits.
61 The Ngarla adduced evidence from the following Ngarla people:
Alexander (Sandy) Brown (Nyapiri): Mr Brown was a very senior Ngarla man who had extensive knowledge of Ngarla laws and customs. Mr Brown was born on the De Grey Station in Ngarla country. Mr Brown gave extensive evidence at the hearing but is now deceased.
Charlie Coppin (Kurtiri): Mr Coppin is a very senior Ngarla man who is knowledgeable about Ngarla country and law and custom. He is very highly regarded throughout the Pilbara as a senior Law man. Mr Coppin has particular rights and responsibilities in relation to the Overlap Area. Mr Coppin was born, and grew up, on De Grey Station.
Stephen Stewart (Wiparu): Mr Stewart is an incorporated member of the Ngarla community. He is highly regarded throughout the Pilbara as a senior Law man. Mr Stewart’s mother was a Nyangumarta woman and his father was Karajarri. He was raised by a Ngarla woman, Jarnpa, mother to Mr Brown. Mr Stewart is also known as “Number Two”, as he was second in charge under Peter Coppin.
Nancy Wilson (Pinayi): Ms Wilson is a senior Ngarla woman and is the sister of Charlie Coppin. Ms Wilson’s father was a Ngarla man and her mother was a Njamal woman.
Nora Cooke: Ms Cooke is a respected Ngarla woman. She was born in Port Hedland and grew up mainly on De Grey Station. Ms Cooke’s father was a Ngarla man and her mother was a Njamal woman.
Joe Coppin: Mr Joe Coppin’s father is Charlie Coppin (Ngarla) and his mother was a Nyangumarta woman. Mr Joe Coppin grew up mainly around Yandeyarra (also known as Yandiyarra or Yandeeyarra). Mr Coppin was taught about Ngarla law and culture by his father and brother.
Kevin Draper (also known as Kevin Stewart): Mr Draper has a genealogical connection to the Pilu estate or run in the Overlap Area and his father and grandfather spoke for that estate. Mr Draper’s mother is Kariyarra and his father is Ngarla.
62 The Ngarla also adduced evidence from the following non-Ngarla witnesses:
Joe Taylor, a senior Njamal man: Mr Taylor’s family are the traditional owners of the land around Warrawagine Station in Njamal country. Mr Taylor was born on Warrawagine Station and went through the Law at 12 mile.
Doris Eaton, a senior Njamal woman: Ms Eaton is the daughter of Ernie Mitchell, who taught her about Njamal country. Ms Eaton is one of the Business Girls, the senior law women with responsibility for the conduct of women’s duties during Law time.
Lindsay Hardcase: Mr Hardcase is a Manyjilyjarra man. Mr Hardcase was put through the Law at Strelley Law ground. Mr Hardcase is a leader in the Law and is part of the group of leaders that run the Law at Warralong. Mr Hardcase was at one stage said by the Warrarn to be a leader in the Law and person for whose benefit the Warrarn claim is brought. However, Mr Hardcase does not claim native title in the Overlap Area. Mr Hardcase says that he is a Martu native title holder.
Peter Toby, a Martu man: Mr Toby is the uncle of Lindsay Hardcase. Mr Toby went through the Law at the Strelley and Warralong Law grounds. Mr Toby says that he is not part of the Warrarn claim, but is a Martu native title holder.
Bill Williams: Mr Williams is a Martu man and is one of the senior men that can do Law at Warralong. Mr Williams was at one stage said by the Warrarn to be a leader in the Law and person for whose benefit the Warrarn claim is brought. Mr Williams says that he is not part of the Warrarn claim, but is a Martu native title holder.
Evelyn Mitchell, a Martu woman: Ms Mitchell’s father was Njamal and her mother is Martu. Ms Mitchell is one of the Business Girls.
Teddy Allen (Mapayi), a Njamal elder and lawman: Mr Allen was born at De Grey Station in Ngarla country, where he also went through Ngarla law. Mr Allen is now deceased.
Peter Coppin (now deceased): Mr Coppin was a Njamal elder and said that he was responsible for the land covered by the Warrarn claim, due to his knowledge of the area and historical connection to the area.
Winnie Coppin, a Nyangumarta woman: Ms Coppin is one of the Business Girls. She is the widow of Peter Coppin.
Lucy Mitchell, a Nyangumarta woman: Lucy Mitchell was the wife of Ernie Mitchell and is the mother of Doris Eaton. She was a Business Girl and part of the Martu native title claim. Ms Mitchell is now deceased.
63 The Warrarn adduced evidence from the following witnesses:
Biddie (or Biddy) Bunwarrie, a Nyangumarta woman: Ms Bunwarrie grew up at Anna Plains Station and moved to Strelley Station in 1970. Ms Bunwarrie now lives in Warralong. She is one of the Business Girls.
Elizabeth Bunwarrie, a Nyangumarta woman: Ms Elizabeth Bunwarrie grew up around the Marble Bar to Port Hedland area and in the Nine Mile community before moving to Strelley Station in 1970. Ms Bunwarrie now lives in Warralong. Ms Elizabeth Bunwarrie is a Warrarn Named Individual. She considers herself a Business Girl, however, Winnie Coppin does not think that Ms Bunwarrie is a “Business Girl”.
Kevin Fred: Mr Fred was born at Marble Bar and grew up with the Nomads group. Mr Fred went through the Law at Strelley Law ground. He is part of the group of leaders that run the Law at Warralong. Mr Fred is a Warrarn Named Individual.
Maggie Ginger was a Nyangumarta woman. Ms Ginger gave evidence at the hearing but is now deceased. Ms Ginger was the mother of Bruce Thomas and was one of the Business Girls.
Monty Hale: Mr Hale is a leader in the Law and is part of the group of leaders that run the Law at Warralong. Mr Hale went through the Law at Kajarinya in 1955. He was born on Warrawagine Station and moved to Strelley after 1972. Mr Hale is a Warrarn Named Individual.
Bruce Thomas: Mr Thomas is a leader in the Law and is part of the group of leaders that run the Law at Warralong. Mr Thomas was born at Marble Bar and stayed at Strelley after he was married. He went through the Law at Strelley Law ground in 1973 or 1974. Mr Thomas is a Warrarn Named Individual.
Crow Yougarla: Mr Yougarla is of Nyangumarta identification and is an elder of the Warrarn. Mr Yougarla grew up in the desert and later moved to the Oakover River and the De Grey River Stations.
Nancy Judamia: Nancy Judamia was Snowy Judamia’s husband. Ms Judamia is one of the Business Girls.
John Bucknall: Mr Bucknall was the Principal at Strelley School from 1976 to 1985, after which time he carried out contract work and worked as a consultant for Strelley School. From 2009, he has been researching and writing a history Aboriginal Independent Schools and a biography of Jacob Oberdoo, a senior leader of the Nomads group. Mr Bucknall is married to Gwenda Bucknall.
Gwenda Bucknall: Ms Bucknall worked as a consultant for Strelley School and was the Principal in 1989. Since 1976, she has compiled notes on genealogies of the Warrarn with the members of that group.
64 The following experts gave evidence:
The Ngarla called evidence from Dr Nicholas Smith, who is a lecturer in Anthropology and Sociology Discipline Group, School of Social and Cultural Studies, University of Western Australia. Dr Smith has a PhD in anthropology from La Trobe University. Dr Smith wrote three anthropological reports in this proceeding and a witness statement.
The Warrarn called evidence from Mr Rory O’Connor. Mr O’Connor conducts an anthropological consultancy and has a BA (Hons First Class) in anthropology from the University of Western Australia. Mr O’Connor wrote three anthropological reports and a witness statement in this proceeding.
The Warrarn also called evidence from Dr Ron Brunton, an anthropologist who is an Honorary Research Fellow, School of Social Science at the University of Queensland. Dr Brunton has a PhD in anthropology from La Trobe University. Dr Brunton wrote one anthropological report in this proceeding.
The State called evidence from Mr Michael Robinson, who is an anthropological consultant. Mr Robinson has a Masters of Arts (Anthropology) from the University of Western Australia. Mr Robinson wrote two anthropological reports in this proceeding.
65 I note that there was no challenge to the expertise of any of these expert anthropologists.
Other persons of importance: Ernie Mitchell, Coombie and Peter Coppin
66 There are a number of persons, now deceased, whose language group identity is important in this proceeding. These are Ernie Mitchell, Coombie and Peter Coppin, all of whom were senior Law men. There seems to be no dispute that Peter Coppin was a Njamal man. However, the Warrarn seem to submit that Ernie Mitchell and Coombie had mixed language identities, that is, that they were both Njamal and Ngarla.
67 The Warrarn say that according to Dr Brunton, Coombie and Ernie Mitchell may have had mixed-language identities. Dr Brunton refers to the evidence of Charlie Coppin, who states that Coombie and Pilu were brothers and that Ernie Mitchell was their cousin. Dr Brunton says that both Coombie and Ernie Mitchell have both Ngarla and Njamal ancestry. Dr Brunton says that the statement from Charlie Coppin indicates that Coombie was Ngarla.
68 However, Dr Brunton accepts that Charlie Coppin, Joe Coppin, Stephen Stewart and Joe Taylor say that Ernie Mitchell chose to follow Njamal: ‘Ernie Mitchell could have been Ngarla but he chose to go Njamal’. Dr Brunton also refers to evidence from Doris Eaton, Ernie Mitchell’s daughter, which suggests that both Ernie Michell’s parents were Njamal. Dr Smith says that he believes that Coombie and Ernie Mitchell both identified as, and were identified by others, as Njamal.
69 The evidence of Dr Brunton to which the Warrarn refer is directed to evidence that Ernie Mitchell and Coombie may have had Ngarla ancestors and to discussing who may have had rights in the Overlap Area. However, the fact that Ernie Mitchell and Coombie may have had Ngarla ancestors does not mean that they did not identify as, or were not identified by others as, Njamal. The evidence is that a person with both Ngarla and Njamal ancestors could choose which way to go.
70 I am satisfied that Ernie Mitchell and Coombie were Njamal men. This is consistent with the Agreed Facts (at [115]) and the evidence of Aboriginal witnesses, both Warrarn and Ngarla. Monty Hale states that Ernie Mitchell and Coombie belonged to the Njamal language group. Charlie Coppin states that they are now Njamal, although they also speak the Ngarla language.
Part 3: Establishing native title rights and interests
71 “Native title” and “native title rights and interests” are defined in s 223(1) of the NTA, which provides:
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 and 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.
Relevant principles for establishing native title rights and interests
72 The general principles applicable to a determination of native title have been discussed in a number of cases, principally in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta) and the decisions that followed. Those principles, in summary form, as relevant to this proceeding and, in particular to incorporation and the establishment of native title rights and interests, are summarised below.
73 Prior to Yorta Yorta, in Western Australia v Ward (2002) 213 CLR 1 (Ward), Gleeson CJ, Gaudron, Gummow and Hayne JJ discussed the following relevant principles (at [64]):
The Court must, first, identify the content of the traditional laws and customs and then, secondly, the Court must characterise the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters in question. The inquiry into both may depend on the same evidence.
Whether there is a relevant connection depends upon the content of the traditional law and custom and upon what is meant by “connection” by those laws and customs. While evidence of recent use of land or waters may say something about a relevant connection, absence of evidence of some recent use does not mean that there can be no relevant connection. Gleeson CJ, Gaudron, Gummow and Hayne JJ did not express a final view on whether a purely “spiritual connection” with land would suffice.
74 The following observations, by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta, are of particular assistance:
Native title is not an institution of the common law or a form of common law tenure but it is recognised by the common law (citing Fejo v Northern Territory (1998) 195 CLR 96). It is important to identify the intersection between the common law and traditional laws and customs by reference to the definition of native title rights and interests in s 223(1) of the Act (at [30]–[31]).
The determination is of ‘a creature of’ the NTA, not the common law (at [32]).
Native title rights and interests must be “in relation to” land or waters (at [33]).
The rights and interests must have three characteristics (at [33]–[35]):
First, the rights and interests must be possessed under traditional laws acknowledged and the traditional customs observed by the relevant peoples, such that they must find their source in traditional law or custom, not the common law.
Secondly, the rights and interests asserted must have the characteristic that, by the traditional laws acknowledged and customs observed of the relevant peoples, those peoples have a “connection with” the land. That connection must have as its source traditional law and custom.
Thirdly, the rights and interests in relation to land must be “recognised” by the common law of Australia.
The rights and interests that survived the Crown’s acquisition of sovereignty were rights and interests in land that owed their origin to a normative system, that is to the traditional laws acknowledged and traditional customs observed by the indigenous peoples concerned (at [37]).
The body of norms or normative system must be one that existed before sovereignty (at [38]). The rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the traditional rights or interests are said to be possessed, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land (at [42]).
Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign (at [43]).
Upon sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests (at [43]).
Rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty continue to be effective where those native title rights continue to be recognised by the legal order of the new sovereign (at [44]).
Alterations to or developments of traditional law and custom, including significant adaptations, may be taken into account but, to be recognised, the developments must be of a kind contemplated by pre-sovereignty law and custom (at [44]).
Only the normative rules that existed pre-sovereignty are “traditional” law and custom for the purposes of “native title” under the NTA (at [46]). For the laws and customs to be presently described as “traditional”, acknowledgment and observance must have ‘continued substantially uninterrupted since sovereignty’ (at [87).
The reference to rights or interests in land being possessed under traditional laws and customs requires that the normative system under which the rights and interests are possessed is a system that has had a continuous existence since sovereignty (at [47]).
Laws and customs arise out of and go to define a particular society. “Society” is to be understood in this context as a ‘body of persons united in and by its acknowledgment and observance of a body of laws and customs’ (at [49]).
The rights and interests must be creatures of laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs (at [50]). When a society whose laws and customs existed at sovereignty ceases to exist, the rights and interests in the land to which these laws and customs gave rise, cease to exist (at [53]).
If the content of pre-sovereignty law and customs is later adopted by a new society, those laws and customs will then owe their new life to that other, later, society and are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. They are not rooted in pre-sovereignty traditional law and custom (at [53]).
The rule of recognition of a traditional law or custom is a rule of recognition found in the social structures of the relevant indigenous society as those structures existed at sovereignty (at [54]).
If new rights or interests were to arise, those new rights and interests must find their roots in the legal order of the new sovereign power (at [55]).
The object of the NTA is not to create some new species of right or interest but to provide for the recognition and protection of native title, which is to say those rights and interests finding their origin in traditional laws and custom (at [76]).
75 Gaudron and Kirby JJ observed (at [101]) that as a matter of ordinary language, the word “traditional” imports a necessity for continuity with the past. For laws and customs to be identified as traditional, they should have their origins in the past. To the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs or practices of the people who acknowledge and observe those laws and customs (at [114]).
76 Nicholson J in Daniel v Western Australia [2003] FCA 666 (Daniel) usefully summarised the key principles for the determination of native title at [130]–[141].
77 At [381] to [384], Nicholson J found that transmission of laws and customs from one group or person to another meant that the applicant could not claim continuity. Nicholson J observed that:
The reasoning in Yorta Yorta means that the transmittee society is a different society from the transmittor society. The transmittee society cannot establish their continuity from sovereignty under those laws and customs, as this would involve them impermissibly relying on another society. There must be continuity in the applicant group under the laws and customs. The applicant group cannot claim continuity back to a time when the laws and customs were not their laws and customs, as the laws and customs and the society which acknowledges and observes them are inextricably interlinked.
Even if laws and customs were transmitted, it could not be concluded that the quality of traditionality would have passed with the laws and customs. Rather, the laws and customs would have acquired a new life, deriving from their normative role in the new society (at [504]).
78 Of relevance to this proceeding, Nicholson J observed, in respect of group native title rights and interests:
To determine whether a community or group holds native title, it is not necessary to search for an anthropologically identified form of community or group. The Court is to examine the evidence to see who holds native title, and if so, whether they are communal, group or individual rights and interests. Anthropological theory and research may inform that, but cannot determine it (at [333]–[339]).
The definition of a “group” requires a number of people regarded as forming a unity or a whole on the grounds of some mutual or common relation or purpose (at [358]). Nicholson J found that a familial relationship was sufficient.
79 His Honour also relevantly observed, in respect of the “connection” requirement:
Connection is not to be established through the existence of what the anthropological evidence describes as estate groups. Rather, the finding of connection is to follow from the evidence, in particular lay evidence, relevant to connection without the intervention of other constructs (at [420]).
An enduring sense of connection falls within the description of a spiritual connection and can be taken into account along with evidence of continuing use and physical presence (at [422]).
There is a distinction between rights and interests on one hand, and duties and obligations which go with them on the other hand. The right to “care” and “maintain” is a duty or obligation that goes with the right to protect and care for sites and objects (at [299]).
In determining whether there has been continual observance of rights and interests as norms of a group, there is a distinction drawn in consideration of observable behaviours between social habits and social rules (at [430]).
80 Justice Nicholson found that even though the rights appeared in traditional form, connection could not be made out in respect of those rights, given the discontinuity in the claimant group (at [506]).
81 In Neowarra v Western Australia [2003] FCA 1402 (Neowarra), the following principles of relevance to this proceeding were discussed by Sundberg J:
It is not the laws and customs that must be in relation to land or waters, but the rights and interests in land or waters that are possessed under the laws and customs (at [229]).
It is not necessary for “connection” that there be any acknowledgment or acceptance by others of that connection with land or waters, nor that there be continued use of land or waters (at [347]).
Many of the claimants’ laws and customs had a physical connection with land or waters. Their observance by Aboriginal people gave them a connection with the land or waters (at [352]).
Native title rights and interests do not for their vitality require recognition by someone other than the person who asserts them. Nor is a system of enforcement necessary (at [365]).
A normative system that contains a custom, such as a requirement for permission, does not cease to embody that custom simple because some members of the society flout the rule (at [310]).
82 In De Rose (No 1), the Full Court considered the principles applicable to the establishment of native title at [162]–[177]. Relevantly to this proceeding, the Full Court also observed:
The claimants must show that under the traditional laws and customs of the society they possessed rights and interests in relation to the claim area. It is not enough to show that they had purported to acknowledge or observe the traditional laws or customs. If the claimants were “usurpers” of the claim area, who were not recognised under traditional laws and customs of the society as capable of possessing native title rights and interests, their claim could not succeed. This would be so even though they might have been genuinely attempting to act in conformity with the traditional laws and customs of the claim area (at [233]).
Unless Aboriginal people coming to the claim area could be recognised under the traditional laws and customs, they could not succeed in a native title claim founded on a status as Nguraritja (traditional owners) under those laws and customs. The traditional laws and customs must recognise “newcomers” or their descendants as traditional owners on the claim area (at [239]).
If the laws and customs recognised a person as Nguraritja of an area, notwithstanding a “failure” to observe responsibilities in relation to that land, that is a powerful indicator that the effect of the traditional laws and customs was to constitute a connection. On the other hand, if the laws and customs no longer recognised the person as land owner or regarded him (or her) as deprived of rights and responsibilities, that is a powerful indication that the person does not have a connection with the claim area (at [313]–[314]).
If the traditional laws and customs of that society allowed Nguraritja to possess rights and interests in relation to land only if the Nguraritja constituted a discrete social group or community, the claimants would have to show that they formed part of such a group or community (at [282]).
De Rose v South Australia (No 2)
83 In De Rose v South Australia (No 2) (2005) 145 FCR 290 (De Rose (No 2)), the Full Court relevantly observed the following:
The group seeking to establish native title must have acknowledged and observed the relevant laws or customs. It does not matter that any other community or group has continued to acknowledge and observe the traditional laws and customs (at [57]).
The claimant community or group must ‘establish that they have rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that community or group’ (emphasis original, at [58]). This does not mean that every member of the community or group must have acknowledged or observed the relevant laws and customs.
A continuing physical connection to the land is not required (at [62]). The link that is required between the rights and interests and acknowledgment of traditional laws and customs ‘cannot be stated more precisely than that the community or group must show that it has acknowledged or observed those traditional laws and customs that recognise them as possessing rights and interest (sic) in relation to the claimed land or waters’ (at [63]).
84 In Brown (FC), Barker J (who was in the majority) found that while De Rose (No 2) had been ‘regarded and apparently applied in other contexts’, the analysis of the Full Court on the “operational” extinguishment issue was inconsistent with reasoning of the joint judgment in Ward. Justice Greenwood, also in the majority, did not expressly reach the same conclusion and Mansfield J (in dissent) was not persuaded that the Full Court in that case was plainly wrong. However, Barker J’s criticism of De Rose (No 2) does not appear to extend to the issues considered by the Full Court in that case that are relevant to this proceeding. It is confined to the question of operational extinguishment.
85 In Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (Alyawarr (FC)), the Full Court discussed the principles applicable to a native title determination at [61]–[93]. The following observations are of particular relevance to this proceeding:
The inability of traditional law and custom validly to create new rights or interests cognisable by the common law does not prevent the recognition of rights and interests transmitted according to the rules of transmission that existed at sovereignty (at [76]).
The ordinary meaning of a “society” is a ‘body of people forming a community or living under the same government’ (Shorter Oxford English Dictionary). It does not require arcane construction and does not introduce into judgments technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as “societies” (at [78]).
“Connection” emphasises the requirement to show continuity of association with the land by observance and acknowledgment of traditional law and custom relating to it. Continuity of observance of laws and customs is a manifestation of connection (at [92]).
The traditional relationship to the country may be evidenced by physical presence ‘but there are also other ways involving the maintenance of the stories and allocation of responsibilities and rights in relation to it’ (at [92]).
Harrington-Smith v Western Australia
86 In Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1 (Harrington-Smith), Lindgren J usefully summarised the key principles for the determination of native title at [79]–[111].
87 In relation to acknowledgment and observance of traditional laws and customs, Lindgren J relevantly observed that:
‘First, there must be acknowledgment and observance continuing since sovereignty in order to sustain the existence of the society which itself sustains the existence of the body of laws and customs out of which the rights and interests spring. … Second, it must be shown that the respective claim groups acknowledge and observe that body of laws and customs’ (at [934]).
Knowledge of a law or custom is not the same as acknowledgment or observance of it. Acknowledgement must be of the law as a law or custom, that is, as having normative context; as imposing obligation or conferring entitlement. Observance of a custom signifies intentionally acting in conformity with it. One can know of a law or custom without acknowledging it, and one can acknowledge it without observing it. However, one cannot observe a law or custom without acknowledging it. Mere knowledge falls short of both (see [328] and [936]).
88 In relation to group native title rights, Lindgren J made the following relevant observations:
A landowning group must be unified, and its area be identified, by reference to traditional (pre-sovereignty) laws and customs (at [319]).
For group rights, the individual members of the group have rights and interests by reason of their membership of the group. Their rights do not arise directly and without group mediation, from the laws and customs of the society (at [536]). There must be a “traditional law” basis for all the claim groups and claim areas before the Court (at [926]).
The body of laws and customs that determines whether or not a group has group rights or interests in land must also provide a resolution of competing overlapping group claims (at [1004]).
The NTA did not recognise group rights and interests in a group territory where both had been created for the purpose of making an application for a determination under the NTA out of individual rights and interests (at [1157]).
89 In relation to the “connection” requirement, Lindgren J found:
In the case of a claim of group rights, it is the claim group that must have the connection required by s 223(1)(b) of the NTA. In that case, the Wongatha claim did not meet this requirement, as any connection was at the individual level (at [1883]).
Residence of a claimant on the claim area is not, in itself, necessarily probative of the connection required by s 223(1)(b) of the NTA. The connection must be one by the traditional laws acknowledged and customs observed (at [1883] and [2388]).
Assertion of connection was not enough. Acceptance or recognition of the asserted connection at least by other members of the claim group, and probably the broader society, is required (at [1889]).
90 In Bodney v Bennell (2008) 167 FCR 84 (Bodney v Bennell), the Full Court discussed the following principles of relevance to this proceeding:
The normative system is the source of the rights and interests. Therefore, the normative system must have had a continuous existence and vitality since sovereignty; it must be substantially the same as the one that exists today (at [47]). If the normative system had not existed throughout that period, the rights and interests which owed their existence to that system will have ceased to exist.
For there to be group or individual rights, it is indispensable that there is a society or community with appropriate laws and customs. Such rights are dependent on the society (or community).
91 In relation to the “connection” requirement, the Full Court said (at [48]) that “connection” is linked to continuity. It can be maintained by the continued acknowledgment of traditional laws and observance of traditional customs. The Full Court considered the applicable principles at [161]–[179]:
The required connection is not by the claimant group’s rights and interests but by its laws and customs. However, the character and exercise of the rights and interests may be important to demonstrate connection by traditional laws and customs.
Continued acknowledgment and observance of the laws and customs can itself manifest connection.
The laws and customs characteristically will presuppose or envisage connections with land or waters. The laws and customs that connect claimants to the land are by no means exclusively the ones that give them rights and interests in the land.
The claimants must demonstrate that, by their actions and acknowledgment, the claimants have asserted the reality of their connection to their land or waters so made by their laws and customs.
The connection inquiry can have a particular topographical focus within the claim area. In considering whether connection has been maintained to a particular part of a claim area, the traditional laws and customs need to be examined as they relate to that area and the claimants must demonstrate that the connection to that area has been substantially maintained since the time of sovereignty.
92 As to continuity, change and adaptation, the Full Court noted that:
Change and adaptation of laws and customs will not necessarily be fatal. So long as the changed or adapted laws continue to sustain the same rights and interests as existed at sovereignty, they will remain traditional. Continuity of the society is not the right question. It does not establish that the rights and interests are those that existed at sovereignty, because they may adapt and change (at [74]).
A substantial interruption to laws and customs for the identification of rights and interests in land cannot be mitigated by reference to the effects of white settlement. The continuity enquiry does not involve a consideration of why acknowledgment and observance stopped (at [97]).
The proper inquiry is whether laws and customs find their origin in pre-sovereignty society, not whether they are the same as those that existed at sovereignty. Clearly, laws and customs can alter and develop after sovereignty, perhaps significantly, and still be traditional (at [120]).
It may be that the true position is that what cannot be created after sovereignty are rights that impose a greater burden on the Crown’s radical title (at [121]).
93 In Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) (2008) 181 FCR 300 (Worimi), the Minister advanced matters as to which a party seeking to resist the making of orders sought in a non-claimant application must adduce or identify relevant evidence, based on the matters identified in Yorta Yorta, De Rose (No 1) and De Rose (No 2). These were set out in Worimi at [53]:
that at the time of sovereignty there was ‘a body of persons united in and by its acknowledgement and observance of a body of laws and customs’ (the pre-sovereignty society);
the nature and content of a normative body of laws and customs (the traditional laws and customs) pursuant to which rights and interests were held at the time of sovereignty;
the nature and content of the rights and interests held at the time of sovereignty pursuant to the traditional laws and customs (the traditional rights and interests);
that the pre-sovereignty society has substantially maintained its identity and existence from generation to generation in accordance with the traditional laws and customs through to the present time;
that the traditional laws and customs have been acknowledged and observed by the pre-sovereignty society and their successors, and that such acknowledgment and observance has continued substantially uninterrupted since sovereignty;
that since sovereignty the pre-sovereignty society and their successors have maintained a connection with the application area and have transmitted rights and interests in relation to the application area by and in accordance with the traditional laws and customs;
that they, the native title claim group (as a whole), acknowledge and observe the traditional laws and customs;
the nature and content of the traditional laws and customs observed by members of the native title claim group;
that, by the traditional laws and customs that are still observed by them, the native title claim group has a connection with the application area;
that, by the traditional laws and customs that are still observed by them, the native title claim group has rights and interests in the application area;
the nature and extent of the extant rights and interests; and
that such rights and interests have not been extinguished, (or if extinguishment has occurred, it is to be disregarded); and are not ‘antithetical to the fundamental tenets of the common law’.
94 In Akiba v Queensland (No 3) (2010) 204 FCR 1 (Akiba (No 3)), the following principles were discussed by Finn J and are of relevance to this proceeding:
Justice Finn at [178] summarised the Yorta Yorta requirements as to laws and customs: ‘(a) they were acknowledged and observed at sovereignty; (b) that acknowledgment and observance has continued substantially uninterrupted since sovereignty to today; and (c) to the extent that they have changed or adapted they can still be seen to be “traditional”’.
Whether native title rights and interests are possessed under the “rules” that constitute the relevant traditional laws and customs is a question of fact (at [72]).
While a society is a body of persons united in and by its acknowledgment and observance of a body of laws and customs, that society may not hold communal native title under those laws. All depends upon the body of normative rules of the society which gives rise to native title rights and interests (at [164] citing Alyawarr (FC) at [79]–[80] and De Rose (No 2)).
The body of laws and customs does not need to unite the society. The society must be united by its acknowledgment and observance of a body of laws and customs. The High Court in Yorta Yorta was not suggesting that there could not be diversity in the groups constituting the society or different applications of, and local differences in, laws and customs (at [168]–[169]).
The continued existence of pre-sovereignty native title rights and interests presupposes the continued existence and observance of the traditional laws and customs under which those rights were, and are, possessed. The advent of British sovereignty denied the recognition of the pre-existing normative system’s law-making capability in the territory over which sovereignty had been asserted (at [736]).
Because the rights and interests of the claimants are those possessed under traditional laws and customs, they must be looked at from the perspective of the claimants. ‘Their description of what is theirs, what belongs to them, what they are entitled to, or are required to, do are for this reason fundamental to the ascertainment of those rights and interests’ (at [500]).
Native title rights evolve over time in accordance with tradition. They can be lost if the holders of the rights cease to maintain their traditional connection with their land or waters (at [501]).
95 Relevantly to these reasons, Finn J considered “reciprocal rights” at [70] and [503] to [510]:
Reciprocal rights (or “reciprocity based rights” or “reciprocal relationship based rights”) are rights based upon reciprocal personal relationships with persons who have native title rights in their own land and marine territories (for example by ancestral occupation). The reciprocal relationship can be based on kinship or another kind of relationship.
Reciprocal rights can be called rights or interests because they are enforceable and sanctioned by appeal to the law or custom that associates the reciprocal obligation with the relationship and the law or custom that sanctions consequences for denial of the reciprocal relationship. Reciprocal rights can be group or individual rights.
Reciprocal rights are rights and obligations that are recognised and expected to be honoured or discharged under traditional laws and customs. They are not privileges, interests, etc.
96 Although the reciprocal rights are an important component of the body of laws and customs, Finn J found that they were not rights in relation to land and waters for NTA purposes. They are rights in relation to persons. Justice Finn found that this conclusion emerged clearly from the evidence of the Islander witnesses. The Islanders’ society had a body of laws and customs founded upon the principle of reciprocity and exchange. That principle expresses notions of respect, generosity, sharing, social and economic obligations and the personal nature of relationships. His Honour said that to suggest that the rights provide a “passport” diverts attention from the personal nature and the relationship-sustaining purpose of the rights themselves. Merely because rights are to be satisfied in the host’s island’s areas does not mean that the rights themselves are ones in relation to those areas. A partner in reciprocity can be denied for reasons which are valid and legitimate. His Honour concluded that the “real relationship” or connection” was between the right and a person and that reciprocal rights are, therefore, not native title rights for the purpose of s 223(1) of the NTA. His Honour noted that if reciprocity based rights were rights “in relation to” land or waters, there would be considerable difficulties involved in accommodating that conclusion within the scheme of the NTA.
97 An appeal from Akiba (No 3) was handed down by the Full Court in Commonwealth v Akiba (2012) 204 FCR 260 (Akiba (FC)) after the hearing and final written submissions in this proceeding. The submissions of the parties focus on Finn J’s decision. Although the appeal was successful on other grounds, Finn J’s findings and conclusions on reciprocity based rights were upheld on appeal by Keane CJ and Dowsett J at [127]–[133]:
The findings of fact about the reciprocal relationships were sufficient to support Finn J’s conclusion that they are not rights in relation to land and water.
The relationship described in s 223(1) of the NTA (“in relation to”) is ‘one subsisting directly between the peoples who possess those rights and the land and waters to which they are connected by the laws and customs under which those rights are possessed’ (at [129]).
Section 223(1) ‘does not contemplate rights and interests which are, in some general or indirect way, related to lands and waters, but dependent on the permission of other native title holders for their enjoyment. Such rights cannot be said to be possessed by the claimants themselves, so far as they relate to land and waters: such rights are not held by reason of the putative holders’ own connection under their laws and customs with the land and waters in question but are held mediately through a personal relationship with a native title holder who does have the requisite connection’ (at [130]).
Reciprocal based rights are to be distinguished from occupation based rights of use and access to land by reason of laws and customs, such as those concerning descent. Native title rights exist by virtue of identity of the native title holder (“who you are”) as opposed to “who you know” (at [131]).
Reciprocal based rights persist only as long as the personal relationship continues. An occupation based holder accesses and uses land as of right, whereas a reciprocal rights holder has no right to engage in any activity without “permission” or some form of “license” from a particular person with whom he or she has a personal relationship (at [132]).
If the applicant’s argument in Akiba (No 3) were accepted, practical inconsistencies would arise, in that native title would be held by other unidentified individuals on the basis of their relationships from time to time with one or more persons in the relevant community (at [133]).
98 On 5 October 2012, the High Court granted special leave to appeal from the decision of the Full Court, one of the grounds being that the Full Court erred in holding that rights held under traditional laws and customs on the basis of a ‘reciprocal relationship’ with the holder of ‘occupation based rights’ are not native title right within the meaning of s 223(1) of the NTA. Until the decision of the High Court is made, I am bound by the decision of the Full Court.
Applicable legal principles – a short summary
99 The parties have generally accepted that the following principles, drawn from the above authorities and in brief summary, are particularly relevant to the present case:
The rights and interests must be “in relation to land or waters” if they are to constitute native title rights and interests (s 223(1) of the NTA).
The rights and interests must be presently possessed under the traditional laws acknowledged and traditional customs observed (s 223(1)(a) of the NTA).
Traditional laws and customs refer to normative rules that existed prior to the assertion of sovereignty and 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. The word “traditional” also signifies that the law or custom has been passed from generation to generation of a society.
The laws and customs must have normative content and must be derived from a body of norms or a normative system that existed before sovereignty.
It is not possible for laws and customs only adopted by a society post-sovereignty to constitute “traditional” laws and customs and to give rise to native title rights and interests.
Laws and customs arise out of, and go to define, a particular society. A “society” is a body of persons united in and by its acknowledgment and observance of a body of laws and customs.
There must be continuity, from sovereignty to the present, of the acknowledgment and observance of traditional laws and customs and the existence of the society out of which the traditional laws and customs arise.
Acknowledgement and observance of traditional laws and customs must have continued “substantially uninterrupted” since sovereignty.
The laws and customs themselves may have evolved, changed or adapted in the period since sovereignty and yet remain “traditional”.
Under s 223(1)(b) of the NTA, the claimants must have a “connection” with the land or waters by the traditional laws or customs. This connection must be one that has had continuity since sovereignty.
To satisfy the “connection” requirement, it is not necessary that there be evidence of recent use of the land or waters, nor that there has been physical presence on the land. However, the existence or absence of these factors may be relevant to satisfy the connection requirement of s 223(1)(b) of the NTA.
Communal, group and individual rights
100 Section 223(1) of the NTA envisages three possible native title “owning” entities: the community, the group and the individual. The classification into communal, group and individual rights and interests is a statutory construct (De Rose (No 2) at [39]).
101 The community is the largest possible native title holding entity and is the society whose traditional laws and customs are in question. The group is smaller and may be seen as a subset of the society. The individual is the smallest possible native title owning entity (see Harrington-Smith at [1134] and [1136]).
102 Communal native title claims are made on behalf of the community of people or society whose traditional laws and customs constitute the normative system. Group and individual native title rights and interests derive from, and are determined by, a body of traditional laws and customs observed by a community. Typically, unless the traditional laws and customs provide for the individual rights and interests to be transmitted to other society members, individual rights terminate upon the death of the holder (see De Rose (No 2) at [38]–[40]; Bodney v Bennell at [144]–[146]; Harrington-Smith at [1129]–[1135]).
103 The existence, character and extent of native title rights and interests, whether communal, group or individual, depend upon the content of the traditional laws and customs in question (Bodney v Bennell at [148]). As Finn J noted in Akiba (No 3) at [164], ‘while it is the society whose laws and customs are to be acknowledged and observed, that society as such may not hold communal native title rights and interests under those laws … All depends on the body of normative rules of the society which gives rise to native title rights and interests’. That is, the society may recognise individual and/or group rights.
104 As will be discussed below, the Warrarn ask the Court to draw inferences about the relevant traditional laws and customs and the rights and interests that have been afforded to the Warrarn. It is therefore important to consider the legal principles in respect of inferences that may be drawn in native title determinations.
105 The Warrarn state that ‘given the lack of direct evidence, the Court has to largely rely on and draw inferences from subsequent conduct as evidence of the import of what occurred’. The Warrarn point by analogy to cases examining whether subsequent conduct can be used to construe the terms of a contract, citing Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [326]; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd & Anor [2008] NSWCA 193 at [20]–[27] and [45]; and Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382 at [114].
106 In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ accepted that demonstrating the content of traditional law and custom may well present difficult problems of proof and that the Court may be invited to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. They recognised that it may be especially difficult to demonstrate the content of traditional laws and customs in cases where it is recognised that the laws and customs have been adapted in response to European settlement. It was not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn (Yorta Yorta at [80] and [82]).
107 Justice Kirby in Mason v Tritton (1994) 34 NSWLR 572 concluded that inferences can be drawn in native title cases that a situation that exists at a particular time also existed at an earlier time. However, whether such an inference can be drawn depends upon whether the probabilities of the case favour the inference and whether intervening circumstances have occurred which would bring the situation to an end. His Honour noted that in more traditional Aboriginal communities the inference will be more easily drawn (at 887–889).
108 Similarly, in Gumana v Northern Territory of Australia (2005) 141 FCR 457 (Gumana (2005)), Selway J held at [198]–[201] that there was no “obvious reason” in that case why evidentiary inference (of the kind discussed in Mason v Tritton) was not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and the existence of rights and interests arising under that tradition or custom. However, Selway J continued to state that ‘[t]his does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement’. See also the application of Mason v Tritton in De Rose v South Australia [2002] FCA 1342 at [503]–[505] and [570].
Authorisation and jurisdiction
109 The State and the Ngarla contend that there is an issue in this proceeding as to the authorisation of the Warrarn claim. The Ngarla applications do not claim that native title is held by the Warrarn and the Warrarn application (WAD 82 of 1998) may not be, they contend, authorised by the applicant group, in that it may not be properly authorised by all of the persons who hold the native title rights claimed in the manner required by s 61(1) of the NTA. The State contends that it is unclear whether all (or indeed any) of the persons listed in the Amended Form 1 for WAD 82 of 1998 dated 25 February 1999 are now said to form part of the Warrarn Group or fulfil the membership criteria for the Warrarn Group.
110 The Warrarn submit that the members of the Warrarn can receive a determination in their favour provided that the Ngarla have a valid authorised application which complies with s 61 of the NTA. Since the Ngarla have an application that fits within that category, the Warrarn contend that the Court has jurisdiction in relation to the determination area to determine the persons holding rights comprising native title and the nature and extent of those native title rights and interests. As the Warrarn put it:
The Court cannot fulfil that function in relation to the jurisdiction it is exercising pursuant to the Ngarla People’s application without reaching conclusions in relation to the rights and interests asserted by the Warrarn applicant group, regardless of the status which may be accorded to the application filed by the Warrarn group.
111 The State and the Ngarla disagree. They submit that Aboriginal persons cannot have a determination made that they have native title rights and interests unless that determination arises from a valid, authorised, native title determination application made on behalf of those persons. They say that it is necessary that there be an application as provided in s 13(1) of the NTA made under Pt 3 of the NTA by a person or persons authorised by each group in the manner required by s 61(1) (Commonwealth v Clifton (2007) 164 FCR 355 at [57]. As neither Ngarla native title application, WAD 6185 of 1998 nor WAD 77 of 2005, claim that native title is held by Warrarn persons, the Ngarla submit that the Court does not have jurisdiction by reason of those applications to make a determination that includes the Warrarn. The State agrees that it is not correct to say that the Warrarn can receive a determination in their favour because the Ngarla claim is a valid, authorised application.
112 In any event, the State and the Ngarla submit that the Court should, to the extent necessary, exercise its discretion under s 84D(4) of the NTA to hear and determine the proceeding despite any perceived defect in authorisation of the Warrarn’s claim.
113 Relevantly, s 84D(4) of the NTA provides:
The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:
(a) hear and determine the application, despite the defect in authorisation; or
(b) make such other orders as the court considers appropriate.
114 The State submits that this case is analogous to the situation considered by Finn J in Akiba (No 3), where his Honour was ultimately satisfied that there was a proper basis for the exercise of his discretion under s 84D(4) of the NTA, as ‘considerable delay, cost and confusion which would bring no credit upon the legal system, would ensue if I were to require strict compliance at this late stage with the authorisation requirement of s 61 of the Act’ (at [931]). The Ngarla emphasise the time and resources already expended, the advanced age of many of the witnesses and the desire of the Ngarla for this matter to be resolved expediously. Indeed, since evidence was taken, one of the key Ngarla witnesses and one of the key Warrarn witnesses have died.
115 In Akiba (No 3), Finn J noted at [55] that although there were real issues about authorisation, none of the parties wished for the matter to fail simply on authorisation grounds. The same applies in this proceeding. The impact of the competing claims for the Overlap Area has included delay and cost and, importantly, uncertainty and social impact among the people inhabiting the area under dispute and surrounding country. All parties wish to have the matter determined expeditiously and without the further expenses that would be occasioned if strict compliance with s 61 of the NTA were required for the Warrarn application.
116 Further, during the taking of evidence, it became apparent that there was some confusion as to the identity of a claim group called “The Warrarn”. As previously stated, the Warrarn are not a separate language group and the word “Warrarn” means “country” in the Nyangumarta language. The question of authorisation of the Warrarn claim depends in part on the identification of the claim group. The identification of the claim group itself involves an understanding of the evidence and the relationship between the members of the asserted claim group.
117 For the above reasons and bearing in mind that the Overlap Area has been carved out from other claimed areas which have been separately determined, it is appropriate in the circumstances to exercise the discretion in s 84D(4) of the NTA and proceed to hear and determine the Warrarn application, including competing claims of native title rights in the Overlap Area despite any defects in authorisation.
Part 4: Summary of key areas of evidence
Ngarla Evidence concerning estates and descent
118 Central to both the Warrarn and the Ngarla claims is the evidence of Ngarla witnesses of their traditional laws and customs concerning runs and estates and of the importance of descent in ownership of Ngarla land. It is therefore useful at this stage to summarise this evidence.
119 Dr Smith explains the Ngarla land tenure system and the descent-based nature of the Ngarla connection to Ngarla land and waters as follows:
The Ngarla land tenure system is of a classical ‘clan-estate’ type, exhibiting features characteristic of more ‘rigid’ environmentally rich coastal systems (cf. Keen 2006). At the broadest level every Ngarla person has rights in the entire Ngarla overlap area as a member of a group united by language, Law and system of social organisation. Individuals and family groups also assert and are acknowledged as having rights in particular parts of the Ngarla determination area and in the Ngarla overlap area on the basis of membership of an acknowledged Ngarla local descent group. Within each descent group there are acknowledged senior men and women who have the authority to ‘speak for’ Ngarla country.
…
[R]ights and interests in Ngarla territory are two-tiered. Firstly, the broader Ngarla language-owning group holds communal rights and interests in the broader Ngarla territorial domain, and secondly a number of extant local descent groups (a sub-set of the Ngarla language-owning group), hold rights and interests in a distinct ‘estate’ (an identifiable tract of land and waters called a ‘run’ by the claimants to which the local group is seen to have an enduring inalienable connection).
120 I accept Dr Smith’s evidence, which is to the same effect as the evidence of the Ngarla witnesses. Evidence is given by Ngarla witnesses about the responsibility of the whole of the Ngarla people for Ngarla land and about family groups having responsibility for their “runs” within Ngarla land.
121 There was no apparent dispute as to the Ngarla witnesses’ evidence, which was given, primarily, by Mr Brown and Charlie Coppin.
122 Mr Brown’s evidence was that inside Ngarla country, different families have different runs and each has a name. Mr Brown was able to describe a number of the runs by name and to explain who has the rights to speak for each run. He said that he was taught about the runs by the elders.
123 Mr Brown explained that you can get your run from your mother as well as from your father: you get your run from your mother’s side and your father’s side, and from your grandparents; it might be traced back to the fourth generation. However, he was definite that being born on the run does not give you any say in the country; he had no say in the country where he was born, Warungu. Mr Brown said that if someone is adopted and reared as a child by a family, the child cannot inherit a run and speak for country. Under Ngarla law, if a child has a Ngarla mother who has a Ngarla husband but the biological father is a white man, that child will be treated as the child of the Ngarla husband and that child gets rights in the family run of the Ngarla husband. Although Mr Brown’s father’s mother had a run in Njamal country, Mr Brown chose to follow the Ngarla side, so he could not take up rights in that run.
124 Mr Brown said that when there are no descendants left in a run (like Wankamaya), ‘the next door neighbour group can take that over. They have to know the country well before they can take over’. Those people ‘have the same rights to speak for and make decisions about a run as people who are descended from a group’. The whole of the Ngarla may look after a run if the neighbour does not know the land very well. For example, Mr Brown said that Nora Cooke has the closest run to the Wuyungu run, but she doesn’t know the land very well, so the Ngarla as a whole look after the run. If there is a deceased estate, the person’s run who is the ‘closest’ is the caretaker of that run – they have more “say”.
125 Charlie Coppin’s mother’s father was a Ngarla person so he can speak for Ngarla country. He says that the right to speak for country passes to his children, both sons and daughters. Mr Coppin explains that if the mother is Ngarla, then a person can get country from their mother and that you can also have rights in your grandparent’s country. He says:
Somebody has always got to look after country. If there is no family left for a particular area, then the people close to that area have to look after it. They can’t be the country owners but they can be like a caretaker. You can’t replace a country owner and a country owner can’t give their country away.
Connection to land and membership of the Ngarla group by descent
126 Dr Smith conducted extensive field work with the Ngarla. Dr Smith explains the descent-based nature of the Ngarla connection to Ngarla land and waters as follows:
It is my understanding that according to Ngarla laws and customs a person must be descended from Ngarla ancestors (or be an incorporated or adopted member of the group according to Ngarla laws and customs) to make an assertion of connection to Ngarla land and waters including the overlap area. To my knowledge none of the named Warrarn claimants fit either of these criteria.
127 Dr Smith’s evidence is that the Ngarla ‘rigidly adhere I’d say very conservatively adhere to their system of tenure’, that is, to a descent-based system where the owner of an estate must have a genealogical connection to it. Dr Smith also says that being conceived on Ngarla country or living on Ngarla country does not give a person any rights to speak for that site or rights in that site, though it may mean that the person has an affiliation with that site. I accept Dr Smith’s evidence, which is supported by the evidence of the Ngarla witnesses.
128 The evidence of Mr Brown was that ‘a person is Ngarla because they are born Ngarla from Ngarla parents’. If a child has one Ngarla parent and a parent from a different group, the child does not choose. They belong to both groups until the child grows up and then decides which to follow. He said:
I don’t think anyone who does not have a Ngarla parent can become Ngarla even if reared up from young. … Those people however are welcome to be part of the community and live, hunt and fish and go to corroborrees and meetings there but cannot speak for country.
129 According to Mr Brown, someone who marries a Ngarla person cannot become Ngarla. Someone who has lived in Ngarla country or been with Ngarla people for a long time cannot become Ngarla and cannot speak for Ngarla country. Mr Brown gave the example of Teddy Allen, who was born and lived for many years on Ngarla country, but was not Ngarla and saw himself as Njamal. Mr Brown said that Mr Allen cannot speak for Ngarla country. This was clarified in cross-examination where Mr Brown said that Teddy Allen was given the right to hunt and fish when he was given a Wurrurru name but he had no say in the run until there are no biological descendants and no Ngarla. If a person is accepted as part of the Ngarla group but doesn’t have Ngarla parents, that person cannot have a family run and cannot speak for country or make decisions about country. If a Ngarla man or woman marries a non-Ngarla person, that person has no rights in Ngarla country; he or she cannot inherit a run or speak for country. A non-Ngarla wife cannot get her husband’s run when he dies. Mr Brown also gave evidence that when people came from the desert to practise law in Ngarla country, the old Ngarla people ‘couldn't have gave them the country; they must have gave them a visa’.
130 Nora Cooke’s evidence is that ‘[t]o be considered Ngarla, the main thing is that you have to be a descendant of Ngarla parents…’. You can still be Ngarla even if you don’t speak the language or have not gone through the Law. People can be incorporated into the group like Stephen Stewart, but:
In order to claim Ngarla land, you have to be Ngarla. By ‘claim’ I mean for you to call the country your own in the traditional way. … you get it from your parents. That is our Ngarla traditional law and culture.
131 The evidence of Mr Charlie Coppin is:
To be Ngarla, a person has to link to the old Ngarla people, through their father or mother. If they have no Ngarla father or mother, they can’t be Ngarla. It’s always been that way.
132 He says that ‘[y]ou cannot get rights in Ngarla country by living there. If Ngarla give permission a person who is not Ngarla can live in Ngarla country, but it doesn’t become their country’. Mr Charlie Coppin also says that you cannot get rights in Ngarla country by being born in Ngarla country; you can’t be Ngarla by being born in Ngarla country. For example, Charlie Coppin also refers to Teddy Allen, who was born in Ngarla country and went through Ngarla law, but remained Njamal. This was confirmed by Lindsay Hardcase, who says that living in someone’s country did not mean that one could claim it.
133 Charlie Coppin says:
Country can be given to your children, but under Ngarla law, it cannot be given away to others. No-body has ever done that’. … Under Ngarla and Njamal Law it's not possible to pass on rights like that [i.e. giving rights to land to other Aboriginal people]. Those rights have been passed on from parent to child for ever since the beginning of time – all the way down. That's the only way it can be done. It’s in our Law. I know it from our songs and from what our old people told us. It’s still going on today.
134 Mr Joe Coppin says: ‘To be a Ngarla person the main thing is that your parents have to be Ngarla. At least one of your parents’. He says that you can be adopted by Ngarla parents and become Ngarla that way, but just going through Ngarla Law does not make you Ngarla. This is also the evidence of Doris Eaton who is Njamal:
It is not possible in Njamal or Ngarla law to give away land. In the Pilbara land follows the family tree, back to the beginning of time. … You get your country from your parents. You can’t claim country just because you were born there or live there, that is wrong.
135 Mr Stewart confirmed that he is part of the Ngarla community. He says that he is not really Ngarla, because if he follows his father, he should be Karajarri. Mr Stewart prefers to say that he stops with Ngarla. He could be Ngarla, following his grandfather; if there is a fight about his grandfather’s country he can step forward and speak for country. The difference between Mr Stewart and Mr Allen is that Mr Stewart’s grandfather is Ngarla. Mr Allen cannot be part of the Ngarla or stop with them, because he did not have any Ngarla grandparents. Mr Stewart says ‘[t]he law says that the land belongs and stays with the family. You cannot give country away. You can’t be given land. You can be given permission to fish or hunt, but you can’t give country away’.
136 Similarly, Ms Wilson says:
To be Ngarla you have to be born from Ngarla parents. It is about knowing the country, the laws and customs. … Land is passed on from generation to generation. … [T[raditionally, unless you are Ngarla you can’t own the land or speak for it. … That is our law. Someone who is not Ngarla cannot claim our land. Land goes from the parent to the children… Someone who is not Ngarla cannot claim to own Ngarla country.
137 The evidence, from Ngarla witnesses, is overwhelming, that the Ngarla have a strong descent-based system of care for Ngarla land and particular ‘runs’ within that land. The right to speak for country is based on family ownership of runs, with a system in place for the situation that may occur if a family dies out or a child decides not to identify as Ngarla. Apart from the descent-based system, ownership of Ngarla land cannot otherwise be passed. If the descent line no longer exists, ownership and care for that land passes to the Ngarla people as a whole or to a caretaker. The evidence of Charlie Coppin and Mr Brown on the details of the structure of that system was logical and persuasive.
138 While there are Ngarla people, the land belongs to them under Ngarla traditional laws and customs. That ownership includes the right to care for the land and to exercise such control as presently extends to the Ngarla over that land.
139 The evidence clearly supports the conclusion that membership of the Ngarla group and ownership of and the right to speak for Ngarla country is descent based. Under Ngarla traditional law and customs, those rights cannot be held by non-Ngarla people and cannot be given away by Ngarla to persons who are not Ngarla.
140 There remains the question of the rights asserted by the Warrarn including a right to be free in the country and rights that may result from traditional exchanges.
Land tenure systems in anthropological literature and the Overlap Area
141 There are two land tenure models described in the anthropological literature that are relevant to this proceeding. As described generally by Dr Smith, and not apparently disputed by the other experts, the first is the “Radcliffe-Brown” tenure system (or Kariyarra system). This is based upon the work of A.R. Radcliffe Brown, who conducted extensive anthropological research from the 1930s onwards in the region, in particular on the Kariyarra peoples. The “Radcliffe-Brown” model is characterised by descent and affiliation with a particular corporate entity (a local descent group) in relation to a particular tract of country within the broader group territory. Each of these local groups is bound genealogically and geographically. Dr Brunton similarly says that the Radcliffe-Brown’s account ‘stressed the absolute primacy of descent in determining membership of the local group, and thus land ownership’.
142 The second is described as the Western Desert Cultural Bloc (WDCB or Western Desert) type tenure system, which is characterised by considerable fluidity in terms of tenure arrangements, in that there are multiple bases for reckoning land ownership and affiliation. Dr Smith says that these may include the location of a person’s conception site, where their umbilical cord fell off, where a person’s parents were buried, or descent.
143 Dr Brunton acknowledges that although justified criticisms have been made in respect of aspects of Radcliffe-Brown’s theoretical generalisations about Aboriginal land using land owning groups, he does not consider that those criticisms affected ‘the validity of his empirical account of coastal Pilbara societies’. Dr Brunton says that the data he presented clearly pointed to the need to make the distinction between the land owning and land using groups. Similarly, Dr Smith notes the problematic issues within Radcliffe-Brown’s terminology used to frame groups, such as “clan band”, and says that these were acknowledged by anthropologists to be imprecise.
144 Dr Smith says that more “closed” systems of local organisation are primarily found among groups living in resource-rich ecological zones, while more “fluid” systems are most commonly found among desert groups. Dr Smith says that the fluidity of the desert system is generally agreed amongst anthropologists to have arisen as a result of scarce and seasonal resources and the need to establish a connection with people and avail themselves of resources far afield. In contrast, the Pilbara is an abundant and resource-rich area, and there is not the same necessity to forge social, economic or other relationships with people further afield, while the Pilbara language groups are not isolated from other neighbouring groups.
145 Dr Smith states that the distinction between the Radcliffe-Brown descent based system for acquiring rights and interests in land and the multiple pathways system of the Western Desert is an orthodox distinction that had been written about by a number of respected anthropologists.
146 The State contends that recognition of rights and interests in land in the Western Desert is a political process and involves a process of assertion, claim and counter-claim to establish those persons who may hold rights in any particular area. This is supported by the evidence of Dr Brunton, who agrees that under the Western Desert system, people had to pursue their rights in country more actively and may have those claims more frequently questioned by their peers.
Whether the Radcliffe-Brown model of land tenure applied to the Ngarla
147 Dr Smith says that the Ngarla exhibit a characteristically “Kariyarra-type” system of local organisation. Dr Smith acknowledges that given there are no early contact descriptions of the Ngarla local descent groups it is difficult to establish with certainty the pre-sovereignty land tenure system. However, he says that given that Radcliffe-Brown said that the neighbouring groups to the Kariyarra practised clan patrifiliation, he would assume that Ngarla local descent groups would have followed a similar principle at sovereignty. Dr Smith says that in the absence of any other ethnographic account for the region, he would extrapolate backwards from Radcliffe-Brown’s research and writing and conclude that it is most likely that pre-sovereignty, the Ngarla had a clan estate model. He says that the Radcliffe-Brown model was widespread throughout the Pilbara.
148 Dr Brunton notes that although Radcliffe-Brown’s account focused on particular coastal people, he explicitly stated that the Kariyarra had the same form of social organisation as the “Ngerla”, the Njamal and a number of other Northern Pilbara peoples, even though there were some variations in custom. As Radcliffe-Brown’s research was the only credible information available, Dr Brunton considers that “at contact”, the Radcliffe-Brown model applied to the Ngarla local organisation. However, Dr Brunton also says that there are differences between the Radcliffe-Brown model and the contemporary Ngarla situation. He describes a “two-tiered” system where there is a broader Ngarla language-owning group that hold rights in the broader Ngarla territorial domain, as well as the runs and estates described by Dr Smith. He suggests that this may have been a post-sovereignty modification and a response to the devastating population losses that the Ngarla suffered. He says that the evidence suggests that ‘for a substantial part of the last century the Ngarla accommodated or adapted their rules relating to membership and connection to land to conform with patterns more prevalent amongst the Western migrants to their country’. Dr Brunton agrees that at sovereignty, the Overlap Area would not be regarded as part of the Western Desert society, which included the “multiple pathways” system by which persons can attain rights in country and could be contrasted with the descent-based connection of the riverline groups, including the Ngarla.
149 Mr Robinson says that it is usually the case in the Pilbara that Aboriginal people will see themselves as belonging first and foremost to a language group, membership of which is achieved by descent from a parent who is himself or herself a member of the group. Although there might be cultural similarities across language groups, for land-owning purposes, Aboriginal people in the Pilbara look to individual named language groups. Mr Robinson considers that the Ngarla people were towards the other extreme from the people of the Western Desert on a continuum of reckoning rights in land, although he notes that he did not see them as opposing concepts.
150 Mr O’Connor did not give an opinion as to whether or not the Radcliffe-Brown model of land tenure applied to the Ngarla people at sovereignty. He did not propose an alternative form of land tenure system. Mr O’Connor says that he does not regard the Overlap Area as part of the Western Desert Cultural Bloc.
151 From this evidence, the following conclusions can be drawn:
Dr Smith, Dr Brunton, and Mr Robinson agree that at sovereignty, the land tenure system in the Overlap Area was that described by Radcliffe-Brown and agree that the Radcliffe Brown model can be contrasted with the land tenure system of the Western Desert.
Dr Smith and Mr Robinson agree that the Radcliffe-Brown model of land tenure was widespread throughout the Pilbara.
Dr Smith, Mr Robinson, Dr Brunton and Mr O’Connor all agree that the Western Desert Cultural Bloc (and its principles by which rights and interests in land are acquired) did not at sovereignty extend to include the Ngarla people or the Overlap Area.
152 While Mr Robinson does not explicitly say that the Radcliffe-Brown model applied throughout the Pilbara, he describes the land tenure model in the Pilbara generally. His description of the land tenure model in the area can be seen to accord with the Radcliffe-Brown model, rather than that of Western Desert.
153 The Ngarla also say that there is a clear distinction between the laws and customs of the Western Desert society and those of the Pilbara riverline society or societies, including the Ngarla. The Ngarla refer to the evidence of the anthropological experts regarding the different land tenure models.
154 The Warrarn do not apparently dispute that the Radcliffe-Brown model generally applied in the Overlap Area at sovereignty. However, they submit that descent is not the sole criterion for land ownership. They submit that:
The Radcliffe-Brown land tenure model has “difficulties”. The contention that descent is the sole criteria of land ownership ignores the “permissible” changes in the laws and customs of the land, including the breakdown in the descent based clan estates in favour of language group ownership. The Warrarn say that Dr Brunton’s evidence concerning such a change was not seriously challenged in cross-examination.
There is a tension in the Radcliffe-Brown land tenure model, including the tension between the description of the residency group and the landowning group. The Warrarn say, citing Mr O’Connor’s evidence, that Radcliffe-Brown did not refer to the language group as the land-holding group, the residential group or a political entity.
There is no bright line between the Western Desert and coastal land tenure systems. The main differences between them are in the emphasis placed on different membership criteria. This is supported by Mr Robinson’s evidence, that he saw the separation between Western Desert and non-Western Desert as concepts along a continuum.
155 Nevertheless, the preponderance of the evidence is that the Radcliffe-Brown model of land tenure applied at sovereignty in the Pilbara generally, including to Ngarla land and the Overlap Area. There has been some modification in that model since sovereignty, for example, responsibility for runs has accommodated the redirection to members of the Ngarla. However, it is today still a descent-based system.
Part 5: The relevant society at sovereignty
156 The State and the Ngarla agree that the relevant Yorta Yorta society in the Overlap Area at sovereignty was a Ngarla society.
157 Primarily, the Warrarn rely upon the assertion that their native title rights and interests derived from a permission or licence given to the Warrarn by the Ngarla such that their native title rights and interests derive from the Ngarla communal title and thus extend back to sovereignty. As an alternative submission, the Warrarn contend that the relevant Yorta Yorta “society” at sovereignty extended beyond the Ngarla language group and included persons who were not “Ngarla” and, further, encompassed the Warrarn.
158 The onus lies on the Warrarn to identify the alleged “broader society” and the normative laws and customs of that society under which they are said to hold rights and interests, and to show that these laws and customs have had a continuous existence and vitality in respect of the Overlap Area since sovereignty.
Should the “relevant society” be determined prior to determining the rights or interests?
159 There is disagreement between the parties as to whether it is necessary for the Court to determine the constitution of the relevant normative society that existed at sovereignty.
160 The Warrarn submit that, if their primary argument, that the Warrarn rights and interests are dependent upon the communal native title of the Ngarla people is successful, there is no need to determine the “relevant society”, or to consider their “broader society” argument. However, if the conclusion is that the Warrarn do not hold native title rights and interests because the Warrarn are not part of the society to which the Ngarla belong, it is necessary to consider whether the Warrarn have native title rights and interests accorded to them by a broader Western Pilbara society.
161 The Ngarla submit that, as the Warrarn are not part of the society that held native title in the Overlap Area at sovereignty (being Ngarla society), ‘[t]he issue of the relevant society does arise for determination in these proceedings’. The State submits that the question of “society” is not an ‘optional extra’ in the Court’s deliberation, but is critical to the determination of native title: the question of whether the Warrarn have native title rights and interests is wholly dependent upon the society in existence in that area and its traditional laws and customs.
162 It is necessary first to identify the relevant society and its normative system of traditional laws and customs and to determine whether that society has existed substantially unaltered since sovereignty. That, in turn, enables an understanding of whether the laws and customs currently practised owe their existence to the relevant, identified, pre-sovereignty society. Laws and customs do not exist in a vacuum. They arise out of and go to define a particular society (see Yorta Yorta at [47], [49]–[52] and [56]). As noted by the High Court in Yorta Yorta at [50] and [56]:
50. To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs.
…
56. … it would be wrong to confine an inquiry about native title to an examination of the laws and customs now observed in an indigenous society, or to divorce that inquiry from an inquiry into the society in which the laws and customs in question operate … Rather, 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.
(emphasis added)
163 In Bodney v Bennell, one of the reasons why the native title claim was unsuccessful was that the claimant could not identify the society whose laws and customs constituted the normative system under whose laws and customs the rights and interests in land were possessed (at [232] and [236]) (see also Alyawarr (FC) at [78]).
164 The State contends that it is necessary to make positive findings in respect of the nature, identity and geographical extent of the Yorta Yorta society. The Warrarn contend that it is not necessary to identify with precision the nature, identity and geographic extent of the relevant society in the Overlap Area and submit that Yorta Yorta does not stand for this proposition. The Warrarn say that it is ‘only necessary that the Court determine that there is a viable normative society continuing since sovereignty which acknowledges the traditional laws and customs under which the rights and interests claimed are possessed’, referring to Yorta Yorta at [50] and [56].
165 In Harrington-Smith, the geographical limits of the relevant society was an issue, because some of the claim areas were not within the area of the society. The WDCB was the relevant Yorta Yorta society and Lindgren J held at [540] that if any of the claim areas lay west of the WDCB, they must fail, since all claims were dependent upon the WDCB “society”.
166 In this case, there is no such issue. For the purposes of this proceeding, it is not disputed that the Overlap Area is within the area in which Ngarla traditional laws and customs have been practised since sovereignty. The issue is whether the traditional laws and customs there practised are limited to those of the Ngarla. It is undisputed that the Overlap Area is within the geographical limits of the relevant society, whether this be the Ngarla society, or a broader society. Although there is a need to determine what is the relevant Yorta Yorta society, there is no need to make positive findings on its geographical limitations, although geography may have some relevance to determining the relevant society.
167 Since I have found that it is necessary to determine this society before I can determine the laws and customs of that society, I now turn to determining the relevant Yorta Yorta society.
Determining the relevant society: legal principles
168 The general principles concerning the identification of a society do not appear to be in dispute. As the High Court said in Yorta Yorta, a “society” in the context of the NTA is a ‘body of persons united in and by its acknowledgment and observance of a body of laws and customs’ (at [49]).
169 Yorta Yorta does not require that the society that acknowledges and observes the traditional laws and customs be identical to the group that holds native title. Further, native title may be held by a claimant by virtue of those rights and interests being recognised by those traditional laws and customs of the society that acknowledges and observes them (De Rose (No 1) at [230]–[231], [257]–[276], [282]–[283]).
170 The State contends that the relevant “society” for Yorta Yorta purposes is the society whose laws and customs confer and regulate rights and interests in land. As noted by the majority in Yorta Yorta at [38]:
When it is recognised that the subject matter of the inquiry is rights and interests (in fact rights and interests in relation to land or waters) it is clear that the laws or customs in which those rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system – the body of norms or normative system that existed before sovereignty…
171 Although other, non-land related laws and customs may be relevant for identifying and distinguishing a society, the State submits that the primary focus must be on the traditional laws and customs which give rise to rights and interests in land (referring, for example, De Rose (No 2) at [60]; Harrington-Smith at [1296]). The State says that it is only when those laws and customs are identified that the relevant Yorta Yorta society may be identified. The Ngarla agree, and say that ‘central to whether persons form a society is whether they acknowledge the same body of laws and customs relating to right and interests in land (as it is rights and interests in land that must be held under those laws and customs)’.
172 The High Court in Yorta Yorta said that native title rights and interests owe their origin to a normative system (at [37]). Rights and interests in land or waters must find their origins in laws and customs that have a normative content (at [38]). That the society must be the repository of the traditional laws and customs that give rise to the native title rights and interests claimed has been recognised in Alyawarr (FC) at [79] and Harrington-Smith at [1296] and [1276]. The State also refers to Moses v Western Australia (2007) 160 FCR 148 at [349] and Sampi v Western Australia (2010) 266 ALR 537 at [67]. The Ngarla also refer to Bodney v Bennell at [46] – [47], [70]–[71], [74] and [77]–[80].
173 In De Rose (No 2) at [60], the Full Court said that given the centrality of the relationship between Aboriginal people and their country, the dichotomy between laws and customs and rights and interests connected with lands and waters and rights and interests unconnected with lands and waters may be difficult to establish. In Harrington-Smith, Lindgren J said that ‘[l]aws and customs which do not themselves relate to land or waters may make their contribution to proving the existence of a body or system of laws and customs. … Of course, s 223(1)(a) of the NTA requires that the body of laws and customs include laws and customs under which rights and interest in relation to land or waters are possessed’. The applicants in Harrington-Smith had to prove the existence of the body or system of laws and customs in general, and of those providing for the possession of rights and interests in particular. Similarly, in Neowarra, Sundberg J said: ‘As I read s 223(1), it is not the laws and customs that must be in relation to land or waters, but the rights and interests in land or waters that are possessed under the laws and customs’.
174 The Full Court in Sampi said (at [51]) that ‘[c]entral to the consideration of whether a group of people constitute a society in the sense used by the joint judgment in Yorta Yorta is whether the group acknowledged the same body of laws and customs relating to rights and interests in land and waters’. The Full Court viewed as important in the determination of the relevant society, factors such as a shared single belief system on the fundamental matters about the creation of the world and the existence of rights and interests in land and waters (at [67]). The Ngarla also refer to Lardil v Queensland [2004] FCA 298 at [140], where Cooper J found that there was no over-reaching communal system of traditional law acknowledged or customs observed with respect to the land and waters within the claim area by the applicant group which gave any constituent group rights or interests in the traditional territories of the other constituent group. This passage was cited by the Full Court in Alyawarr (FC) at [86], though for a different purpose.
175 The Warrarn do not appear to dispute the characterisation by the State and the Ngarla of the laws and customs relevant to the determination of the relevant society. They say that the Ngarla have not established that there is a difference between the laws and customs of the Ngarla as they relate to the fundamental matters of the creation and the existence of rights and interests in land and waters (Sampi at [67]). The Warrarn contend that in determining the relevant society, the Court is not limited in its inquiry to the laws and customs that directly relate to rights and interests in land (referring to Neowarra; Alyawarr v Northern Territory (2004) 207 ALR 539; De Rose (No 2) at [60] and [61]; Harrington-Smith at [1296]).
176 The extent of the laws and customs that affect a determination of rights and interests in land will depend upon the traditional laws and customs of the relevant society. In this case, there is extensive evidence of traditional laws and customs of the Ngarla that relate to land and determine land ownership and the right to speak for and be responsible for land. However, in light of the Warrarn claims, it is also necessary to consider broader asserted laws and customs to understand whether they affect, under a normative system of the relevant society, rights over or interests in the land.
177 The State says that the Court’s task includes identifying ‘the particular society from whence the rights and interests emerge, not simply to speculate that a society of some undefined sort might exist’, referring to Yorta Yorta at [47] and [49]–[50]. Similarly, the Ngarla say that the inability to define the asserted society precludes acceptance of the Warrarn submission, referring to De Rose (No 1) at [41], [42], [230]–[232], [276], [279], where the Full Court highlighted the requirement that claimants identify the society on which they rely and establish that it has had a continuous existence and vitality since sovereignty.
178 The State contends that the majority in Yorta Yorta considered that there would only ever be one normative system and one society giving rise to rights and interests in any particular area. The Ngarla submit that this should be qualified to the extent that there can, in certain circumstances, be overlapping societies and normative systems under which the members of each society have rights and interests in relation to the same area of land (citing Moses v Western Australia at [26], [345]–[349] and [376]–[386]). However, the Ngarla and the State agree that there is no basis, in this case, for a finding of overlapping societies in the Overlap Area. The Warrarn do not contend that they are part of a separate normative society that has rights and interests over the Overlap Area that extend back to sovereignty.
179 Yorta Yorta establishes the principle, relevantly to this case, that the relevant society for the purposes of ascertaining rights and interests in the Overlap Area is the body of people united in and by traditional laws and customs with respect to that land as part of a normative system that exists and has existed since sovereignty. The issue is whether that is the Ngarla, the Ngarla incorporating the Warrarn, or a broader Pilbara society that includes the Ngarla and the Warrarn.
The submissions and evidence on the relevant society at sovereignty
180 As previously stated, the Warrarn contend that if the Court concludes that the Warrarn are not part of the normative society to which the Ngarla belong, the next question is whether, at sovereignty, there was a broader society that extended beyond the Ngarla and whether the Warrarn were accorded rights and interests by this society.
181 The Warrarn say that at sovereignty, the relevant Yorta Yorta society was not limited to members of the Ngarla language group. Rather, the Warrarn say that the Ngarla people belonged to a regional grouping of Pilbara Aboriginal peoples who shared a similar set of values, laws and traditions. The State and the Ngarla contend that the relevant society at sovereignty is best characterised as the language group, the Ngarla.
Was the relevant society limited to the Ngarla language group?
182 The State and the Ngarla contend that the evidence of the experts and of Aboriginal witnesses supports their contention. They say that Dr Smith, Mr Robinson, Mr O’Connor and Dr Brunton agree that at sovereignty a Pilbara (or wider) regional society did not exist in the Overlap Area and has no foundation in the evidence. The Ngarla say that the only finding reasonably open is that the groups of the Western Desert on the one hand (including the ancestors of the Warrarn) and the Ngarla community on the other hand, each separately satisfy the legal and anthropological definitions of a “society” for NTA purposes and are not, and never have been, one single society. The Ngarla say that, at best, Mr O’Connor’s postulation about the existence of the Nomads as a society relates to the contemporary situation, not a traditional society.
183 To support their argument that the society was not limited to the Ngarla, the Warrarn submit the following:
While the Warrarn agree that the Ngarla constituted an identifiable community at sovereignty, they say that a distinction was drawn in Yorta Yorta between the terms “community” and “society”. The High Court said that it chose ‘the word “society” rather than “community” to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group’ (at footnote 94).
The Warrarn submit that the Ngarla have not established that the laws and customs of the Ngarla language group were different to those of the neighbouring language groups (eg. The Kariyarra) as they relate to ‘the fundamental matters of the creation and existence of rights and interests in land and waters’ (Sampi at [67]). The Warrarn refer to the publications of Radcliffe-Brown, which were referred to by the anthropological experts in this case, in particular AR Brown, “Three Tribes of Western Australia”, Jnl Anthrop. Inst. (1913) Vol 43, pp 145-7; AR Radcliffe Brown, “The Social Organisation of Australian Tribes”, Oceania, 1930 Vol. 1, NI, pp 36-7, N4, PP 446-7. Radcliffe Brown stated, as accepted by Dr Brunton, that the Kariyarra had the same form of social organisation as the Ngarla and the Njamal.
The normative content of the laws and customs of the Ngarla relating to land depended on the recognition and acknowledgment by a broader society. However, I note that no evidence was specifically cited in support of this assertion.
The Ngarla language group was not the land holding group, as land was held by local descent groups or estate groups. I reach conclusions on this evidence below.
There has been an integration and interchangeable use of the “classic Ngarla section system” and the “desert” section system, even where there may have been differences between communities in laws and customs (e.g. in relation to the kinship system and relationships in the conduct of the Law and roles in protecting sites). The Warrarn rely on the evidence of Dr Smith, who says that it is likely that this practice existed prior to European Settlement. Dr Smith refers to instances of inter-group marriage and early occurrences of large-scale inter-group ceremonial gatherings.
184 The Warrarn submit that the Ngarla language group did not constitute a discrete political or social entity in the way in which it interacted politically and socially with others. They say that at any one time the persons occupying parts of the Overlap Area would have constituted residential groups comprised of the local descent group and members of different estates and different language groups (e.g. spouses and close kin), travelling Law men, strangers residing with the permission of a local group and/or religious groups comprised of diverse persons coming together for ceremony. As evidence in support of this propositions, the Warrarn rely on:
Dr Smith’s evidence of interaction of the Ngarla with other language groups such as the coastal Nyangumarta and the commonality in the application of rules between language groups in relation to, and to enable, interaction for marriage, bestowal, initiation and exogamy. Dr Smith describes participation in ceremonies by various groups, exogamy between neighbouring groups and the shared principle of a mythological snake associated with rain, albeit using different names.
Mr Robinson’s reference to the rainmaking ceremony as a regional ceremony.
Dr Brunton’s evidence that the Overlap Area is near the border between an area the Ngarla claim as their country and the country of neighbouring people. He agrees with Mr O’Connor that local descent groups near the boundaries may often occupy an “intermediate position”. Dr Brunton says that these areas may be areas which are shared between groups, as not atypical for Aboriginal Australia.
185 The Warrarn say that various persons who identify as Ngarla are actually members of more than one group. For example, Mr Brown’s father was Ngarla and his father’s mother was Njamal; Charlie Coppin’s mother was Njamal and father was Ngarla and he could have gone Njamal. I note, however, that this does not deal with the fact that each of these men chose which way he would go, under Aboriginal traditional law and custom. Each then remained a member of the chosen group. That is, they were not regarded as members of more than one group.
186 The Warrarn say that parts of the Overlap Area may have been shared with the Njamal people. For example, Dr Brunton notes inconsistencies in the statements about the ancestries of Coombie and Ernie Mitchell, both Njamal men, which may indicate that they had rights and interests over at least part of the Overlap Area. Dr Brunton also notes that local descent groups near the boundary between language groups may have mixed-language group identities. Joe Taylor says that part of the country is both Ngarla and Njamal. Charlie Coppin says that Strelley Station is half Ngarla and half Njamal and that Jurali is Ngarla country, but used to belong to Pilu and Coombie. The evidence as to the precise ownership of the Overlap Area is not clear, as between Ngarla and Njamal. However, the Njamal have withdrawn their claims to this area and support the Ngarla claims. Whatever the interests as between those language groups, this evidence does not extend to or support interests in the Overlap Area by language groups other than Ngarla and Njamal, in particular, the Warrarn who predominantly speak the Nyangumarta language.
Was the society at sovereignty a Northern Pilbara regional society?
187 The Warrarn contend that the normative society at sovereignty extended well beyond the Overlap Area, to members of all the Aboriginal groups the subject of this proceeding who share a common identity as Marrngu, being the people of the Northern Pilbara region. They say that there is no firmly bounded regional system of laws, customs and social relationships; rather, there is a broader social network based on a section system of kinship which covers the Pilbara region and beyond. The Warrarn say that the Ngarla people belonged to a regional grouping of Pilbara Aboriginal peoples who shared a similar set of values, laws and traditions (see [196] below). According to the Warrarn, under the laws and customs of the regional Pilbara society ‘Aboriginal people may identify along a scale ranging from intensely local to broadly regional, according to context. An individual may fit into social formations of various sizes and compositions’.
188 Both the Ngarla and the State say that the relevant Yorta Yorta society in existence in the Overlap Area at sovereignty was the Ngarla society, not a broader society. Further, both the Ngarla and the State say that the society acknowledging and observing traditional laws and customs and maintaining a connection to the Overlap Area since sovereignty is the Ngarla people, not a broader regional society. They say that even if there was a broader society in existence, this society was not the relevant Yorta Yorta society for the purposes of the NTA, because the “unifying factors” relied upon by the Warrarn do not establish the existence of a normative system and society. They say that shared participation in ceremonies and some asserted shared beliefs do not establish the existence of a normative system and society and not one with respect to land. Further, the Ngarla and the State do not accept that the Ngarla and the Warrarn share the same laws and customs. The State says that for Pilbara Aboriginal people, the “society” for Yorta Yorta purposes is the language group. The State relies on the evidence of Mr Robinson, referred to below at [193], that Aboriginal people in the Pilbara see themselves first as belonging to a language group.
The characteristics of the asserted broader society
189 The Warrarn say that members of the regional group:
combine together as a body of persons united in and by the acknowledgment and observance of a body of laws and customs and by sets of relationships;
participate in large-scale regional ceremonial gatherings;
share the same fundamental beliefs in the creation of the world (cosmology) and the essence of their being (ontology);
share social institutions and cultural forms created and handed down to them by ancestral beings;
share a belief in an omnipotent creation being who initiated the creation of all things and instructed people in ceremonial behaviour and a belief in several other beings who assume a physical presence at sites within the landscape in the area the subject of this proceeding and beyond;
conduct ceremonial activity as a communal activity, pervaded by an ideology of egalitarianism. The participating groups perform their own songs in their own languages and display their styles of decoration to their neighbours, who do likewise.
come from across the Pilbara and the southern Kimberley and beyond to aggregate (sometime in large numbers) in ritual contexts; and
share a similar set of values and traditions, including recognition of sites created during the creation period, meeting together to initiate men and perform common rituals and ceremonies, entrusting leaders in the Law with a duty to protect sites, objects and land, assigning persons into a skin section and moiety system, and cognatic local descent groups.
190 To support these arguments, the Warrarn rely not only on the evidence of the joint participation in Law ceremonies but also on commentary in the anthropological reports as to the pre-sovereignty society. Specifically, they look to Dr Smith’s report, including:
In the context of a society as a body of persons united in and by its acknowledgment and observance of a body of laws and customs, Dr Smith took the observation that ‘a society is made up of “sets of relationships” as a starting point to discuss Ngarla identity in terms of a local-regional dialectic’.
Dr Smith’s statement that, at the broadest level, the Ngarla have a belief in an omnipotent being who watches over people and a belief in other beings that inhabit their country. This belief about an omnipotent being is a similar belief shared among Aboriginal groups to the southwest of the Overlap Area (although a different name is used to describe the creation being).
Dr Smith’s description of the fundamental beliefs in “the Dreaming”, shared among Aboriginal groups. Dr Smith also relates how the ancestral being handed down to each socio-linguistic entity specific social institutions and cultural forms, bestowing each language group’s Law.
Dr Smith’s description of large scale regional ceremonial gatherings at ritual centres such as Yandeyarra, Jigalong and Warralong, which he views as evidence of ‘political, social and cultural commonalities between the various groups in the region and beyond’.
191 Dr Smith accepts that, in ritual contexts, Aboriginal people from across the Pilbara and the southern Kimberley aggregate. However, he says that, while this perhaps supports an assertion that Pilbara Aboriginal people share “the Law”, the practice of the Law and the attendant beliefs are different within the different socio-linguistic groups. He states that ‘Ngarla Law is distinct from their southern and eastern neighbours’. To the Ngarla, he says, there is no contradiction in the fact that the basis of both their shared identity and their distinct identity stems from the Dreaming.
192 While Dr Smith says that the sharing of the Law has an ontological and cosmogonic basis and that different groups share a fundamental belief in the Dreaming, he also says:
This is not to say that socio-linguistic and territorial distinctions are not acknowledged and articulated during ceremonies. … [I]t is my opinion that Ngarla people maintain their own distinctive customary belief and practice; they have their own culturally specific expressions of practice including songs, rituals, ceremonial objects, ceremonial dress and body paintings.
…
… Ngarla people’s participation in these ceremonial aggregations is confirmation of long-standing cross-regional cultural obligation and a corresponding affirmation of Ngarla social, linguistic and territorial distinctiveness. Ngarla people’s views regarding their own distinct practices and beliefs in the context of ‘sharing’ the Law are just one example of the dialectical nature of Ngarla identity.
193 In support of the propositions that there is no firmly bounded regional system, that there is a broader social network and that Aboriginal people identify along a scale, the Warrarn rely on the following evidence:
Dr Smith refers to an observation by Keen (which is not separately provided or included in the bibliography of any of his reports) that Aboriginal people tend to summon different aspects of their identities according to context and said that a Ngarla person may identify along a scale ranging from intensely local to broadly regional. Dr Smith says that taking account of Keen’s general observations of Australian Aboriginal societies, it is not tenable to present the Ngarla as a wholly discrete cell-like community in the present or at sovereignty. Dr Smith says that conversely, Keen doubts that there has ever been a firmly bounded regional system anywhere in Australia and, if a regional system exists, it extends to the whole of Australia.
Mr Robinson says that the Warrarn are not a single society in the Yorta Yorta sense. He says that although there are similarities across different language groups in the Pilbara, the language groups support traditional claims to land. Pilbara Aboriginal people will see themselves as belonging first and foremost to a language group, membership of which is achieved through descent and that each of those language groups is a Yorta Yorta society. Mr Robinson also says that the description of the location of the Warrarn society is vague.
194 Mr Robinson’s evidence in this regard seems to argue against the Warrarn’s contentions. Although Dr Smith’s evidence supports the proposition that the society in the Overlap Area was not a wholly discrete cell-like community, it does not support the existence of a broader society.
The asserted unifying factors: A similar set of values, laws and traditions shared by the broader society
195 The Warrarn draw from the evidence to point to a set of regional values, laws and traditions that they contend was shared by the ancestors of the Warrarn and the Ngarla at sovereignty. They say that these support the commonality of acknowledgment of laws and customs and the contention that the regional grouping of people shared the same laws and customs.
196 In summary, the Warrarn contend that the regional grouping of Pilbara Aboriginal peoples acknowledged and observed the following laws and customs at sovereignty:
The Law, that represents a body of ‘traditional laws which control social behavior (sic) and perpetuate prescribed behavior (sic) and beliefs by the maintenance through an oral tradition of legends of the exploits of cultural heroes, during the time of creation, before the advent of the humans, travelling through the land, and creating the land, the place of persons in the land and the prescription of behavioural rules, rights and duties’.
The custom observed of recognition of sites created by legendary heroes during the creation period, which are a source of spirituality and individual spiritual origins and storage sites for objects which are symbolic manifestations of the creation period.
The custom observed of meeting together to perform common rituals and ceremonies of males initiated into secret knowledge of the Law. This included knowledge of the natural order, creation of the landscape, totemic rituals, resource increase rituals, rituals associated with the control of natural forces and rules of behaviour and incentives for adherence to social mores. The rituals included stories and songs about creation and the use of ********.
The custom observed of meeting together of males to initiate others into, and to teach, the secret knowledge of the Law, by means of rituals agreed by the initiated males. These rituals included four stages, were supervised by kinsmen of special significance to the initiate and may be the subject of variation by agreement.
The custom observed of meeting together of women and meeting for ceremonies secret to women concerning the maturing of young women, and the duty of women to teach children the kinship system and to participate in non-secret parts of initiation and male ceremonies.
The law acknowledged of keeping some rituals and ceremonies secret to initiated males.
The custom observed of achieving leadership status and rights in relation to secret ritual and ceremonial knowledge by a process of acquiring knowledge from past generations. The custom of performance and passing on of leadership status in the Law by conferral by an existing leader or by a decision of a meeting of initiated males.
The law acknowledged of the head Law man and other leaders in the Law being entrusted with the duty to protect rites, sites, objects and land associated with legendary heroes.
The law acknowledged of an obligation on the leaders in the Law to protect the knowledge and the landscape, sites within it and natural species of the area to which rituals and ceremonies relate and to pass on the knowledge of the stories, songs and designs symbolising the stories and songs on *****.
The custom observed of recognition of Mabarn men within the society with powers of healing and control of natural forces with the assistance of a personal totem. These powers are acquired from status related to knowledge and performance of rituals and ceremonies, training and personality.
The custom observed of assignment at conception of a personal totem or spiritual link to a particular species or site by a father to an individual on birth. The maintenance of a link of that individual with the site, investing that individual with special knowledge and influence over the totem species and investing a Law man with the right to begin “increase” ceremonies for the totem at the associated site.
The law acknowledged of assigning kin categories according to a section and moiety system prescribing authorised marriage partners, defining behaviour in ceremonies and affecting the composition of kinship clusters and residential groups.
The custom observed of assigning skin categories, which involves the use of a “Ngarla” section system interchangeably with a “desert” system.
The law acknowledged which assign each person to one of four sections different from that person’s parents, which oblige a person to choose a spouse from a different section from the person’s self and parents.
The law acknowledged and custom observed of moiety divisions being applied in the course of ceremonial activity in the division and sequence of dances, seating arrangements, ritual activity and distribution of food.
The law acknowledged and custom observed of moiety divisions and consequent kinship relationships prescribing roles in observing and sanctioning the initiation into manhood of adolescents.
The law acknowledged and custom observed of a male’s marriage only being formally recognised within the society following the passage of a male beyond a designated stage of initiation.
The law acknowledged and custom observed in socio-linguistic entities in the Pilbara of the observance of avoidance relationships affecting group living arrangements and meat avoidance after the death of a near relative.
The custom observed of cognatic local descent groups being made up of mostly genealogically traceable cognatic kin, often with the addition of adopted children in accordance with custom and a few members whose kinship ties are forgotten or who are bound to the group by long term intimate social interaction. These descent groups comprise groups who live together or frequently interact socially, and commonly act as a single social unit.
The law acknowledged and custom observed of marriage alliances between cognatic local descent groups, supported by the promising of women in marriage.
The law acknowledged and custom observed in socio-linguistic entities in the Pilbara in relation to death, burial and mourning rituals.
The law acknowledged and custom observed of adoption of a child into a family or cognatic local descent group by a process of communal discussion and resolution.
The custom observed whereby strangers to a local area seek permission from local leaders responsible for the area in accordance with traditional law to enter or visit an area or take resources from the area, as a means of protecting spirit entities from being disturbed and strangers being injured.
The carrying out of ritual transaction to permit strangers to reside in and carry out and participate in the practice of Law in that area.
The carrying out of ritual transactions to permit persons who are not connected to an area by descent to look after the area.
The law acknowledged and custom observed by which local descent groups have a connection to an area of their ancestors and having particular rights and interests in relation to that area.
The law acknowledged and custom observed by which an individual may be identified as within a social group associated with a particular area by various criteria including descent, language, birth in the area, participation in the Law associated with the area, long-term residence, knowledge of resources of the area, acceptance by the social group, and adoption or incorporation into the social group.
Laws or customs that allow for an individual who is not descended from ancestors associated with the area to be incorporated into a social group on various bases, including some or all of:
knowledge of the language spoken by the ancestors in the area;
birth in the area;
participation in the traditional Law of the region practised in the area including as a leader of the Law;
initiation into the Law of the area;
participation in the traditional Law of the region practised in the area, including as a leader of the Law;
participation in and leading ceremonies and looking after important Sites in the area;
long-term residence in the area;
long-term association with the members of the group associated with the area;
knowledge of the resources of the area; and
incorporation of that individual into the social group resulting in the passing on of rights and responsibilities to that individual and descendants of that individual.
197 The Warrarn acknowledge that within this asserted broader regional society’s social relationships and acknowledgment and observance of traditional laws and customs there may exist distinct locally-based rituals and ritual practices. However, they say, this does not mean that there might not be sufficient similarities between them as to allow them to be regarded as part of a normative society. For example:
There are locally-based rituals associated with the preparation of food. This is supported by evidence of Dr Smith.
There are rituals, rites, practices and songs and styles of decoration which are unique to particular groups. For example, the Warrarn refer to the different rituals associated with initiation practices. The Ngarla come together with their neighbours to hold initiation ceremonies, even though they do have a unique initiation ritual. The different rites are communicated between those groups in commonly held ceremonies.
The Warrarn say that there is no evidence to suggest that the Ngarla have ever conducted initiation ceremonies independently of the neighbouring groups. For example, the Warrarn refer to the initiation ceremonies that were conducted at the Strelley Law ground that included the initiation of family and kin of non-Ngarla men, including Bruce Thomas and Kevin Fred.
Shared participation in ceremonies and shared beliefs
198 Both the State and the Ngarla agree that there is shared participation in ceremonies such as male initiation ceremonies, but say that this does not support the existence of a “broader society”. The Ngarla say that engaging in shared Law is about creating relationships between societies and, in fact, demonstrates the separateness of the societies.
199 From the evidence, I accept that:
Methods of initiating men differ between the “desert” and “riverline” people according to the evidence of Dr Smith and Dr Brunton. Mr O’Connor says that the purpose of initiation ceremonies is the same, but there are different means of achieving that purpose between Aboriginal peoples in the Pilbara.
While Aboriginal people from across the Pilbara may aggregate for the practice of male initiation, Dr Smith’s evidence is that distinctions are often made between different language groups, with distinctive practices of Law and beliefs. He acknowledges that there is a sharing of the Law, but says that socio-linguistic and territorial distinctions may still be articulated during ceremonies. He points out that Ngarla people maintain their own distinctive customary belief and practice and have culturally specific expressions of practice, including song, ritual, ceremonial objects, dress and body painting. This distinction is recognised by other Pilbara socio-linguistic groups.
There are several different types of ceremonial Law in the Pilbara and the Ngarla have different Law ceremonies to those of other groups. According to Teddy Allen, ‘[d]ifferent groups have different law’. Dr Smith says that there are three distinct types of Law in the Pilbara and in that sense the ceremonies are distinct to particular areas – Pitarra Law, Watalpa law and Walajingka law. Dr Smith describes the practice as an aggregation of groups to participate in the same ceremony, rather than the holding of separate ceremonies.
The particular ceremonial aggregation of persons tends to be variable in composition, in that, in Dr Smith’s opinion, there may be different ritual business with different persons of different status involved.
Mr Robinson labels groups coming together for ceremonies an “association”, as it lacks some of the features of a “society”.
There is no “locale” for a society based on participation in regional Law and shared beliefs. The evidence establishes that Law ceremonies are held in different locations and that persons from disparate areas can participate.
Crow Yougarla says that ‘law business involved meetings of people from other groups in the Pilbara area including … peoples from the Desert side, and later, after we began to move towards the coast, the Njamal, Kariyara, and Ngarla people from the Coastal Pilbara’. This suggests that shared participation in coastal Pilbara Law ceremonies by the Warrarn occurred post-sovereignty.
The ceremonies, stories, rites and practices of the Ngarla and the Warrarn are different. For example, the Ngarla have their own initiation ceremonies, songs, spirit snake beliefs. They have not adopted the Karparti and Wirnpa stories, although the Warrarn assert that these stories are fundamentally the same.
The Ngarla admit that one of the few things that the Ngarla have in common with other language groups is a song cycle, which is shared by a number of language groups and explains their different languages, territories and customs.
Cultural and legal differences
200 The Ngarla and the State contend that the Ngarla and Warrarn do not share the same laws and customs.
201 The State says that there are distinctions between the laws and customs of the Western Desert society, which incorporate language groups associated with Warrarn such as Nyangumarta, Wanman and (generally) Martu on one hand, and those of the Pilbara, including the Ngarla on the other. The State says that these differences are so stark as to prohibit members of both groups forming a single “society” in the Yorta Yorta sense.
202 Specifically, the State and the Ngarla refer to the differences between the land tenure system relevant to the Overlap Area (being the Radcliffe-Brown model) and that which exists in Western Desert Society. These were discussed above at [141]–[155].
203 The Radcliffe-Brown model stresses the absolute primacy of descent in determining membership of a local group and therefore land ownership. The State acknowledges that there has been some change and adaptation of the traditional laws and customs, in that descent is now recognised cognatically (i.e. through the mother or the father) and the primary role of local descent groups has devolved so that surviving rights and interests are communal amongst all Ngarla people. However, the State says that it remains the case in the Overlap Area that descent is the sole criterion of land ownership and that the Radcliffe-Brown model is the “traditional” system of laws and customs and, therefore, is the only system which can give rise to native title rights and interests.
204 The Ngarla and the State point to other cultural and legal differences:
The Ngarla are territorially and linguistically distinct from their immediate neighbours, Dr Smith states.
The Ngarla and the Warrarn have different skin systems. Dr Smith notes that to some extent there has been an adaptation of skin system to adopt the Nyangumarta system, although he notes that the evolution of adaptation of skin systems is highly complex and it is not a simple translation. Mr Brown described the Ngarla skin system and said that the Warrarn used different names for the skin groups. He said that some of the younger Ngarla people have picked up the Warrarn names and that people around the area sometimes use the desert names instead of the Ngarla names. Mr Brown also said that the Karriyarra, Njamal and Ngarluma use the same skin systems as the Ngarla.
Different languages:
Bruce Thomas and Elizabeth Bunwarrie talk to the country in the Nyangumarta language.
Teddy Allen said that he greets the spirits in Ngarla country in Ngarla and that one must not use Ngarla language to greet spirits in Njamal country. This is confirmed by Mr Brown and Nancy Wilson.
Charlie Coppin says that the Ngarla language is in the ground.
Charlie Coppin says that ‘Ngarla law is different to everybody else’s Law – different to Njamal law and desert Law. Everybody shares the Law, but we all have different ways of getting there’.
Different bush medicine, as was acknowledged by Maggie Ginger.
Different Law ceremonies, such as initiation practices. The Ngarla practise Munyawanti, whereas the Warrarn practise forms of ********. Mr Brown said that there are also differences in Ngarla law and other groups about where initiates go during the day and night. Charlie Coppin says that Ngarla initiation Law is different to every other initiation Law. In the joint statement, Charlie Coppin, Joe Coppin, Joe Taylor and Stephen Stewart say that none of the Warrarn have been through Ngarla law, but that there is a ‘soft form’ of Ngarla Law which some of the Warrarn were put through at Warralong. Monty Hale confirms that he did not go through Munyawanti Law and acknowledges that the Ngarla have different initiation practices.
The Warrarn believe in the Karparti snake story, which is not traditional to Ngarla country. See the discussion of the differences below at [357]–[363].
The Ngarla believe that there are no Minyiburu sites in Ngarla country, whereas the Warrarn do. See the discussion of the differences below at [365]–[370].
There are different understandings of the significance of the Mikurrunya site on Ngarla land. The Ngarla People and Warrarn share a belief that Mikurrunya is an important mythological site, but have different understandings of its significance. See the discussion of the differences below at [381]–[386].
Bruce Thomas acknowledges that the Ngarla and Njamal have their own Laws. He also appears to imply that there are different Ngarla and Njamal laws relating to hunting and fishing.
State and Ngarla submission that the “broader society” is not adequately identified
205 The State and the Ngarla both contend that the Warrarn have failed sufficiently to identify, define and plead the asserted society. The State says that the “broader society” is a post facto concept designed ‘to simply encircle all of the individuals upon whose behalf the [Warrarn] claim is brought’. The State and the Ngarla reiterate that the identification of the relevant Yorta Yorta society from which the rights and interests emerge is a necessary requirement of a native title claim.
206 The State points to different Warrarn statements regarding the identification of the “broader society”:
In the Parties’ Substituted Agreed Statement of Issues, dated 2 August 2010, the Warrarn stated that the broader society was comprised ‘generally of a regional grouping of northern Pilbara Aboriginal peoples from a number of different language groups including Ngarla, Nyamal, Kariera, Yindjibarndi, Ngarluma, Djaru, Balgu, Karradjarri, Nyangumatarta, Kadajarra, Mandjidjara, Mangala, Wanman, Julbardi and Nyiyaparli’.
In the Fourth Applicant’s Statement of Issues, Facts and Contentions, dated 5 May 2008, the Warrarn say that prior to 1829 and presently, the society for the area was composed of several language groups, connected to an area bounded by the De Grey, Sherlock, Harding and Fortescue Rivers in the Pilbara region. Mr O’Connor agrees that the society, at least presently, is a regional aggregation or cultural bloc bounded by these areas. The Ngarla and the State point out that this area does not include the territory of many of the language groups listed.
The Warrarn say that they have “given up on” defining the outer boundaries of the broader society, as they do not think it was sensible or necessary to do so. Counsel for the Warrarn also said that defining the boundary is not something that he thought he could do.
Most recently, in closing submissions, the Warrarn said that normative society ‘extended well beyond the Overlap Area to members of all the Aboriginal groups the subject of these proceedings who share a common identity as Marrngu being the people of the northern Pilbara region … albeit that there is no firmly bounded regional system of laws, customs and social relationships’.
207 Mr O’Connor points out that he and Dr Smith agree that ‘there is a shared fundamental philosophico-religious belief system held by all Aboriginal groups in the Pilbara region (and beyond) and also shared social structural elements which govern the everyday lives of Pilbara Aboriginal people’. Mr O’Connor sees this as ‘a body of persons united in and by its acknowledgement and observance of a body of laws and customs’ and, thereby, a “society”. However, this breadth of description, is not sufficient to define the Yorta Yorta society for the purpose of the NTA. Such a description could, without more, encompass a number of societies or communities. It is not a sufficient definition of the society that holds rights and interests in the land in the Overlap Area.
208 The State submits that the varying descriptions of the “broader society” are contradictory and so open-ended as to be meaningless and that no serious attempt has been made by the Warrarn to plead or prove the membership of the broader society. The State also says that no evidence has been led to establish the number of persons that make up the “broader society”. The State says that this is necessary, as it must be shown that members of the society as a whole continue to acknowledge and observe traditional laws and customs.
209 I agree that with the State and the Ngarla that the Warrarn description of the extent and membership of the asserted society is not sufficiently clear or precise.
Previous cases involving Pilbara language groups and Western Desert society
210 While accepting that it is not determinative, the State says that various native title determinations have been made over land within the areas described as being part of the alleged broader society and that none have identified a broader society. Pilbara language groups, now said to be encompassed by the broader society, have satisfied the legal and anthropological definitions of society in their own right. The State refers to Daniel, which recognised native title rights and interests in two separately defined areas for the benefit of two separate groups, the Ngarluma and the Yindjibarndi.
211 The State also refers to the consent determination in Brown (No 1). The other cases to which the State refers were consent determinations in which there was no specific finding that the native title holders constituted a language group:
Thudgari People v State of Western Australia [2009] FCA 1334: The Thudgari people are descendants of people who belonged to the Tharrkari, Warriyangka, Jiwarli and Thiin language groups, although there was no finding that the Thudgari are a language group.
Hayes on behalf of the Thalanyji People v Western Australia [2008] FCA 1487: The Thalanyji People were not explicitly stated to be a language group, but this may be implied as they speak Thalanyji language.
Hughes (on behalf of the Eastern Guruma People) v Western Australia [2007] FCA 365: There was no finding that the Eastern Guruma People are a language group.
212 The State points out that the WDCB, which includes groups such as the Nyangumarta, Wanman and Martu which are said by the Warrarn to form part of the broader society, has been recognised as a society in its own right in:
De Rose (No 1);
Jango v Northern Territory (2006) 152 FCR 150 (Jango (2006)) ; and
Harrington-Smith.
213 The Ngarla also say that the existence of a separate Western Desert society is consistent with cases such as Lennon v South Australia [2011] FCA 474, where Mansfield J said (at [19]) that the WDCB has been ‘well-documented by anthropologists … and has been recognised in numerous Federal Court decisions’, referring to James on behalf of the Martu People v Western Australia [2002] FCA 1208, Jango (2006) and De Rose (No 2).
Consideration: the relevant society at sovereignty
The expert evidence on the relevant society
214 The evidence of the experts supports the Ngarla language group, rather than a broader society, as the relevant normative society.
215 Dr Smith says that the contentions of a broader society do not accord with his understanding of contemporary or pre-sovereignty Pilbara Aboriginal societies. In his opinion, the relevant pre-sovereignty society and the society in existence at sovereignty in the Overlap Area was Ngarla society. He says: ‘It is my opinion based on (a) long-term ethnographic research in the region; (b) the anthropological literature relating to the notions of ‘society’ and ‘identity”; and (c) the ethnographic literature relevant to the area, that the relevant pre-sovereignty society is Ngarla society (a ‘society’ here being a body of persons united in and by its acknowledgment and observance of a body of laws and customs’), that the Ngarla group is a regionally distinct social, linguistic and territorial entity, that Ngarla laws and customs pertain to the overlap area, and that Ngarla people continue to hold rights and interests in the overlap area’.
216 Dr Smith says that it is his opinion that ‘it is not anthropologically plausible to speak of a monolithic Pilbara regional ‘society’’, bearing in mind the highly labile and ephemeral nature of the aggregation of Aboriginal peoples, the anthropological understanding of societies as comprised as a set of relationships, the contextual nature of aboriginal identities and the lack of ethnographic evidence to substantiate the broader society view. Dr Smith observes that the Ngarla society is distinct from the Warrarn society and that the Ngarla are territorially and linguistically distinct from their immediate neighbours. However, because he accepts that ‘no society is an island’, in that sense there is some necessary social interaction. He considers the Warrarn to be Western Desert people, distinct from Ngarla society: ‘In summary, based on my knowledge and experience of the Pilbara area the Warrarn people and the Ngarla people do not belong to the same society. Furthermore the anthropological literature does not support the notion of a regional society that includes Warrarn people and Ngarla people among others as depicted by [Mr] O’Connor’.
217 Mr Robinson says: ‘Given the major differences between the ‘riverline’ and ‘desert’ societies, coupled with significant differences in culture and social structure between the ‘riverline’ groups, it is not possible, in my opinion, to conceive of the 14 ‘riverline’ and ‘desert’ language groups of the Warrarn claimants as constituting a single society in the sense meant by Yorta Yorta’. He says that Pilbara Aboriginal people will usually see themselves as belonging first to a language group by descent. Mr Robinson notes that ‘[a]lthough people might acknowledge certain cultural similarities across groups, nevertheless for land owning purposes and for the possession of native title rights and interests, Aboriginal people of this region look to individual, named language groups rather than a broader regional entity to support traditional claims to land’. Mr Robinson explains that a society will stand out from the background of inter-societal relationships because it will contain a clustering of institutions such as language, economy, values, religion, association with a particular locale, social organisation and a common sense of identity as a separate group. Applying these cluster principles, Mr Robinson concludes that the named language groups of the Pilbara such as the Ngarla, the Ngarluma and the Yindjibarndi readily fit this notion of what a society is.
218 Dr Brunton agrees with Dr Smith and Mr Robinson that at the time of sovereignty, the relevant laws and customs were not those of a Pilbara regional society. While he accepts that this applies at the time of sovereignty, he takes a more limited view. He states that ‘I think the situation that developed over the past century or so is more complex’. Dr Brunton thinks that there has been a significant degree of adaptation to, and incorporation of, beliefs and practices from Western Desert societies by coastal Pilbara peoples over the past century. Dr Brunton agrees that at sovereignty, the Ngarla Overlap Area would not have been regarded as being part of the Western Desert society or cultural bloc. The Overlap Area would have been part of the “riverline system” which included the Kariyarra, the Njamal and the Ngarla. To the extent that Dr Brunton might be said to accept that a ‘broader society’ now exists (which the State submits he does not), Dr Brunton makes it clear this is a post-contact development.
219 Mr O’Connor does not explicitly state in his evidence what society he believed was in existence in the Overlap Area at sovereignty. He does not consider the Overlap Area and the Ngarla to be part of the Western Desert bloc. Mr O’Connor agrees that a wider Pilbara regional society was not in existence in the Overlap Area. To the extent that there is currently a wider Pilbara regional society, Mr O’Connor agrees that this society has formed post-sovereignty from the 1920s. He describes it as a society which has had “a historical evolution”. Mr O’Connor says that there currently exists in the Overlap Area a ‘a regional jural community’, under the authority of which Aboriginal laws and customs are maintained.
220 The absence of a broader regional society at sovereignty is supported by Aboriginal evidence.
221 Evidence led by the Ngarla people uniformly asserts that there has always been a Ngarla people. Mr Brown said: ‘There has always been the one Ngarla group since the creation’. Mr Coppin says: ‘I am a Ngarla person. My father was a Ngarla, and his father before him – going right back’.
222 The evidence of Ngarla witnesses is that the Overlap Area was and is Ngarla country. Charlie Coppin is able to identify where different families had different areas and says ‘I know the boundary of the Ngarla area’. Similarly, Mr Brown was able to identify Ngarla country and said: ‘The Ngarla people have always been associated with this country that I have marked out’ and added ‘[i]t will belong to Ngarla people as long as there are Ngarla people’. Stephen Stewart states: ‘The Law says that the land belongs and stays with the family. You cannot give your country away’. Joe Coppin is able to identify the area that is Ngarla country. Kevin Draper identifies the area of Pilu country. Evelyn Mitchell says that the Overlap Area ‘has always been Ngarla country’. As summarised above the evidence of Ngarla witnesses confirms that Ngarla land could not be given away and that it could only be passed by descent.
223 Many of the persons who gave evidence that the Overlap Area was Ngarla country were from other language groups (such as Nyangumarta and Njamal). Doris Eaton remarks: ‘I have been shown a map of the Ngarla Overlap Area. That area is all Ngarla country’. Further, Lindsay Hardcase says: ‘The Ngarla Overlap Area is Ngarla country. It belongs to Charlie Coppin’. Monty Hale also agrees that the Overlap Area, the country around Kajarinya, is Ngarla country and Bruce Thomas says that ‘the Ngarla and Njamal still have the land. They are the language group with the right since the beginning’, although this statement was not directed to the Overlap Area.
224 I was not directed to any evidence from Aboriginal witnesses to the effect that they belonged to a “broader society”.
225 As the Ngarla and the State contend, even if a “broader society” can be said to exist, the broader society is not the relevant Yorta Yorta society because the “unifying factors” relied upon by the Warrarn do not establish the existence of a normative system and society.
226 As to the “unifying factors” and the beliefs and practices of the asserted broader society that are identified by the Warrarn:
The unifying factors are expressed at such a level of generality that it makes the asserted broader society indistinguishable from any other Aboriginal groups or societies.
Justice Sackville in Jango (2006) at [447] said that widely expressed laws and customs, expressed as broad criteria, tended to obscure the fact that the indigenous witnesses expressed different views as to the content of the laws and customs that they recognised.
The unifying factors are generally not laws and customs that give rise to rights and interests in land.
Many of the practices, such as initiating men, can be attributed to ‘more or less every Aboriginal group across Australia’. Dr Smith says that: ‘shared fundamental philosophico-religious beliefs’ is vague and ultimately meaningless in relation to this dispute: ‘At the broadest level it would be equally appropriate to say that the same fundamental philosophico-religious beliefs are shared by all Aboriginal people across Australia, and that these underpin the section system, the kinship system and other day-to-day aspects of all Aboriginal social life. All Aboriginal people share a common belief in the dreaming and all Aboriginal people have a system of classificatory kinship’ (emphasis original). He says that the logical conclusion of this argument would be to make all of Aboriginal Australia the normative society.
Members of the asserted broader society have vastly different interpretations, understandings and ways of acknowledging and observing laws and customs. For example, the State says that ways of initiating men and moiety and section systems differ within the asserted “broader society”.
The fact that similarities can be identified between the beliefs and practices of different language groups at a sufficiently high level of abstraction and that there is some degree of interaction between individuals and groups does not demonstrate that there is a single normative system and society.
227 Interaction, social relationships and marriage between groups does not necessarily result in those groups forming part of the same society. Dr Smith acknowledges that societies will interact with other, neighbouring societies, and says that ‘simply because they have economic or social relationships with their neighbours does not then to me say, well, that society has to be enlarged’. Mr Robinson describes a “clustering of institutions”, such as language and economy, by which a society will stand out from a background of inter-societal relationships.
228 Shared participation in ceremonies and some asserted shared beliefs do not establish the existence of a normative system and society. The Ngarla are territorially and linguistically distinct from their neighbours. The Ngarla have laws and customs that are particular to the Ngarla people and these are expressed during the shared participation in ceremonies through different ritual practices.
229 Further, the Ngarla and Warrarn do not share the same laws and customs. While there is some commonality, at a high level, between the laws and customs of the Ngarla and other language groups, this does not mean that the Ngarla are not a separate and distinct society in the relevant sense. There are significant differences between the laws and customs of the Ngarla and those of the Western Desert people, in particular, in relation to laws and customs relating to rights and interests in land.
Conclusion on the relevant society at sovereignty
230 The evidence in respect of the asserted broader society was, to say the least, sparse. The Warrarn acknowledged, during the hearing, that there are difficulties in providing boundaries to the membership of such a broader society and they have not delineated the membership, other than to assert it as extending to groups and communities in the Pilbara.
231 The Warrarn have not established that a broader Pilbara regional society existed at sovereignty or that, at that time, they were part of it. Mr O’Connor’s evidence and that of Dr Brunton, at the least, is that such a society did not then exist.
232 The Warrarn have not adequately identified any such “broader society” to the extent necessary. Without the identification of a broader society, the Warrarn are unable to demonstrate that they have rights and interests pursuant to the laws and customs of that society.
233 Rather, the evidence supports the Ngarla and the State contention that the Ngarla language group were and are a separate society and a recognised entity. The have spoken, and do speak, the same language. They identify themselves as distinct from their neighbours and have their own, unique, laws and customs. They are united in and by their acknowledgment and observance of those traditional laws and customs.
234 It may be that there is a broader Pilbara community with some common traditional laws and customs. However, the evidence supports the existence of the Ngarla as a separate society, with their own traditional laws and customs, within the broader grouping of Aboriginal communities in the Pilbara. The broader traditional laws and customs of the Aboriginal groups in the Pilbara are both similar to and different from those observed by and acknowledged by the Ngarla. Within the system of the grouping of Pilbara communities, there is recognition of and observance of laws and customs of the Ngarla as a separate normative society that applies, at least, to rights and interests in Ngarla land.
235 In any event, as to rights and interests in Ngarla land, the broader Pilbara community recognises Ngarla laws and customs, which are determined by the Ngarla and observed and acknowledged not only by the Ngarla but also by other Pilbara Aboriginal peoples. Those laws and customs extend to the ownership and passing of title and rights and interests in land, which are acknowledged and observed by the Ngarla
Part 6: The Warrarn native title claim
236 As outlined above, the Warrarn have claimed that they have native title rights or interests in the Overlap Area by virtue of an interest that is analogous to a licence or permission afforded to them by the Ngarla. The licence or a standing permission is to do particular activities and carry out particular obligations, being those that were extracted above at [32].
237 The Warrarn submit that under the traditional laws and customs of the normative society in the Overlap Area that existed at the time of sovereignty and continues to exist, the Ngarla are permitted to allocate rights, and have allocated rights, to the Warrarn, by way of a permission or licence.
238 The Warrarn’s primary position is that the traditional laws and customs under which their rights and interests in the Overlap Area exist are Ngarla traditional laws and customs. In the alternative, they rely on the laws and customs of a “broader society” of which they are part. As I have concluded above, the relevant society at sovereignty was the Ngarla society. The Warrarn rely on a licence said to have been granted by the Njamal and the Ngarla.
239 As can be seen from the Agreed Facts, the Warrarn or their immediate ancestors moved to the Overlap Area in the 20th century. Any development of the Warrarn’s own rights and interests in relation to the Overlap Area since that time is not sufficient, by itself, to make an independent claim under the NTA. A native title claimant must establish that those rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed and that by those traditional laws or customs the claimants have a connection with the land or waters. It is apparently not in dispute that the Warrarn did not have native title rights in the Overlap Area at sovereignty.
240 It is not in dispute, and the evidence has established, that the Ngarla have rights and interests in the Overlap Area, that those rights and interests are possessed under traditional laws and customs and that by those laws and customs the Ngarla have a connection with the Overlap Area. It is not in dispute that this connection pre-dates sovereignty.
241 Acknowledging these historical circumstances, it is the recognition of the requirement for continuity from sovereignty that underpins the contention that the Warrarn native title rights and interests derive from the Ngarla society, as the latter society’s acknowledgment and observance of traditional claims and customs on the Overlap Area has continued since sovereignty.
242 The Warrarn claim is therefore made on the basis that:
the Ngarla language group has been connected to the Overlap Area in accordance with traditional law and custom since a time prior to sovereignty;
the laws and customs acknowledged and observed by the relevant society at sovereignty, whether this be the Ngarla or a broader society, included the laws and customs by which the Warrarn currently hold rights and interests in land;
there was a sufficient commonality of acknowledgment of traditional laws and observance of traditional customs among the Ngarla and the ancestors of the Warrarn at sovereignty to support the capacity of the Ngarla to accord to the Warrarn the rights which the Warrarn claim; and
the Warrarn exercise their rights and interests pursuant to their acknowledgment of the same traditional laws and customs.
243 As previously stated, the Warrarn claim native title on behalf of a group of persons that satisfy a number of criteria, including that they are recognised as being leaders in the Law practised in the area which includes the Overlap Area. The Warrarn say that the rights to reside and carry out activities in the Overlap Area flow from the obligations attendant on the role of a leader under traditional laws and customs acknowledged and observed by the Warrarn and the Ngarla.
244 While the Warrarn acknowledge that the licence or standing permission may be revoked, they contend that this must be in accordance with traditional law and custom and say that the normative system does not allow rights to be revoked at will or capriciously. The Warrarn say that the Ngarla do not seek to revoke the licence and contend that it is not necessary for the Court to determine the circumstances in which it may be revoked. There is no present issue as to revocation, except as to whether it can be revoked at will or whether it can only be revoked as a result of transgression. The Ngarla do not deny that that they have given the Warrarn some form of licence or permission, but the Ngarla dispute the nature and extent of permissions granted and say that it does not extend to ownership of, or the right to speak for, Ngarla land, including the Overlap Area.
245 As the State contends, in order to make out its claim, the Warrarn must establish that, in relation to the Overlap Area:
a normative system of traditional laws and customs provides for (and has always provided for) the allocation or transmission of rights and interests in land to non-Ngarla people by permission or licence;
a permission or licence was granted and, if so, the nature and extent of that permission or licence (including to whom it was granted and in relation to what activities);
the traditional laws and customs provide for the allocation of native title rights and interests to non-members of the relevant “society”;
there is sufficient certainty of content and ownership of the claimed rights to enable them to be recognised under the NTA; and
the members of the Warrarn have a “connection” to the Overlap Area of the kind required by s 223(1)(b) of the NTA.
Whether licenses and permissions could be granted under Ngarla traditional law and custom
246 The first question is whether Ngarla traditional law and custom provides for the allocation or transmission of rights and interests in land by way of permission or licence.
247 The Warrarn submit that in accordance with the traditional law and custom of the relevant normative society, a person could be given permission to live, camp, visit, hunt, fish, take resources and practise Law in the country of a language group other than his or her own, or to look after country. The Warrarn also say that there are specific ritual transactions associated with the giving of these permissions by the Ngarla people. These include:
the traditional custom observed of strangers to a local area seeking permission from local leaders in accordance with traditional law to enter or visit an area or to take resources from the area, as a means of protecting spirit entities from being disturbed and strangers being injured; and
the carrying out of ritual transactions so as to permit strangers to a local area to reside in and carry out and participate in the practice of Law in that area.
The evidence that a licence could be given under traditional laws and customs
248 In support of their submission that a licence could be given under Ngarla traditional laws and customs, the Warrarn rely upon evidence of a number of Aboriginal witnesses, including Ngarla, Njamal and Warrarn witnesses, and the evidence of the anthropological experts. I note that, perhaps in connection with their “broader society” argument and the history of the Warrarn claim which are discussed above, the Warrarn evidence is not limited to the granting of permission under Ngarla law, but also includes permissions granted under Njamal law.
249 The evidence of Elizabeth Bunwarrie, Biddie Bunwarrie and Maggie Ginger, all Warrarn, is that the Warrarn had permission from Doris Eaton’s father, Ernie Mitchell, a Njamal man, to live at Strelley and look after the Law and country. Doris Eaton agrees that the elders made ‘that Strelley mob’ caretakers while the elders were living at Yandeyarra and ‘asked them to look after the place’.
250 Teddy Allen said that ‘Nyamal people can ask other people to look after their country as caretakers when they go away. This happened during the strike when we went to Yandeyarra. We asked the desert people to take care of our country for us. But we did not give it to them. You cannot give land to other people. … I was taught this by the old people and by my parents’. Charlie Coppin accepts that the Ngarla can give permission to non-Ngarla to live in Ngarla country but: ‘[i]f Ngarla give permission then a person who is not Ngarla can live in Ngarla country, but it doesn’t become their country’.
251 Joe Taylor says that it was acceptable for the Warrarn to stop on country but that it did not mean they “belong” to the country. Mr Taylor draws a comparison with renting saying ‘I rent the house out to you while I am gone, it does not mean you own the house. Same thing’. Mr Brown also drew an analogy and said that the old Ngarla people gave the people who came in from the desert ‘a visa to practise their law in the Ngarla country at Kajarrinya’ and said that they could go hunting in the country and join in the ceremony. Mr Brown also said that once Nyangumarta people had been introduced into Ngarla country, the Ngarla allowed them to join the corroboree and go hunting.
252 Stephen Stewart says ‘[y]ou can be given permission to fish or hunt, but you can’t give country away. The only people allowed to speak for country are people from the family who owns the land. … If someone wants to camp on someone’s country, they must ask the person who speaks for the country’. He says that when other mobs came to work on Ngarla country, they had to ask for permission from Ngarla families to stay on Pardoo and other stations and that ‘[t]hat was under Ngarla law and custom’. Mr Brown added that by incorporation or adoption, an adult person may be introduced into country and have a right to hunt and fish, but will only have a say over the country where there are no descendants left.
253 Joe Coppin explains that someone who is not Ngarla must ask the old people like Charlie Coppin for permission to come onto Ngarla country and to practise Law and culture. He says that the Warrarn mob ‘can’t do law ceremonies unless we open up the law grounds first. They have to ask permission’. He also says that they are not allowed to cut down trees without permission. Joe Taylor says ‘when boys are brought to go through Law at Warralong, you have to ask the Njamal, Nyangumarta or Ngarla for the right to go through the law; when he has gone through the Law he is a man then he is free to go anywhere’, at least, apparently, while the ceremonies are taking place. In highly restricted evidence, Charlie Coppin describes ******** ******** ******** ******** ******** **************** ******** ******** *********** ******** ******** ******** ******** **************** ******** *******.
254 Nora Cooke says that non-Ngarla people are supposed to ask for permission to visit the country and that ‘people from other communities, they should ask for permission and out of respect because that is our land and we have sites there. … you have got to respect the people and respect the land’.
255 When asked what rights he had at Warralong, Lindsay Hardcase said that Warralong ‘belong to Njamal and we’ve got to work with Njamal all along and talk to the Njamal and come to party with them and talk and all talk together to make decision’.
256 As to the anthropology evidence, Dr Smith talks of the Ngarla people affording to the Njamal people a corridor to the sea, or a ‘sort of free passage’ to access coastal resources. He mentions a ‘kind of free passage’ but says that he is not sure how to define it. Dr Smith describes Monty Hale’s interest, allowing him to reside at Strelley Station, as arising from a standing licence, embellished by his ritual leadership role. He also describes a licence afforded to Teddy Allen and Peter Coppin while they were resident in Ngarla country that enabled them to fish and hunt and exploit resources in that vicinity.
257 Mr Robinson also refers to a Yindjibarndi ‘right to access the coast’ in circumstances where he suspects that the rights may be removed where the Law was broken. He says that he “suspects” that in the Mount Margaret area there was something like a standing permission to perform ritual once the permission of local landowners was sought. Mr Robinson also says that people may have ‘some kind of rights’ in and around an area through factors such as long residence, birth or initiation.
258 Dr Brunton refers to Kingsley Palmer’s conclusion to his discussion of ethnographic material from Yandeyarra, that ‘rights in land could change over time as a result of political negotiations and strategies which are in accordance with traditional understandings and values’ (Palmer K, “Religious knowledge and the politics of continuity and change” in Anderson C. (ed), Politics of the secret, (Oceania Monograph 45, University of Sydney, 1995). Kingsley Palmer refers to the use of restricted objects as signifiers of esoteric knowledge as a process that has permitted change in the acquisition of rights.
259 In respect of the ritual transactions for the granting of permission, Dr Smith gives evidence that:
the Ngarla have ritual transactions concerning the granting of permission to “outsiders” which are not new and did not come about solely as a result of social, cultural and economic changes arising from the pastoral strikes. For example, it would appear that the Nyangumarta and Njamal people have, in some instances, been granted permission to practise desert law on Ngarla country.
there is a distinction between local landowners who are ritual leaders, and migrant “Law carriers”. Dr Smith says that the rights acquired by migrants through ritutal induction do not constitute a right in land per se, but are more possibly a form of permission that is being acquired.
his restricted fieldnotes contained references to ******** ******** ******** ******** ******** **************** ******** ******** *********** ******** ******** ******** ******** **************** ******** ******** *********** ******** ******** ******** ******** **************** ******** ******** *********** ******** ******** ******** ******** **************** ******** ******** .
Consideration of the ability to grant permissions or licences under Ngarla traditional law and custom
260 Broadly speaking, the evidence from members of the Warrarn Group, the Ngarla and the Njamal witnesses was consistent: that permission could be given to others to enter upon and carry out certain activities on country in the Pilbara, specifically Ngarla country. That is consistent with a licence or permission given under traditional law and custom. That is, in accordance with the traditional law and customs observed by the relevant normative society, a person could be given permission to live, camp, visit, hunt or fish, take resources and practise Law in the country of a language group other than his or her own, or to look after the country.
261 However, it should be noted that there were some specific ritual transactions associated with the giving of permission to permit strangers to a local area to reside in, and to carry out and participate in the practice of Law in, that area. Dr Smith says that ‘[r]itual transactions concerning the granting of permission to ‘outsiders’ are not new, nor did they come about solely as a result of the social, cultural, and economic changes arising from the Aboriginal pastoral strike from 1946 onward’. Dr Smith gives examples of strangers to a local area seeking permission from local leaders in accordance with traditional law to collect medicine on Ngarla country. He says that one reason why the Ngarla insist that outsiders must ask for permission to access an area is as a means of preventing spirit entities from being disturbed and strangers being injured.
262 The evidence as to activities conducted by permission on the land demonstrates a degree of flexibility that is, in some ways, similar to other rights in land. It is not uncommon that permission may be given to come onto land and to conduct activities that are not regulated by the owners. However, the evidence is clear that this does not convey rights to the land.
263 As set out above, the evidence, from both Ngarla and Warrarn witnesses is overwhelming: ownership of Ngarla land can only be passed by descent. Under traditional law and custom, the Ngarla cannot give any form of permission or licence that transfers ownership of the land.
264 However, the Warrarn also claim rights less than ownership. They claim the granting of rights to reside and to conduct certain activities on the Overlap Area, while recognising that it is Ngarla land. Those rights, the Warrarn say, were accorded under the normative system of traditional law and custom.
265 It does not seem to be in dispute that the Warrarn have access to the Overlap Area and conduct certain activities there, including the practice of the Law. The evidence demonstrates that a permission or licence to do certain activities on Ngarla land could be given under Ngarla traditional law and custom. However, the fact that a permission or licence could be granted under traditional Ngarla laws and customs does not necessarily mean that any permission given to the Warrarn was under traditional laws and customs, or that it amounts to a native title right or interest, or that it is in respect of the Overlap Area.
Were the Warrarn in fact granted a permission or licence and what was the permission or licence for?
266 The second question is whether any permission or licence was in fact given to the Warrarn by the Ngarla concerning the Overlap Area.
267 The parties agree that certain Warrarn ancestors have resided in or near the Overlap Area and that the Warrarn have participated in Law ceremonies and in the conduct of the Law in the Pilbara area. However, the parties do not agree that the Warrarn have a right, in the form of permission or a standing licence under Ngarla traditional law and custom to do so.
268 The Warrarn say that they participate in traditional cultural life by reason of a licence or permission accorded to them by the Ngarla, under the traditional laws and customs acknowledged and observed by them. The Warrarn say that their evidence and that of the Ngarla witnesses and Dr Smith is consistent with this contention.
269 In support of their argument for the allocation of rights and interests by permission, the Warrarn rely on the following, the evidence for which is set out in more detail below:
there is inferential evidence that rights and interests have been afforded to the Warrarn group in respect of the Overlap Area, including from the history of the Overlap Area;
the Warrarn have been given a licence or permission to participate in the traditional cultural life in the Overlap Area;
the expert evidence supports their claim; in particular, Dr Smith refers to a “standing licence”;
the Warrarn have been given permission for ceremonial activity based upon particular events and/or places; and
there is sufficient commonality of traditional laws and customs to support the capacity of the Ngarla to accord the Warrarn the rights and interests claimed.
270 The principal events upon which the Warrarn say that the standing permission is founded occurred principally at Kajarinya in 1956 and at Strelley in 1972. As a result, the Warrarn claim that they have been given permission or a licence by the Ngarla to do particular activities and carry out particular obligations in the Overlap Area, including the obligations to maintain and protect Law grounds, to conduct ceremonies and ritual and to deal with ceremonial and ritual objects in the Overlap Area.
271 The State does not accept that the evidence establishes that a “permission” was granted. The State submits that there is no direct evidence that the Warrarn ever asked for or have been given permission to enter, or to reside in the Overlap Area, or to undertake the activities listed in [32] above. The State contends that, at most, the evidence amounts to no more than that the Ngarla people have accommodated or accepted the Warrarn without complaint.
272 The Ngarla agree that the Warrarn have in the past been given permission by the Ngarla to participate in traditional cultural life in the Overlap Area. However, they contend that this permission is entirely revocable and that it is within the discretion of the Ngarla as to whether such permission may be given, if required, in the future. Further, the Ngarla deny that the permission conveys any rights over the land.
273 The Ngarla accept that a permission has been granted to conduct certain activities and to reside in or near the Overlap Area. The Ngarla accept the Warrarn evidence, insofar as it is intended to prove (by inference) that permissions have been granted for the Warrarn to enter upon and reside in the Overlap Area and to carry out activities generally. However, the Ngarla dispute that the grant of permission can establish the existence of native title rights and interests. They also dispute that the evidence supports the existence of a standing licence or permission granted to the Warrarn to look after country and sites, to hunt and collect bush foods or to participate in and carry out ceremonies. The Ngarla contend that the factual basis of the Warrarn claim is not made out. Rather, according to the Ngarla, the evidence only supports the conclusion that:
(1) Particular permissions that have been granted from time to time for Aboriginal people including some of the current members of the [Warrarn] and their forebears to conduct Law based activities near the Overlap Area. These are not standing permissions.
(2) A standing permission has been granted by the Ngarla for Aboriginal people resident at Strelley station to live there and conduct everyday activities such as hunting and gathering for their domestic purposes.
(3) Any permission that is, has been or may in the future be granted to other Aboriginal people including the current members of the [Warrarn] is revocable at the will of the Ngarla.
What is the required evidence of a licence or permission?
274 The Ngarla contend that for native title rights and interests to be recognised, they must exist under a normative system of traditional laws and customs, not merely as observable patterns of behaviour. The State agrees, submitting that native title rights and interests cannot simply be inferred from observable patterns of behaviour.
275 In Yorta Yorta, the High Court said (at [42]):
… because the subject of consideration is rights or interests, 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. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.
The Ngarla also cite the application of this principle in Rubibi Community v Western Australia (No 5) [2005] FCA 1025 at [235] and Jango (2006) at [395].
276 Applying those principles, it is necessary to distinguish between:
whether, as a matter of fact, a permission or licence was granted and if so, the nature and extent of that permission; and
what Ngarla traditional law and custom says about the rights that are possessed by those to whom a licence was granted.
277 Further, the Ngarla contend that it is necessary to distinguish between:
matters concerning Law ceremonies and the right to participate in the ceremonies themselves (which may not be a right in relation to land) and the right to make decisions as to where and when the ceremonies take place on particular land (which is a right in relation to land); and
other secular or non-religious activities on land.
Inferential evidence of permission
278 The parties agree that there is a lack of direct evidence of any general standing permission given by the Ngarla to the Warrarn. The events upon which the asserted standing permission is founded occurred principally in 1956 and 1972. The knowledge of much of what occurred is restricted to very senior male practitioners of the Law. The key witnesses, Monty Hale (Warrarn) and Charlie Coppin (Ngarla), were very young men in 1956. Another elderly living person, Crow Yougarla, provided an affidavit in the proceeding.
279 The Warrarn submit that there does not need to be direct evidence of the precise terms of a particular conversation or a transaction in order for the Court to be satisfied that a permission has been granted. The Warrarn rely on inferences drawn from subsequent conduct as evidence of what occurred, to establish that the permission for which they contend was given in accordance with the traditional laws and customs of the Ngarla. The Warrarn further contend that the drawing of inferences is consistent with anthropological method of observing what people say and do as a basis for forming an opinion of the normative rules governing behaviour of a society, that being the structure of the formation of opinions by anthropologists who have given evidence in this proceeding, called by the Ngarla, the Warrarn and the State. The Warrarn refer to references from the expert anthropologist “hot tub” in which each expert referred to the utility of examining observable behaviour.
280 The Ngarla agree that general evidence may be sufficient to prove that permissions have been granted for certain activities and do not take issue with the proof of permission by inference. However, the Ngarla state that while participant observation is an essential part of anthropological method, where there is more than one explanation for what people do, it is necessary also to inquire why people act as they do. The Ngarla do not agree that the inferences relied upon by the Warrarn can be relied upon to prove the existence of native title.
281 The State says that inferences that permission was given should be approached with great caution. The State points out that the Warrarn bear the onus of establishing by evidence that permission was given from which rights flow, and says that what is required is positive evidence that the Ngarla gave permission for each of the claimed activities. The State says that the Ngarla position, that inferences can be drawn from observable behaviour to conclude that activities were done pursuant to a permission but that inferences cannot be drawn from observable behaviour to conclude that activities are done pursuant to traditional laws and customs, is inconsistent.
282 The Ngarla and the State say that in the particular circumstances of this proceeding, observable behaviour cannot be used to conclude that native title rights and interests exist, or that conduct is undertaken pursuant to a particular law or custom because:
the observable behaviour is undeniably recent;
the presence of the Warrarn in the Overlap Area commenced with their purchase of the Strelley pastoral lease and they remain pastoral lessees; and
the Ngarla very clearly “gainsay” the asserted rights and interests of the Warrarn.
Consideration of required evidence
283 Yorta Yorta does not preclude the Court from drawing inferences as to the existence of a native title right or interest from conduct, including observable patterns of behaviour. If a right is based in the laws and customs of a normative society, whether the right has been exercised or whether the licence exists is a fact to be established. It may be established by inference from observable behaviour. However, care must be taken in relying on such inferences, as a native title right or interest, must have normative content. For example, given that the Warrarn own and reside on the Strelley pastoral lease, subsequent observable behaviour that follows from conduct or residence on Strelley Station cannot, alone, be used to conclude that native title and rights exist, or to presume that particular conduct is undertaken pursuant to a particular law or custom of the normative society. Further, the observable behaviour of members of the Warrarn in relation to the Overlap Area is recent and much of that behaviour commenced with their purchase of the pastoral lease.
284 I accept that evidence can be used to prove by inference that permissions have been granted. However, accommodation or acceptance by the Ngarla of the presence of the Warrarn on the Overlap Area does not equate to the grant of permission and it is noteworthy that the Ngarla deny that permission has been granted for some of the activities and rights asserted by the Warrarn.
285 The Warrarn bear the onus of establishing by evidence that permission was actually given, from which rights flow; that is, establishing that pursuant to the traditional laws and customs applicable to the Overlap Area, members of the Warrarn sought, and the Ngarla gave, permission for the doing of the claimed activities on the Overlap Area.
The Warrarn evidence of a licence or permission
286 I will discuss the evidence relied on by the parties and the competing submissions before reaching overall conclusions on the evidence of permission below.
Evidence of the history of the Overlap Area
287 The Warrarn submit that they and their ancestors have been practising Aboriginal law and customs in the Overlap Area and have been integrated into the conduct of the Law of the Overlap Area:
In the first 50 years of colonisation, there was a dramatic population loss amongst Ngarla people in the De Grey river area.
Between 1949 and 1961, the Warrarn and/or their ancestors established camps in Ngarla country. Members of the Ngarla were aware of these camps and, from time to time, resided there and worked together with the Warrarn.
Throughout the time that they have been resident in the area, the Warrarn and their predecessors have been practising Aboriginal law and customs in the area.
In the 1950s, the leaders in the Law were primarily from Njamal–identifying local descent groups. The role of leadership in the Law was subsequently passed to others, in accordance with traditional laws and customs, by traditional processes of conferral of the Law.
Aboriginal evidence that a licence or permission to participate in the traditional life of the area was granted by the Ngarla
288 The Warrarn accept that they participate in traditional cultural life in the Overlap Area by reason of a licence or permission accorded to them by the Ngarla, which derives from the communal title of the Ngarla. In this regard they rely on evidence of the Warrarn witnesses which they say is consistent with that adduced by the Ngarla. The Warrarn rely on the following evidence:
The Aboriginal evidence from members of the Warrarn is to the effect that, as stated by Elizabeth Bunwarrie, Biddie Bunwarrie and Maggie Ginger in their joint statement, their people had permission from Ernie Mitchell to live at Strelley and to look after the Law and the country, which they are doing. They say that the Law is carried on by Crow Yougarla, Bruce Thomas, Monty Hale and Kevin Fred. Monty Hale also refers to asking for permission to do Law at Strelley.
The evidence is that the determination of where Law ceremonies are to be held is a group decision. As Lindsay Hardcase says, no one person can stop the Law: ‘We’ve all got to agree on it’ and ‘[t]he Law belong to everybody’. However, Lindsay Hardcase also says that if for some reason the Njamal do not want the Law to happen at Warralong in a particular year, ‘we can talk to the Njamal and get together and we talk. We can’t leave the law, see?’. Mr Hardcase indicated that the Law might then be held elsewhere, at Yandeyarra if the Njamal maintain their position.
Monty Hale accepts that under Aboriginal law, desert people such as himself and his family needed permission to do Law from people who ‘owned the country’. Mr Hale accepts that he did not know himself about what was said or done at Kajarinya about a transfer of “rights” from the Ngarla other than the giving of a permission to do law. Charlie Coppin says that ******** ******** ******** ******** ******** **************** ******** ******** *********** ******.
289 The evidence is that there was some form of agreement that desert people could join in Law ceremonies. I note that there is a need to distinguish between permission given by the Ngarla over Ngarla land and permission relied on by the Warrarn to live at Strelley and to look after the Law. That permission, according to the evidence of Elizabeth Bunwarrie, Biddie Bunwarrie and Maggie Ginger, was given by Ernie Mitchell, a Njamal man. The evidence of Bruce Thomas is also to the effect that there was an agreement with the Njamal to bring the Warrarn law and culture to Strelley. I will reach conclusions on this evidence in more detail below.
Inferences that the Warrarn say amount to evidence of permission
290 The Warrarn submit that given the lack of direct evidence, the Court should rely on and draw inferences from subsequent evidence as to the import of what occurred in the granting of permission. They submit that the fact that rights and interests were sought to be exercised and have been afforded to the Warrarn in respect of the Overlap Area under the laws and customs of the local normative society are evidenced by:
(a) the participation of their predecessors in ceremonies in 1956 and 1980;
(b) the opening of a traditional Law ground at Strelley by persons including elders of their group in 1972/73;
(c) participating in the practice of traditional laws and traditional customs in the Ngarla Overlap Area;
(d) residing in the Area;
(e) being born in the Area;
(f) having personal spiritual connection to the Area;
(g) burying their ancestors in the Area;
(h) gaining knowledge of and looking after places of significance in the Area;
(i) gaining knowledge of resources in the Area;
(j) cutting trees in accordance with traditional law and custom for fashioning sacred objects for use in ceremonies;
(k) teaching children and young men and women how to hunt and prepare and collect bush foods and to observe and respect relationships and avoid dangerous places on the country in accordance with traditional law and custom and to become leaders in the Law;
(l) taking on responsibilities and being recognised as having status as leaders of the Law in respect of the Area;
(m) acceptance by the Ngarla of (a) to (l) above.
291 In respect of the activities listed by the Warrarn in [290] (a) to (l), the activities cited by the Warrarn seem to distinguish between “the Overlap Area” and “the Area”. It is unclear whether “Area” refers to the Overlap Area, or to the De Grey River area, or to another area. The term “area” is used in the Warrarn submissions in both contexts. There is uncertainty as to which “area” the following evidence is being directed to, which may affect the relevance of the evidence to rights and permissions granted in respect of the Overlap Area.
292 The Warrarn rely on evidence not only from the members of the Warrarn applicant group but also on evidence from some of the Ngarla and Njamal people, in particular concerning the participation in the Law and Law ceremonies. They also point to the anthropological reports. The Ngarla do not dispute some of the matters, in particular the residence of the Warrarn in the general area and the participation by the Warrarn in Law ceremonies in the Pilbara. The Ngarla do not dispute the role of Monty Hale, Bruce Thomas and Lindsay Hardcase as senior men in the Law but say that their role is as senior men in the Pilbara who join in the communal Law ceremonies in the Pilbara region, including those in the Overlap Area; their role is not as owners of the land or as having rights over the land. They also say that while the Law ceremonies are conducted, broadly, together, there are some aspects that differ between the different language groups.
293 As to the ‘participation of their predecessors in ceremonies in 1956 and 1980’, the Warrarn rely on evidence from Lindsay Hardcase, Peter Toby, Monty Hale, Bruce Thomas, Joe Taylor and Mr O’Connor. The evidence supports the participation by certain members of the Warrarn and their ancestors in ceremonies at Strelley and at Warralong, although the evidence referred to by the Warrarn is not limited to specific years in every case.
294 As to the ‘opening of a traditional Law ground by persons including elders of their group in 1972/73’, the Warrarn rely on evidence from Lindsay Hardcase and Bruce Thomas, as well as Mr O’Connor’s anthropological report. I note that this evidence does support the opening of Law at Strelley by Dooley Bin Bin. However, the evidence of Lindsay Hardcase is that Law at Strelley was opened by all of the Law men, with the permission of the Ngarla and Njamal.
295 As to ‘participation in the practice of traditional laws and traditional customs in the Ngarla Overlap Area’, the Warrarn rely on evidence from Lindsay Hardcase, Peter Toby, Elizabeth Bunwarrie, Kevin Fred, Maggie Ginger, Bruce Thomas, Joe Taylor, Monty Hale, Joe Coppin and John Bucknall. However, this evidence refers to the participation in Law at Strelley or at Warralong. Warralong and is not within the Overlap Area and the Ngarla and State submit that Strelley Law Ground is also not within the Overlap Area. It is not clear on this evidence whether the references to Strelley refer to the Strelley Law ground or to a part of Strelley Station that is within the Overlap Area.
296 The Warrarn say that Bruce Thomas said that the ‘traditional owners’ gave the Nyangumarta people, his father, grandfather and brother who are Mungala, the right to practise the Law and that Monty Hale said, in his highly restricted evidence which the parties agreed can be referred to in part, that ‘he got the things he needed to practise the Law from Strelley Station and the people he had to ask to get those things were his brother, and his brother had to ask the old people: Tommy Muccan and Dooley Binbin, all of whom being Nyangumarta’.
297 As to ‘being born in the Area’, the Warrarn rely on the anthropological report of Mr O’Connor. Mr O’Connor’s evidence is that babies have been born on Strelley. He names three: Alistair Williams, Rowena Ginger and Johnny Francis, none of whom are individuals named in the Warrarn Claim. Mr O’Connor also talks of a yinda site at Mikurrunya and the link that the child has with the yinda site. The Warrarn also note the example of Stephen Stewart who was born in Ngarla country and was incorporated into the Ngarla group.
298 As to ‘residing in the Area’, the Warrarn rely on the joint statement of Elizabeth Bunwarrie, Biddie Bunwarrie and Maggie Ginger and evidence from John Bucknall, Bruce Thomas (who says that his father and grandfather lived at Strelley), Elizabeth Bunwarrie and May Thomas. This evidence supports residence in Strelley and Warralong Stations.
299 As to having ‘personal spiritual connection to the Area’, the Warrarn rely on the joint statement of Elizabeth Bunwarrie, Biddie Bunwarrie and Maggie Ginger and evidence from Kevin Fred and Elizabeth Bunwarrie. The Warrarn also rely on the expert evidence and anthropological reports of Mr O’Connor, Dr Smith, Dr Brunton and Mr Robinson. This evidence primarily goes to the existence of yinda places, where spirit children await the opportunity to animate a foetus in a human womb. A person is associated with and has a spiritual connection with the location of his or her yinda. The Warrarn say that Mikurrunya is a yinda site, to which some of the Warrarn, such as Elizabeth Bunwarrie’s daughter, are spiritually connected. Mr O’Connor’s evidence is in respect of the yinda site at Mikurrunya and the link that the child has with the yinda site. Mr Robinson’s opinion is that spiritual connection through conception exists in Western Desert systems. Dr Brunton’s evidence is that, when asked “where is your country?”, a person’s response may be his or her place of birth, the camping places of the local group, or another specific place within the clan’s territory. He says that it is not possible to say if this is related to his or her yinda. The evidence of Dr Smith to which the Warrarn refer concerns Charlie Coppin’s daughter’s connection with the snake totem due to conception, and also with Makanykarra by descent. Dr Smith also says that Radcliffe-Brown wrote about connection and conception. Presumably, the Warrarn rely on the similarity between the Ngarla and the Warrarn as to identity between land and conception.
300 As to ‘burying their ancestors in the Area’, the Warrarn rely on the evidence of Mr O’Connor in his anthropological report, the Strelley Cemetery Register of Burials and the evidence of Bruce Thomas and Elizabeth Bunwarrie. This evidence confirms that ancestors of the Warrarn were buried at Strelley Cemetery.
301 As to ‘gaining knowledge of and looking after places of significance in the Area’, the Warrarn rely on the evidence of:
Mr O’Connor, who described in his anthropological report the men’s restricted site at Tabba Tabba Creek, the rainmaking ground, the Bagajimbari and Minyiburu storyline and Mikurrunya, and the Warrarn responsibility for particular objects and the care for particular sites. Some of this evidence will be discussed later in these reasons.
Warrarn witnesses, including Biddy Bunwarrie, Elizabeth Bunwarrie, Maggie Ginger, Kevin Fred, Monty Hale, Bruce Thomas and Crow Yougarla, who give evidence of particular sites of significance, the stories that relate to those sites and their knowledge of Law stories. Some of these witnesses give evidence of how knowledge of law and custom was attained. Maggie Ginger described traditional food and medicine.
Lindsay Hardcase, who gives evidence that as a leader in the Law, he has looked after important sites.
302 Further, the Warrarn refer to the evidence referred to below at [315] to [386] as to the common observance of traditional laws and customs relating to sites in the Overlap Area, specifically:
the oral evidence of Biddy Bunwarrie, Elizabeth Bunwarrie, Maggie Ginger and Bruce Thomas concerning the Minyiburu Site;
the gender restricted evidence of Monty Hale and Bruce Thomas at the Tabba Tabba Creek men’s restricted site;
the evidence of Charlie Coppin (Ngarla) as to the amount of work required for the conduct of the Law;
the evidence of Maggie Ginger about the job of the women at Law time; and
the evidence of Doris Eaton (Njamal) who says, in reference to Law time, that ‘we women have a job to do out there’. Doris Eaton also says that the Warrarn would be informed when Law time was on.
303 I will consider the evidence of knowledge of and care of sites within the Overlap Area below.
304 As to ‘gaining knowledge of resources in the Area’, the Warrarn rely on Dr Smith’s anthropological report and the evidence of Biddy Bunwarrie, Elizabeth Bunwarrie, Kevin Fred, Maggie Ginger and Bruce Thomas. The Warrarn witnesses give evidence of their knowledge of traditional food and medicine. Kevin Fred and Bruce Thomas say that the food is collected from areas including the Overlap Area. Dr Smith refers to such knowledge of the Ngarla people, making no reference to the Warrarn.
305 As to ‘cutting trees in accordance with traditional law and custom for fashioning sacred objects for use in ceremonies’, the Warrarn rely on the evidence of Bruce Thomas, who says that sacred objects are collected from Tabba Tabba Creek, and speaks of his right to go into the country around Tabba Tabba and Strelley to make boomerangs and spears for hunting. His evidence does not refer specifically to “cutting trees” but this activity is likely to be a prerequisite to the making of boomerangs and spears.
306 As to teaching children and young men and women how to hunt, prepare and collect bush foods, observe, respect relationships and avoid dangerous places on the country in accordance with traditional law and custom and to become leaders in the Law, the Warrarn rely on evidence from Lindsay Hardcase, Kevin Fred, Bruce Thomas Elizabeth Bunwarrie, Biddie Bunwarrie, Maggie Ginger and Monty Hale. However, that evidence is directed to specific matters. Bruce Thomas gives evidence that young people are put through the Law and he says that the Warrarn have the right to hunt and get boomerangs. Kevin Fred gives evidence of working hard to bring the younger people through the Law. In their joint statement, Elizabeth Bunwarrie, Biddy Bunwarrie and Maggie Ginger say that the Warrarn look after country, protect special places and stop people from going to dangerous places. Monty Hale, Bruce Thomas and Kevin Fred describe how they help put Ngarla boys through the Law and help the Ngarla carry out the Law, and that they bring the young people up together. Lindsay Hardcase says that, as a leader in the Law, he looked after sites of importance and that the leaders teach the young people about the Law. He also says that he can get what he needs for ceremonies and bush tucker from the country, through the owner of the country.
307 As to ‘taking on responsibilities and being recognised as having status as leaders of the Law in respect of the Area’, the Warrarn point to evidence from:
Lindsay Hardcase, who says that he is a leader in the Law and describes his role and responsibilities as a leader in the Law. Mr Hardcase also says that Monty Hale and Kevin Fred are leaders in the Law.
Peter Toby (Martu), who says that the old people, such as Peter Coppin, Billy Thomas, Snowy Judamia, Joe Judamia and Mick Waynardu said that they worked together with the Ngarla and Njamal, and that they worked together to do the law at Kajarinya.
Joe Taylor (Njamal), who acknowledges that the leaders in the Law include Monty Hale.
Kevin Fred, who says that leaders of the Law at Warralong include himself, Bill Williams, Lindsay Hardcase, Bruce Thomas and Monty Hale.
Bruce Thomas, who says that the top Law men when he went through the Law were Snowy Judamia, Jacob Oberdoo, Dooley Bin Bin and Mick Waynardu. Mr Thomas says that the current leaders of the Law at Warralong include himself, Monty Hale, Kevin Fred and Lindsay Hardcase.
John Bucknall, who says that leadership in the Law was based not just on status, but also on personal attributes. Mr Bucknall says that the “ten men” organised and arranged the Law ceremonies at Strelley. The “ten men” included Jacob Oberdoo, Snowy Judamia, Crow Yougarla, Dooley Bin Bin, Joe Judamia, Toby Jones and Billy Thomas.
Monty Hale, who says that the old men Jacob (Winchukka), Dooley Bin Bin, Sandy Muccan and Tommy Muccan were present at the Black Range Law ground at Strelley.
Crow Yougarla, who says that Njamal elders who were responsible for the Law at Strelley and at Warralong transferred their rights and responsibilities in respect of the Law and their land to fourteen “Desert people” who were members of the Warrarn group.
Monty Hale, who says that when Law was run at Warralong ‘last year’, the men that ran the Law were Charlie Coppin, Stephen Stewart, Lindsay Hardcase and Joe Taylor. Monty Hale also describes Jacob Winjarrka as a trustee for Ernie Mitchell. However it is not clear whether Mr Hale was talking about Jacob Winjarrka as a trustee of land or about involvement in the Law. Even if land was involved, it was not the Overlap Area, as Ernie Mitchell, a Njamal man, was not the traditional owner of the Kajarinya area. Mr Hale acknowledges that he was not present at the meeting between Ernie Mitchell and Jacob Winjarrka and that Ernie Mitchell remained a senior Law boss until he passed away.
Bruce Thomas, who says that in order to decide when to have a Law ceremony and who should come through the Law, all the Law elders get together and take a vote.
The joint evidence of Monty Hale, Bruce Thomas and Kevin Fred, who say that they are senior men in the Law and that Law at Warralong happens by a process of consultation that includes them. They say that they work together with the Ngarla to bring the young people up together and through the Law.
Joe Taylor (Njamal), who says that he, Charlie Coppin and Lindsay Hardcase would take part in the decision about whether Law took place at Warralong and acknowledges that Dooley Bin Bin was ‘one of the important blokes’ when the Law was happening at Strelley.
The joint statement of Elizabeth Bunwarrie, Biddie Bunwarrie and Maggie Ginger, who say that the “Business Girls” are Sally Mack, Margie Dean, Irene Roberts, Evelyn Mitchell, Doris Thomas, Biddy Thomas, Winnie Coppin, Alma Grey, Lucy Mitchell, Alice Mitchell, Maggie Ginger, Elizabeth Bunwarrie, Biddie Bunwarrie, May Chapman, Gladys Jack, Polly Jack, Mary Rowland, Susie Rowland, Jennifer Brady and Nancy Judamia.
Winnie Coppin (Nyangumarta), who says that the Business Girls include Biddy Bunwarrie, May Chapman, Gladys Jack (Nyangumarta), Polly Jack (Nyangumarta) and Nancy “Jutimaya” (Judamia, Wanman).
308 This evidence supports the fact that the members of the Warrarn are recognised as leaders in the Law.
309 As to acceptance by the Ngarla of the status and events involving the Warrarn referred to above, the Warrarn refer to the evidence of the non-Ngarla witnesses:
Bruce Thomas, who describes an ‘agreement’ with the Njamal where ‘all the elders get together’ and agreed to put ‘this culture place’ at Strelley and to ‘bring our culture here’ and says that Law ceremonies ‘started up’ when this agreement happened.
Lindsay Hardcase, who says that Billy Thomas, Joe Judamia, Snowy Judamia, Mick Wynardu, Jacob Oberdoo and Crow Yougarla were leaders in the Law at Strelley and that Monty Hale, Kevin Fred and Lindsay Hardcase are leaders in the Law now at Warralong.
Joe Taylor, who says that Charlie Coppin, himself and Lindsay Hardcase would take part in the decision about whether Law took place at Warralong and his acknowledgment that Dooley Bin Bin was ‘one of the important blokes for Law’.
310 Further, the Warrarn point to the evidence of the particular permissions given at the Kajarinya, Strelley and Warralong Law grounds. This evidence is further described below.
Consideration
311 There is no dispute, and the evidence supports the fact, that members of the Warrarn are recognised as leaders in the Law in the Pilbara and that they participate in decisions about the conduct of the Law, to the extent that the ceremonies are jointly held.
312 It is not in dispute, and the evidence supports the fact, that members of the Warrarn live and have lived at Strelley, part of which is in the Overlap Area. There appears to be no real dispute, and the evidence supports the fact, that the Warrarn carry out at least some of the activities and practices in [290] (a) to (l) above. However, the extent of the Ngarla acceptance is relevant. The Ngarla and the State do not accept that these activities say anything about native title rights or interests under traditional laws and customs of the Ngarla.
313 Further, the Ngarla point out that the reason why the Warrarn have developed an association with the Overlap Area is the fact of their ownership of the Strelley pastoral lease, following on their migration from the Western Desert to the coastal regions. In those circumstances, the Ngarla say that it cannot be presumed that particular conduct is undertaken pursuant to a particular law or custom, let alone a traditional law or custom.
314 The Warrarn need to demonstrate that their practices and rights are part of the normative system of traditional law and customs. The observable behaviour referred to above does not alone demonstrate the rights and interests that are claimed by the Warrarn. Indeed, many of the observable behaviours are highly specific and would not permit a broader inference to be drawn in respect of the Warrarn and Ngarla generally.
Evidence of permission for ceremonial activity based upon particular events or places
315 The Warrarn say that the principal events that gave rise to the standing permission occurred at Kajarinya in 1956 and subsequently at Strelley. Law grounds are not, from the evidence, permanent and neither Law ground is presently used.
316 As discussed above at [39]–[48], the nature of the Warrarn claim has changed during the course of this proceeding. Whereas previously the Warrarn appeared to claim that there was a transfer of rights and/or ownership in Ngarla land at particular events, the Warrarn now appear to rely on events at Kajarinya, Strelley and Warralong as evidence that a standing licence or permission has been granted by the Ngarla to the Warrarn. At these events, rather than a “transfer” of rights, the Warrarn now say that there was a “sharing” of the Law, and that members of the Warrarn were given the status of leaders in the Law. As a result of this status, the Warrarn rely cumulatively and alternatively on incorporation into the Ngarla and on permission, amounting to a licence, to conduct ceremonial activities on the Overlap Area.
Kajarinya
317 Most of the evidence as to events at Kajarinya is men’s restricted evidence.
318 The Kajarinya Law ground was established in the early 1950s with the knowledge of the Ngarla people. It is outside the Overlap Area. The Law happened at Kajarinya for a short time during the pastoral strikes.
319 Originally, the Warrarn contended that at a ceremony in 1956 at Kajarinya Law ground, leaders in the Law (Ernie Mitchell and Coombie, both Njamal men) passed on the role of leadership in the Law and the rights and duties accompanying it to a group of Aboriginal residents of the area who were members of the broader society. There is a suggestion from Monty Hale that at Kajarinya, there had been a “transfer” of the Law and that the Law had been passed on in the sense of the members of the Warrarn becoming “trustees” of the Law. However, the Warrarn no longer rely on Warrarn statements of a “transfer of rights” at face value. They say that it was more a “folklore” issue of what happened there than a ‘a transfer from [Ernie Mitchell and Coombie] to somebody else’. The Warrarn now contend for something in the nature of a revocable permission and say that rather than a “passing” of the role to the Warrarn, they were “added” to the leaders in the Law.
320 The Warrarn rely on the affidavit of Crow Yougarla who was a witness to the meeting at Kajarinya in 1956. He says that Ernie Mitchell and Coombie passed on their rights and responsibilities in respect of the Law and their land to fourteen desert people who were members of the Warrarn. The land included the Strelley, Warralong and Coogan areas. Crow Yougarla says that the ‘transfer was in accordance with the means of transfer under the traditional laws and customs of the Nyamal people and also of the Desert people. The title to the land and the Law was paid for in the Aboriginal way …’. Mr Yougarla said that to effect the transfer, a meeting was held, the matter discussed in detail, and the Njamal ceremonial objects were handed to the Warrarn. The Warrarn say that this evidence explains the import of what occurred at Kajarinya, according to the understanding of traditional law and custom, by the persons present.
321 The Warrarn do not fully explain how this transfer from the Njamal bound the Ngarla. While Monty Hale acknowledges that as a young initiate he was not privy to what occurred between senior men present at that meeting, he says that he was certain that the Warrarn or “desert mob” needed to obtain the agreement from Ernie Mitchell and Coombie and the Ngarla People to do the Law at Kajarinya and that senior Ngarla People such as Pilu and Paddy Fremantle were present. On the issue of whether Ernie Mitchell and Coombie had given country away at Kajarinya, Monty Hale is of the view that Jacob Winjarrka had become trustee for Ernie Mitchell, that Ernie Mitchell had passed it on before he passed away and that the transaction involved “trading” and “sacred objects”. The Warrarn say that this strongly suggests that, as a matter of traditional laws and customs, rights and responsibilities in the Law had been passed on to members of the Warrarn, in a way that was similar to making them trustees rather than resulting in a transfer of a full legal title. Again, Ernie Mitchell and Coombie were Njamal men.
322 Bruce Thomas gives men’s restricted evidence to support his assertion that Nyangumarta people had been given the right by the traditional owners to make sacred objects, which then came to him through his brother and grandfathers within the kinship system.
323 The Ngarla accept that Kajarinya was a place where the trading of sacred objects took place. However, they say that afterwards, the area remained Ngarla country and that Ernie Mitchell and Coombie remained Law bosses. They rely on the evidence of what happened at Kajarinya from Monty Hale, Charlie Coppin, Bruce Thomas and Mr John Wilson, which is consistent with this submission. Mr Hale confirms that after the ceremony that took place, Ernie Mitchell and Coombie remained leaders in the Law.
324 Mr Wilson’s thesis was written in the late 1950s and was based on fieldwork he was conducting at the time with the Ngarla, Njamal and “Nomads” people (Wilson J, “Authority and Leadership in a ‘new-style’ Australian Aboriginal Community: Pindan, Western Australia”, (MA (Anthropology), University of Western Australia, 1961). The thesis made no mention of anything significant occurring at Kajarinya. Rather, it describes how Ngarla and Njamal are seen as the “landowners” and the Warrarn are visitors with no rights in the land. Mr Wilson described generally how there were the Law men and, while men from other tribes could become Law-carriers, they were seen as “travelling men” and “visitors”.
325 The Ngarla also rely on the evidence referred to below at [533] concerning the trading of sacred objects. They say that what happened at Kajarinya included the trading of sacred objects, which created reciprocal relationships especially in ceremonial matters, but did not give rights in land.
326 The Ngarla deny that any passing of the Law occurred at Kajarinya. Lindsay Hardcase, who was not there at the time but spent a lot of time with the Warrarn ancestors, says that there was never a suggestion of which he was aware that Ernie Mitchell and Coombie had passed the Law to the Warrarn at Kajarinya.
327 The Ngarla say that the Law ceremonies at Kajarinya were conducted with the permissions of the Ngarla and especially of the traditional estate owner, Pilu, but that this permission did not entail a conferral of rights in land. They rely on Monty Hale’s evidence that permission was needed from landowners to practise the Law at Kajarinya. Charlie Coppin and Mr Brown confirmed that Pilu was the estate owner. Monty Hale is unable to say whether the Ngarla gave away that Law at Kajarinya but when asked ‘this country, this country here Kajarrinya has that always been Ngarla country? Is it still Ngarla country today?’, he answered: ‘Yes’. Bruce Thomas says he was taught about an “agreement” that allowed the Warrarn to practise the Law and to bring their culture to the area.
328 The evidence supports a ceremony occurring at Kajarinya in or around 1956 where sacred objects were exchanged. Kajarinya is on Ngarla land. After that ceremony, members of the Warrarn were accepted as leaders in the Law and were able to carry out ceremonies at Kajarinya. The evidence does not extend to or establish a transfer of rights in land or a passing of responsibility from the Ngarla to the Warrarn. Following the ceremony, senior Ngarla and Njamal men remained leaders in the Law. Further, while the Ngarla may have been present and accepted the new role of the Warrarn, on the Warrarn evidence, any transfer and conferral of rights was from the Njamal, not the Ngarla.
Strelley
329 The Strelley Law ground was opened in 1973 and was closed some time between 1978 and 1980. Much of the evidence concerning the Strelley Law ground is men’s restricted evidence.
330 The Ngarla say that Strelley Law ground was opened originally with the permission of the Ngarla and the Njamal, and that it was the Ngarla and Njamal who would open the Law every year at Strelley.
331 The evidence is ambiguous as to whether Strelley is Ngarla or Njamal. The witnesses, including Charlie Coppin, tend to describe it as Ngarla and Njamal land and Charlie Coppin refers to permission being sought from the Njamal and then later permission from the Ngarla and Njamal. Charlie Coppin does, however, agree that the conduct of the Law was a consultation process.
332 The Warrarn acknowledge that permission was sought from the Ngarla and Njamal to open Strelley Law ground initially. However, the Warrarn emphasise that the conduct of the Law is by a process of consultation, and they say that the Warrarn elders opened the Law at Strelley annually and did not need permission each year to do so. The Warrarn submit that the conduct of ceremonies and the opening of a Law ground in Strelley Station evidence a standing permission.
333 The Warrarn submit that their elders had a lead role in running the Law ceremonies at Strelley. They say further that, as part of the local resident group at Strelley, the Warrarn were the group that hosted and took a lead role in the running of the ceremonies. If future ceremonies were to be held at Strelley, the Warrarn say that they would perform the same role. In addition, they say that the Warrarn group had to obtain materials for the ceremony from the Tabba Tabba Creek bed, in addition to engaging in other activities incidental to the conduct of activities, including to preserve objects and create shrines. The Warrarn contend that this is evidence that they are different to other Aboriginal persons and groups that came to participate in the Law at Strelley.
334 The Warrarn say that Monty Hale, Bruce Thomas and Kevin Fred give joint evidence to the effect that Dooley Bin Bin and other Warrarn elders did not need to get permission to open or to run the Law at Strelley, as they were joint Law carriers and that Monty Hale confirms this in oral evidence. In that evidence, Mr Hale says that Dooley Bin Bin was a leader in the Law, not that he did not need permission. Monty Hale agrees that he and other old people asked Peter Coppin, a Njamal man, if it was alright to set up the Law ground at Strelley. The Warrarn also say that Mr Hale confirmed, in evidence restricted to men, the use of certain things required for the Law.
335 Bruce Thomas was initiated at Strelley Law ground. Mr Thomas’ evidence, again restricted, is said by the Warrarn to be that he was given the right by his fathers and grandfathers to get the things needed for the Law and that Strelley was established because of an agreement from all the old people.
336 The Ngarla say that Monty Hale agreed that he and other old people asked Peter Coppin if it was alright to set up the Law ground at Strelley. This is confirmed by Lindsay Hardcase. The Warrarn say that while Monty Hale acknowledges that he would have to ask the Ngarla to do Law at Strelley, he says that this did not mean that the Ngarla had a right to say no. Again, the detail of this latter evidence is restricted.
337 The Ngarla again point to evidence from Charlie Coppin that they say shows that Ngarla and Njamal opened the Law at Strelley every year. The Ngarla say that the Ngarla and Njamal elders were mostly at Yandeyarra but were visited by the Warrarn living at Strelley, who came to ask them to open it up. In particular, Peter Coppin, Charlie Coppin, Stephen Stewart and others travelled to Strelley to do so. The Ngarla and Njamal would attend Law ceremonies at Strelley and Charlie Coppin says that he attended every Law ceremony at the Strelley Law ground, as did Stephen Stewart and Joe Taylor.
338 Charlie Coppin asserts that the Warrarn originally had to ask Njamal, or Njamal and Ngarla, about using Strelley Law ground. After referring to Peter Coppin as the main person that opened the Law ground at Strelley, Charlie Coppin agrees that ‘the same mob’ had to open up Law at Strelley every year. The Warrarn say that this evidence can be given little weight and must be read in the context of the agreed consultation process as to the conduct of the Law.
339 Charlie Coppin, Stephen Stewart, Joe Taylor and Joe Coppin say in their joint statement that the Warrarn cannot start up Law on their own: ‘they have to come to us and get us to start it up and then they do it with us. … they can’t start it up without us’. They say that this was the case at Strelley Law ground when it was open. Joe Taylor said that the decision about whether the Law was practised at Strelley each year was made by Peter Coppin, Sam Mitchell and others.
340 Mr Hardcase was present when the Strelley Law ground was opened. He confirms that it is in Ngarla and Njamal territory and that it was opened with their permission. He says that the persons who opened Strelley were ‘all the Law men, and with the permission of Ngarla and Njamal people. They all talked together’. When it was opened, Mr Hardcase says that it was opened with the involvement of Ngarla and Njamal people, and he says that the first song sung was a Ngarla song. He also explains that Aboriginal people from around the Pilbara (such as the people from Jigalong) were involved, not just the present Warrarn. He says: ‘We opened it together. But we did it with Ngarla and Njamal because they’re the Country Men’ and that Dooley Bin Bin ‘asked Ngarla and Njamal if it was OK to start a Law ground there’. The Warrarn say that Mr Hardcase acknowledged a need to ask the owners of the land but did not say whether this in fact occurred, and say that he could have had no direct knowledge of whether or not this took place. Mr Hardcase’s evidence does not extend to the events that occurred. Mr Hardcase was impressive in the giving of evidence and did not have a tendency to give evidence of which he had no direct or indirect knowledge. I accept his evidence.
341 The evidence is that the opening of the Law ground did not include a passing of rights in the land. Stephen Stewart says that Peter Coppin ‘welcomed the Nomads and Warrarn mob and liked doing law with them – even now we still do law with them – but he never passed on to them any traditional rights to the country under Njamal Law’. Mr Stewart says that Ernie Mitchell and Coombie never said that they passed on any country rights in the Law to the Warrarn.
342 The preponderance of evidence is that permission was sought from the Ngarla and/or Njamal to open the Law ground at Strelley and that the Warrarn elders had a role in the opening of the Law ground. The evidence is unclear as to whether the Ngarla and Njamal would open the Law annually at Strelley, or whether the Warrarn elders could open the Law annually and did not need the permission of the Ngarla and Njamal. On balance, the evidence favours a conclusion that the Warrarn participated in the conduct of the Law at Strelley at the opening of the ground and that after the ground was initially opened, the Warrarn conducted Law at Strelley, apparently without further permission from Ngarla or Njamal. The evidence does not establish that there was a transfer of rights in the land. Rather, the permission, once granted, continued to apply until the Law ground closed.
Warralong
343 Warralong is Njamal country. The Warrarn initially alleged, but do not presently contend, that a transfer of rights in relation to land from the Njamal to the Warrarn had occurred in 1980 at Warralong. The Warrarn now submit that the current practice of the Law in Warralong is relevant to the content of the traditional laws and customs acknowledged by the Ngarla and to the nature of the general permissions and the particular permissions and transactions that occurred at Strelley and Kajarinya. The Warrarn say that there is no relevant distinction between the laws and customs in relation to seeking permission for the practice of Law at Warralong and those that govern the practice of the Law in the Overlap Area. The Warrarn say that the relocation from Strelley to Warralong appears to have been a consequence of the change in the location of the Warrarn.
344 The Warrarn emphasise the collective nature of the decision to commence Law at Warralong, in which they participated. The Warrarn say that the weight of evidence is that this decision included Njamal and Nyangumarta leaders. They rely on the evidence of Stephen Stewart, Lindsay Hardcase, Joe Taylor and Bruce Thomas which supports the collaborative nature of the Law processes at Warralong. Charlie Coppin gives evidence regarding the “big mob” who need to talk and share the Law at Warralong, which includes Njamal and Nyangumarta. The evidence of Lindsay Hardcase regarding the collaborative nature of the conduct of the Law is discussed below. Also, Joe Taylor says that you need to ask the Njamal and Nyangumarta to put a boy through the Law at Warralong and that the people who give them a right to go through the Law are Nyangumarta, Njamal and Ngarla.
345 The Warrarn appear to argue that leadership in the Law at Warralong is not based on land ownership. They say that Monty Hale included Charlie Coppin in the list of persons from whom permission is required, even though he is Ngarla, and that status at Warralong is obtained through age and status in the Law only. The Warrarn point out that Charlie Coppin acknowledged Peter Coppin’s role at Warralong as a boss in the Law rather than as a traditional owner.
346 The Ngarla say that the Warralong Law ground, which is in Njamal country, must be opened each year by the Njamal people. They refer to the joint evidence of Charlie Coppin, Stephen Stewart, Joe Coppin and Joe Taylor to this effect. Teddy Allen, a Njamal man, explained that desert people still came to see him to ask permission to cut down trees for corroboree at Warralong.
347 Even though the Warrarn are not advocating a transfer of land at the ceremony in 1980 at Warralong, to avoid doubt, the Ngarla refer to evidence as to the effect of that 1980 ceremony. The Ngarla say that it was a teaching of ceremony and did not change ownership or grant rights in land. Ngarla evidence includes an explanation of what occurred, which was that Peter Coppin, the senior Njamal Law man, taught Banjo Flan’s “little Warrawagine men” corroboree, which is a song relating to Warrawagine and is not related to ownership of, or rights in the land. This is supported by the following evidence:
Monty Hale talks of the teaching of the Warrawagine corroboree and agrees that the country around Warralong remained Njamal country and that Peter Coppin, a Njamal man, remained a top Law boss for Warralong.
Mr Brown gave evidence about the Njamal Warrawagine song.
Lindsay Hardcase says that ‘[Peter Coppin] was not handing the country to anyone’ but that he was teaching dreamtime stories and songs and dances to the younger people. Mr Hardcase also says that Peter Coppin remained a Law boss afterwards.
Peter Coppin said that the Njamal remained the native title holders in the area.
Bruce Thomas makes no reference to the ceremony at Warralong affecting rights in land.
Biddy Bunwarrie is one of the persons previously said to have received the transfer of Law and land in 1980, but gives no evidence about it.
The Department of Indigenous Affairs, Western Australia site file for the Warralong Law ground notes persons identified by BHP Billiton as requesting assistance when it was assisting with the construction of a store house for sacred objects in the 1990s. They were Peter Coppin and Teddy Allen. A former BHP employee, Mr Aherne, who was not cross-examined, says that Peter Coppin was the Law man and owner of the area.
348 Warralong is not in the Overlap Area and Peter Coppin, as a Njamal man, could not give away rights in Ngarla country. To the extent that permissions were given to the Warrarn at Warralong and that this is relevant to permissions given by the Ngarla concerning the Overlap Area, the evidence does not establish the passing or the grant of any rights or interests in land. It was about an introduction to, and a sharing in, ceremony. I accept that the evidence concerning Warralong is relevant to, but not determinative of, the relationship between the Ngarla and the Warrarn and to the relationships between peoples of the Pilbara.
Evidence of commonality of acknowledgment of traditional laws and customs relating to sites in the overlap area
349 The Warrarn contend that the traditional laws and customs of the Overlap Area comprise ceremonies, stories, rites and practices practised in accordance with traditional laws and customs observed by the community of persons that reside in the Overlap Area, including the Ngarla people and the Warrarn. To establish their rights under the NTA, in circumstances where they arrived in the Overlap Area post-sovereignty, the Warrarn contend, in effect, that their practices with respect to the Overlap Area are the same as, or sufficiently similar to, those of the Ngarla such that traditional observance of those practices, or a legitimate adaptation of those laws and customs, has been continuous since sovereignty.
350 The Warrarn say that the evidence establishes a body of traditional laws and customs of the normative society which are common to and/or acknowledged and observed by the Ngarla people and the Warrarn in respect of the Overlap Area. They say that there is a sufficient commonality to support the capacity of the Ngarla to accord the Warrarn rights which the Warrarn claim. They refer to evidence of a ‘similar set of values, laws and traditions’. These are the laws and customs set out at [196] above, that is, the same laws and customs that the Warrarn contend are observed by the “broader society”. As I have found previously, the relevant Yorta Yorta society is not the “broader society”.
351 Some rights and responsibilities have been afforded to those Warrarn who are leaders in the Law practised jointly by the Warrarn and the Ngarla and the Njamal. The Warrarn say that the status of leader in the Law has been attained by reason of licence or permission by the Ngarla and that the right to reside and carry out activities in the Overlap Area is a right that flows from the obligations attendant on the role of leader under traditional laws and customs. The Warrarn say that this is an example of commonalities of traditional laws and customs.
352 The Warrarn also say that there is a body of laws and customs that are held by the Warrarn in common with the Ngarla and the Njamal in relation to particular sites and areas and that the ‘Overlap Area has within it sites and areas of significance in accordance with traditional laws acknowledged and customs observed by those Aboriginal persons who reside in the vicinity of it’. However, this statement is not helpful and it would apply to the Ngarla, Njamal and Warrarn. Further, it is too broad a statement. There are laws and customs that are observed in similar fashion and those that are observed differently. It is necessary instead to consider the specific sites and areas of significance identified.
Rainmaking Site
353 Senior male members of the Warrarn leaders group hold the sacred objects and knowledge of the rainmaking songline, relating to the serpent spirits Karparti and Wirnpa. Mr O’Connor identified this songline as passing through the Overlap Area. Senior male members of the Warrarn Group have created two shrines to Karpati and Wirnpa, that are the site of rainmaking rituals, secret to men, at Yaya. Mr O’Connor says that adjacent to the two shrines are a men’s initiation ground and seclusion camp and a women’s rainmaking ground. Near the women’s rainmaking ground, Mr O’Connor says, is the Strelley ******** ground.
354 The rainmaking ceremony was brought from Yarrie on Njamal country by ceremonial bosses, including Warrarn ancestors. Only a few Njamal and Ngarla people, who have passed on, have been through the ceremony. The site is still at Strelley and the ritual sacra are still at Strelley and Warralong.
355 According to Bruce Thomas, the rainmaking ground was established with the permission of the Njamal in the 1970s. Bruce Thomas says the ‘agreement mean they say okay to bring our culture here … That’s why our rain ceremony is here now’. He gives evidence that the rain ceremony was brought to Strelley from Yarrie. However, I note that Bruce Thomas uses the term “agreement”, rather than permission.
356 According to Warrarn witnesses, the rainmaking ground has not been used since 1977. Bruce Thomas says that he took part in the rainmaking ceremony when he was little ‘but you know, like, all the – this ceremony, now, been – all gone. All the old people’. Elizabeth Bunwarrie says that the ceremony has ‘not been done from long time now’. However, the Warrarn say that the site is spiritually alive and is being actively looked after by the Warrarn leaders group. The Warrarn refer to Mr O’Connor’s example of the Warrarn protecting the site against goat-shooters. Mr O’Connor says that rainmaking ceremonies can be held at will, when the community wishes to hold them.
357 The Warrarn say that Karparti and Wirnpa are also known as Kata-Katara and Purlkumarra, which Dr Smith describes as snake spirits in which the Ngarla believe. The Warrarn rely on Dr Smith’s evidence that although the mythological tradition associated with Wirnpa and Karparti does not belong to the Ngarla people, the Ngarla use different names for essentially the same type of beings. He says that Kata-Katara and Parlkamarra are Ngarla entities. Charlie Coppin says that the two snakes can go outside Ngarla country, including into Nyangumarta and Wanman country. Dr Smith says that this fits within a broader understanding of Aboriginal Australia and widespread ideas regarding the rain its connection to mythological serpents. Dr Smith says that it is what anthropologists call a travelling cult. The evidence of Charlie Coppin seems to be that the rainmaking is more of a regional ritual. Parts of the song cycle are sung by Ngarla, some by Nyangumarta and some by Njamal.
358 Dr Smith describes the rainmaking ritual as part of desert Law. Bruce Thomas says that it is in the desert languages and that the song was written by his grandfather from the dream. Mr Thomas says that the Karparti snake went through the Njamal side, not Strelley Station. Mr Robinson says that it originated in the Percival Lakes region but had spread throughout the desert communities. He says that the rainmaking ceremony related to the bringing up of rain and it isn’t about demonstrating rights in land.
359 The Warrarn say that rainmaking law is part of the traditional law and custom acknowledged and observed by the Ngarla and Njamal. The Ngarla dispute the Warrarn’s description of it as one of Ngarla law and custom and say that the rainmaking practised by the Warrarn is not Ngarla rainmaking and say that it is part of desert law. The Ngarla say that the rainmaking ground does not translate into rights in land and that it is impossible to define a right temporally or geographically that may arise from a rainmaking ground.
360 Dr Smith also says that the Ngarla do not acknowledge the Warrarn rainmaking site. Further, the Ngarla say that the proper Ngarla rainmakers have passed on. Charlie Coppin says the Ngarla senior men that were rainmakers all passed away before they could ‘show us the way’.
361 The joint statement of Charlie Coppin, Stephen Stewart, Joe Taylor and Joe Coppin states: ‘The Warran mob shouldn’t talk about Rainmaking Law – they don’t know it properly, can’t start it up. ... The old people ran that Rainmaking Law at Yarrie for a bit but the proper Rainmaking men are at Jigalong now’. Doris Eaton says: ‘If you want the rain to come, the rain making man has got to sing for it. … There are no dances involved ... throwing buckets of water over the men, we don’t do that. I have never known that to happen …’. She says that there is no rainmaking site in the Overlap Area.
362 The Warrarn have established that there is a rainmaking site in the Overlap Area that is associated with a rainmaking ritual practised by the Warrarn. The Warrarn say that it was established with the permission of both Ngarla and Njamal, but the evidence is directed to the fact that it was established with the permission of the Njamal. The Ngarla submit that the rainmaking Law ground cannot be a source of native title rights in the land, since it is part of desert rather than Ngarla Law, it is no longer in use, it does not relate to rights in land and it is not possible to define a right temporarily or geographically that may arise from it.
363 The evidence does not establish that the rainmaking site or the rainmaking ceremony have been associated with the Overlap Area since sovereignty. The evidence is not sufficient to establish that the rainmaking ceremony practised by the Warrarn is also part of Ngarla law, although the Ngarla also have a serpent spirit associated with rain and have had a rainmaking ceremony in the past. Nor have the Warrarn led evidence or explained how the rainmaking site gives them native title rights in the land on which the site is located.
Minyiburu Sites
364 The Warrarn say that there are sites adjacent to Tabba Tabba Creek associated with the Minyiburu songline (also known as Minyipuru, Minyipurru, Minyiburru, or Minyuburu). Mr O’Connor says that the story is of a group of mythic creative women ancestors who travelled throughout the Pilbara and desert, forming certain geographic features and initiating certain women’s rituals. Mr O’Connor says that one of these stories passes upstream along Tabba Tabba Creek and that the Minyiburu story is held by the Business Girls and is sung in the course of ******** rituals. Mr O’Connor describes two Minyiburu sites, one of which is also a yinda place from which the spirits of children are believed, in accordance with tradition, to emanate and to connect the child who is animated with the spirit to that site for life. Maggie Ginger and Biddy Bunwarrie explained that elder women, like Maggie Ginger, held the knowledge of the Minyiburu sites near Tabba Tabba Creek. They say that this knowledge was passed to them by their senior women, as was the women’s secret song and dance.
365 There does not appear to be any dispute that some form of the Minyiburu songline forms part of the traditional laws and customs acknowledged and observed by the Ngarla and Njamal. Doris Eaton says that Minyiburu is for all women. The Warrarn acknowledge that it may be a Tjingarri Law, as Elizabeth Bunwarrie says that there is a song-line for Tjingarri Law. However, the Warrarn say that according to Mr O’Connor, the Minyiburu songline is indigenous to the Pilbara. Mr O’Connor says that the women who own the song in Strelley today are descendants of women who migrated from the desert in the course of the last century and that the songs and the rites date back, at least, to sovereignty.
366 There is, however, a dispute as to whether or not the Minyiburu songline travelled through Ngarla country. The Ngarla and Njamal witnesses, who are aware of the Minyiburu story, say that they knew where it passed and say that it was not a story associated with sites on Ngarla land. The Warrarn say that the Minyiburu songline traverses the Overlap Area. The Ngarla say that it does not.
367 The Warrarn contend that the Ngarla women who gave evidence on the Minyiburu songline are not Business Girls and do not have knowledge of Minyiburu sites. However, the Ngarla recognise the authority of the Njamal women Doris Eaton and Evelyn Mitchell, who are Business Girls, to speak on their behalf in relation to issues in this proceeding and these women give evidence regarding the Minyiburu songline. Doris Eaton says that it did not travel through, and that it is not in, the Overlap Area: ‘There is no Minyiburu story in the overlap area with Ngarla. The Minyiburu did not come that far’. The Warrarn say that Doris Eaton qualifies this statement in oral evidence by saying she had not heard of it passing through the Overlap Area and they say that the women she spoke with do not know about the site at Tabba Tabba Creek because she hasn’t been there. However, it is telling that the Njamal Business Girls do not know about such sites in the Overlap Area.
368 The Ngarla evidence in the joint statement of Charlie Coppin, Joe Taylor, Joe Coppin and Stephen Stewart is that there is no Minyiburu site in Ngarla country:
In the Rory O’Connor Report the Warrarn mob talk about Minyuburu sites round Jurali. That’s not true – our old people would have told us if that was true. There is no Minyiburu Law in Ngarla country. Minyiburu doesn’t belong to Ngarla country. It never has. It comes from another place.
369 Dr Smith says that he understands Minyiburu to be an important mythological sequence throughout the Western Desert, but that it is a mythological tradition that does not belong to the Ngarla. To his knowledge, there is no recording of any Minyiburu sites in or adjacent to the Overlap Area.
370 From the evidence, the Ngarla people and the members of the Warrarn have different stories and understandings of the Minyiburu. The Ngarla and Njamal deny knowledge of any Minyiburu sites on Ngarla land including the Overlap Area. If there are Minyiburu sites, they seem to be associated with the Warrarn storyline only. However, it is only the Ngarla stories that are ‘traditional’ to the Ngarla land.
371 The Warrarn have not established that their traditional laws and customs connected to the Minyiburu sites are in respect of sites that have been observed since sovereignty.
Tabba Tabba Creek
372 The Warrarn say that there is a men’s Law ground known as Kajarinya in the Tabba Tabba Creek bed and submit that the trees along the creek bed are a source of ritual objects used in Law business which is restricted to men. There was evidence from Monty Hale that two sections of the creek bed are closed and that the reason for this, which relates to men’s Law business, is explained in Mr O’Connor’s report and the restricted transcript. I did not have access to that transcript and rely on the summaries of the parties which do not appear to be disputed. Mr O’Connor describes a former Law ground and associated ******** ground in Tabba Tabba Creek, which appear to him to have been used in the early 1970s.
373 The Warrarn say that the laws and customs giving rise to such a restriction are observed and acknowledged by the Ngarla people, referring in particular to the evidence of Stephen Stewart, who acknowledges that the restricted area was probably made in the strike time. The Warrarn submit that this evidence suggests acceptance from the Ngarla that these areas are now (but were not previously) “ngurlu”, or sacred sites under traditional laws and customs acknowledged and observed by Ngarla. They say that this is consistent with the evidence of Charlie Coppin regarding laws and customs by which a non-Ngarla person obtains the right to set up their own ngurlu in Ngarla country.
374 The Ngarla say that they do not recognise Tabba Tabba Creek as being a traditional site.
375 The evidence does not establish that Tabba Tabba Creek was used for practices associated with Ngarla (or indeed Warrarn) traditional law and customs prior to the early 1970s. The evidence does not establish directly or by inference that the Ngarla, by their traditional laws and customs, recognise any sacred or traditional site at Tabba Tabba Creek.
Joint Law practice at Strelley and Kajarinya Law grounds
376 The Warrarn submit that Ngarla, Njamal and Warrarn have been engaged in conjoint practice of the Law since at least 1956 and that sacred objects have been held jointly. The Warrarn say that this is common ground between the parties.
377 The practice of the Law is a lengthy annual event where Aboriginal people of the Pilbara interact with one another in accordance with traditional laws and customs. No comparable secular events take place and there is no evidence that the Ngarla come together or have ever come together as a group pursuant to traditional laws and customs other than in the context of the practice of Law. Further, under Ngarla traditional laws and customs, the practice of Law is intimately connected to the well-being of country and to the realisation of rights to speak for country.
378 The Warrarn say that the practice of Law is not limited to the ceremonial grounds and includes lengthy periods of time when boys are held in the bush living off the land, referring to the evidence of Bruce Thomas. They say that senior male members of the Warrarn hold the sacred ***** and knowledge of the Marlu songline associated with male initiatory rites carried out on the Strelley Law ground. Mr O’Connor says that the Marlu songline is from the desert. Mr O’Connor gave evidence that the Warrarn hold ******** ******** and knowledge of the ******** ******** ******** ******** ******** the source of initiatory ritual practice, including the form it takes for the Ngarla young men. The Warrarn refer to the evidence of Dr Smith to submit that this is the same song cycle that is known to the Aboriginal groups in the Pilbara region and across the Great Sandy Desert.
379 The Ngarla and Njamal witnesses accept that objects used in ritual and ceremony were stored at Strelley for a time in the past with the permission of Ngarla and Njamal, but say that they have since been moved to Warralong. Ngarla and Njamal peoples’ evidence is that only they have a key to the store house at Warralong. The key to the cupboard where sacred objects are kept for use at Warralong, on Njamal land, is held by Joe Taylor (Njamal). However, Mr O’Connor says that the Warrarn have responsibility for particular objects and for the care for particular sites. It also seems that senior members of the Warrarn group hold sacred objects. Crow Yougarla says that Njamal ceremonial objects were handed to the Warrarn at Kajarinya.
380 The evidence does not establish continuity of the holding of traditional ceremonies at sites at Strelley and Kajarinya either back to sovereignty or until the present day. Kajarinya is outside the Overlap Area. While it is not clear, the Warrarn have not established that the Strelley Law ground is within the Overlap Area. The evidence as to the opening of this Law ground suggests that it is in Njamal country. The Warrarn, the Ngarla and the Njamal do share in the practice of a body of laws and customs that are, at least in part, held in common. However, there is and has been no continuity in the site of those practices. The rights to participate are personal rights and are not and have not been continually associated with Ngarla land or the land of the Overlap Area.
Mikurrunya
381 Both Warrarn and Ngarla witnesses give evidence about the significance of Mikurrunya. It is referred to as ‘the place of jealousy’ by Bruce Thomas and Elizabeth Bunwarrie (Warrarn) and as ‘The Three Sisters’ by Charlie Coppin (Ngarla) and Joe Taylor (Njamal). The Warrarn and Ngarla agree that Mikurrunya is an important mythological site to both the Warrarn and the Ngarla. The Warrarn say that the Ngarla and Warrarn witnesses have similar understandings of the story associated with the site. The Ngarla say and the State agrees, that the Warrarn and Ngarla have different stories and understanding which apply to this site.
382 According to the Warrarn, Mikurrunya is based on a traditional story about jealousy and is also a yinda place from which the spirits of children are believed to emanate and to connect the child who is animated with the spirit to that site for life. This is consistent with the anthropological report of Mr O’Connor. The Warrarn say that the spiritual connection of Warrarn children is of a kind that would be recognised under traditional laws and customs acknowledged and observed by the Ngarla as giving rise to a contingent right, albeit that the right could not at sovereignty, according to Dr Smith, exist independently of a descent based connection. No evidence is cited in support of this contention. The Warrarn say that the site was first registered by the Snowy Judamia and Don McLeod in 1979. However, the State says that the evidence is that the site was not “registered” by Snowy Judamia and Don McLeod with the department, rather, they notified the Registrar that there was a site there.
383 The Warrarn say that Mr Brown, Charlie Coppin, Bruce Thomas and Elizabeth Bunwarrie give similar evidence as to the story associated with the Mikurrunya site. They say that the principal tenet of the story, relating to jealousy, was agreed by all witnesses. To the extent that there are any inconsistencies, the Warrarn say that such differences are common to oral traditions and represent variations in knowledge and a difference between men and women’s stories for a particular site. They refer to the evidence of Elizabeth Bunwarrie, who says that there are separate men’s and women’s songs for the site. The Warrarn say that the variations of knowledge between Aboriginal witnesses are evidenced by the differences of knowledge between the Ngarla and Njamal witnesses. Doris Eaton and Nora Cooke both deny the existence of a spring or pool at the Mikurrunya site, whereas Charlie Coppin says that there is, or used to be, a spring there.
384 There are differences in the stories told by the Ngarla on one hand and the Warrarn on the other. Both stories involve jealousy. Bruce Thomas and Elizabeth Bunwarrie (Warrarn) say that “miku” means jealous and that Mikurrunya is a ‘place of jealousy’. They tell a story of an old man and his wife who argue over the man’s intention to take a second wife and say that Mikurrunya is a yinda place. Mr Brown and Charlie Coppin (Ngarla) refer to the Mikurrunya site as “The Three Sisters”. They also say that “mikurr” means jealousy. They tell a story about how there were three sisters that belonged to one man, but another man took over.
385 The Ngarla agree that the Ngarla and the Warrarn share a belief that Mikurrunya is an important mythological site, but point to their different understandings of its significance. For instance, Doris Eaton and Nora Cooke say that there is no yinda at Mikurrunya. They also say that it is a dangerous place and that Charlie Coppin has the responsibility to look after it and to keep people away from there. Mr Brown, Charlie Coppin and Doris Eaton say that the Mikurrunya site is looked after by the Ngarla although Bruce Thomas does not agree. There is evidence of Ngarla efforts to protect the Mikurrunya site from a quarry, and to an agreement with Boral Resources (WA) Limited and Boral Contract Pty Ltd (together Boral), which refers to the Ngarla people as the custodians of the site. The evidence of Bruce Thomas is inconclusive as to whether he was involved in the negotiations with Boral or not.
386 Mikurrunya is an important site to the Warrarn and to the Ngarla. It is on Ngarla land for which Charlie Coppin is responsible. There are both similarities and differences in the stories associated with the same site and the laws and customs observed and acknowledged by both parties have been associated with the site. The Warrarn have observed their laws and customs in respect of the site without any apparent complaint by the Ngarla. However, there is no evidence that there is any right or connection arising from a traditional Ngarla yinda place connected to children.
Ngarla evidence regarding the asserted licence or permission to participate in the traditional life of the area and Law ceremonies
387 I will set out the Aboriginal evidence relied upon by the Ngarla to support their contention that a limited licence or permission was granted to the Ngarla by the Warrarn. I reach conclusions on this evidence below.
388 The evidence of Ngarla and Njamal witnesses, relevantly and with some necessary repetition, is that the conduct of Law ceremonies on land is by way of permission of the local landowners:
Mr Brown likened the permission that the old Ngarla people gave to the Nyangumarta people as a ‘visa’ to practise Law in Ngarla country. Mr Brown also said: ‘During the 1946 strike when everyone was mixed up at Kajarinya, Ngarla gave permission for others to practise their Law there (De Grey River)’.
Doris Eaton says that ‘it is our country and we give permission for Law business to be practiced (sic) in our country, including at Warralong’. She also says: ‘If the Warrarn mob ever wanted to do Law at Warralong they’d have to come and ask Mr Coppin if it could start up. If they want to start up Law at Warralong now they have to go and see Kurtiri (Charlie Coppin) and Joe Taylor’. Doris Eaton also says that Mr Coppin would go and talk to the Warralong mob if Law was at Warralong because they are living there, but this is not about asking for permission because Warralong is Njamal country, not Warrarn.
Charlie Coppin says, about holding a ceremony at Yandeyarra:
We can’t just go and make a start in Kariyarra country. We’ve got to hold up a bit and talk about it. If I’ve got to put my boys through there and they say yes, well, we do that.
Joe Coppin says that ‘[b]efore we have a Law meeting, we have a meeting to discuss what the visitors can and cannot do. For example, this year we had the law meeting at Yandeyarra and we had to ask Kariyarra for permission about what we could do in their country during Law time’.
Joe Taylor’s evidence is to the following effect:
When asked about who runs the Law at different places, he said that you have to go through the traditional owner.
When asked whether he felt he had given permission for Law to be practised at Strelley, he responded ‘yeah’. He then said that the decision about whether the Law was practised at Strelley each year was made by Peter Coppin, Sam Mitchell and others.
When asked who makes the decisions about when it should happen at Warralong and whether it is everyone together, he responded ‘Yeah they can ask me and Charlie Coppin for that’.
Teddy Allen said that:
Other people come and practise their law in Nyamal country but they have to ask permission first. … I go to other law business around the Pilbara. We also have to first be invited by people of that country to come in.
Stephen Stewart’s evidence is to the following effect:
As to holding a ceremony at Yandeyarra, Stephen Stewart says that ‘we’ve got to go with him but we got to all get together and help one another all in one’ and ‘they help us and we help them and everything easy’.
When asked whether he could start law at Yandeyarra without talking to the Kariyarra people, Mr Stewart responded ‘No, we’ve got to go back to Kariyarra first. We all get together … all the language get together and talk about it’ and ‘[w]ell, we were talking to this mob, the traditional owners, see?’.
Similarly in relation to Warralong, Stephen Stewart says that as Warralong is in Njamal country, you would have to ask and talk to Joe Taylor to have law business there, as he is Njamal: ‘If we come back to Njamal we’ve got to talk to the Njamal mob’ because they are the traditional owners and ‘we’ve got to talk to them mob and we start – but I can’t do it myself’.
Stephen Stewart also says that if Law business was going to happen on Ngarla country, you would have to ask himself, Charlie Coppin or Mr Brown.
389 The Ngarla evidence about what happened at Kajarinya, Strelley and Warralong is discussed earlier in these reasons.
390 In addition, the Ngarla point to evidence in respect of the Warrarn rainmaking ground referred to above. They acknowledge the Warrarn rainmaking ground at Strelley but point out that it is no longer in use. However, they say that it is part of desert law and was established with the permission of the Ngarla.
391 The Ngarla submit that the evidence of Warrarn witnesses corroborates the need for the permission of the Ngarla. The evidence is to the following effect:
Monty Hale agrees that permission was sought to establish the Strelley Law ground and that he and other old people asked Peter Coppin if it was alright to set up the Law ground at Strelley. He also agrees that Peter Coppin, Charlie Coppin and Stephen Stewart attended all of the ceremonies at Strelley.
Monty Hale agrees that Charlie Coppin and Joe Taylor are the ones allowed to open up the storehouse of sacred objects at Warralong. If Charlie Coppin, Joe Taylor and Stephen Stewart said no to Law occurring at Warralong, Mr Hale would not do Law there. He also agrees that if Ngarla people said “no”, he could not do Law or get sacred objects at Kajarinya. This could mean that he couldn’t put his young son through the Law there.
Bruce Thomas acknowledges that the Njamal gave their agreement to the rainmaking ceremony coming to Strelley. He also acknowledges that Peter Coppin attended Law ceremonies at Warralong: ‘He always came and talked to us for the ******* business and for the Marlulu business’.
Kevin Fred acknowledges the involvement of Ngarla and Njamal in running the Law at Warralong.
In their joint statement, Biddy Bunwarrie, Elizabeth Bunwarrie and Maggie Ginger refer to permission given by Ernie Mitchell to look after the Law and the country. However, they also say that ‘[w]e do not [currently] need permission from Doris Eaton or the other women she spoke with to practice (sic) Law business’.
Biddy Bunwarrie says that a big mob of men and women get together and that the women have a meeting. John Bucknall says that the “Ten Men” (apparently Warrarn) organised and arranged the meetings and that there was a lot of discussion and negotiations around the groups that were coming to Strelley.
392 The Ngarla say that Biddy Bunwarrie and John Bucknall acknowledge that the Strelley people get together with others to discuss Law ceremonies before they begin. However, the evidence they cite in support of this assertion does not in fact clearly support it.
393 Other relevant evidence that corroborates the evidence of Ngarla and Njamal witnesses as to permission includes:
Lindsay Hardcase, a senior Law man who was present when the Strelley Law ground was opened, confirms that while ‘we opened it together’, it was opened with Ngarla and Njamal permission because they were the countrymen: ‘Dooley Bin Bin was a leader in the Law. He asked Ngarla and Njamal if it was OK to start a Law ground there’. He says that if, in a particular year at Warralong, the Njamal people did not want the Law to happen, ‘we’ve got to sit down and talk with the Njamal and us and get together and talk where we can start next place’. When asked what would happen if the Njamal said definitely “no” this year, Lindsay Hardcase said that ‘we leave it that way and we’ll go to Yandiyarra’. He said that he couldn’t put a boy through the Law if the Njamal said that they didn’t want Law at Warralong.
Mr Wilson’s thesis describes how Njamal and Ngarla people are seen as “landowners” and the Warrarn are “visitors” or “travelling men”.
394 Some of the evidence given by the Warrarn witnesses and by Mr O’Connor is inconsistent with a requirement that the permission of the Ngarla must be given for Law ceremonies to be held on Ngarla land. The Ngarla say that the evidence should not be accepted for the following reasons:
Bruce Thomas, Monty Hale and Kevin Fred say that the Ngarla or Njamal could not stop the Warrarn from running the Law at Warralong. The Ngarla say that this was qualified in cross-examination by Monty Hale, who agreed that if the Ngarla people say “no” he could not put his son through the Law.
Bruce Thomas, Monty Hale and Kevin Fred say in their joint statement that the Warrarn ‘old people’ never went to the Ngarla or Njamal people to open the Strelley Law ground.
Kevin Fred, in his affidavit evidence, may imply that it was only the Nomads who ran the law at Strelley. In cross-examination, Mr Fred said that he could not recall exactly who the other old leaders were and who was there.
Bruce Thomas gives a description in his affidavit of how the Law was started and took place at Strelley and also the process by which Law happens at Warralong. The Ngarla say that his description is not a complete understanding of the relevant law and custom.
395 To the extent of inconsistency between this evidence and that of the Ngarla and Njamal witnesses, I accept the evidence of the latter because:
The Ngarla (and Njamal) evidence is corroborated by other evidence, in particular by the evidence of Lindsay Hardcase regarding Ngarla and Njamal permission at Strelley, by Mr Wilson’s thesis and by Mr Palmer’s thesis.
The statements by Warrarn witnesses that there was a “transfer” of Law and land was conceded by counsel to amount to Warrarn “folklore”. The younger witnesses, such as Bruce Thomas, gained some of their understandings from the older people. Monty Hale was a young man who did not directly observe the events.
396 The Ngarla refer to the joint affidavit evidence of Charlie Coppin, Joe Coppin, Mr Stewart and Mr Taylor to support their submissions regarding the nature of the permission granted. They say that as a matter of Ngarla traditional law and custom, the Warrarn cannot claim rights in country and are in the nature of caretakers who can be asked to leave. The concept of “caretakers” in this context appears to be different to Ngarla caretakers of deceased estates, as the Warrarn do not have a right to speak for country. The Ngarla say that this is consistent with the evidence of what occurred at Kajarinya and Strelley, which was that Law was only practised there with an ongoing permission from the Ngarla and Njamal. The evidence is relevantly as follows:
‘The Warrarn mob were asked to be caretakers of the Strelley area while Ngarla and Njamal were not living there, because the Warrarn were living there. It’s like if you own a house and get someone to stay in the house - when you come back the caretaker has to go because the boss is back’.
The Warrarn mob have ‘just come and gone. We don’t have a problem with them, but they can’t claim to have rights in our country’.
The Warrarn mob ‘can’t have rights to Ngarla country because they don’t know Ngarla Law. None of them have been through proper Ngarla Law’.
‘The country owners have given them permission to do Law on Ngarla country. But you can’t give away your country, except to your next of kin. … Ngarla country is Ngarla – it belongs to Ngarla. Ngarla country, Ngarla People, Ngarla Law – it’s all the same thing. You can’t break it up’.
397 The Warrarn contend that, as a matter of traditional law and custom, rights and responsibilities in the Law had been passed to members of the Warrarn group and they invoke the concept of a trustee relationship. The Ngarla say that this is consistent with the Ngarla submission insofar as they contend that the conduct of Law ceremonies is not entirely at the discretion of the Ngarla, but other people are involved in running and making decisions about ceremonies. However, insofar as the Warrarn suggest that they have a right to enter and remain on Ngarla country for the purpose of conducting ceremonies or related activities otherwise than by way of a revocable permission of the Ngarla, or that they have some right recognised by traditional law and custom akin to that of a Ngarla descendant to “speak for” the land, or to make decisions as to whether or not ceremonies can be conducted specifically on Ngarla land, the Ngarla submit that this should be rejected. The Ngarla say that even if (which is denied) there was a trustee relationship, the Warrarn would have no beneficial interest in the Overlap Area and therefore could not be recognised as native title owners.
Ngarla Aboriginal evidence that the participation in Law ceremonies is by permission
398 The Ngarla concede that the evidence points to an expectation that everyone will participate in Law ceremonies that take place in Ngarla country and elsewhere in the Pilbara, subject to being appropriately qualified to do so and observing appropriate protocols. They concede that there is an expectation that permission will be given to the Warrarn and others to enter Ngarla (and Njamal) country to participate in Law ceremonies. However, the Ngarla say that this does not deny the fact that the local landowners have exclusive rights in the land.
399 To support these contentions, the Ngarla rely on the following evidence:
Elizabeth Bunwarrie of the Warrarn says: ‘Women come from all over to Warralong when we are doing business. They come from Jigalong, Punmu (Lake Dora) and Parnngurr (Cotton Creek)’.
It is agreed between the parties that the Warrarn had resided in the area and participated in the conduct of traditional law activities in the area in which they were residing, without complaint.
Mr Wilson said that ‘[t]he riverline people were regarded as having traditional tribal rights to the area over which the [Pindan] Group operated. … All others were ‘travelling people’ and were there formally through the good grace of the Njamals who had sanctioned their presence by introducing them to the local ritual and ceremonial life’.
Charlie Coppin expresses the position in the following statements:
We're happy to do Law with them [Warrarn] – we've always shared Law, since before the whitefellas came. That's in our songs - the manguny travelled everywhere. We go to Law ceremonies all over the Pilbara, out into the desert, and up into the Kimberley. People from all over come to our Law ceremonies. Law belongs to everybody. Nobody is better than anyone else in Law. But even in Law, wherever you go, people respect the country owners. I know this because I go to Law ceremonies all over the country, even now.
******** doesn’t have anything to do with who holds the country. … You need the country owner there to run it somewhere but it belongs to everyone.
Law is for everybody … that’s why we’re happy to have all different people as bosses for the Law at Warralong. Even though we share Law together, it doesn’t make any sense to say the Warrarn mob can speak for the country. It doesn’t make any sense to say that we can give our rights in the country to the Warrarn Mob. Our Ngarla songs, stories, language and ceremonies are in the ground. Our ancestors are in the country. You can’t be given that, you have to be born with it. I know that from my law.
Lindsay Hardcase says:
We all get together and have corroborees or ceremonies – we share together – singing, dancing, and dreamtime stories. We teach each other songs and dances. But teaching songs and dances isn't about passing over country – it’s just sharing our culture.
400 The Ngarla say that the trading of sacred objects is about creating reciprocal relationships in ceremonial matters, not about rights in land (see below).
Expert evidence that a licence or permission to participate in the traditional life of the area was granted by the Ngarla
401 The Warrarn and the Ngarla rely on the evidence of the anthropological experts to show that they have been granted some form of licence or permission.
402 The Ngarla say that Dr Smith’s opinion is consistent with the submission that the conduct of Law ceremonies on land is by way of permission of the local landowners. The Warrarn rely in particular on Dr Smith’s reference to a “standing licence”. Greater reliance is placed the evidence of Dr Smith than on the evidence of the other anthropological experts, as Dr Smith has directly addressed the issue of permission.
403 The relevant evidence of Dr Smith is as follows:
Dr Smith considers the distinction between “core” and “contingent” rights. Core rights are those which enable a person to assert a fundamental proprietary relationship to a particular area; contingent rights stem from or flow from the core rights. A contingent right can be in the form of a long-standing permission or standing licence. Dr Smith acknowledges that this distinction needs to be tested locally.
Dr Smith considers that the Warrarn do not hold core rights to the Overlap Area, and concludes that the Warrarn have “contingent rights” in the form of a standing licence:
Warrarn people (or perhaps more particularly Strelley residents) appear to have a standing license to do such things as hunt, gather foods and medicines, reside in the area and participate in ceremonial activity in the area. I use the term ‘standing’ cautiously because according to my understanding of laws and customs in the area if a holder of the license were to act in such a way that was deemed by Ngarla people to be a transgression of their laws and customs, then as I understand Ngarla laws and customs Ngarla people would revoke that license.…
If this license is a right then it is clearly not a core right based on a proprietary relationship to the overlap area; this license or permission is contingent in that it flows from Ngarla peoples’ core rights based on their fundamental proprietary relationship to the area which includes the right to extend or revoke the licence.
The Ngarla people have given the Warrarn a ‘standing licence to reside, to hunt in the area around Strelley Station and that that’s an accommodation that’s been … established over a period of time’. Dr Smith notes that there is a dispute about whether this amounts to a proprietary interest.
‘[T]he ‘migrants’ (Western Desert people) who are residents of Warralong and Strelley have a standing license to participate in the ceremonial life of the area. In accordance with traditional laws and customs of the area (specifically reciprocal obligations) many other Aboriginal people are ‘welcome’ to participate in ceremonies at Warralong’.
Although no one will restrict another person’s right to participate in ceremony, Aboriginal people say to Dr Smith that the local landholders have to be asked. You can only go into an area where a ritual is going to take place when you have the specific permission of the local landowners.
Dr Smith makes reference to the ritual exchange that is alleged to have occurred in 1955-56 and says that in his opinion, this amounted to the local landowners granting permission to immigrant desert people to allow them to participate in local ceremonies, rather than granting “rights” and “duties”.
404 The Warrarn rely in particular on Dr Smith’s reference to a “standing licence”. The Warrarn submit that Dr Smith goes further, to conclude that certain Warrarn, such as Elizabeth and Biddie Bunwarrie have a non-primary affiliation with particular locations in or near the Overlap Area. Dr Smith says that the Warrarn assert that this is a spiritual conception connection based on Western Desert laws and customs rather than on Ngarla laws and customs. The Warrarn contend that spiritual conception connection to sites is consistent with the custom followed by Ngarla, to which Dr Smith refers in his expert reports, of personal affiliation with totems. The Warrarn submit that this is consistent with what is said by John Wilson, referring to Radcliffe-Brown, writing of the Gariera (said by the Warrarn to be Karriyarra) and R. Piddington, writing of the Garadjeri (said by the Warrarn to be Karadjeri). The Warrarn also submit that this is consistent with what is said by Mr O’Connor (referring also to R. Piddington, K. Palmer (writing of Yandeyarra) and others) in relation to the significance of affiliation to site-related totems. In particular, Mr O’Connor refers to yinda sites in and around the Overlap Area.
405 Accepting that there was a ceremony in or near the Overlap Area in 1956 in which the Ngarla and Warrarn participated and which involved “gear”, Dr Smith does not accept that this gives rise to interests in land in respect of the Overlap Area. The Ngarla emphasise that although Dr Smith refers to an anthropological concept of a contingent, or secondary, right being contingent on the core right of the Ngarla, he noted that whether this constitutes native title is a legal issue falling outside the expertise of anthropology. The Ngarla also emphasise that although Dr Smith uses the term “standing licence”, he also qualifies his opinion by saying that he used the term “standing” with caution, and that if there was a transgression, then the licence could be revoked, either generally or in relation to a specific individual.
406 The State submits that although Dr Smith did use the expression “standing licence”, his evidence in context is not that the Warrarn sought, and Ngarla people granted, a permission or a licence to carry out activities on the Overlap Area (or in Ngarla country generally). Rather, the State submits that his evidence is that there had been, in his opinion, a gradual “accommodation” of the long-term residence and participation in Law business by desert migrants, based on a “convivial relationship” in which they ‘have lived side by side’ with local landowners over the period of time since the migration began in the mid-twentieth century.
407 I accept, generally, these qualifications in the evidence of Dr Smith. Further, Dr Smith does not accept that members of the Warrarn group had a spiritual connection with Ngarla land under Ngarla traditional laws and customs. His references to totems are that totems were affiliated with a local descent group, not that they were environment based. He says that spirit conception does not bestow rights and interests in Ngarla land and waters or bestow membership of the Ngarla group.
The other anthropological experts
408 The Warrarn also rely on the evidence of Dr Brunton, who says that although he could not offer an opinion on what was involved in the ritual exchange between the Warrarn and Ernie Mitchell and Coombie, the evidence does suggest that ‘the continuing presence of the Warrarn group in the Overlap area, and their rights to carry out sacred and mundane activities there were accepted as legitimately obtained under traditional principles by neighbouring Aboriginal groups’.
409 The Ngarla say that Dr Brunton’s evidence was based on a review of documentary evidence and that he was careful to qualify his opinions for that reason. Dr Brunton did not express any firm opinions that contradicted the evidence of Dr Smith on this issue.
410 Mr O’Connor discusses in some detail the basis for his conclusions that the ritual exchanges that occurred meant that the Warrarn were granted rights and duties in respect of the area. Mr O’Connor acknowledges the role of Ngarla and Njamal in giving permission for Law ceremonies to occur on their land. He nevertheless considers that Warrarn have rights in the Overlap Area on the basis that:
… if, in fact, people have acted over the years as if they had rights in a tract of territory, and nobody has gainsaid those rights, then I would say that that’s observable behaviour establishing that those rights do exist.
411 However, the Ngarla say that Mr O’Connor’s opinion that the Warrarn had rights in the Overlap Area should not be accepted, as Mr O’Connor had not engaged in an analysis of the normative rules and the extent to which any conduct is founded in traditional law and custom. They say that Mr O’Connor is less qualified than Dr Smith and Mr Robinson and that his evidence does not accord with that of the indigenous witnesses. They say that he fails to address disapproval by the broader Pilbara Aboriginal community of the Nomads claims to have rights to Njamal and Ngarla land and fails to recognise that any acceptance of the Warrarn “rights” arises because of the permission given by the Ngarla and the ownership of the pastoral lease.
412 The Ngarla say that Mr Robinson also agreed both as to the requirement for permission and on the revocable nature of any permission given. However, the evidence pointed to by the Ngarla does not directly support this conclusion. Mr Robinson agrees with Dr Smith that, from his experience, in the earliest historical record, large numbers of people came to ‘share ceremony’ within Ngarla country. Mr Robinson does comment that contingent rights can be revoked in particular circumstances, such as where pools have run dry or where sites have been misused.
413 Dr Smith has directly addressed the issue of permission. Mr Robinson and Dr Brunton’s evidence does not examine it in sufficient detail to assist. Mr O’Connor makes a point about observable behaviour but does not analyse possible alternative reasons for it or address whether or not it is founded in traditional law and custom.
414 The expert anthropologists participated in a “hot-tub”, in that they each explained some key aspects of their opinions and then engaged in a commentary and answered questions. This “hot-tub” process was particularly helpful in drawing together some of the threads in their written reports and oral evidence. Some of those opinions as they were expressed in the “hot-tub” follow.
415 Dr Smith drew a distinction between the ideal that is espoused by Aboriginal people that Aboriginal country is ‘inalienable property’ and the reality of what can be reasonably inferred from the ethnographic record and contemporary Aboriginal people’s views. He also pointed to the “fluidity” of Western Desert models and the more “rigid” Pilbara models of reckoning and asserting rights. This is also reflected, in his view, in the tension between a shared identity and an autonomous identity, with the communal rights and interests of Ngarla persons based in Ngarla laws and customs and the Warrarn person’s individual rights based in Western Desert laws and customs. He questioned whether a right or interest can be established without the general acknowledgment or recognition by the local land owning group or the broader Aboriginal people.
416 Mr O’Connor pointed out that much has changed in the Pilbara since 1863, the date of first settlement. Aboriginal people have been dispossessed of country to which they had inalienable rights. There has been de-population and there have been massive population movements, with people moving from the interior towards the coast, bringing with them their traditions. The Aboriginal people have adapted, changed and survived such that the traditional culture in the Pilbara is an amalgamation of indigenous regional and introduced traditions.
417 Mr O’Connor made an obvious point: none of the anthropologists can really know what happened in 1955-1956 because they were not there. However, he points out that after that time, the Warrarn have used the resources of the land on which they have been living; they have set up Law grounds; they have set up a rainmaking ground on Strelley Station which is still active. This constitutes observable behaviour and recognition by other Aboriginal groups, without objection. The Warrarn claim shared rights and interests in that land.
418 Dr Brunton expressed the view that changes in the laws and customs of coastal and riverline people since the time of settlement have brought about a more Western Desert-like system. It has also led to a move towards a cognatic system of land ownership and also the adaptation of the process of incorporation. He also pointed out that the Warrarn apparently now know more about certain kinds of sites than the local people and expresses the opinion that the transmission of knowledge may constitute a “core right”, that is, the transmission of knowledge information about country. This expands upon some of the matters in Dr Brunton’s report, where he describes the fact that, for historical reasons, the Warrarn seemed to have maintained more extensive knowledge and commitment to traditional religious knowledge than the Ngarla and that this may explain the degree of joint participation in Law activities.
419 Mr Robinson described the Western Desert society as one in which relationships to land are relatively individualistic, flexible and inclusive whereas other societies tend to emphasise communal rights and are more inflexible in the way these rights apply. Mr Robinson saw the separation between Western Desert and non-Western Desert as concepts along a continuum. While the same components may be present, in riverline societies such as the Ngarla descent “goes to the top of the list” as the primary way in which people’s rights are recognised and it is more inflexible and much more exclusive. In the Western Desert society, one can have associations with multiple parts of the country. He drew a distinction between groups that come together for ceremony and a “society” bound by language, common institutions, a place, common norms and a sense of identity. He also said that, from his work, two groups can have responsibility for the same site.
420 There was a relatively common observation that it is necessary to draw a distinction between what people say that they do and what they actually do: observable behaviour. Caution was also expressed in looking at comments and concepts of what occurred at the time of contact from the perspective of a pre-native title time and a post-native title time. Mr O’Connor made the point that ‘if in fact people have acted over the years as if they had rights in a tract of territory and nobody has gainsaid those rights’ that, in his view, is observable behaviour establishing that those rights exist. Dr Brunton also commented that whatever the nature of what occurred in the 1950s, the presence of the Warrarn people in the general area would appear to have been accepted. Dr Brunton expands on this in his report to describe this acceptance of Warrarn rights as acceptance of legitimate rights under traditional principles. However, in the present case, the “acceptance” by the landowners of the presence of the Warrarn is complicated by the existence of the pastoral lease over the Overlap Area and the rights of the Warrarn by reason of that lease.
421 The experts agreed that there is no “bright line” in determining whether there has been incorporation or integration and that it exists along a continuum, from high levels to low levels. As to anthropological methods of determining integration, Mr Robinson commented that one way was to look at the pattern of marriage and whether people see themselves as distinct, although the latter may not be definitive as, despite the assertion of difference, people may not be different in fact.
422 There was some disagreement as to whether, if rights in a particular site did exist, they could extend beyond a particular site to a larger area: from a yindi, such as a pool or a hill, to an estate, the area owned by the local descent group. Mr O’Connor thought that it could and said that factors, such as personal conception rights, birth rights and initiation rights could build up so that the claim of the individual becomes stronger. Mr Robinson said that it did not accord with his experience although where there was no descent-based or stronger interest-based holder, some spiritual link such as a yindi right, could be expanded into a full set of estate rights.
423 Otherwise his view, supported by Dr Smith, is that localised rights over a conception site or initiation site, or over a Law ground, did not extend to some set of rights over a much wider area of land. This elaborates on what Dr Smith said in his report, where he explained why he concluded that, as stated by Palmer, a stranger can obtain rights through ritual induction but cannot disseminate religious knowledge relevant to an estate that is not his own. Further, he concluded that knowledge does not necessarily equate with holding rights in that knowledge and that a migrant’s status is always subsidiary to that of the local landowning ritual leaders. Dr Smith equates the rights gained through ritual induction as a form of permission but not a right in land per se.
424 In response to a question about rights that may be accorded to migrants, short of a right to control access but extending to rights to do things necessary to participate in the Law such as gather the necessary materials, reside in the area and to the right to hunt, gather and live, Dr Smith commented that the first question was whether that right was acknowledged. He accepted that the expression “to be free in the law” means that nobody will restrict another person’s right to participate in ceremony, but said that permission is still sought from the local landowner to enter upon the land. However, there are specific local protocols concerning access to materials and, in his experience, local landowners have to be asked before they can be accessed. There is evidence that the Warrarn had been given the right to take material from Tabba Tabba Creek.
425 Mr O’Connor explained what he had meant by the word “transfer” in his reports: the use of the word “transfer” was meant to indicate a sharing of rights. Mr O’Connor noted that he used the word “transfer” because it was the term used by the Aborigines in the Pilbara including the Warrarn elders, rather than because he considered it an appropriate word in the normal English sense. While Mr O’Connor used the word “transfer”, he said that he used it because the word had been used by the Warrarn elders and he sees it almost as an Aboriginal word in the Pilbara. To take into account his view that rights are shared, when he used the word “transfer”, Mr O’Connor said that the transfer would enable transferees to participate in the ownership which was transferred, both physical (such as hunting, gathering and the use of land) and spiritual. This does not equate to a transfer of rights from Ngarla to Warrarn. In that regard, Dr Smith accepted that Mr O’Connor’s evidence that a “transfer” of rights was not an alienation of rights but was a sharing of some rights, without loss of the rights of the “givers”, the local landholders.
426 Mr O’Connor’s use of the word “transfer” was connected in his anthropological reports with symbols of the Law that were given into the care of the Warrarn, at least for a period of time. He also pointed out that the “transfer of rights and responsibilities”, clarified to be sharing, is demonstrated by the establishment of the Law ground at Strelley and the rainmaking site, and the acceptance by the Ngarla of these establishments, as well as the rights of the Strelley community to reside on those lands.
427 As to the joint Ngarla statement that there is no Minyiburu law in Ngarla country, Mr O’Connor referred to writings that recorded the “mythic saga” that state that, contrary to the Ngarla evidence, the Minyiburu travelled over that land. He commented that it may just be that Doris Eaton does not know of the story, as sacred knowledge is not evenly distributed across Aboriginal society. He added the opinion that, in the light of descriptions of the Minyiburu travels, it may cast doubt on the Ngarla claim to the Overlap Area. However, there seems to be no issue of whether the Ngarla have a claim to the area for determination in this proceeding as all parties, including the State, do not dispute that claim.
428 One matter raised by Mr Robinson in particular was whether the Warrarn, apparently named for a Nyangumarta word for “country”, and consisting of members of a number of different language groups, can be said to constitute a single society. In his experience, Pilbara Aboriginal people see themselves as belonging first and foremost to a single language group, through descent. He also observed that the Warrarn claim seems to coincide with the boundaries of the Strelley pastoral lease, although the events in Mr O’Connor’s report cover a wider area. Similarly, Dr Smith commented that the Warrarn claim to the Overlap Area follows the northern Strelley pastoral lease boundary.
State evidence that participation in and the conduct of Law ceremonies is appropriately characterised as a circumstance of “permission”
429 The State submits that the evidence, taken at its highest, is that there may have been some form of agreement from some Njamal people that some desert people could join in Law ceremonies. The State says that it is not clear what land the permission might have related to and when or in what form the agreement was communicated. The State points out that the evidence of Biddy Bunwarrie, Elizabeth Bunwarrie and Maggie Ginger refers to a permission given by Njamal men, including Ernie Mitchell, to live at Strelley to look after the Law. Similarly, Bruce Thomas refers to an “agreement” with the Njamal people to bring Law to Strelley.
430 An alternative analysis to the Ngarla “permission” analysis, proffered by the State, is that Law is practised by way of a consensus process and that “permission” is not needed to conduct the Law, as Law ceremonies have to be organised cooperatively. While the State concedes that there is some evidence to the effect that permission of a sort applies to the conduct of initiation ceremonies in the Pilbara, the State submits that this is not an accurate understanding of how initiation ceremonies or ‘Law business’ is carried out in the Pilbara region. The State contends that Law ceremonies do not occur by way of “permission”. Rather, ‘Law business’ occurs by consensus and discussion. The State characterises the process as follows:
A regional polity of elders, the “big mob”, not confined to a single language group, will gather together to consider and decide where and when initiation ceremonies are to be held that year: ‘It is a consensus process instigated by all groups in consultation’. The evidence is not of one language group asking permission from another language group to hold a ceremony on their country. The local landowner is part of the “big mob”, which includes senior men from the region.
A decision is made amongst the “big mob” as to where Law will be held that year. A consensus decision is reached, based on a wide variety of factors, including where the last initiation ceremony was held, a death in the community, or a practical barrier such as a flood.
If a particular language group does not want to host the initiation ceremony, it will presumably not be held on their ground. However, this is more accurately described as a process of consultation and consideration by the “big mob” rather than a case of one group asking “permission” and another saying “yes” or “no”.
431 The State submits that the evidence demonstrates that Law ceremonies are organised by a regional consensus and not by “permission” of one group in a simplistic sense. The State submits that it is not only local landowners who perform or start ceremonies and characterises the evidence as follows:
Mr Stewart’s evidence is “unambiguously” that Law ceremonies are organised by a process of regional consensus. Mr Stewart did say he needed “permission” to conduct a law ceremony at Yandeyarra but said that he had to talk to the Kariyarra first. He said, ‘all the language get together and talk about it’ and ‘[t]here got to be a big mob’.
Charlie Coppin did not say that he needed ‘permission’ to conduct a ceremony at Yandeyarra. He said that he could not unilaterally start a ceremony and would need to ‘hold up a bit and talk about it’. He said that the land belonged to the Kariyarra people and he had to go and see them first.
Mr Stewart and Charlie Coppin start Law ceremonies all over the north of the State. Mr Stewart said ‘[e]verybody uses me and Charlie Coppin (Kurtiri) now, mobs from all over invite us to do business for them at ceremonies’.
Joe Taylor did not claim that “permission” was needed to start Law at Strelley. He agreed that the decision is made by “everybody”. I note that Mr Taylor also agreed, when asked, that he feels he has had to give permission for the law to be practised at Strelley.
Dr Smith cannot be taken as agreeing that Law ceremonies occur by ‘permission’, as the Ngarla say. The State says that Dr Smith accepted that these ceremonies are organised co-operatively by a process which ‘has to involve’ various language groups.
Mr Robinson agreed with Dr Smith that early historical records showed that large numbers of people were ‘coming in to share ceremony’ within Ngarla country. The State says that this is not agreement as to the ‘requirement for permission’.
Lindsay Hardcase had difficulty with the proposition that a landowner could unilaterally reject the holding of a ceremony on his or her ground and gave evidence that no one person can stop the Law: ‘We’ve all got to agree on it’ and ‘The Law belong to everybody’. When pressed as to what would happen if the Njamal did not want to hold the Law, Mr Hardcase said that ‘[i]f they say no, we’ll have to have another talk again’. The State emphasises that this shows the lack of a simple veto by any one group.
Doris Eaton said: ‘We are all equally elders. All the different groups get together for law time … We go by skin groups during that time, nothing else’.
432 The State also submits that the evidence relied upon by the Ngarla relates only to the starting up or holding of a ceremony, not at all to attendance or permission. The State says that the evidence shows that:
Once a decision is made as to the location of the initiation ceremony the language group who hosts it will take a lead role in preparing for and running the ceremony.
The running of ceremony is the subject of discussion and consensus between participating senior men.
Generally, more than one type of Law is practised on the Law ground. Charlie Coppin says: ‘At Warralong we do a bit of all the different kinds of Law: Ngarla, Njamal, Warnman, all sorts’.
Once the location and time is decided, a wide class of Aboriginal people is invited to attend. Charlie Coppin says that if people wanted to do Law at Warralong they needed to ask Peter Coppin, but ‘everybody welcome to the law’.
There is no evidence that any person has ever been prevented, or sought to be prevented, from attending or participating in a Law ceremony, nor that they could be, provided that they fulfilled appropriate qualifications and observed protocols. Dr Smith said that nobody ‘will restrict another person’s, a local landowner or a non-local landowner’s right to participate in ceremony’.
433 Mr Brown’s affidavit evidence was that there was a ‘deal to allow Njamal people to bring their Law’ and that ‘Ngarla people gave permission for that; to bring that business’: the “visa” to practise Law in Ngarla country. However, the State emphasises that during cross-examination, Mr Brown said that he did not recall it to be the case that Ngarla people had given permission to other groups to practise the law at Kajarinya during the 1946 strike. Mr Brown’s evidence was that various people were ‘mixed up’ in that area at the time and that they took part in the Law with Ngarla people; the Ngarla had ‘no problem’ with that. The State says that Mr Brown later clarified the evidence in his written statement about old Ngarla people having given others a ‘visa’ to practise law in Ngarla country, saying that that was an assumption he now makes, rather than a historical fact he knows to be true. The State submits that this clarifies Mr Brown’s affidavit evidence that the Ngarla gave permission to participate in ceremonies on De Grey Station which was an assumption, not a fact within his knowledge. Mr Brown said, ‘Ngarla people would have agreed as a goodwill thing’ (emphasis added). Mr Brown noted that the giving of permission to practise Law in Ngarla country was something that did not happen very often.
434 Charlie Coppin also says that Aboriginal people were prevented from accessing any country to do Law other than at De Grey after the 1946 strike, so Kajarinya Law ground was established. He says that Ernie Mitchell and Coombie and the other old people were happy to do Law with ‘all the new people’ in those circumstances.
435 The State says that Charlie Coppin’s evidence about the commencement of Law at Strelley demonstrates that the decision was reached by local consensus. Mr Coppin says that after purchasing the pastoral lease at Strelley, the Warrarn consulted Peter Coppin, a Njamal man, about their intention to practise Law on the pastoral station. As Charlie Coppin said: ‘so they had to go back and ask the Njamal if they can carry on’ and that Peter Coppin told the Warrarn that they could carry on. The State says that this was reached by informal local consensus: ‘Some of the elders talk about it and just carry on’.
436 As to the need for permission to enter country, Mr Brown explained milangul, whereby new arrivals would be introduced to Ngarla people and a rationalisation of the different skin systems of the various groups would occur. The State says that this is at best an introduction or greeting, rather than a permission. The State says that Mr Brown’s evidence was that there were once strict rules requiring permission to enter country but that today, while it was the ‘polite way to do it’, the rules were not really enforced. Mr Brown called them ‘slight rules’ and a ‘sort of a permission’ and said that they were gradually petering off, but added that one ‘got to ask for fishing, specially fishing’ because of the spirit snake. As Charlie Coppin says, the rules about Ngarla people having to ask an owner to enter country are no longer observed by most people, although the law remains that one should ask. Charlie Coppin says that ‘people go where they want now’ and don’t ask if they are just fishing or hunting. However, he does say that people do come and ask if they can camp on Ngarla country.
Ngarla and Warrarn response to the State’s characterisation of “permissions”
437 The Warrarn largely agree with the State that Law business occurs by a process of consensus and discussion. They say that it is not entirely within the discretion of the Ngarla as to whether permission is given to conduct ceremonies and ritual, deal with ceremonial and ritual objects and to open and maintain law grounds. The Warrarn accept that if the Ngarla opposed the conduct of such ceremonies, then it may not be conducted on that occasion. However, they say that the ultimate decision as to whether or not ceremonies are conducted would be arrived at by a consensus process.
438 As previously stated, the Ngarla concede that the evidence points to an expectation that everyone will participate in Law ceremonies and that permission will be given to enter Ngarla country to participate in Law ceremonies. However, the Ngarla say that this does not deny the fact that the local landowners have exclusive rights in the land.
439 The Ngarla say that there is positive evidence in relation to the giving of permission to the Warrarn to access Ngarla country for the purposes of engaging in Law ceremonies. They say that the State’s submissions should not be relied upon as a reasonable interpretation of the evidence and that the evidence clearly indicates that while a number of language groups would be involved in discussions about the conduct of Law, the permission of the traditional owners is required. They say that the submission by the State, that there is no evidence of one language group asking another for permission to hold a ceremony on their country, should not be accepted. In particular, the Ngarla refer to the following evidence:
The evidence of Stephen Stewart, is that for the conduct of Law at Yandeyarra, ‘we’ve got to go back to Kariyarra first’ and that he had to talk to the traditional owners. The Ngarla say that this is clear evidence that the permission of the Kariyarra is required because they are the traditional owners. Charlie Coppin similarly says that for the conduct of Law at Yandeyarra, they can’t just ‘make a start in Kariyarra country’, but have to go and see the boss out there first.
The evidence of Charlie Coppin that the Warrarn asked Njamal and Ngarla elders for permission to open a Law ground at Strelley.
Immediately following Dr Smith’s acceptance that no one will restrict another person’s right to participate in Law ceremonies, Dr Smith said that it is his understanding that the local landowners have to be asked before the resources that are necessary or essential for the conduct of a ceremony can be accessed. He also says that while Aboriginal people say to him that everyone is welcome in the Law, everybody has to stop outside of the area until they receive the specific permission of the local landowners to come in. Dr Smith says that there are very ‘specific rules that indicate to me that local landowning rights are the ones that prevail in those circumstances’.
Consideration of the question of whether the Warrarn were granted a permission
440 An essential issue in the determination of Warrarn claim is whether a licence or permission was granted to the Warrarn under Ngarla traditional laws and customs. Even if the Warrarn succeed in their “broader society” argument, this question and the conclusions reached below remain the same. The Warrarn have not pointed to any difference between the traditional laws and customs of a broader society and those of the Ngarla, pursuant to which they claim to have been granted the permissions.
441 The question of permission is complicated by the fact that the Warrarn have the pastoral lease over Strelley Station, where they live. It is possible that many of the observable facts regarding the Ngarla’s acceptance of the Warrarn presence and activities stem from this fact, rather than from a permission granted under Ngarla traditional laws and customs. As the State observes, it is important not to confuse acceptance with permission. On the other hand, the existence of a pastoral lease and the Ngarla’s acceptance of this state of affairs does not preclude the conclusion that the Ngarla have granted the Warrarn a permission or licence under Ngarla traditional laws and customs.
442 In considering whether the Warrarn were granted a licence or permission under Ngarla traditional law and custom, it is useful to have regard to the distinctions that have been emphasised by the Ngarla:
It is necessary to distinguish between whether, as a matter of fact, a permission or licence was granted and if so, the nature and extent of that permission, and what Ngarla traditional law and custom says about the rights that are possessed by those to whom a licence was granted.
It is necessary to understand the extent to which matters concerning Law ceremonies extend to other secular or non-religious activities on land.
443 Mr O’Connor’s opinion that the Warrarn have rights in the Overlap Area based on observable behaviour, without an analysis of the normative rules that exist under Aboriginal law and custom, or consultation with the Ngarla as to their understanding of those normative rules, does not supersede the accepted evidence of the Aboriginal witnesses where it conflicts with that opinion. The Ngarla witnesses draw a distinction between permission to reside on the land and to conduct ceremonies on the land, and passing of rights in the land. They also draw a distinction between rights by reason of traditional law and custom and rights because of the ownership of a pastoral lease. For example, Peter Coppin said that: ‘Other than as pastoral lessees only, [the Warrarn people] do not have an association with the area … The Warrarn claimants bought the Strelley and Coongan pastoral leases, not the country. You can’t buy country’.
444 One issue that was raised during the course of the hearing, by the anthropologists but not pressed by the parties, was whether the Overlap Area was Njamal or Ngarla country at sovereignty. However, Dr Smith, in his reports, gives reasons for the conclusion that the pre-sovereignty society of the Overlap Area was Ngarla society. The Ngarla maintain ownership of the Overlap Area and the Warrarn do not dispute Ngarla ownership at sovereignty. The previous overlap claim by the Njamal has been withdrawn. No other Aboriginal groups claim ownership of the Overlap Area at sovereignty and the State seems content to acknowledge Ngarla rights. The evidence supports the position accepted by the parties that the Overlap Area was Ngarla land at sovereignty and that the Overlap Area is not Njamal country.
445 However, there is little direct evidence that Ngarla people (rather than Njamal people) gave permission to members of the Warrarn to enter onto, reside upon or carry out activities upon the Overlap Area or on other Ngarla country. The Warrarn Aboriginal evidence is mostly of permission obtained from Njamal people to conduct and join in Law ceremonies. However, the Warrarn have, with the apparent agreement of the Ngarla, carried out activities on Ngarla land. They have developed an association with sites on that land, at least under Western Desert tradition. It is also a fact that the Warrarn reside in or near the Overlap Area and that the Ngarla have accepted that residence and use. Whether that is because of the pastoral lease or whether it arises out of permission under traditional laws and customs needs to be determined.
446 The Ngarla say that any permission is revocable. The Ngarla point to the joint statement of Charlie Coppin, Stephen Stewart, Joe Taylor and Joe Coppin who say that ‘[n]o Law business happened at Warralong over this Summer just gone. … The Warrarn asked us to open it, and we said no’. Teddy Allen also said that ‘we wouldn’t allow them last year’, referring to the “desert people” holding Law. However, the evidence is insufficient to establish the broader assertion beyond the opening of law grounds or whether permission could be revoked at will or only for “transgressions”.
Consideration of the expert evidence generally
447 There are conflicting accounts from the Aboriginal witnesses about what occurred in 1955–1956 between Ernie Mitchell and Coombie on the one hand and the Warrarn on the other, that being an important basis of the permission and rights claimed by the Warrarn. The expert evidence and opinion is based upon Aboriginal evidence. As the State points out, where opinions about the alleged ritual exchange are not supported by Aboriginal evidence, the expert opinion cannot of itself establish the nature of a grant of permission.
448 There are difficulties in explaining what did occur in language such as “exchange” and “transfer” of rights, although the concept of “transfer” has been clarified by Mr O’Connor. The Warrarn’s submissions did change somewhat during the course of the proceeding. Ultimately, they relied more on the grant of permission and on rights and interests as part of a Ngarla or broader Pilbara society than on an asserted transfer of rights in land from the Ngarla to the Warrarn. That may have been in recognition of the potential difficulties in relying on a transfer of native title rights from the traditional owners to another claimant group post-sovereignty.
Consideration of permission for Law ceremonies
449 The Ngarla submit that the evidence of Ngarla and Njamal witnesses clearly establishes that conduct of Law ceremonies on land is by way of permission of the local landowners. Many of the witness statements cited by the Ngarla refer to the need to ‘talk to’ the traditional owners of the area before the Law was held. All parties seem to accept that such talk is necessary. From the evidence, that “talk” is directed to obtaining permission from the owners of the land to hold Law ceremonies there.
450 As the Ngarla submit, the evidence of Warrarn witnesses such as Monty Hale and Lindsay Hardcase corroborates the need for permission to conduct Law ceremonies. This corroborates the evidence of Charlie Coppin and is consistent with Bruce Thomas’s evidence that the Warrarn rainmaking ground at Strelley was opened with the permission of the Njamal and that the Strelley Law ground was opened with the permission of the Ngarla and Njamal.
451 I accept that the evidence of the senior Law men and women as to the content of law and custom in the Overlap Area should generally be accepted where it conflicts with the evidence of those less senior. In particular, in this regard, I found the evidence of Charlie Coppin, Stephen Stewart, Monty Hale and Lindsay Hardcase consistent and compelling. It is also relevant that the evidence of witnesses such as Charlie Coppin was supported by other Law men and not only by Ngarla men but also by Njamal men and Lindsay Hardcase. His evidence was also supported by David Woodman, Ian Taylor, Peter Toby and Donna Wilson. Further, it was apparent during the hearing that the majority of those attending and giving evidence supported the evidence of the Ngarla witnesses. This included the Business Girls, other than the women who gave evidence for the Warrarn. Further, the supporting evidence concerning the opening of the Strelley Law ground was of those closer to the occurrence of the events in question, including Winnie Coppin, the widow of Peter Coppin.
452 The expert evidence, in particular the opinion of Dr Smith, is consistent with the conduct of Law ceremonies on land being by way of permission of the local landowners. Dr Smith characterises the permission given to the Warrarn as a contingent permission, based upon the Ngarla core right, which included the right to extend or revoke the licence. The Ngarla say that Mr Robinson agreed as to the requirement of permission and the revocable nature of permission. However they did not point to any evidence from Mr Robinson that supported this submission.
453 Another conclusion from the evidence, is that the relevant permission obtained from the Ngarla or Njamal was to hold, and participate in, the Law ceremonies on Ngarla or Njamal land. For example, permission was granted for the holding of ceremonies at each of Kajarinya in 1956, Strelley in 1972 and Warralong in 1980. Senior Ngarla witnesses explained the nature of that permission that was granted to the Warrarn under Ngarla and Njamal law and custom in respect of Kajarinya and Strelley, as making the Warrarn caretakers, who can be asked to leave. This evidence did not extend to rights or laws and customs in connection with specific sites.
454 I accept that the permission of the local landowner is required under Ngarla traditional law and custom to conduct a law ceremony, in the sense that the permission of the local landowner is required to hold a Law ceremony or to open a Law ground. However, it is clear on the evidence that once this permission is granted, the conduct of Law ceremonies themselves (in the sense of performance, ritual and participation) is organised co-operatively.
455 Participation in Law ceremonies is not limited to the Warrarn and may extend to persons from all over the Pilbara and beyond. The Ngarla agree that the conduct of Law ceremonies is not entirely at the discretion of the Ngarla, as other Aboriginal people are involved in the conduct of, and in making decisions about, ceremonies (e.g as to when they will start, which “boys” will be initiated etc). It is evident that mere participation in Law ceremonies on Ngarla land does not grant rights and interests in that land.
456 While it may be the case that some Law was practised at Strelley in the absence of participants other than the Warrarn, the evidence strongly supports the Law ceremonies being conducted jointly and by consensus but that the owners of the land where it was to be conducted had to give “permission”, in the sense of agreeing to allow those ceremonies to be conducted on their land.
457 From the evidence, elders from the region would decide about the holding of ceremonies, including initiation ceremonies and including where they were to be conducted. Those elders included the members of the language groups on whose land a Law ground was situated, as well as other senior men from the region. The leaders in the Law of the group that owned the land would need to be consulted and their permission would need to be given for the conduct of ceremonies on that land. For the Overlap Area, that would be the Ngarla. I accept the evidence of Mr Hardcase that ‘Dooley Bin Bin did not open the Law at Strelley on his own. He did a lot of the talking, but the Law was opened by all the Law men, and with the permission of the Ngarla and Njamal people’. While there may be a regional society for the purpose of the conduct of the Law, there is a strong sense of land belonging to individual groups such as the Ngarla and the Njamal. The local landowner’s permission or agreement has to be sought and obtained for the opening up of a Law ground and for the holding of the Law ceremonies.
458 In relation to the conduct of the Law, I found particularly helpful the evidence of Lindsay Hardcase, who was, at one stage, included as a member of the Warrarn “Leaders Group”, whose evidence on this aspect was consistent with the Ngarla position. Mr Hardcase’s evidence is that the Warrarn have been fully integrated into the normal decision making concerning the conduct of the Law. The process of deciding when to hold and where to hold initiation ceremonies is a communal process. However, he says that if there is a question that is not resolved by agreement, the “owner” of the land has the last say. Further, he says that initiation ceremonies cannot be held on a particular Law ground if the owner of that land does not want it to happen.
459 The State submits that the correct characterisation is that there is consultation and consideration by the “big mob”, rather than a case of one group asking “permission” and another saying “yes” or “no”.
460 In my view, this disregards the evidence that if the local landowner does not want the ceremonies held on his or her or their land, even after further discussion between all interested parties, it will not be held there and another venue will be chosen. For example, Lindsay Hardcase gave evidence that if the Njamal still did not want the Law to happen at Warralong after further discussion, the “big mob” would leave it and go to Yandeyarra. Generally, it was a matter of consensus, with the decision about where a Law ceremony is to be held taken after discussion by a cross-section of senior people from the different groups. Nevertheless, the local landowner has the right to allow the decision by the “big mob” as to the location to be implemented, or to exercise a right of veto. This may be affected by the existence of any pastoral lease over the land but is otherwise a matter of traditional law and custom.
461 Once the landowner agrees to host the ceremonies or, put another way, gives permission to hold the ceremonies on that location, the evidence is that it is not the landowner who determines who may be invited or who may attend. That is decided by the senior Law men of the “big mob”, the elders of the region who determine the conduct of the ceremonies by a process of consensus and discussion. Participation in ceremonies is not a matter for specific permission but is open to all and, as Dr Smith said, there is no restriction by a local landholder or a non-local landholder, on the participation in the ceremonies, as long as such people are otherwise qualified to attend and observe appropriate protocols.
462 Ngarla people may also attend ceremonies in other parts of the State. For example, Charlie Coppin and Stephen Stewart travel around the State to start and conduct Law ceremonies, in particular in the northern part of the State. As Charlie Coppin says:
We’re happy to do Law with them [Warrarn] – we’ve always shared Law … People from all over come to our Law ceremonies. Law belongs to everybody. Nobody is better than anyone else in Law. But even in Law, wherever you go, people respect the country owners.
463 There is no evidence that any qualified person has been prevented from attending or participating in a Law ceremony, providing that the person observes local protocols. However, Dr Smith points out that there are local protocols that govern, for example, the extracting of resources that are necessary or essential for the conduct of ceremony and who can access them and the local landholders have to be asked before they are accessed. On the other hand, the evidence of Aboriginal witnesses such as Charlie Coppin is that ‘people go where they want now’ and do not always ask for permission.
464 The language group hosting the ceremony will take a lead role in the preparation and running of the ceremony. A wide class of Aboriginal people are invited to attend. There would be differences in the conduct of ceremonies, if such differences existed between the different groups. For example, although the ceremonies were conducted together by the different Pilbara groups, Ngarla initiation ceremonies may differ from those of other groups and those differences would be respected. Generally, everyone is welcome to join in the ceremonies, share the Law and “do the Law” together. The groups which may get together for Law time to practise the Law include Nyangumarta, Martu, Ngarla, Njamal and visitors from across the Pilbara. Generally, more than one type of Law would be practised on the Law ground and would include the type of Law practised by the owner of the Law ground. Each group looks after the conduct of its own Law.
465 In summary, under Ngarla traditional law and custom, permission from the Ngarla is needed to establish Law Grounds and to hold Law ceremonies on Ngarla land, which includes the Overlap Area. Once that permission has been given, the conduct of the ceremonies themselves and the participation in Law ceremonies is not a matter for permission.
466 What is less clear on the evidence is whether a permission to hold a Law ceremony or to establish a Law ground may create an ongoing permission to perform Law ceremonies at that site without the need to obtain a fresh permission each time a Law ceremony is held. There is no evidence that, under Ngarla traditional law and customs, this is generally the case. Whether a permission is extant will therefore depend upon the particular permission given.
467 The evidence is that the Strelley Law ground was opened with permission, as was the rainmaking site. The evidence is not clear, but I accept that once the Strelley Law ground was opened, the Warrarn did not need permission each time Law was to be conducted on that ground while it was active. However, the Strelley Law ground is no longer active. As to the rainmaking site, from the evidence, once permission was given, ongoing activities at the site did not require fresh permission.
468 Although Warrarn witnesses give evidence that the Warrarn had permission to live at Strelley and look after the Law, this evidence has to be considered in context. The evidence of the Ngarla and Njamal witnesses is that this permission did not give the Warrarn any ownership of the land and that it was analogous to a ‘visa’.
469 The Ngarla do not accept that by giving permission for Law ceremonies to be conducted, they gave away rights in the land. Such transfer would be inconsistent with Ngarla laws and customs and descent-based rights. In any event, there is no suggestion that Aboriginals from the Pilbara obtained rights in the land simply by attending and participating in Law ceremonies on the land.
470 There is no evidence that permission given to members of the Warrarn to participate in or conduct Law ceremonies, including initiations, was in any way different from that given to other persons who come to participate in Law business. As Charlie Coppin says, although ‘law belongs to everybody’, he says that: ‘[e]ven though we share the Law together, it doesn't make any sense to say that the Warrarn mob can speak for the country’.
471 The evidence supports the right of the Ngarla to permit or to refuse to permit the practice of Law on the Overlap Area. I accept, contrary to the State submissions that this is a “permission”. The evidence also strongly supports the conclusion that the grant of this permission does not give rights over Ngarla country.
Consideration of the asserted licence or permissions for general activities (eg residing)
472 The parties agree that the Ngarla have ‘accepted without complaint the presence of the Fourth Applicant on the Overlap Area’.
473 The Warrarn submit that the permission to conduct Law related activities cannot be dissociated from the permission to conduct other activities and that they are coincidental and co-dependent. They say, as an example, that accessing and camping on the land, obtaining sustenance from the land, and maintaining sites on the land are all activities integral to the Warrarn engaging in hosting and leading ceremonies on the land. Members of the Warrarn are acknowledged by the Ngarla to be leaders in the Law and have, in the past, been given permission by the Ngarla or Njamal to open Law grounds and conduct ceremonies on Ngarla and/or Njamal land. The Warrarn claim that by virtue of their status as leaders in the Law, certain rights in respect of the Overlap Area follow.
474 The Ngarla contend that the presence of the Warrarn raises three possibilities:
the Warrarn are trespassers according to Ngarla law and custom;
the Warrarn have an implied permission or licence to be there unless and until that permission or licence is revoked; or
Warrarn presence does not have any status or effect under Ngarla law and custom, because Ngarla do not assert a right to control access or, to put it another way, to possess, occupy, use and enjoy the Overlap Area to the exclusion of all others.
475 The Ngarla contend for the second possibility. The Ngarla say that there is no evidence to establish the first possibility and they deny that the third possibility is correct. The Ngarla submit that the existence of an implied licence is consistent with the observations of Selway J in Gumana (2005) at [211]:
The evidence given by the Yolngu witnesses and the anthropologists in this regard [that the relevant clans have a right to exclude others, whether Aboriginal or not, from their land] is not inherently unlikely. It is not inherently unlikely that a person may have a legal right to exclude, but that others are entitled to assume that they have permission to enter and use the land in the absence of any express exclusion. For example, a person holding the fee simple title and in occupation of land undoubtedly has the right to exclude others from it: see Plenty v Dillon (1991) 171 CLR 635 at 647. However, in the ordinary course most entrants onto that land have an implied licence to do so at least for the purpose of seeking permission to stay on it or otherwise to engage in their lawful business. Even if it were established that the land owner had never actually refused access to anyone seeking it, this still would not deny the existence of the landowner’s legal right to refuse access. Even if evidence was given that neighbours regularly entered onto the land without seeking express permission (eg in order to recover tennis balls, etc) that plainly would not have the consequence that the landowner did not have the right to exclude. It would not occur to anyone to argue that the failure to exercise the right to exclude meant that it did not exist. I can think of no reason why the same should not apply in respect of land held under Aboriginal tradition. The evidence in this case shows that it does, at least in relation to the claim area.
476 Additionally, the Ngarla submit, there is positive evidence to support the proposition that the Warrarn have an implied licence or permission to be there unless that licence or permission is revoked.
477 In contrast, the State, which denies that the Ngarla have exclusive possession of the Overlap Area, does not agree that “permission” was given in the sense of permission having been sought and given by the Ngarla people. Rather, it submits that the Warrarn were accommodated by the Ngarla without complaint. The State contends that there is no direct evidence that the Warrarn have ever asked or been given permission to enter or reside in the Overlap Area. The State contends that ‘there was no evidence that the [Warrarn] sought, or were given, permission by the Ngarla people to conduct any non-Law related activities on the Overlap area’. The Ngarla admit that this may be true in those precise terms, but submit that there is evidence of non-Ngarla persons seeking permission of Ngarla to conduct non-Law related activities in Ngarla country. For example, Dr Smith says that he witnessed two senior Nyangumarta women conferring with Charlie Coppin and Geoffrey Brown, seeking permission to collect bush medicine on Ngarla country.
478 The Ngarla concede that ‘there was relatively little evidence about permission to conduct non-Law related activities’. The Ngarla agree that the evidence does not reveal specific instances of the Warrarn explicitly asking for, and the Ngarla granting, permission to conduct activities in the Overlap Area. However, they say that there was evidence as to the nature and effect of giving permission generally. The Ngarla refer to the evidence of Mr Brown who said that strangers that had been introduced could not speak for Ngarla country, but were free to hunt where they were told and could join in corroborees. Charlie Coppin says that if Ngarla give permission, a person who is not Ngarla can live in Ngarla country. Nora Cooke’s husband, a non-Ngarla person, could do various things in Ngarla country with permission, but could not speak for the country.
479 The evidence seems to draw a distinction between permission to hold Law ceremonies on land and general access to the land. The evidence supports the right of the landholder to permit or to refuse to permit the practice of Law. The evidence also supports the conclusion that the grant of permission to come onto the land for the purposes of taking part in or having the right to practise Law does not give rights over that country.
480 There is less certainty about the need to ask permission to enter or to reside on the Overlap Area in general, non-Law ceremony, circumstances. There is no direct evidence that any Ngarla person has given permission to the Warrarn, or to a member of that group, to enter or reside in the Overlap Area, or on other Ngarla country or to carry out activities, other than Law-related activities, other than the one occasion reported by Dr Smith, although this was not, apparently, on the Overlap Area. Such evidence that goes to concepts of permission or licence to do things not associated with the Law concerns traditional obligations to seek permission to enter the land and conduct activities and a view that permission should be sought. However, the evidence did not focus on whether such permission had been sought by or given to the Warrarn.
481 As positive evidence, to support the proposition that the Warrarn have an implied licence or permission to be there unless that licence or permission is revoked, the Ngarla say that a number of Ngarla witnesses described the Warrarn as “caretakers” or used concepts such as a “visa” and “revocable permission” to express their understanding of the temporary and contingent nature of any rights afforded to the Warrarn. The Ngarla say that this demonstrates the nature and effect of giving permission and that even without transgression, the licence is not permanent. The Ngarla point to the following evidence:
Charlie Coppin, Stephen Stewart, Joe Taylor and Joe Coppin say in their joint statement that the Warrarn were asked to be “caretakers” of Strelley while Ngarla and Njamal were not living there, because the Warrarn were, but that they had to go ‘when the boss is back’. They say that the ‘Warrarn mob can be there that’s fine’ but that they have to be given permission from the country owners to do Law on Ngarla country. They say that the Warrarn have resided at Strelley since they bought the pastoral lease and ‘we don’t have a problem [with (sic)] them, but they can’t claim to have rights in our country’.
Doris Eaton says that the ‘Strelley mob’ had to ask her father, Ernie Mitchell, for permission ‘to do anything’. She says: ‘They could not do anything without his permission’. Doris Eaton also says that the ‘Strelley mob’ now can’t do anything without the permission of Charlie Coppin and ‘all the other men’.
482 The Ngarla further say that any licence given is revocable and point to the joint statement of Charlie Coppin, Stephen Stewart, Joe Taylor and Joe Coppin who say that ‘[n]o Law business happened at Warralong over this Summer just gone. … The Warrarn asked us to open it, and we said no’. Teddy Allen also said that ‘we wouldn’t allow them last year’, referring to the “desert people” holding Law. This evidence tends to support a revokable permission.
483 Additionally, the State contends that the Ngarla do not have a right to control access to the Overlap Area. Without such a right, the State says that there is no effective sense in which the Ngarla could give a ‘permission’ to the Warrarn in the manner contended. This is discussed below in respect of the extent of Ngarla rights in the Overlap Area.
484 In any event, the evidence does not establish that the Warrarn did, or do currently, seek Ngarla permission to carry out general activities in the Overlap Area. It is not clear that they did, in fact, ask permission to carry out any particular activity. Rather, the evidence is that the Ngarla, or some of them, were of the view that such permission should have been sought. Again, this is complicated by the fact that the Warrarn have the pastoral lease over Strelley Station, where they live.
485 Further, the State and the Ngarla submit, and I accept, that the effect of any permission to reside in the Overlap Area did not change ownership or grant rights to land. Charlie Coppin’s evidence is clear: ‘You cannot get rights in Ngarla country by living there. If Ngarla give permission then a person who is not Ngarla can live in Ngarla country, but it doesn’t become their country’. This was the subject of similar evidence by Stephen Stewart who says: ‘You can give permission to fish and hunt, but you can’t give country away’. According to Mr Brown, you can ‘let other people use the land, with permission, but you cannot give it away’. A non-Ngarla husband could, according to Nora Cook, do various things in Ngarla country with permission but could not speak for the country, or claim to call the country his own in the traditional way.
Consideration of the particular rights and interests claimed by the Warrarn
486 Even if the Warrarn were to establish some native title rights or interests arising by reason of the granting of a permission or licence, there are difficulties in establishing the particular rights and interests claimed.
The right to establish or open and maintain and protect law grounds within the Overlap Area
487 The Law ground at Kajarinya is situated outside the Overlap Area and the Law ground at Strelley may be outside the Overlap Area. Both are not currently active Law Grounds. There is no evidence of any currently active Law Grounds or current permission in relation to Law Grounds in the Overlap Area. In this regard, the rainmaking site would not seem to be a “law ground”.
488 Although there is evidence that the Warrarn obtained permission from the Ngarla and/or Njamal to open Law grounds, such as Strelley, there is no evidence that the Warrarn therefore have an extant permission to protect former Law Grounds, or have an ongoing right to open, maintain and protect any new Law Ground in the Overlap Area without obtaining Ngarla permission.
The right to look after sites of importance and cultural significance in accordance with the traditional laws acknowledged and traditional customs observed in the Overlap Area, including the men’s restricted site at Tabba Tabba Creek, the Minyiburu site, the Mikurrunya site and the men’s restricted Yaya site
489 The men’s restricted site at Tabba Tabba Creek, the Minyiburu site and the men’s restricted Yaya site are not recognised by the Ngarla as being traditional sites. For example, the joint statement of Charlie Coppin, Stephen Stewart, Joe Taylor and Joe Coppin states: ‘There’s no Minyuburu Law in Ngarla country’. As for Mikurrunya, the Ngarla and Warrarn stories and understandings which apply to the site are not identical. Only the Ngarla traditional laws and customs and the Ngarla Mikurrunya story can be “traditional” in the Overlap Area in the Yorta Yorta sense. However, under Ngarla traditional laws and customs, there can be recognition of other Aboriginal practices in respect of a site.
490 In any event, the evidence does not establish extant permission given by the Ngarla to look after those sites. Charlie Coppin says that Ngarla people look after Ngarla country and that ‘We Ngarla people looked after our country right through’. He says that Mikurrunya is looked after by Ngarla. The Tabba Tabba Quarry Native Title Agreement between Clifton Cooke, Alexander Brown, Jeffrey Brown and Charlie Coppin, on behalf of the Ngarla native title claimant group and Boral (the Boral Agreement) says that the Ngarla have ‘knowledge and custodianship’ of Mikurrunya.
491 There is evidence that the Warrarn mob have been appointed temporary ‘caretakers’ of the ‘Strelley area’. However, the evidence is consistent with the Ngarla contention that this is a reference to the Strelley Law ground and the events in the 1970s when the Law ground was in use and senior Ngarla and Njamal men were living at Yandeyarra.
492 The evidence that the Warrarn did care for sites in the Overlap Area was inconclusive. The sites to which evidence was directed were, apart from Mikurrunya, generally not acknowledged as Ngarla sites and therefore not traditional with respect to Ngarla land. However, permission was given to the Warrarn to take materials for the conduct of ceremonies from Tabba Tabba Creek. There are Warrarn grinding sites on Ngarla country. To the extent that there are sites of traditional importance to the Warrarn on the Overlap Area, the Ngarla have acknowledged that the Warrarn look after those sites and this amounts to a permission to do so, but this does not derogate from Ngarla rights as custodians of Ngarla sites on Ngarla land. Further, ******** ******** ******** ******** ******** **************** ******** ******** ***.
The right to conduct ceremonies and rituals within and in the Overlap Area
493 From the approach of the parties, this asserted right concerns the conduct of Law ceremonies and other more formal rituals. There has been reference to sites said to be of importance to the Warrarn, but the evidence has not extended to the conduct of ceremonies and rituals associated with such sites, other than the rainmaking ground and Mikurrunya. As concluded above, apart from the rainmaking ground, the asserted right to conduct ceremonies and rituals is not the subject of a standing permission. Ceremonies and rituals are not currently conducted within the Overlap Area by the Warrarn. The rainmaking ground, to the extent that it is used, is the subject of Ngarla permission to conduct rituals. To establish a Law ground, to hold or to open Law in the Overlap Area would require the permission of the Ngarla.
494 In any event, the conduct of Law ceremonies or ritual, once the initial permission is given, is a matter for which a wide class of senior Aboriginal people, including Warrarn people, are responsible.
The right to teach children and kin and to initiate them into the Law associated with places within the Overlap Area
495 There is no evidence that the Warrarn teach Ngarla law, which is the traditional law associated with places within the Overlap Area. No permissions have been granted for the Warrarn to conduct Ngarla law. Charlie Coppin, Stephen Stewart, Joe Coppin and Joe Taylor say that the Warrarn ‘might know some little bits but they haven’t been through it and don’t know how it fits together’.
496 To the extent that the Warrarn teach children about Nomad or Warrarn Law, those laws and customs are not part of the normative system of laws and customs of the Overlap Area or associated with places within it and they do not date back to sovereignty. However, the Ngarla, by Warrarn presence in the Overlap Area, have acknowledged the right to teach Warrarn children about their own Law. This is further acknowledged by the observance of Warrarn traditional law in initiation rites and other aspects of the conduct of the Law.
497 In any event, a right to teach is not a right in relation to land (being akin to the right to prevent the misuse of cultural knowledge, rejected by the High Court in Ward at [57]–[61]).
The right to reside with their families and kin in the Overlap Area
498 The Ngarla say that they have given permission, which they say is revocable, for Aboriginal people including the current Warrarn claimants, to reside in the Overlap Area. The State says that this is an “acceptance”, not a “permission”. It is, at the least, acceptance.
499 It is not in dispute that members of the Warrarn have resided at Strelley Homestead. However, this would seem to be outside the Overlap Area. There is no evidence that this residence occurs because of right or permission under traditional law and custom, rather than as a result of the pastoral lease or a general acquiescence.
500 The State says the right cannot be expressed to include “families and kin” for two reasons. First, if the Warrarn claim is for individual rights, it is personal to the individual that holds it. Even if this were not the case, the Warrarn would have to identify and lead evidence for each “family and kin”. Secondly, if the Warrarn claim is a group right, “family and kin” must meet the membership criteria of the group and there is no evidence they do. Thirdly, the State denies that the “right to be accompanied” can be established in the absence of a right of exclusive possession. I generally do not agree with the State's submissions, for the reasons outlined below in regard to the "right to be accompanied".
501 If the Warrarn contend that their rights include their “families and kin” and in the absence of a right to exclusive possession, they need to establish traditional laws and customs which are said to give rise to the right of the Warrarn as a group or as individual to bring their “families and kin” to reside in the Overlap Area. The Warrarn have not led evidence that establishes this right. However, it is clear that the Ngarla have accepted the presence of the families and kin of the members of the Warrarn.
The right to hunt, collect and prepare foods and obtain and use resources (including water and ochre but not including gas, petroleum or minerals) with their families and kin for residential purposes and for carrying out certain obligations in the Overlap Area
502 It is not clear that the evidence of hunting and gathering is in relation to the Overlap Area. In any event, the evidence does not establish that these activities are being carried out pursuant to a normative system of laws and customs, rather than by virtue of the pastoral lease. The Ngarla again say that they have given permission, which they say is revocable, to the Warrarn to continue to hunt, collect and prepare foods and obtain and use resources (including water, but not including ochre, gas, petroleum or minerals) with their families and kin in the Overlap Area for domestic purposes, to the extent they are currently doing so in the Overlap Area. Otherwise, they say that this is not admitted. Again, the State submits that there is no evidence that the Ngarla people have given such permission.
503 The Ngarla also submit that any right to take ochre cannot exist to the extent that ochre is a “mineral” as defined in the Mining Act 1904 (WA). In any event, Charlie Coppin says that no-one can use the ochre from Mikurrunya. The evidence does not establish that anyone other than Ngarla people take ochre from Kurilkarra. Dr Smith said that there are specific local protocols concerning access to materials and, in his experience, local landowners have to be asked before they can be accessed. There is evidence that the Warrarn had been given permission to take material from Tabba Tabba Creek. There is no evidentiary basis for a determination that the Warrarn have a right or have been given permission to take ochre, other than the evidence concerning “material” from Tabba Tabba Creek and it is not clear (as the evidence was restricted) that this includes ochre.
504 The Warrarn have not established an independent right under a traditional normative system of laws and customs to conduct these activities.
The right to create, collect, store, keep safe and preserve objects used in ritual and ceremony and create shrines to ancestral beings within the Overlap Area
505 The evidence does not establish that rituals, law grounds, object storage places or shrines are, or have been, situated within the Overlap Area.
506 The evidence does indicate that senior members of the Warrarn group have held sacred objects. Crow Yougarla says that Njamal ceremonial objects were handed to the Warrarn at Kajarinya. Any objects that were once stored at Strelley or Kajarinya have been moved to Warralong. Only Ngarla and Njamal people have a key to the storehouse and the evidence does not establish any rights of the Warrarn in relation to the storage of those sacred objects. There is also evidence from Warrarn witnesses that they have a right to create sacred objects.
507 However, the evidence does not establish that rituals, Law grounds, object storage places or shrines are, or have been, situated within the Overlap Area. Those located nearby are no longer active. There is no evidence of an extant permission from the Ngarla for the creation of shrines in the Overlap Area. If the rainmaking site can be considered a “shrine” it is not clear that it is within the Overlap Area or that it continues to be in use. Although, the Ngarla have given permission for that site to be used for that purpose by the Warrarn, there is no evidence that the Warrarn have rights to create new shrines.
The right to participate with their families and kin in ceremonies and rituals within the Overlap Area
508 Since the Law moved to Warralong, Law ceremonies have not been conducted in the Overlap Area. To the extent that the Warrarn have, by reason of their residence in the area, conducted rituals and ceremonies in the Overlap Area, that has been accepted by the Ngarla. That includes participation with families and kin.
509 The Warrarn have identified sites of significance to them within the Overlap Area such as Mikurrunya. They also consider sites of conception as significant as part of their traditional law and customs. These laws and customs are not co-extensive with those of the Ngarla. For example, the birthing sites identified by the Warrarn are not recognised under Ngarla law and customs and there are different stories at the Mikurrunya site. That is, the ceremonies and rituals are not those of the Ngarla, the normative society.
510 The Ngarla have accepted that members of the Warrarn who have lived in the Overlap Area and their families carry out ritual and ceremony, and associated activities, in the Overlap Area. However, this is appropriately characterised as “acceptance” and the Warrarn have not shown that there is evidence of either specific permissions being given or of a general permission to conduct Warrarn ritual and ceremony. Such “rights” do not, however, extend to a native title right, being in the nature of personal rights, as will be discussed below.
Participate, with the native title holders with descent based connections and other leaders in the Law, in decisions about the use, enjoyment and management of the land and waters of the Overlap Area
511 The Ngarla submit that any permissions granted by them with respect to the Overlap Area have never extended to the Warrarn (or anyone else) making such decisions:
Mr Brown said that Milangul (introduced strangers) could not speak for country.
Nora Cook Ex says that ‘[i]f someone knows the culture, country and law and they have lived here for a long time, I think the elders would have let them talk about some things [like fathering food and hunting]’. But she says that ‘[y]ou have to be Ngarla to speak for Ngarla country’.
512 The State says that while there is some evidence that the Warrarn were involved in decisions regarding Strelley Station generally, these are all within the context of the NTA future act regime as registered claimants, not pursuant to a normative system of laws and customs.
513 I do not accept that the Warrarn have established this asserted native title right.
Conclusion
514 It is difficult to differentiate between the rights of the Warrarn by reason of the pastoral lease and the rights they have by reason of permission or acceptance by the Ngarla. The Warrarn do not have native title rights in the land of the Overlap Area. While I accept that under Ngarla traditional laws and customs, permission from the Ngarla is needed to establish Law Grounds and to hold Law ceremonies on the Overlap Area, I am not satisfied on the evidence that there is any such extant permission, given by the Ngarla to the Warrarn in respect of the Overlap Area. As persons who have lived on that land, and being people of the Pilbara, they have the right to participate in the Law ceremonies and, by tacit permission of the Ngarla, the right to carry out their own rituals and customs, such as rainmaking, in the Overlap Area, to the extent that they do not conflict with Ngarla traditional laws and customs.
If there is permission or a licence, do the Warrarn have native title rights as a matter of law?
515 Even if the Warrarn were granted permission or a licence, the Ngarla and the State agree that as a matter law, this permission cannot give or allocate native title rights to the Warrarn, because the “rights” that arise from the granting of permission:
(a) are not possessed under Ngarla traditional laws and customs;
(b) are not rights in relation to land;
(c) do not give the licensee a connection with the Overlap Area, sufficient to satisfy the s 223(1)(b) requirement;
(d) do not fit within the scheme of the NTA; and
(e) native title law does not permit extra-societal allocation of rights.
Are there rights and interests in relation to land possessed under traditional laws and customs?
516 Section 223(1) of the NTA provides relevantly:
(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 …
(emphasis original)
517 As previously discussed, the normative system of traditional laws and customs operative in the Overlap Area, being Ngarla laws and customs, provided for an ability to grant permissions or licences to do particular activities. However, the Warrarn must also show that their claimed rights and interests in land are possessed under the traditional laws and customs, that is, that Ngarla traditional laws and customs provided for the allocation of rights and interests in land by way of permission or licence.
518 The State and the Ngarla contend that only rights in relation to land can be recognised as native title rights pursuant to s 223(1) of the NTA. They contend that any licence or permission granted by the Ngarla is not such as to constitute a right or interest “in relation to” land or waters, within the meaning of s 223(1) of the NTA.
519 The Warrarn have not satisfied s 223(1)(a) of the NTA, as the Warrarn have not demonstrated that they possess rights and interests in relation to land under the traditional laws and customs of the land, that is the traditional laws and customs of the Ngarla.
520 This case is not analogous to De Rose (No 1) and De Rose (No 2). In this proceeding, migrants cannot possess rights and interests in land under to the traditional laws and customs of the relevant society. In De Rose (No 2), the claimants had moved to the particular claim area post-sovereignty, but were part of the Western Desert society (the relevant society of the land in that case). The Full Court concluded that the claimants did have native title rights and interests because of the content of the applicable Western Desert law and custom, and the fact that the claimants demonstrated that they acknowledged and observed those laws and customs and had rights and interests under them (see e.g. [90]). In Harrington-Smith, it was concluded that even under the Western Desert laws and customs, persons who migrate may not acquire rights and interests in the new area (see at [520], [551], [552] and [704]).
521 The traditional laws and customs in this case are different from those considered in De Rose (No 1), in that they do not permit a newcomer to the land to become an owner of the land. In De Rose (No 1) a newcomer to an area could have rights and interests by becoming Nguraritja who were recognised as the owner under traditional laws and customs of the Western Desert. Migration to the area was under the traditional laws and customs. If the claimants were “usurpers” of the claim area, who were not recognised under traditional laws and customs of the society as capable of possessing native title rights and interests, their claim could not succeed. In this case, any permissions or licences that the Warrarn have been granted do not, under Ngarla traditional laws and customs, give the Warrarn rights or interests in Ngarla land.
Rights and interests in relation to land are obtained by descent
522 The evidence demonstrates that rights and interests in land in the Overlap Area are transmitted only by descent. Under the laws and customs applicable in the Overlap Area, permissions or licences do not give rise to any rights and interests in the land. The evidence does not establish under Ngarla, or a broader society’s, law and customs applicable to the Overlap Area, that persons accessing or conducting activities on Ngarla country by permission thereby have rights and interests in that land.
523 The Warrarn submit that descent is not the sole criterion for land ownership. They seek support from Mr O’Connor’s evidence that the Radcliffe-Brown land tenure model has difficulties, including the tension between his description of the residency group and the land owning group. They say, significantly, that the language group was not the land-holding group, or a residential group, or even a political entity. They also rely on Mr Robinson’s agreement that there is no neat dichotomy between the Western Desert and coastal land tenure systems. The Warrarn argue that the main differences between the two systems lie in the emphasis placed on different membership criteria. Further, the Warrarn say that the focus of the Court’s inquiry in relation to native title rights should be “land ownership” rather than descent.
524 As previously concluded, the evidence of both the experts and the Aboriginal witnesses clearly demonstrates that under Ngarla law, ownership of and rights in Ngarla land can only be transmitted by descent. Under Ngarla law and custom, being born or conceived on Ngarla country, living on Ngarla country or being married to a Ngarla person does not give a person any rights in that country. A non-Ngarla wife cannot have the family run when her husband dies and Ngarla people cannot give their country away. The particular case of incorporation of an individual, Stephen Stewart, is discussed below. Teddy Allen, who also lived and grew up in Ngarla country, remained a Njamal man.
525 As Dr Smith explains, descent is the primary means of asserting rights and interests in Ngarla land and waters. The Radcliffe-Brown land tenure system was the tenure system relevant to the Overlap Area at sovereignty. There has been some permissible change and adaptation of that system, for example, deceased estates are now held communally by the Ngarla. However, since membership of the Ngarla group is solely by descent, the sole criterion of land ownership in the Overlap Area remains descent.
Permission to participate in ceremonies
526 The State and the Ngarla both say that, although there may be an expectation that permission will be given, any licence or permission that was given to the Warrarn and others for participation in ceremonies on the Overlap Area did not give the Warrarn or those others any rights or interests in the land under the traditional laws and customs that applied in the Overlap Area. The evidence of the Aboriginal witnesses supports this contention. I accept the Ngarla and the State submission.
527 Although most of the relevant evidence in support has been referred to earlier in these reasons, it is convenient to refer to the key parts of that evidence. Charlie Coppin says that Ernie Mitchell and Coombie were happy to do Law ceremonies with desert immigrants but they ‘never passed on their rights to their country’. He says ‘it doesn’t make sense’ to say that Ngarla people can give rights in the country to ‘the Warrarn mob’. Referring to the giving of permission to start up Law grounds, he said that ‘[i]t’s not possible to pass on rights like that’. Stephen Stewart says that Ernie Mitchell and Coombie never spoke of passing on any country rights to the Warrarn. Likewise, speaking of Peter Coppin, he says that he welcomed the Warrarn and liked doing Law with them, but ‘he never passed on to them any traditional rights to the country under Njamal law’. Passing on of rights in country is by descent. As Joe Taylor said: ‘you can’t give country away – it follows the blood’.
528 Lindsay Hardcase says that although Law ceremonies are done together with a wide variety of other Aboriginal people, they are a sharing of culture, not country: ‘teaching songs and dances isn't about passing over country – it’s just sharing our culture’. Evelyne Mitchell, a Njamal woman, says: ‘[n]o body (sic) can claim someone else’s country just because they took part in the law. That is not according to our culture’. Mr Brown said that permission was given by Ngarla to other language groups to practise their law at De Grey and Pardoo, but also said ‘[w]e can’t give the country away’.
529 Participation in induction ceremonies similarly does not give the participant any rights or interests in relation to Ngarla land. Dr Smith says that in ‘anthropological terms it appears that what the migrants acquire through ritual induction does not constitute a right in land per se; by my reading it is possibly more a form of permission that is being acquired’.
530 The Warrarn also claim that as leaders of the Law, they were granted a number of standing licences or permissions in respect of the Overlap Area.
531 The Warrarn have not pointed to any evidence that, under Ngarla traditional laws and customs, particular rights and interests, or even licences or permissions, in Ngarla land result from a person attaining the status of leader in the Law. There is no evidence that the residence of the Warrarn in Ngarla country or the undertaking of particular activities by the Warrarn in Ngarla country is by reason of their leadership status.
532 From the evidence, participation in Law ceremonies is not specific to the Warrarn and does not give rise to an exchange or conferral of rights in land. Charlie Coppin and Stephen Stewart are acknowledged as leaders in the Law throughout the Pilbara. They have participated in ritual ceremonies or ceremonial related activities at Jigalong, Punmu, Parngurr, Looma, Warralong, Yandeyarra and other locations. However, they do not consider themselves, and are not considered by others, to have rights in relation to land at these places. This supports Dr Smith’s opinion, that participation in Law ceremonies, including as ritual leaders, does not itself give rise to rights and interests in land in respect of the Overlap Area. No good reason is given why the same does not apply to the Warrarn, who rely on their conduct of and participation in ceremonies in Ngarla country, including the Overlap Area as a basis for their asserted rights in the land. While participation in Law ceremonies is not the sole basis for the asserted Warrarn rights and interests in land, this, alone, has not been shown to be sufficient.
533 The Warrarn have not been able to point to any evidence that the trading of sacred objects and ceremonial exchanges, although they are part of Ngarla law and customs, grant persons rights and interests in Ngarla land. Trading of sacred objects occurred throughout the Pilbara and the Ngarla submit that this is about creating reciprocal relationships, especially in ceremonial matters, not rights in land. As the Ngarla state, the nature of Aboriginal Law concerning such objects is highly sensitive and esoteric, and the evidence does not clearly establish how they are used, by whom, when or for what. Much of the evidence was restricted. The Ngarla refer to the following evidence:
In cross-examination, Charlie Coppin agreed that ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******* REDACTED BY REASON OF CONFIDENTIALITY ** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** **************** ******** ******** ******** ******** ********.
As recorded in Dr Smith’s field notes, ***** ******** ******** ******** ***** ********* REDACTED BY REASON OF CONFIDENTIALITY ** ****** ********** ******** ******** ***.
Teddy Allen also said that ******** ******** ******** ******** ********.
Dr Smith says that ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ********* REDACTED BY REASON OF CONFIDENTIALITY ** ****** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** ******** **************** ******** ******** ******** ******** ****************.
Charlie Coppin, Stephen Stewart, Joe Taylor and Joe Coppin, in a joint statement explain that ******** law has nothing to do with who holds the country and it is secret business and should not be talked about. They say that ‘whenever you start [********] up you need the country owners’. Similarly, Lindsay Hardcase says that all communities have their sacred objects, but they are part of the law that should not be talked about.
Dr Kinsley Palmer explains that the exchange of objects creates mutual obligations thereby furthering the inter-dependence of the communities and political alliances (Palmer K, “Aboriginal Religion and the Ordering of Social Relations” (PhD Anthropology, University of Western Australia, (1981)).
Insofar as it is suggested that Ernie Mitchell and Coombie traded the Law for sacred objects, the Ngarla say that this is not revealed by the evidence and would be contrary to all the evidence about the ongoing involvement and seniority of Ngarla and Njamal in the Law and the evidence as to the nature of exchange of objects.
534 The trading of sacred objects has not given rise to rights and interests in Ngarla land. It may, however, be relevant to the acknowledgment of a permission for the keeping of Warrarn sites in Ngarla country, as discussed above.
Permissions/licences in relation to sites and objects
535 For a right to be “in relation to land or waters”, the Warrarn submit, the right does not need to be irrevocable and invariable as a descent-based right, nor does it need to be “long-standing”. The right to obtain objects for ceremony and to look after sites is, they say, a right in relation to land and is connected with permission to conduct and participate in ceremonies at nearby ceremonial grounds. The Warrarn submit that the acts of establishing and frequenting the rainmaking ground at Strelley are acts relating to land and, since they occur with the permission of the Ngarla and Njamal given in accordance with traditional law and custom, they are incidents of native title.
536 In Ward the High Court found (at [57]–[60] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and at [644] per Callinan J) that certain rights to maintain, protect and prevent the misuse of cultural knowledge were not rights in relation to land. Similarly, in Harrington Smith, Lindgren J at [1296] saw ‘the law or custom under which initiation ceremonies are performed’ as a law or custom that was not in relation to land or waters.
537 A right to look after sites and to collect objects from the land is a right that concerns land. However, for the reasons that follow, I accept the State and the Ngarla submission that, a permission to obtain objects and to look after sites, is not appropriately characterised as a right in relation to land.
Reciprocity-based rights and Akiba
538 Both the State and the Ngarla say that any licences or permissions granted by the Ngarla are personal rights or privileges, or reciprocity-based rights. Both the State and the Ngarla submit that the Court should draw an analogy with Akiba (No 3) where Finn J considered “reciprocity based rights”, which were based on reciprocal personal relationships with persons who have native title rights in their own land. Justice Finn held that, to the extent that the recipient of a reciprocity based right has a “right”, it is a ‘right in relation to persons’ at [508]) in that the ‘“real relationship, or connection” is between the right and a person’ (at [509]). Accordingly, Finn J found at [509] that reciprocity based rights as such are not native title rights for the purposes of s 223(1) of the NTA, although ‘[t]his conclusion does not deny such rights their character under the Islanders’ traditional laws and customs’.
539 The State and the Ngarla contend that the purported licences and permissions given to the Warrarn are in the nature of ‘reciprocity based rights’ identified by Finn J in Akiba (No 3). The State says that the permissions rely on a particular relationship between a Ngarla and a non-Ngarla person and, accordingly, are more correctly characterised as rights in relation to persons, rather than rights in relation to land. The Ngarla acknowledge that the fact situation in this case is not identical to Akiba (No 3), but say that the reasoning in that case compels the same conclusion here, that is, that the custom of granting a permission or licence to non-Ngarla persons does not give those persons a right in relation to the Overlap Area. To the extent that a person has a “right” it is a right in relation to persons.
540 The Warrarn disagree with the conclusion by Finn J that status-based rights are not rights connected to land. In general, they point out, most native title rights have a status base; for example, rights that are based on descent are only accorded because of relationships to ancestors. They accept that the fact that there is a status-based right should not preclude an enquiry as to whether there is a connection of the right to land but say that the status accorded to the Warrarn Group is derived from their status as persons with a licence or permission and that the rights that accompany that status are in relation to land.
541 Personal rights, or reciprocity-based rights, arose in Akiba (No 3) out of particular relationships between people who share common principles of ‘respect, generosity and sharing, social and economic obligations and the personal nature of relationships’ (at [505]). The State says that what a particular person can expect of the other depends upon the particular situation and the closeness of the relationship and points out that a partner in reciprocity can be denied, revoked or withdrawn.
542 The State and the Ngarla contrast reciprocity-based rights with descent-based rights, which cannot be withdrawn or varied and the class of holders is not open-ended and indiscriminate. In contrast to the right from descent that cannot be withdrawn, the Ngarla say that the permission “right” remains only as long as the permission remains. They say that any permission given in the past cannot constitute a current right in relation to land and that if the relationship sours, the right disappears. The Ngarla point to Mr Brown’s evidence regarding a “visa” and his assertion that once it expires, the person has to leave. Mr Robinson gives evidence, by analogy, about Yindjibarndi people travelling to the sea in Marduthunera country; he imagines that their rights of access may be revoked if sites or resources were misused. However, Mr Robinson acknowledges he has no direct experience of such revocation.
543 The Ngarla also say that the granting of permission in relation to the conduct of participation in Law ceremonies is based in reciprocal relationships between communities. Participation in Law ceremonies is also based on a person having passed through the appropriate stages of the Law, which is personal to the individual and is not transmissible or assignable. Dr Smith refers to the communal nature of ceremonial activity in the Pilbara.
544 The final submissions in this proceeding were received before the decision of the Full Court in Akiba (FC). Although the appeal was successful on other grounds, Finn J’s conclusions on reciprocity-based rights were upheld on appeal. The findings of Keane CJ and Dowsett J were summarised previously. However, it is helpful to set out their Honours’ reasons (at [129]–[133]):
[129] When s 223(1) of the [NTA] speaks of “rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters”, the relationship referred to is the relationship described in s 223(1)(a) and (b). The relationship so described is one subsisting directly between the peoples who possess those rights and the land and waters to which they are connected by the laws and customs under which their rights are possessed. As Gummow J said in [Yanner v Eaton (1999) 201 CLR 351] (at [72]):
[72] … It is the relationship between a community of indigenous people and the land, defined by that community’s traditional laws and customs, which is the bridgehead to the common law.
[130] Section 223(1) does not contemplate rights and interests which are, in some general or indirect way, related to land and waters, but dependent on the permission of other native title holders for their enjoyment. Such rights cannot be said to be possessed by the claimants themselves, so far as they relate to land and waters: such rights are not held by reason of the putative holders’ own connection under their laws and customs with the land and waters in question but are held mediately through a personal relationship with a native title holder who does have the requisite connection; as Gleeson CJ, Gaudron, Gummow and Hayne JJ emphasised in Commonwealth v Yarmirr (2001) 208 CLR 1; 184 ALR 113; [2001] HCA 56 at [9] “those peoples, by those laws and customs must have a ‘connection’ with the land or waters”.
[131] The primary judge’s use of the term “status based” relationships was derived from evidence of Professor Scott, who was called to give evidence as an expert on behalf of the Seas Claim Group. Professor Scott drew a distinction between “secondary” and “tertiary” rights which were essentially “status related” (the reciprocal rights), and “primary” rights which derived from “descent” relationships: reasons at [190]. Status based reciprocal rights are rights in relation to the land and waters of another person. This is to be contrasted with occupation based rights to access and use land and water by reason of laws and customs, such as those concerning descent from an original occupier of the area. As the primary judge observed, descent is an “indispensable element of a person’s identity”: at [183]. Native title rights in conformity with s 223(1)(a) and (b) of the [NTA] exist by virtue of the identity of the native title holder: they arise by reason of “who you are”. The reciprocal rights propounded by the Seas Claim Group arise by reason of “who you know”.
[132] Reciprocal rights persist only as long as a personal relationship with a native title holder continues. An occupation based holder accesses and uses land, and water and resources, as of right (subject to any overarching law or custom), whereas a reciprocal rights holder has no right to engage in any activity without “permission” or some form of a “license” from a particular person with whom he or she has a personal relationship. On the argument of the Seas Claim Group, native title rights would depend on the vagaries of that relationship.
[133] History does not support the Seas Claim Group’s argument in that there have been 22 determinations of native title since Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 in relation to land in the Torres Strait. All of these determinations, which related to land above the high water mark, concern exclusive native title held by one or more island communities on the basis of descent from particular ancestors who occupied the respective estates at sovereignty. If the Seas Claim Group’s argument were to be accepted, then practical inconsistencies would arise in that native title in an island community’s marine estate would be held not only by the members of the community but by other unidentified individuals on the basis of their relationships from time to time with one or more persons in the relevant community.
(emphasis added)
545 The Full Court upheld the reasoning of Finn J on status-based rights. The submission of the Warrarn that this aspect of his Honour’s decision in Akiba (No 3) was incorrectly decided must be rejected.
546 The Ngarla say that there is a distinction between the right to participate in the ceremonies themselves (which may not be a right in relation to land) and the right to make decisions as to where and when the ceremonies take place on particular land (which is a right in relation to land).
547 I agree. A right to say what can occur on land is a right in relation to land. The right to participate in ceremonies is a personal right, a status-based right in the Akiba (No 3) sense, and is not a right in relation to land. Permission to attend Law ceremonies, generally given to all who wish to attend, does not amount to a grant of rights over the land. In the same way, the permission-based rights claimed by the Warrarn, such as the right to conduct rituals, to hunt and fish and to take materials from the land for the purposes of Law ceremonies, are dependent upon the core rights of the Ngarla as traditional owners of that land. They are personal or status-based rights. The giving of permission to be “free” in the country is a personal right that does not convey any interest in Ngarla land.
548 In the same way, non-Ngarla spouses of Ngarla people do not have native title in the Overlap Area. Non-Ngarla spouses are not members of the Ngarla claim group, which is defined as cognatic descendants of persons recognised to be Ngarla under Ngarla traditional laws and customs. Although a non-Ngarla spouse may reside on Ngarla land and conduct activities on Ngarla land, this is a personal right, not a right in relation to land. Although the Ngarla claim that Ngarla persons have the right to be accompanied on the Overlap Area by their spouses, this is a Ngarla right; it is not a right belonging to non-Ngarla spouses to enter the Overlap Area. Any “right” held by non-Ngarla spouses is a personal right that is dependent upon that Ngarla right.
549 However, even if the appeal to the High Court in Akiba (FC) is successful, and reciprocal relationships could be ‘native title rights’ within the meaning of s 223(1) of the NTA, the Warrarn do not have native title. This would be the case even if personal relationships or permissions, even of a limited duration, could give rise to native title rights. The Warrarn have not been able to show either (a) that the group as a whole has been given the permissions claimed, or (b) that these permissions arise automatically under Ngarla law by reason of the status of leader in the Law. Even if the Warrarn were able to establish that individual permissions have been given, these have been historical, for instance to open the Law at Strelley. The Warrarn have not shown that, under Ngarla traditional law and custom, permissions given to an individual person in the past are able to be transferred to a group or other individuals or that permission has been granted to the Warrarn Named Individuals in an individual capacity.
550 The recognition of the Warrarn right to reside on the land because of a pastoral lease is not a right or permission under traditional law or custom. Although the Ngarla recognise that people may come onto the land, reside there and carry out activities there, that does not make that person Ngarla, nor does it constitute a passing of any rights in the land.
551 The evidence supports personal rights of the Warrarn to carry out certain activities in the Overlap Area. These can properly be characterised as personal rights or status-based rights in the sense discussed by Keane CJ and Dowsett J in Akiba (FC), although they have not been shown to be properly described as reciprocal rights in the absence of evidence of corresponding rights and obligations. They are not native title rights within the meaning of s 223(1)(a) of the NTA because they are not rights or interests in relation to land or waters.
Intramural allocation of rights
552 The Warrarn contend that insofar as the evidence reflects differences or variations in the nature of interests held by the Ngarla and the Warrarn, ‘that is a matter that goes to the intramural allocation of rights as between the native title holding group, which is governed by the traditional laws and customs of the society and does not go to the threshold question of whether the [Warrarn] hold native title rights and interests’. The Warrarn cite Ward at [95] and Neowarra at [386].
553 In Alyawarr (FC) at [79], the Full Court said that determinations which may be made under s 225 of the NTA cover a range of possibilities which depend on the nature of the relevant society. In some cases, the members of the relevant society ‘may enjoy communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans’. The overall result in that case was that the applicants held native title as a community embracing the seven estate groups. There was intramural distribution of native title rights and interests comprising that native title, a matter of allocation according to traditional laws and customs (at [9]).
554 The Full Court in Bodney v Bennell at [130] referred to the primary judge’s observation that it was not necessary (and would be inappropriate) for the Court to become involved in issues as to the intracommunal distribution of special rights over portions of the total area in relation to which native title was established. The Full Court was careful to explain that no assumption can be made as to “communal title”, an expression that does not appear in the NTA (at [132]). Rather, it is necessary to consider communal, group and individual rights and interests, as relevant. These are necessarily examined in the context of the traditional laws and customs of the community which claims native title rights and interests (at [145]). While rights and interests derive from a body of traditional laws and customs observed by a community, they are not necessarily claimed on behalf of the whole community. However, that is not deny that there may be communal title, that enures for the benefit of the community as a whole and for the groups and individuals within it who have particular rights and interests in the land (at [150]). The rights, interests and responsibilities within communal rights may be enjoyed, or distributed, differentially, according to traditional law and custom (at [154]). The Full Court also drew a link (at [157]) between the issue of communal title and the issue of whether there is a society.
555 The principle that intramural or intracommunal rights may be allocated by application of traditional law and custom rather than by the Court does not assist the Warrarn. It does not preclude a determination of the community or society that holds those rights and interests. The Ngarla have native title in the Overlap Area and they do not regard themselves as part of a community that includes the Warrarn. The evidence emphasises the differences in law, custom and tradition between the two groups. Further, even if the Warrarn were part of such a community, according to the traditional law and custom of the normative society of the Overlap Area, the Ngarla, there can be no allocation to the Warrarn of rights or interests in the land.
556 The evidence stands in contrast to the evidence in Neowarra:
The body of evidence in pars [162]-[322] shows that the claimants regard themselves as part of a community inhabiting the Ngarinyin, Worrorra and Wunambal region. Throughout the evidence there is an emphasis on shared customs and traditions that transcend any particular dambun or language area. Central to this sharing is the belief in Wanjina; that Wanjina impressed themselves on the landscape, principally in painting sites. Wanalirri, though in Ngarinyin country, is regarded throughout the claim area as the source of the laws and customs laid down by Wanjina. This belief extends beyond the borders of the claim area into the claim region. The Wunggurr tradition also extends across the claim area and beyond, as do other practices and customs: moieties, the marriage rules, wurnan, wudu, rambarr, traditional burial, dambun and kinship rules. The evidence collected earlier is inconsistent with any description of the group or groups that hold the native title rights other than those who are members of the Wanjina-Wunggurr community.
(per Sundberg J at [386])
Do persons with permission have the requisite “connection”?
557 In order to have native title rights, the Warrarn must demonstrate that, as a group or as individuals, they have a “connection” with the Overlap Area within the meaning of s 223(1)(b) of the NTA. As explained by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta at [34] and [86], such a connection must be “by” the traditional laws and customs.
558 The Warrarn say that they have the relevant “connection” by virtue of having a contingent right in the form of a long-standing permission or licence, dependent on the core right of the Ngarla people. The Warrarn also refer to “spiritual conception” connection with sites. As evidence of the requisite connection, the Warrarn submit that the laws and customs concerning the obtaining of materials from the land for ceremony, such as from Tabba Tabba Creek, and the carrying out of ceremony at particular places demonstrate the maintenance of their connection to the Overlap Area, even though some of that evidence may relate to places in the vicinity of the Overlap Area. They submit that the Warrarn, as a group and as particular individuals, have a long-term physical association with Strelley. The Warrarn set out the history of the Warrarn in Strelley and the history of particular individuals. This includes details of the persons living at Strelley and evidence of each Warrarn individual’s history and personal and spiritual connection with Strelley. The evidence referred to by the Warrarn is in Appendix B.
559 The Ngarla and the State contend that the Warrarn do not have the requisite ‘connection’ with the Overlap Area, although they apparently do not dispute that the Warrarn have a contemporary connection with the Overlap Area as a result of their occupation of the Strelley pastoral lease since the 1970s. They dispute that the connection is by the acknowledgment of traditional laws and customs for the Overlap Area. The Ngarla submit that as a matter of law, persons who exercise rights arising from a permission or licence granted by the “core” native title rights holders cannot have a “connection” with the land and waters in respect of which the permission has been granted.
560 The “connection” must be by the traditional laws and customs of the people seeking to establish that “connection”, not the traditional laws and customs of some other people. That connection must date back to sovereignty. In De Rose (No 2) at [56]–[57] the Full Court said:
… Section 223(1)(b) imposes a requirement that the Aboriginal peoples, by “those laws and customs”, have a connection with the land or waters. Given that the expression “the Aboriginal peoples” has the same meaning in paras (a) and (b) of s 223(1), s 223(1) must be referring to the Aboriginal peoples who have a connection to the land or waters by the traditional laws and customs that those peoples have acknowledged and observed: Ward (HC) at [64].
It follows that a claimant community or a claimant group whose members themselves have never acknowledged or observed traditional laws and customs cannot succeed in a claim for native title rights and interests merely because other Aboriginal peoples have acknowledged and observed the relevant traditional laws and customs. This would be so even if the traditional law and customs identified the non-observant claimant community or group as “possessing” rights and interests in particular land or waters. If it were otherwise, native title rights and interest (sic) might be successfully claimed over land or waters by a claimant community or group whose members have not only had no physical connection with the land or waters, but have never acknowledged or observed traditional laws or customs.
(emphasis added)
561 The Ngarla and the State contend that the Warrarn cannot overcome this problem by relying on the connection of the Ngarla. Unlike the situation where spouses have a connection if the community has a connection and spouses are part of the community (Gumana v Northern Territory (2007) 158 FCR 349 (Gumana (FC)) at [143] and [160]), the Ngarla and the State say that the Warrarn are not part of the Ngarla community. The State submits that in the case of group or communal rights, in order to rely upon the community's or the group's connection, a person must be part of that community or group, referring to Alyawarr (FC) at [117].
562 Secondly, the Ngarla and the State contend that any purported “connection” is not one which has endured since sovereignty. The State says that the Warrarn’s association with the Overlap Area only commenced in the 20th century and was both limited and transitory until the purchase of the Strelley pastoral lease in 1972. From the late 1950s to 1972, following the “split” with the riverline groups, the Warrarn had been living near Roebourne and various other places. In particular, the Ngarla and the State refer to the Agreed Facts in Annexure A at [122]–[123] and [198]. The evidence supports their submission. Charlie Coppin says that after the split, the Nomads (who have now become the Warrarn mob) travelled all over the place and ended up at 5 Mile near Roebourne. The joint statement of Charlie Coppin, Stephen Stewart, Joe Coppin and Joe Taylor confirms this: the Warrarn mob ‘have come lately’ – they camped around Kajarinya around strike time, then went to 5 Mile outside Roebourne and then bought Strelley. Monty Hale says that after Kajarinya, he went off to Roebourne, where the Warrarn used to camp for a long time until they bought Strelley.
563 In Harrington-Smith, Lindgren J found at [2388] that residence in the vicinity of the claim area alone does not satisfy s 223(1)(b) of the NTA because residence may be dictated by many considerations, none of which necessarily has a foundation in traditional laws and customs. In De Rose (No 1), under the traditional laws and customs of the WDCB, WDCB members could migrate into an area of the WDCB and gain rights and interests in, and a connection to, an area (see [237]–[245]). By contrast, the traditional laws and customs applicable to the Overlap Area do not contemplate the gaining of rights and interests in the land by migration into the area which, further, did not take place for traditional reasons. This does not give rights to, or a connection to, new lands (Harrington-Smith at [520]).
564 As the Ngarla point out, evidence of specific permissions or licences relates to areas outside the Overlap Area (eg Strelley Law ground and Kajarinya). The Warrarn must demonstrate that a connection exists to the Overlap Area. A connection to a general region or places nearby, or to the Strelley or Warralong Stations may assist in establishing that connection but it is not sufficient (Bodney v Bennell at [179], [181], [186]–[187]).
565 The Warrarn refer to Bodney v Bennell at [178] and [179]:
[178] It is not uncommon for the traditional laws and customs of a community to connect that community to a claim area by connecting groups within the community both to each other (often in complex ways) and, respectively and immediately, to their own particular portions of the claim area (in the latter case by granting rights to, and imposing responsibilities on, each such group in respect of its portion). In such cases, it is entirely appropriate that the connection inquiry consider not merely evidence of the general connection of the claimant community to the claim area, but also the evidence of the particular connection of the particular groups and their members to their respective portions of the claim area: see Neowarra at [353]-[356]. The latter evidence, we would suggest, will ordinarily be necessary in some degree if the claimants’ assertion of connection is to be sufficiently manifest over the claim area as a whole – the more so, in communal claims, if rights and interests are held differentially across the community – though there can be cases where, because of long standing occupancy of the claim area, the s 223(1)(b) inquiry (as distinct from that under s 223(1)(a)) will not loom large: cf Griffiths v Northern Territory [2006] FCA 903 at [561]-[562].
[179] What, in our view, is indispensable where a matter put in issue in a proceeding is whether connection has been maintained to a particular part of a claim area, are the needs:
(i) to examine the traditional the laws and customs for s 223(1)(b) purposes as they relate to that area, and
(ii) to demonstrate that connection to that area has, in reality, been substantially maintained since the time of sovereignty.
(emphasis original)
566 This does not support the State’s contention that the Warrarn must establish a connection to all parts of the claim area but it does make clear the necessity of establishing connection to the claim area, not just to surrounding country.
Consideration
567 Subject to the contention that connection must be established over the whole of the claim area, which I do not accept, I accept the submissions of the Ngarla and the State. The Warrarn have not established a connection to the Overlap Area by Ngarla traditional laws and customs:
The Warrarn evidence in relation to the residence of Warrarn individuals and their ancestors on or near the Overlap Area is not a connection by traditional laws and customs.
The evidence is persuasive that ownership and the right to speak for and control Ngarla land are descent-based. This is consistent with the Radcliffe-Brown model.
The Warrarn’s claim to be incorporated into Ngarla society has been rejected by the Ngarla and has not been substantiated (see below at [601]–[606]). The Warrarn are not part of the Ngarla society or community.
The Warrarn claimed connections to the land are in part based on Western Desert law and traditional law and customs that are different to Ngarla traditional law and customs. For example, although Ngarla laws and customs recognise that a person may have a particular affiliation with the place of his or her “conception”, this does not grant the person any “core” rights in that site.
The Warrarn have not established that the Ngarla system of descent-based rights has broken down. The Ngarla evidence, in particular that of Mr Brown, Charlie Coppin, Nora Cooke, Doris Eaton and Joe Coppin was current, explicit and persuasive. It explained descent-based rights and who is responsible for land if there is no descent-based survivor. The rights are then held by the Ngarla people communally.
Even accepting that as at today the Warrarn believe that they acknowledge and observe traditional laws and customs in the Overlap Area, that practice and those rights do not go back to sovereignty.
Do permission based rights fit within the scheme of the NTA?
568 The State and the Ngarla submit that “permissions” or “licences” do not fit within the general scheme of the NTA. They raise the following points:
If “permissions” gave rise to rights under the NTA, this would raise problems of certainty in any determination of native title. As noted by Finn J in Akiba (No 3) at [510], if the Court were to recognise reciprocity based rights as rights in relation to land, there would be ‘considerable difficulties involved in accommodating a conclusion to that effect within the scheme of the [NTA]’. A similar sentiment was expressed by the Full Court in Akiba (FC) at [133].
It is not clear how the class of asserted native title holders could be defined, given that any asserted permission or licence could be given to an indiscriminate and large class of persons (for example, permission could be given to all who may wish to attend Law ceremonies). The evidence demonstrates that there is no limit to the persons to whom a permission can be given.
Any purported permission or licence could have an indeterminate term, differ in content depending on the particular individual to whom it is given and be withdrawn or revoked at any time.
If the native title holding group is widened to include any person who has, or may in the future be given, a permission or licence, no claim could ever be properly authorised under s 61 of the NTA, as no claim could be certain about the membership of the native title group.
569 The Warrarn submit in response that a native title holder may accord permission to those capable of receiving rights within the normative system, being those who acknowledge the traditional laws and observe traditional customs. They say that the person to whom permission may be given is definable by the terms of the permission in each instance and that the permission to do anything on land is limited by the title which the donor has and the normative system within which it exists. Since a right cannot be granted outside that normative system, that is a sufficient limit to the permission which can be accorded to make it determinable.
570 While the Warrarn submissions may be helpful in theory, it does not assist in this case. Under the normative system of the Ngarla, the permission-based rights asserted by the Warrarn do not accord with native title rights under the NTA.
Are extra-societal allocation of rights permissible?
571 The Ngarla and the State contend that even if a native title right or interest may arise by reason of permission or a licence given by a native title holding community, the Warrarn (as a group or as individuals) are not part of the relevant society, Ngarla society, that held native title in the Overlap Area at sovereignty. Therefore, as a matter of fact and of law, they cannot have native title rights and interests in the Overlap Area.
572 The Ngarla submit that persons claiming native title must be members of the same society that has existed in respect of the claimed area from sovereignty to the present, and refer for support to Yorta Yorta at [46], [79] and [86] and Worimi. Yorta Yorta does explain that the laws and customs must be traditional and have existed since sovereignty. The normative system must have continuity and must have existed since sovereignty (Yorta Yorta at [46] and [47]; Worimi at [170]). However, these cases do not provide explicit support for the Ngarla submission. It may follow that claim members must be of the same society, if that accords with the normative system, but that system may provide for a broader approach.
573 A significant issue in this proceeding is whether the Warrarn claim is contrary to the principles in Yorta Yorta at [43]–[44], where Gleeson CJ, Gummow and Hayne JJ said:
Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.
That is not to deny that the new legal order recognised then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. 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.
(emphasis original)
574 This principle from Yorta Yorta was followed in Lardil at [140] and in Worimi at [136]. In Lardil, Cooper J held at [140] that four separate societies at sovereignty could not presently be found to hold a single communal native title, nor could the members of each society have group rights or interests in the country of another society. Justice Cooper noted that any cross-grouping rights were held at the individual level under the specific traditional laws and customs of the group in whose territory the land was located. The Ngarla say that this was presumably a reference to the fact that individuals may have had rights in more than one society, due to family or other connections (see especially [74], [75], [80] and [82]).
575 In Bodney v Bennell, the Full Court rejected a submission that there could be no new rights after sovereignty, and in particular that there could be no change in the distribution of pre-sovereignty rights (at [119]). The Full Court said that the proper enquiry is whether rights and interests find their origin in pre-sovereignty law and custom (at [120]). At [121] the Full Court said that ‘where the Crown’s radical title was burdened at sovereignty with a right to fish, a change in the number and identity of people whose rights so burden it does not necessarily mean that those current rights cannot be traditional’.
576 The Ngarla say that this was not a statement about Aboriginal people from another society but was in the context of argument about persons who may not have been in an estate group at sovereignty becoming estate members post sovereignty because of a change from patrilineal to cognatic descent. However, again, the principle is directed to pre-sovereignty laws and customs. It then becomes a matter of fact as to the existence of rights in people from another grouping. The traditional laws and customs determine whether rights and interests can be given to another society.
577 In Dale v Moses [2007] FCAFC 82 the Full Court said, in obiter, at [120]:
The observations of the members of the High Court [at Yorta Yorta [44], in which their Honours spoke of the “efficacy of rules of transmission of rights and interests”] do not establish a principle of the type apparently relied on by the appellants, namely that where the traditional laws and customs of one society provide for the transmission of rights and interests in land recognised by those laws and customs, then transmission to another society can be effected and the acquisition of the transferred rights in interest (sic) can ultimately be recognised as rights and interests of the transferee society for the purposes of the NTA. The primary judge was probably correct in rejecting this contention.
578 In Western Australia v Sebastian (2008) 173 FCR 1 at [104], a differently constituted Full Court said, in obiter, that it inclined to the view that there could be succession between two societies. However, the succession between the two “societies” was in accordance with the common traditional laws and customs of the two clans and the Full Court was ‘informed’ by the closeness of the laws and customs finding, in effect, that there was, relevantly, one society.
579 I do not need to decide whether there are differences between Dale v Moses and Sebastian, for the reasons set out below.
Application of principles to this case
580 At sovereignty, the extent of the burden on the Crown’s radical title over the Overlap Area was only the communal native title of the Ngarla people. It is agreed that the Warrarn were traditionally from areas outside the Overlap Area and did not have native title rights at sovereignty. As I have set out above, the traditional laws and customs of the Ngarla people did not and do not provide for a new class of persons, not descent-based, to obtain rights in Ngarla country. Again, this is made clear in the evidence of Mr Brown and Charlie Coppin.
581 On this basis, the Warrarn claimants are members of another society, or other societies. They have not been adopted or incorporated into Ngarla society (see [601]–[606] below). There is no “broader society” of which the Warrarn and the Ngarla are both part. Accordingly, as a matter of law and fact, the Warrarn could not be recognised under Ngarla traditional laws and customs, even by way of licence or permission, as having native title rights in the land of that different, Ngarla, society. Even if extra-societal allocation of rights is permissible under the NTA, it is not permissible under Ngarla traditional laws and customs.
Incorporation into the normative society post-sovereignty
Warrarn submissions on incorporation
582 The Warrarn contend that irrespective of the position at sovereignty, they are part of the normative society that presently holds native title rights and interests in the Overlap Area. The Warrarn’s position as to an asserted incorporation into the Ngarla is not clear. While not addressed in the Summary of Issues, the Warrarn raise an argument in their final submissions directed to incorporation since sovereignty. They say that they are “incorporated” into Ngarla society through the licence or permission that they have been given. This is separate and distinct from the previous argument that there was a transfer from the Ngarla to the Warrarn at Warralong or Strelley. They contend that the laws and customs of the normative society that existed at sovereignty permitted incorporation.
583 The Warrarn argue that incorporation is ‘in the form of a standing licence or permission’ which the members of the Warrarn received arising out of the Ngarla communal native title. The Warrarn do not contend they have been incorporated into the Ngarla community in the same manner as Stephen Stewart, who was fully adopted into the Ngarla. The Warrarn say that the concept of incorporation operates on a continuum from high levels to low levels. They refer to the agreement of the experts in the hot-tub that there is no “bright line” in determining whether there has been incorporation or integration and that it exists along a continuum, from high levels to low levels.
584 The Warrarn rely upon the Yorta Yorta distinction between a community and a society, where at footnote 94, Gleeson CJ, Gummow and Hayne JJ said:
We choose the word “society” rather than “community” to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group.
585 The Warrarn assertion that they have been incorporated into Ngarla society appears also to be based upon their becoming part of the normative society post-sovereignty because they acknowledge and observe the laws and customs of the local normative society in the Overlap Area. The Warrarn contend that they presently acknowledge and observe a body of traditional laws and customs, which are also the laws and customs observed by the normative society at sovereignty, being the normative society to which the Ngarla belong, or a legitimate adaptation of those laws and customs. The Warrarn contend that this is sufficient for the Warrarn to be accorded an interest under those laws and customs. The Warrarn submissions in respect of the body of laws and customs are above.
586 The Warrarn refer to the evidence of Dr Smith, who says that Stephen Stewart and his two children are ‘currently the only incorporated members of the Ngarla group’. Dr Smith says that the Ngarla ‘decision’ to included Stephen Stewart was based on a number of factors, including that he was born on Ngarla country, that he lived a great part of his life in Ngarla country, that he speaks Ngarla, that he has a long-term association with Ngarla people and that he is acknowledged regionally as a leader in the Law. Dr Smith goes on to say that it is ‘acknowledgement of a particular individual by Ngarla adult men and women’ that leads to incorporation. He says that there is nothing that supports or contradicts incorporation as a traditional rule that existed in the body of pre-sovereignty Ngarla laws and customs. The evidence is also that Mr Stewart had a Ngarla grandfather, although, in cross-examination, Dr Smith said that during the time he conducted his research for the claim, he was not aware of Stephen Stewart’s descent connection.
587 In support of the contention that the Warrarn acknowledge and observe the laws and customs of the normative society, or a legitimate adaptation, the Warrarn refer to the evidence of Dr Brunton. Dr Brunton accepts that the evidence indicates that, at sovereignty, the only means of gaining membership in the Ngarla was through the father. However, he says that the ethnographic evidence from the last century strongly suggests that laws and customs pertaining to land tenure among coastal Pilbara people have undergone a transformation to accommodate Western Desert practices and ideas. He does not consider that such a transformation was a break in the traditional laws or customs, as accommodation to or adoption of cultural elements from neighbouring groups would have been fairly common before sovereignty.
588 The Warrarn also say that the laws and customs acknowledged and observed in the Overlap Area (either at sovereignty or as an adaptation of those laws) ‘allow for the incorporation of an individual who is not descended from ancestors associated with the area into a social group which is associated with that area’ on various bases, including some or all of the following in combination:
knowledge of the language spoken by the ancestors associated with the area;
birth in the area;
participation in the traditional Law of the region, including as a leader of the Law;
initiation into the Law of the area;
participation in and leading ceremonies and looking after important sites in the area;
long-term residence in the area;
long-term association with the members of the group associated with the area; and
knowledge of the resources of the area.
589 Such incorporation, they say, results in the passing of rights and responsibilities to that individual and descendants of that individual.
Ngarla and State response – the Warrarn are not incorporated into the Ngarla
590 Both the State and the Ngarla point out that the Warrarn had earlier abandoned an incorporation argument but say that they address the issue out of an abundance of caution. The State and the Ngarla contend that the members of the Warrarn are not part of, and have not been incorporated into, the same society as the Ngarla people.
591 The Ngarla say that any Warrarn adoption post-sovereignty of Ngarla traditional laws and customs cannot give rise to native title rights and interests. They say that, even if there is a similarity between Ngarla and Warrarn customs, unless the Warrarn were part of the Ngarla society at sovereignty, any adoption of laws and customs post-sovereignty is irrelevant to the determination in this proceeding. The State appears to agree, submitting that any “incorporation” of a number of members of another society would create a new society, not rooted in Ngarla traditional laws and customs. The State says this would be contrary to the principles in Yorta Yorta.
592 The Ngarla say that any “incorporation” is exceptional and relates to particular individuals, not to groups. Even Teddy Allen, who was born in and lived on Ngarla country, had gone through Ngarla Law and spoke the language could not speak for Ngarla country. He had not been incorporated. Teddy Allen said ‘I lived and grew up and knew all about the Ngarla but I remained Nyamal. I was told that I don’t have a right to be Ngarla’. Mr Brown said that Teddy Allen ‘was born and has lived for many years on Ngarla country but he is not Ngarla. He went through Ngarla Law and speaks the Ngarla language. He sees himself as Njamal. He cannot speak for Ngarla country’. Dr Smith said that Stephen Stewart and his two children were the only incorporated members of the Ngarla group and that he did not think incorporation was a principle that was applied widely.
593 I accept that there are differences in laws and customs practised by Ngarla and Warrarn. These are outlined above.
594 As to the evidence of the anthropologists:
Mr O’Connor considers that the Warrarn are part of a contemporary society (bounded by the De Grey, Sherlock, Harding and Fortescue Rivers), but this was a society which began to form in the 1920s to 1940s. Mr O’Connor also considers the Ngarla to be part of this contemporary society.
When asked whether there was a test or mechanism that he would use to ascertain whether there had been integration or incorporation, Mr Robinson agrees that one would look to observable behaviour, but he would look to degrees of intermarriage. Above all, Mr Robinson says that he would put the most weight on whether people see themselves as being distinct. The Ngarla say that on the latter two criteria, there is no incorporation.
The Ngarla say that to the extent they are founded in any normative system of laws and customs, Warrarn claims to have rights and interests in the Overlap Area are founded on Western Desert laws and customs:
This supported by the evidence of Dr Smith, who explains that membership of the Ngarla requires acceptance by the Ngarla people and that descent is the primary means of asserting rights and interests in Ngarla land and waters. In contrast, Dr Smith says, the Warrarn are asserting rights and interests in the area on the basis of Western Desert laws and customs (such as on the basis of a spiritual connection or mythological association).
Dr Brunton comments that Warrarn affiliation is through Western Desert criteria.
There is no evidence, the Ngarla say, of the Warrarn being accepted by Ngarla as caretakers of deceased estates and Dr Smith says that he has no knowledge of the appointment of non-Ngarla people as caretakers.
595 The Ngarla say that as a matter of observable behaviour, the history of relations between Ngarla and Warrarn is not consistent with any form of incorporation.
Can Ngarla society exist independently of the Warrarn?
596 The Warrarn contend that it is difficult for the Ngarla to contend that the Warrarn do not form part of the relevant normative society. They say that it is also difficult for the Ngarla to contend that there is a pure and independent Ngarla society that has had a continuous existence and vitality since sovereignty independently of the Warrarn. They say that participation in Law ceremonies is a necessary condition of the Ngarla society’s existence and vitality and that it has only continued to the present time because of the incorporation or involvement of the Warrarn. The Warrarn refer to the following evidence:
The Law has been practised conjointly with the Warrarn since at least 1956, although the evidence on which they rely includes the joint statement of Charlie Coppin, Stephen Stewart, Joe Coppin and Joe Taylor about the practice of the Law. This statement does not say that the Law has been practised conjointly since 1956. Rather, it describes how different kinds of Law come together, but each one is different. The Warrarn also refer to the joint statement of Bruce Thomas, Monty Hale and Kevin Fred, who say that they participated in Ngarla Law once at De Grey in the 1980s and that Monty Hale participated in the 1950s.
They point out that Charlie Coppin agrees that the country is strong and healthy because the Law has been practised again at De Grey. Mr Coppin told Dr Smith that the rights he had depend on where he is in the Law and that he and ‘Jeffrey’ should run the Law there because the others were too elderly.
The Ngarla, Njamal and Warrarn jointly practise the Law at Warralong.
597 The State and the Ngarla say that the Ngarla are currently a normative society, independently of the Warrarn and that the weight of evidence is that the Ngarla society has survived on its own.
598 The State contends that the Warrarn have conflated “society” and “normative system” with Aboriginal Law ceremonies. The Ngarla and the State contend that continuation of separate Ngarla Law ceremonies is not a necessary condition of the existence of a separate Ngarla society and Ngarla native title. The Ngarla accept that Charlie Coppin speaks about the positive attributes of Ngarla Law being practised at De Grey but he did not say, and it was not put to him, that in the absence of such practice Ngarla society generally would no longer exist, nor that Ngarla would cease to have rights and interests in Ngarla country. Further, the Ngarla submit that as a matter of law, a condition of separate Law ceremonies is not necessary (Daniel at [423]).
599 The Ngarla also dispute that Ngarla Law ceremonies have only continued because of the involvement of the Warrarn. Mr Coppin said: ‘Ngarla people we have to look after our own Ngarla Law. Ngarla Law is our special way of doing Law … None of them [the Warrarn] have been through proper Ngarla Law’.
600 The Ngarla also point out that the Warrarn evidence is that they have been involved in Ngarla Law twice, not that they have gone through that Law themselves. The Warrarn evidence of participation in Ngarla Law is in the Warrarn joint statement by Monty Hale, Bruce Thomas and Kevin Fred: ‘We participated in Ngarla Law once at De Grey in the 1980’s. … Monty went to Ngarla Law at the one other time in the 1950’s at De Grey when it was carried on’. Monty Hale also says that he went through the Law at Kajarinya and describes which persons went through what Law and at what locations.
Consideration
601 Given my conclusion that extra-societal allocation of rights and interests in land is not permissible under Ngarla traditional laws and customs, the Warrarn need to show that they are part of the same normative society that existed at sovereignty. Since I have found that the normative society was not a “broader society”, the Warrarn must show that they are part of the Ngarla society. This is perhaps the reason for the Warrarn’s final reliance, though at one stage it was apparently abandoned, on the incorporation contention, as well as the submission that the Ngarla cannot exist independently of the Warrarn. As the Ngarla point out, even if there is a similarity today between the laws and customs acknowledged and observed by the Ngarla and the Warrarn, that fact would be irrelevant to a determination of the issues in this proceeding if the Warrarn were not part of the relevant society at sovereignty.
602 In my view, the evidence is that there are differences in the practice of traditional law and customs as between the Warrarn and the Ngarla. The maintenance of those differences, the emphasis by the Ngarla on descent-based rights in land and the lack of evidence to establish incorporation under Ngarla law and customs, leads to the conclusion that there has not been incorporation of the Warrarn into Ngarla society or community.
603 I have previously concluded that under Ngarla traditional laws and customs, the only way in which a person can claim rights and interests in Ngarla land is through descent. I do not accept that Ngarla traditional laws and customs have been adapted since sovereignty to accommodate ‘Western Desert’ criteria, such as place of conception or birth.
604 The only example in evidence of incorporation was Mr Stephen Stewart. Mr Stewart’s incorporation was not based upon any licence or permission. He has descent connections to Ngarla ancestors in that he was raised by a Ngarla woman (Jarnpa) and the father of his birth mother was Ngarla. Both Dr Brunton and Dr Smith say that the criterion that resulted in the incorporation of Mr Stewart into the group was his acceptance by the group. The example of incorporation, of Stephen Stewart and his children, seems to be unique. Dr Smith seems to find it perplexing. The Ngarla explain it by his Ngarla affiliations, descent and acceptance by the Ngarla people. It does not form a precedent for Warrarn incorporation which is not based on any of these criteria.
605 The Ngarla do not accept that the Warrarn have been incorporated into Ngarla society or that the Ngarla and the Warrarn practise the same traditional customs. The Ngarla witnesses describe differences in the stories, in beliefs in respect of specific, important sites and in some traditional ceremonies, such as initiation ceremonies. Differences in language have been retained. The Ngarla do not consider the Warrarn, and the Warrarn do not consider themselves, as Ngarla. This is in contrast with Stephen Stewart who has been incorporated into the Ngarla and is considered, and considers himself, as Ngarla.
606 Additionally, the laws and customs to which the Warrarn refer for the asserted principles of incorporation under Ngarla traditional laws and customs are for the incorporation of an individual, not the incorporation of a group. The Warrarn claim is for group rights, or for individual rights in the alternative. They have not pointed to any evidence of the traditional laws and customs relating to incorporation of a group.
607 The Ngarla, as defined by their membership of Ngarla society bound by descent, language and practice of laws and customs, have maintained these traditional laws and customs. The Warrarn have not established that the Ngarla society does not exist independently of the Warrarn and have not established that they have been incorporated into the Ngarla.
Are the Warrarn a group capable of holding native title?
608 The Warrarn claim is for group rights and interests and, in the alternative, for individual rights and interests of thirteen named persons. The State and the Ngarla dispute that the Warrarn are a group that is capable of holding native title, and further say that the Warrarn Named Individuals’ claims have not been made out.
609 The State and the Ngarla submit that in order to make out a claim to group rights and interests, the group must be one that exists, and has existed since sovereignty, under traditional laws and customs. Thus, the State and the Ngarla contend, the Warrarn are not a group capable of holding native title. In support of this principle, the Ngarla and the State refer to Bodney v Bennell [231]–[234]; Dale v Moses at [15]–[19], [116]–[118], upholding Daniel; Moses v Western Australia at [44]–[48]) and Harrington-Smith at [885], [929]–[930], [1138]–[1159].
610 The Warrarn contend that the group or communal native title rights and interests in question are held by the Ngarla people as a group and on a collective basis according to traditional laws and customs. The Warrarn say that the Ngarla are a “right and interest possessing unit” and not a “novel creation” in the sense considered by Lindgren J in Harrington-Smith at [1159] and there is no discontinuity in the Ngarla group. The Warrarn say that, factually, this case differs from Harrington-Smith at [1138]–[1159] and Daniel at [506]. However, this submission does not deal with whether the Warrarn Group is a “novel creation” and whether there is continuity in the Warrarn Group.
611 In effect, the Warrarn appear to accept that they cannot, as a group alone, claim native title because the group did not have claims or title to the land at sovereignty. They say that, they have been incorporated into the Ngarla and that they derive their rights and interests by reason of the allocation of rights and interests by the Ngarla. The Warrarn claim to group rights and permissions is reliant upon the Ngarla group. They say that the ‘real issue is whether the title of the Ngarla people includes the right to accord permission to the class of persons described as the Nomads group to exercise rights in accordance with the traditional laws and customs which are the source of those rights’.
The relevant legal principles: is it necessary to be a “traditional” group?
612 The Warrarn submit that they are a group within the definition adopted in Daniel by Nicholson J at [338]:
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.
613 The Warrarn seem to submit that in Daniel, Nicholson J accepted that the claimant group had only to establish that it was a “group” in the ordinary meaning of that word and that it is not necessary to find that for a group to hold native title rights and interests it must be a “traditional” group. The Warrarn accept that in Harrington-Smith, Lindgren J took the view that in order for a group to be a native title holding group, it had to be a “traditional group”, that is, have some basis in traditional law and custom. This, the Warrarn submit, is distinguishable from what Nicholson J said in Daniel and requires a choice to be made by this Court between the reasoning in Daniel and that of Lindgren J in Harrington-Smith. The Warrarn submit that the reasoning in Daniel should be preferred. The State submits that there is no such difference in the reasoning of the two cases.
614 In Daniel, Nicholson J said (at [358]) that the definition of a “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’. However, in considering the question of whether an applicant group could have “continuity” in circumstances where the group had received a transmission of laws and customs, his Honour also made it clear that the group must be a traditional group possessing normative laws and customs (at [383]). Justice Nicholson said: ‘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’. His Honour continued at [430] to state that claimed rights and interests presently observable must have been exercised continuously since sovereignty as norms of the claimant group, which requires consideration of whether the rights and interests were acknowledged as part of a normative society (at [431]). Given the discontinuity of the group as found and the inability to establish itself as a “traditional group”, connection could not be made out in respect of the rights, even though they appeared in traditional form (at [506]).
615 On appeal, the Full Court upheld Nicholson J’s findings that the Wong-Goo-TT-OO claimant group was not a “traditional group” (Dale v Moses at [15]–[19], [116]–[118]). At [116], the Full Court accepted that although Nicholson J indicated that he accepted that the appellants were a “group” for the purposes of the application, ‘that was an observation directed only to their capacity to prosecute the application. That said nothing about the claims the appellants were making concerning their alleged native title rights’. The Full Court noted Nicholson J’s observation at [358] that whether the requisite relationship in fact existed was a matter to be determined on the evidence and that his Honour did not accept that the claimant group had discharged the evidentiary onus of establishing the requisite relationship.
616 In Harrington-Smith, Lindgren J considered that the NTA, as explained by Yorta Yorta, requires that there be a basis in ‘traditional law’ for the group said to hold group native title rights and interests (at [925]–[926]). In that case, a determination of group rights and interests was sought by the applicants in each of the relevant native title claims. His Honour, in considering the bases upon which the claims were put, found that the claims were, in fact, an aggregation or pooling of individual rights and interests in individually claimed areas. As such, the claim groups were not landholding groups recognised under traditional laws and customs but rather had come together as a result of the claimants agreeing to aggregate or pool their individual interests (Harrington-Smith at [885]). Justice Lindgren concluded at [885] that:
Native title group rights and interests cannot be created in this way. Group rights and interests of the kind claimed do not owe their existence to pre-sovereignty laws and customs, but to the agreement to aggregate or to pool—conduct that is governed by the Australian general law. The group rights and interests cannot have existed prior to the making of the agreement. …
Additionally, the agreement involves an impermissible alienation, in whole or in part, of the individual’s rights and interests in his or her “my country” area, because, as a result of the agreement, those rights and interests have been subjected to the rights and interests of the claim group, albeit in exchange for rights and interests in the “my country” areas of all the other members of the claim group. The evidence does not show that alienation, whether as part of an aggregation or pooling arrangement or otherwise, was permitted in accordance with pre-sovereignty Western Desert law and custom.
617 His Honour later stated (at [930]) that the aggregation was the result of political affiliations at the times when the respective groups were composed and that ‘pre-sovereignty laws and customs have not dictated the existence of the groups or their composition’. At [1157], Lindgren J said that the NTA did not permit recognition of ‘group rights and interests in a group territory, where both have been created for the purpose of making an application for a determination under the NTA out of claimed individual rights and interests’. The Warrarn say that Lindgren J read the requirement that a group must be based on traditional laws and customs into s 223 of the NTA. They say that s 223 simply requires that the rights and interests be possessed under traditional laws acknowledged and traditional customs observed and that there must be a connection in accordance with those laws and customs. However, they say, s 223 does not require that the group itself be combined in accordance with traditional laws and customs. They submit that the Court should follow Nicholson J and should not ‘read more into the statute than exists’.
618 Daniel and Harrington-Smith are not relevantly inconsistent. The common principle is that the claimant group must establish a connection, as a group and as part of a normative society. This leads to a requirement that they are, and have been, bound together by common observance of traditional laws and customs in connection with the land.
619 I accept that, in order to make out a claim to group rights and interests, the group must be one that exists, and has existed since sovereignty, under traditional laws and customs.
Ambiguity in the Warrarn membership criteria
620 Both the State and the Ngarla contend that the membership criteria of the Warrarn Group are uncertain and ambiguous, in particular, in respect of Warrarn assertions that they have a long term physical association with, and possess religious and geographic knowledge of, the area, and that they are leaders in the Law:
They say that the Warrarn criteria include that the persons must be ‘recognised as leaders in the Law practised in the area which includes the Overlap Area by other Aboriginal persons…’ (emphasis added). There is uncertainty in the “area” being referred to. The Ngarla say that if the “area” is the Pilbara, “leaders” in the Law would include other persons. If the “area” is Warralong, that does not have relevance to the Overlap Area. If it means “leaders” at Kajarinya and Strelley, there are no such persons given that Law is not practised there.
The State says that there has been no evidence led as to who is a “leader in the Law”, including how a person becomes one or how he or she becomes acknowledged as such by other Aboriginal people. While the State admits that witnesses could generally identify persons as “Business Girls” or “top Law men” or “Law bosses”, it says that the identification of persons as Law bosses is subjective and sometimes contradictory. The Ngarla say that the term “leader in the Law” is ambiguous. For example:
Does it include “Business Girls”? If so, there are disagreements in the evidence as to who is a Business Girl.
Does it refer to the most senior leaders in the Law, or to anyone involved in the conduct of Law ceremonies? If the former, they say that the evidence is that Ernie Mitchell, Coombie and Peter Coppin were the leaders in the Law in the Ngarla/Njamal area and that that role has now passed to Charlie Coppin and Stephen Stewart.
The persons who are involved in the conduct of Law ceremonies at a particular location may vary depending upon the particular area.
The State says that the Warrarn criteria include that the persons of the group must have a ‘long term physical association with the Overlap Area’ and that no indication has been provided as to what is said to constitute ‘long term physical association’. If “long term” suggests an association that predates the purchase of Strelley Station, none of the Warrarn would meet that criterion. If “long term” was intended to mean something else, it is not clear what would be sufficient. Further, the State says that no guidance has been provided as to whether this criterion can be established if an individual was absent from the Overlap Area for long periods of time, or whether it is necessary to have a current long term physical association.
The State says that the Warrarn criteria that a person ‘possess religious and geographic knowledge of the Overlap Area’ is also open-ended and uncertain. For example:
Does the knowledge have to be “traditional” knowledge?
Do members of the Warrarn have to share the same body of knowledge, or can an individual possess different, idiosyncratic beliefs?
Do members of the Warrarn have to believe in and consider themselves governed by the knowledge?
621 The Ngarla rely on the ambiguities in the membership criteria to contend that the group cannot be a “traditional” group. The State submits that the ambiguities indicate that the Warrarn are not a “group”, apparently because it is difficult to ascertain whether any particular individual has the required common characteristics to be a member.
622 I do not accept that the membership criteria of the Warrarn are ambiguous. Those variations pointed to by the Ngarla and the State could apply to any group of individuals. Further, from the evidence, the cited uncertainties, such as leaders in the Law, would be resolved and made certain according to traditional laws and customs.
623 The Ngarla accept that in this proceeding, as in Daniel and Harrington-Smith, there is a claim made on behalf of a group and that it may even be said that this group existed before the making of this native title claim. The Ngarla accept the existence of the “Nomads” before the making of the Warrarn claim.
624 However, the State contends that the Warrarn have not provided any basis upon which they assert that the Warrarn Group is a “group”’ within the ordinary meaning of that word. The State submits that the fact that a number of persons meet a set of criteria does not necessarily result in them being a “group” having a ‘mutual or common relation or purpose’ (Daniel at [358]); a set of common characteristics or criteria is necessary, but not sufficient, to establish a “group”.
625 The State says that in circumstances where it is difficult to identify objectively whether a person is “in” or “out” of the group, due to ambiguity and uncertainty in the membership criteria, it is difficult to sustain an argument that the group does form a “group” having regard to ‘common relation or objective purpose’.
626 The State submits that the Warrarn have not established that a significant number of individuals do, in fact, fulfil those membership criteria such that even a small “group” of persons could be identified. The State submits that the Warrarn have failed to show the existence of any mutual or common relation or purpose between those individuals which would suggest the existence of a ‘group’. In particular, the State says:
No evidence was presented as to the extent of the Warrarn Group. The witnesses gave generally inconsistent evidence about who is a member of the Warrarn group, other than to confirm that it is a very small group.
Of the thirteen persons named as members of the Warrarn Group, eight of the named individuals did not give any, or any significant, evidence. The State says that very little is known about those persons and the evidence does not support a conclusion that they fulfil the membership criteria.
Of the five individuals who gave evidence (Bruce Thomas, Monty Hale, Elizabeth Bunwarrie, Biddy Bunwarrie and Kevin Fred), the State submits that it is arguable as to whether those persons do, in fact, meet the relevant criteria. In particular, the State says that much of the knowledge of which they spoke was not knowledge “traditional” to the Overlap Area, but rather derives from Western Desert laws and customs. The State says that it is unclear what type of knowledge is sufficient for membership.
Contradictory evidence was given as to whether some of the five witnesses were, in fact, recognised as leaders in the Law. Elizabeth Bunwarrie considered herself a Business Girl, whilst Winnie Coppin did not think that she was. However, Elizabeth Bunwarrie was included in the list of Business Girls in the joint statement of Maggie Ginger, Elizabeth Bunwarrie and Biddy Bunwarrie.
There is generally no evidence in respect of length or depth of the ‘physical association’ of the asserted group with Strelley Station or the Overlap Area. In response, the Warrarn refer to the evidence in Appendix B, as to their long term association. The State submits that with the possible exception of Monty Hale, the witnesses do not live at Strelley Station. Kevin Fred, Biddy Bunwarrie and Elizabeth Bunwarrie currently live at Warralong. Bruce Thomas currently resides mostly at Port Headland and visits Strelley occasionally. Monty Hale states that he moved to Strelley Station in 1972 and ‘from then on’ has been at Strelley. However, as the State notes, Bruce Thomas gives evidence that Strelley Station was destroyed by a cyclone a number of years ago and that most of the people had to move to town. In any event, the State says that residence upon Strelley Station does not equate to a ‘long-term physical association’ with the Overlap Area.
627 The Warrarn derive from the Nomads, the history of which is in the agreed facts. As to the membership of a “group”, I am satisfied that the Warrarn have established sufficient commonality to form a group. It is not necessary that each member gives evidence in the proceeding and the fact that different members refer to some different criteria for membership does not preclude common criteria.
Are the Warrarn a ‘traditional’ group?
628 The Ngarla and the State both say that the Warrarn Group is not a group definable according to traditional laws and customs. That is, they say that there is no basis, on the evidence, for concluding that the group defined in the Warrarn claim is a “traditional group” in the sense referred to in Harrington-Smith and that the evidence does not establish that the Warrarn share common characteristics according to traditional laws and customs (De Rose (No 2) at [39]). The State also says that the evidence does not establish that the Warrarn possess, on a collective basis, shared rights and interests in land as a result of membership of a traditional group. The State refers to Lindgren J’s statement in Harrington-Smith that the claim group ‘must possess, on a collective basis, the rights and interests in question’ (at [1138]) and that the group must be a ‘right and interest possessing unit’ and not a novel creation made up of differing rights pooled for the purpose of a native title claim (at [1154]–[1159]). In the State’s submission, what the individuals may have in common is a set of relatively contemporary post-sovereignty events and the making of their application under the NTA.
Post Sovereignty events and circumstances
629 It is apparent that the criteria for the Warrarn Group are based upon post-sovereignty events or circumstances. The State contends, and I agree, that where the defining characteristics of a “group” arise post-sovereignty, that group cannot properly be considered “traditional” (Daniel [506]; Harrington-Smith at [885]).
630 Membership of the Warrarn requires a person to have participated in and/or have been initiated into the Law at Strelley and/or Kajarinya or, if the variation to the claim group is taken into account, at Strelley only. Strelley was not opened until 1973 and was closed between 1978 and 1980. Kajarinya operated as a Law ground for a short period in the 1950s during the pastoral strikes. Initiation at, or participation in, ceremonies at these Law grounds cannot, therefore, mean that a group defined by reference to them is relevantly “traditional”.
631 There are also difficulties for the Warrarn in establishing a long term physical association with the Overlap Area. The Warrarn refer to the evidence in Appendix B in support of their asserted ‘long-term physical association with Strelley’. However, the earliest evidence in respect of the Overlap Area referred to in this context is from the 1940s. The current Warrarn claimants have only had an association, on their case, since this time. The Ngarla submit, and I accept, that it is not clear whether the Warrarn elders referred to in the earlier pleadings had a long term physical association with the Overlap Area. Monty Hale says that the most senior members of the Warrarn had passed away, but does not identify former members of the group. The evidence is that Sam Jalin, Massie Challawarrie and Bruce Wantari, members of the earlier defined claim group lived at Yandeyarra. Teddy Allen lived near the Overlap Area and was said by some Warrarn witnesses to be Warrarn, but he was a recognised Njamal elder and considered himself Njamal.
Warrarn are not recognised as a traditional Aboriginal grouping
632 The evidence does not support a conclusion that the Warrarn Group is an anthropologically or historically recognised traditional Aboriginal grouping.
‘Warrarn’ and ‘Nomad’ are not traditional names of any group of Aboriginal people.
‘Warrarn’ is said to mean ‘country’ in the Nyangumarta language.
‘Nomads’ is the name of a proprietary company formed under the leadership of Jacob Oberdoo and Don McLeod in the 1960s, following the split in the pastoral strike movement.
As noted by Mr Robinson, the name ‘is a departure from what has been the usual Pilbara practice of naming claims after the names of one or more language groups’.
Elizabeth Bunwarrie, a member of the Warrarn Group, referred to the “Warrarn tribe” but explained that she was also part of the Nyangumarta claim, was brought up with the Nyangumarta mob and is part of the Nyangumarta people, that the Warrarn language was Nyangumarta and that ‘Warrarn is the same way Nyangumarta now’. Various of the witnesses who came from the desert did not consider themselves part of the Warrarn claim but part of other claims, such as Martu or Nyangumarta.
633 The Warrarn Group is not accepted by others as a traditional grouping and previous individuals that were named as Warrarn leaders in the Law, Lindsay Hardcase and Bill Williams, deny that they are part of the Warrarn claim.
634 The Warrarn did not lead any anthropological evidence to suggest that the Warrarn are recognised as a traditional group.
Ancestors at sovereignty, different language groups and places of origin
635 The Warrarn have not provided evidence of common ancestors. Rather, the different language groups and places of origin of the named individuals who are said to be part of the Warrarn Group make it difficult to conclude that the Warrarn Group forms a traditional group.
636 Of the members of the Warrarn Group, Elizabeth Bunwarrie says that she is part of the Nyangumarta native title claim and on that basis she would already have been determined to be a native title holder elsewhere (Hunter v State of Western Australia [2009] FCA 654). Monty Hale, Kevin Fred and May Chapman are desert Nyangumarta or Martu people and would appear to be part of the Martu native title claim and already determined to be native title holders elsewhere (James on behalf of the Martu People). Kevin Fred identifies as a Nyangumarta person on the desert side. Monty Hale says that his father was desert Nyangumarta and his mother Martu. Bruce Thomas calls himself a Mangala man. Polly Jack is also a Nyangumarta woman, however, it is unclear whether she is a coastal or desert Nyangumarta person. Nancy Judamia is a Warnman woman and Mary Rowlands is a Manjinygarra woman. The language group affiliation of Topsy Yarbala, Selena Brown and Elsie Ginger are not known. Similarly it is not clear with which language group Kathleen Thomas identifies, although her mother was a Wanman woman.
637 There is no evidence that at sovereignty the ancestors of the members of the Warrarn Group had contact with each other or formed a traditional group. There is no established basis upon which it can be said that the Warrarn are a traditional group on the basis of shared ancestry or family relationship.
Association between members of the Warrarn Group arose in the twentieth century
638 It is agreed that the members of the Warrarn Group were traditionally from areas outside the Overlap Area and moved separately from their traditional country during the 20th Century.
639 The members of the group refer to themselves as “Warrarn”, “Nomads” or as involved with the “McLeod faction” as a result of historical involvement. For example, Elizabeth Bunwarrie states that the Warrarn people were the same as the Nomads group (who were ‘Don McLeod's mob’). Bruce Thomas also says that the present Warrarn Group is the same as the Nomads group but that most of the old people had passed away now. He says that “Warrarn” means country in Nyangumarta language.
640 The evidence supports the conclusion that the association between the members of the Warrarn Group arose in the mid to late 20th Century, culminating in the purchase of the Strelley pastoral lease in 1972, in particular:
The “shared characteristics” of the Warrarn Group are due to their involvement with Don McLeod following the split in the Pilbara pastoral strike movement in 1959. Following the split, a group of largely desert Aboriginal persons remained with Don McLeod and formed the Nomads Company. The Nomads company commenced mining operations in the Roebourne area. Later, the group purchased and moved to Strelley Station, later acquiring Warralong Station.
As a result of this historical involvement, many of the Warrarn witnesses referred to themselves as “Warrarn” or as persons involved with the McLeod faction.
641 The Aboriginal witnesses’ evidence on their involvement with Mr McLeod and the Nomads company includes the following:
Maggie Ginger was working with the McLeod mob at Marble Bar during the pastoral strike when her son Bruce Thomas was born. She later followed Don McLeod to Roebourne and assisted with mining operations there for a number of years.
Maggie Ginger and Bruce Thomas also resided at Strelley and Lalla Rookh Stations.
Kevin Fred states that he ‘grew up with the Nomads’ and travelled around with them before residing at Warralong Station.
Elizabeth Bunwarrie states that her family were part of the Nomads group and her parents were involved in their mining operations.
Both Biddy and Elizabeth Bunwarrie came to live at Strelley Station when it was first purchased by Mr McLeod and later resided on Warralong Station.
Monty Hale’s parents worked for Mr McLeod. In 1951, Mr Hale and his parents went to Marble Bar at Mr McLeod’s suggestion and Mr Hale worked for gold there. Mr Hale later went to work for other McLeod mining operations at Blue Bar before going to live at Yandeyarra, which Mr McLeod had purchased. Monty Hale says that from 1972 on, he has been at Strelley Station.
Both May Chapman and Kathleen Thomas appear to have resided at Strelley Station at some point.
642 It is difficult to accept that an association with a private company created in the 1960s or with a non-Aboriginal man, Don McLeod, can give rise to a “traditional group” for the purpose of the NTA. Current affiliation connected with the making of a claim under the NTA does not satisfy the requirement that there is a traditional law basis for claim groups, as required in the NTA and explained by Yorta Yorta (see Harrington-Smith at [926]).
Artificiality of the Warrarn claim
643 The State and the Ngarla contend that the current Warrarn Group description constitutes an artificial set of criteria put together ex post facto to capture the persons who happen to be bringing this claim for native title. The State says that the “Warrarn” is nothing more than a “pooling” or “aggregation” of individuals on a non-traditional basis (Harrington-Smith at [893]) and that the group does not “transcend” its individual members, but is a “novel creation” (Harrington-Smith at [1159]).
644 The Ngarla and the State rely upon the fact that the Warrarn have, from time to time, provided at least eight different versions of their claim group description. The different versions of the claim group description are:
the Form 1 for the Warrarn claim: The claim group was made up of the persons listed and their biological descendants;
the ‘Fourth Applicants’ Statement of Issues, Facts and Contentions’: The resident kin clusters and persons affiliated with them from 14 listed language groups hold native title rights and interests in the area. This included the members of the native title claim groups the subject of the Warrarn, Njamal and Ngarla claims;
the ‘Further Particulars of the Fourth Applicant’s Statement of Issues, Facts and Contentions requested by the First Respondent’: Any member of the relevant society (being described as a broader society in this document) can become, or be able to be identified as, a native title holder in relation to the Overlap Area. The person on whose behalf the Warrarn had made the application were the kin clusters resident at Strelley, Karlindie, Lallarook and Coongan/Warralong Stations;
the ‘Parties’ Substituted Agreed Statement of Issues’: The Warrarn claimed that the following persons hold native title in the Overlap Area, in addition to to the Ngarla. These are people that are or become resident at Strelley, Carlindie, Lallarook or Coongan/Warralong Stations. The Warrarn named Bruce Thomas, Crow Yougarla, Monty Hale, Roy Toby, Kevin Fred, Lindsay Hardcase, Bill Williams, Maggie Ginger, Biddy Bunwarrie, Gladys Jack, May Chapman, Polly Jack, Topsy Baamba and their cognatic descendant, as well as the cognatic descendants of a number of other named persons;
statements made by counsel during the proceeding: Not all of the descendants of the Nomads group are in the Warrarn Group. The common characteristic of the group is that they have evolved from the residential group of Nomads who were an accumulation of people from various language groups who settled in that area. Leadership in the Law included members of the Nomads group;
the ‘Amended written outline as to the basis upon which it is contended the Nomad Leaders Group constitutes a group or individuals who hold a native title interest’: The criteria were summarised as:
(a) participation in and/or inititiation into the Law at Strelley and/or Kajarrinya;
(b) long term physical association with the Overlap Area; and
(c) possession of religious and geographic knowledge of the Overlap Area; and/or
(d) having their spiritual essence derived in accordance with traditional customs acknowledged or traditional customs observed from places in the Overlap Area; and
(e) no descent based connection to the Ngarla and/or Nyamal language groups; and
(f) mutual recognition as leaders in the Law practised in the area which includes the Ngarla Overlap Area by other Aboriginal persons including those who have descent based connections to the Ngarla Overlap Area.
the ‘Outline of Closing Submissions of the Fourth Applicant Group’, the modifications of which are discussed above at [30];
and the Summary of Issues (above at [29]).
Conclusion on whether the Warrarn are a “traditional group”
645 The Warrarn have not established that, according to their own description of the claim group, “Warrarn” is a traditional group, or a group that, traditionally, has connection with the Overlap Area. The Warrarn have not demonstrated the existence of any traditional laws and customs which may explain the group’s membership criteria or how rights and interests in land are said to arise as a result of that group membership. To the extent that the Warrarn Group have common characteristics, those factors arose in the mid to late twentieth century.
646 The Warrarn Group resembles an “ad hoc” group constituted for the purposes of this application. Although there was a “Nomads” group that existed before the making of the Warrarn claim, such as the group referred to in the constitution of the Strelley Housing, the Warrarn Group as claimed is apparently different from that “Nomads” group. In particular, the Warrarn Group includes the criterion of leadership in the Law.
647 The Warrarn cannot rely on the Ngarla as the relevant “traditional group” with continuity to the Overlap Area since sovereignty. The Warrarn must demonstrate that they are a traditional group and they have failed to do so.
The description of the Warrarn Group
648 The Warrarn contend that in determining ‘who the persons, or each group of persons, holding the common or group rights comprising the native title are’ (s 225 of the NTA), it is sufficient for the Court to adopt a general description of a “Leaders group” rather than a determination limited to named individuals representing a closed category of persons or a determination setting out the criteria by which that status of leadership may be obtained.
649 The Warrarn refer to Moses v Western Australia, where the Full Court said (at [370]):
In the case of group claims, s 225(a) will ordinarily be satisfied if the name of the group is provided. There is no automatic requirement that the determination set out in detail how the group membership is constituted or the criteria by which membership is attained. That is all Ward (FC) 99 FCR 316 meant on the subject. Whether the group of persons is sufficiently described will depend on the facts of the particular case. Often a statement of the group name will identify the group of persons sufficiently for the purposes of s 225(a). This explains the many determinations which have adopted that formulation. In other cases, for instance, where the constitution of the membership of the group is unclear, the determination will need to clarify by supplying some definition of the way membership of the group is attained so that s 225(a) can be satisfied …
650 The Warrarn say their case was run on this basis and that they did not seek to lead evidence from all persons who are members of the group who are regarded as leaders in the Law. The Warrarn say that it should be accepted and that there is evidence that rights as leaders have been transmitted from elder non-Ngarla people to the current generation and that the non-Ngarla leaders group was and remains a tight-knit group of close kin.
651 They say that their descendants may become leaders in the future. Lindsay Hardcase says that his children can follow him in the Law and refers to training the children to become leaders in the Law and the Warrarn submit that Warrarn children continue to be educated at Strelley School.
652 The Warrarn submit that persons may make elections as to whether or not they assert native title rights by reason of their status as leaders (for example, Lindsay Hardcase does not assert those rights to the Overlap Area). Further, there will be intramural disputes as to who is recognised as falling within that category based on seniority etc. For example, Winnie Coppin says that Elizabeth Bunwarrie is not old enough to be a Business Girl.
653 The Warrarn contend that accommodation of a group of non-Ngarla leaders in the Law within the claim group will be a matter for the prescribed body corporate and will be determined in accordance with traditional law and custom.
654 The State and the Ngarla submit that the Court should not accept a Warrarn determination in favour of a “Leaders group”. The State says that while it is true that s 225(a) of the NTA will ordinarily be satisfied if the name of the group is provided, this is not true in every case. Both the State and the Ngarla rely on the statement by the Full Court in Moses v Western Australia at [370] to the effect that where the membership of the group is unclear, ‘the determination will need to clarify by supplying some definition of the way membership of the group is attained so that s 225(a) can be satisfied’. The Ngarla say that it is not for the Court or the parties to seek to formulate an alternative group description.
655 The State submits that:
The description of a “Leaders Group” leaves in doubt the identity of the members of the group and the description would need to be supplemented by the “full” claim group description, including all relevant membership criteria; “leaders in the Law” is not an adequate description of the membership criteria of the Warrarn.
There is uncertainty in determining who is a “leader in the Law”, how a person becomes one and how that person becomes acknowledged as such. It is not clear that every leader in the Law would meet all of the relevant membership criteria of the Warrarn.
Evidence of the nature and traditionality of this membership criterion of the Warrarn claim was not led, probably because at the time the evidence was taken, this claim group description was not contemplated by the Warrarn. It is not correct to say, as the Warrarn do, that such evidence was not led because the description “leaders in the Law” was appropriate or sufficient.
Consideration
656 In the present case, the name of the group as “Warrarn”, sometimes referred to as the Nomads, does not render the group readily ascertainable. It is not the same as a name that correlates with, say, a language group. The way that the case has been presented and the evidence adduced, both lay and expert, has not been directed to a claim group consisting of leaders in the Law in the Pilbara region. The Warrarn membership is confined and the evidence has focussed on the incorporation of the Warrarn Group into the Ngarla and on the knowledge of the members of the Warrarn of the traditional laws and customs associated with the Overlap Area.
657 The problem with the Warrarn claim is that the Warrarn have not presented a case that establishes that, even if a group of leaders in the Law can be said to exist in a normative system, that the existence of a leaders group is relevant, within traditional law and custom, to rights in land, in particular in the Overlap Area.
658 The problems identified by the State are relevant. The current description of the membership criteria of the Warrarn Group is not the way the claim group was identified in the application, or in the evidence or, initially, in the hearing. The evidence has not established the traditional laws and customs of such a group, beyond the fact that they gather for ritual purposes at Law ceremonies and practise initiation rites, which differ between the different language groups, as do some other of the ceremonies.
659 Even if the Warrarn can now advance a claim group characterised as “leaders in the Law”, the evidence does not support the existence of such a group within the context of a normative system of native title rights and interests in the Overlap Area. There is no need for me to decide whether the description of “leaders group” or “leaders in the Law” would be sufficient for the purposes of s 225(a) of the NTA.
Claim for individual native title rights and interests by the Warrarn
660 In the alternative to group rights and interests, the Warrarn claim individual rights and interests on behalf of a number of named individuals. The Warrarn have not explained the basis upon which the named individuals are said to have individual native title rights and interests. I have therefore assumed, as the State has done, that the individual rights and interests are said to be held on the basis that the individuals fulfil the membership criteria of the Warrarn Group and/or that they have individually been given permission or a standing licence by the Ngarla people. I have also assumed that the individual rights and interests claimed are the same rights and interests as claimed by the Warrarn Group.
661 Two matters fall to be considered in relation to this claim. First, whether Ngarla traditional laws and customs recognise the individual rights of the Warrarn. Secondly, whether each Warrarn individual has proved the existence of his or her individual rights and interests.
Can the Warrarn claim individual rights under Ngarla traditional laws and customs?
662 The Ngarla say that Ngarla traditional law and custom recognises communal (the Ngarla people collectively) or group (the Ngarla estate or family group) rights, but not individual rights. Since individual native title rights depend upon the relevant society’s laws and customs, the Ngarla submit that any claim to individual native title rights said to be derivative from Ngarla’s communal native title, or from permissions granted by Ngarla people, must fail at the outset.
663 This submission does not wholly deal with Ngarla evidence concerning property rights over “runs” of land. The evidence is that the land is held by the Ngarla people communally but that responsibility for that land is exercised by individual Ngarla people, those people generally being the representative of the family group or estate, except in the case of deceased estates (see below at [772]–[785]). However, to the extent that this could be characterised as an “individual” right or interest, under Ngarla traditional laws and customs, it can only be transferred by descent.
664 Further, if a specific individual has been given a licence or permission by the Ngarla and/or has been incorporated into the Ngarla by permission, it follows, and the Warrarn have not asserted otherwise, that the person’s individual rights will cease to exist on his or her death and are not transmitted to another person. Stephen Stewart and his two children have each been incorporated. There was no suggestion that any other family member has been included automatically. As noted by the Full Court in De Rose (No 2) at [40], ‘[u]nless the traditional laws and customs provide for the individual rights and interests to be transmitted to other community members, they presumably will terminate upon the death of the holder’. The Warrarn have not demonstrated the existence of any particular law or custom which would allow for the transfer of any rights from one person to another following the death of the individual rights holder. If any individual native title rights arose by reason of the events in 1956 at Kajarinya and/or in the 1970s at the Strelley Law ground, and/or in 1980 at Warralong, the Ngarla say that those rights would have been held by the individual Warrarn elders. With the possible exception of Monty Hale, those persons have all passed away.
665 Any individual’s native title rights in the Overlap Area are dependent upon Ngarla laws and customs. The Warrarn have not established that Ngarla laws and customs permit the allocation of rights or interests to an individual, nor that if such rights and interests existed, that they could be transferred to others either during his or her life or on that individual’s death.
Claims must be made out individually
666 If the Warrarn were to succeed on a claim for individual rights, they must demonstrate for each of the 13 Warrarn Named Individuals claiming those rights, the existence of such rights under traditional laws and customs and a connection to the claimed area (De Rose (No 2) at [45]; Gumana (FC) at [143]).
667 Of the 13 Warrarn Named Individuals, nine did not give evidence or gave very limited evidence during the proceeding. These were Nancy Judamia, Gladys Jack, Polly Jack, Topsy Yarbala (nee Bamba), Kathleen Thomas, Selena Brown, Elsie Ginger, Mary Rowlands and May Chapman. The State and the Ngarla have provided an analysis of the evidence as to each of these witnesses. The following is a short summary:
Nancy Judamia: gives limited evidence on the preparation of bush foods. Other witnesses suggest she is a Wanman woman and a Business Girl and was the partner or wife of Snowy Judamia. In their joint statement, Elizabeth Bunwarrie, Biddy Bunwarrie and Maggie Ginger say she is a Business Girl and a lead dancer.
Polly Jack: Other witnesses suggest that she is a Nyangumarta woman, Business Girl and second wife of Snowy Judamia. In their joint statement, Elizabeth Bunwarrie, Biddy Bunwarrie and Maggie Ginger say that she is a Business Girl and a lead dancer.
Topsy Yarbala (Bamba): is shown on genealogical charts as Maggie Ginger’s brother’s wife and Bruce Thomas names her as his mother in law.
May Chapman: gave limited evidence at the proceeding. She is a Martu person from the desert. She says that she lived at Strelley in 1976 and now lives at Warralong. She states that her native title claim was the Martu claim and appeared to deny being a native title holder for the Overlap Area. In their joint statement, Elizabeth Bunwarrie, Biddy Bunwarrie and Maggie Ginger say she is a Manjinygarra woman, a Business Girl and a lead dancer.
Kathleen Thomas: Other witnesses say that she is Sambo Bina’s daughter, her mother was Wanman, she lives in Port Headland and was married to Bruce Thomas’ older brother. She was the daughter-in-law of Maggie Ginger.
Selena Brown: Gwenda Bucknall describes her as the “second wife to Maggie Ginger”. This may mean that she was the second wife to one of Maggie Ginger’s husbands.
Elsie Ginger: is a shareholder in Strelley Pastoral Company. Elizabeth Bunwarrie gives evidence that Elsie Ginger is part of the Warrarn. She is described by Gwenda Bucknall as Gladys Jack’s sister’s daughter. The Ngarla say that there is no evidence that Elsie Ginger is a Business Girl.
Mary Rowlands: In their joint statement, Elizabeth Bunwarrie, Biddy Bunwarrie and Maggie Ginger say she is a Manjinygarra woman and a Business Girl.
Mr O’Connor describes Gladys Jack, Kathleen Thomas, Selena Brown, May Capman, Polly Jack and Topsy Baamba as some of the older women of the Warrarn in whom the ownership of songs and stories is vested.
668 Other than as set out in these reasons, little or no evidence was given of each of those person’s origins, personal history, places of residence or ancestors or their acknowledgment and observance of traditional laws and customs in the Overlap Area. No evidence was led that any of these eight individuals carried out the activities the subject of the claimed rights in the Overlap Area, or that they did so on the basis of a “permission” granted by the Ngarla people, that is, that they have individual native title rights in the Overlap Area. However, more extensive evidence was given by other Warrarn Named Individuals (Monty Hale, Kevin Fred, Bruce Thomas and Elizabeth Bunwarrie).
669 The only evidence that the Warrarn refer to separately in relation to each Warrarn Named Individual is evidence of ‘Long Term Physical Association with Strelley’. This evidence deals with the association with or residence of the Warrarn Group (or individual persons or ancestors) at Strelley. It is not disputed that ancestors of the Warrarn resided at Strelley. However, the evidence as it relates to most of the thirteen named individuals, rather than their spouses or ancestors, is very limited. The evidence is summarised at Appendix B. In addition, the evidence does not specifically deal with a physical association with the Overlap Area, rather than with Strelley Station generally, or even to Law grounds or places outside of Strelley. However, the evidence referred to does provide some reference to their status in the Law and some evidence of association with Strelley:
Monty Hale lived at Strelley from 1972 and participated in Law at Strelley.
Kevin Fred grew up with the Warrarn and lived at Strelley. He went through the Law at Strelley in 1977/78.
Bruce Thomas went though Law at Strelley Law Ground in 1973 or 1974. When he married, he stayed at Strelley.
Kathleen Thomas was a midwife to one of the births on Strelley Station.
Elsie Ginger is a shareholder in the Strelley Pastoral Company.
The Warrarn say that Elsie Ginger and Selena Brown assisted Gwenda Bucknall in the production of genealogies over a number of years at Strelley School. While the assistance is supported in the evidence, there is no evidence that these meetings took place on Strelley Station, although I note that Ms Bucknall worked at Strelley School. There is no other evidence cited connecting Selena Brown to Strelley.
May Chapman lived with her husband and his other wife, Biddy Thomas, at Strelley before moving to Warralong.
Nancy Judamia is regarded by John Bucknall as a strong leader at Strelley in the 1970s.
The only evidence cited that connects Mary Rowlands to Strelley is in reference to her marriage. The Warrarn say that she is married to Monty Hale, who resides at Strelley, though there is no evidence cited in support.
The only evidence cited that connects Gladys Jack and Polly Jack to Strelley is in reference to the presence of others related to them at Strelley Station.
The only evidence cited that connects Topsy Yarbala (Bamba) to Strelley is in reference to her marriage. The Warrarn say that she was married to Paddy Yarbala who Bruce Thomas says brought the rain ceremony to Strelley.
Elizabeth Bunwarrie came to live at Strelley in 1970 and went to school there.
670 As previously stated, the Warrarn evidence and submissions were not directed to demonstrating that the named individuals have the rights and interests claimed. Rather, the evidence has been directed to a permission or a licence granted to the Warrarn Group as a whole. Presumably, the Warrarn seek to demonstrate these rights and interests by linking the individual members of the claimant group to the claimed rights and interests of the Warrarn. This evidence has been discussed previously. In particular, the Warrarn rely on the fact that the members of the Warrarn (which would include the named individuals) have sought and exercised rights and interests under laws and customs of the local normative society, evidenced by a number of observable factors which I have already considered above.
671 Again, and in brief summary, the observable behaviour concerns:
the participation of their predecessors and themselves in ceremonies occurring in 1956 and 1980;
the opening of a traditional law ground by persons including elders of the Warrarn group in 1972/3;
participating in the practice of traditional laws and traditional customs in the Overlap Area;
residing in the Area (Elizabeth Bunwarrie, Biddie Bunwarrie and Maggie Ginger, Bruce Thomas, Kathleen Thomas, Monty Hale and May Chapman have all resided at Strelley at some point);
being born in the Area (by reference for example to individuals who are not Warrarn Named Individuals, namely Stephen Stewart, Alistair Williams, Johnny Francis and Rowena Ginger and others, all of whom were born at Strelley, or by reference to the yinda, places of spiritual conception, at Mikurrunya and in the Strelley area);
having personal spiritual connection in the Area (by reference to yinda places such as Mikurrunya to which some of the Warrarn, such as Elizabeth Bunwarrie’s daughter, are connected);
burying ancestors in the Area;
gaining knowledge of and looking after places of significance in the Area;
gaining knowledge of resources in the Area;
cutting trees in accordance with traditional law and custom for fashioning sacred objects for use in ceremonies;
teaching children and young men and women how to hunt, prepare and collect bush foods, observe, respect relationships and avoid dangerous places on the country in accordance with traditional law and custom and to become leaders in the Law;
taking on responsibilities and being recognised as having status as leaders of the Law in respect of the Area; and
acceptance by the Ngarla of the status of, and events involving, the Warrarn/Nomads referred to above.
672 The evidence in support includes the evidence not only from those who claim the rights and interests as members of the Warrarn but also from those who do not make such claims, such as Joe Coppin, Lindsay Hardcase and Winnie Coppin. In addition, Lindsay Hardcase, Roy Toby and Bill Williams are not said to have individual rights, notwithstanding that they are “leaders in the Law” and they are not Ngarla. The same applies to a number of Business Girls who are not members of the claimant group. Further, the evidence does not establish who currently resides at, or conducts activities on, Strelley Station.
673 As the Ngarla submit, the Warrarn claim to native title based on individual permission is unworkable. If the claim is based upon general permissions given by the Ngarla people, there is nothing to distinguish these individuals from other Aboriginal people. The holders of individual native title rights, asserted for the reasons advanced by the Warrarn, are unidentifiable and indeterminate.
674 The evidence does not support the claim for individual rights and interests of the named persons. It does not explain why some individuals claim native title rights over the Overlap Area and others with the same characteristics deny such claims. The evidence does not establish that the named Warrarn individuals meet the Warrarn membership criteria. Further, the evidence does not establish that each of the individuals of the Warrarn have the requisite connection with the Overlap Area. The evidence does not establish that the Warrarn Named Individuals have been given by the Ngarla the particular permissions claimed. This is likely the result of the focus of the Warrarn evidence on group rights and interests. However, since the thirteen named individuals do not have an evidentiary basis for their individual rights and interests, each of their claims for individual rights and interests must fail.
Conclusion on the Warrarn claim
675 The Warrarn claim is not made out for the reasons set out above. In summary:
The Warrarn have not established that the relevant society at sovereignty was a “broader society”. The relevant society at sovereignty was the Ngarla society and the relevant traditional laws and customs are therefore Ngarla traditional laws and customs.
The Ngarla traditional laws and customs provide for the granting to non-Ngarla persons licences or permissions for particular activities.
Under Ngarla traditional laws and customs, any rights or interests in land are transferred by descent.
While the Warrarn have been granted some permissions by the Ngarla, such as to carry out their own rituals and customs, such as rainmaking, in the Overlap Area, under Ngarla traditional laws or customs, any permission granted does not give the grantee any rights in Ngarla land. To the extent that the Warrarn claim that their rights and interests are rights and interests in land, they are not rights and interests granted under Ngarla traditional laws and customs.
Any rights and interests that the Warrarn possess are not rights and interests in relation to land within the meaning of s 223(1) of the NTA. They are status-based rights or personal rights, dependant upon the native title of the Ngarla people.
The Warrarn do not have the requisite “connection” with the claim area by traditional laws and customs.
The Warrarn are not part of the relevant normative society. The Warrarn have not been incorporated into Ngarla society and the Ngarla society exists independently of the Warrarn. The Ngarla laws and customs do not provide for the extra-societal allocation of rights and interests in land.
The Warrarn have not established that they are a “traditional group”, or a group that, traditionally, has connection with the Overlap Area.
None of the thirteen individuals named in the Warrarn claim have established, as an individual, the existence of his or her rights under traditional laws and customs and a connection to the Overlap Area.
676 The State says that a question arises as to whether the NTA allows for individual rights to be claimed or determined. Although s 223(1) of the NTA does refer to individual rights and interests, ss 61 and 225 of the NTA refer only to group or communal rights. There is some discussion, and apparent acceptance, in De Rose (No 2) of individual rights and interests, but the Full Court considered that the rights and interests were best regarded as group rights and interests. There is also some discussion in Bodney v Bennell and Worimi. The parties did not point to any, and the State says that it is not aware of any, determination that has been made of individual rights. In the circumstances, this question does not need to be decided.
Part 7: The extent of Ngarla rights and interests in the Overlap Area
677 All of the parties agree that, subject to any question of extinguishment and the Warrarn claim to intramural allocation of rights, the Ngarla people hold the same non-exclusive native title rights and interests in relation to the Overlap Area as they hold in relation to the area the subject of the determination in Brown (No 1). However, the Ngarla assert that they hold greater or additional rights in the Overlap Area.
678 Leaving aside any question of extinguishment, which I will consider in Part 8 below, the Ngarla claim the following native title rights and interests:
(a) the right to possess, occupy, use and enjoy the Overlap Area;
(b) the right to make decisions about the use and enjoyment of the Overlap Area by others;
(c) the right to control the access of others to the Overlap Area; and
(d) the right to control the taking, use and enjoyment by others of the resources of the Overlap Area.
679 That is, the Ngarla claim exclusive possession: the right to the possession, occupation, use and enjoyment of land and waters to the exclusion of all others.
680 The State and the Ngarla agree that if the Ngarla People were found to hold a right of exclusive possession, any such right should be described as a ‘right to the possession, occupation, use and enjoyment of land and waters to the exclusion of all others’ and not as the individual rights listed above.
681 In the alternative, if the Ngarla do not have a general right of exclusive possession, the Ngarla claim, in addition to the Brown (No 1) rights and interests, particular exclusive rights over the Overlap Area (the Divided Rights) and an additional non-exclusive right, namely the right to be accompanied.
682 The Ngarla submit that native title has not been extinguished by reason of the Special Lease and the Pastoral Lease pursuant to s 47A of the NTA (see Part 8 below). However, insofar as native title has been partially extinguished, the Ngarla contend that, in addition to the Brown (No 1) rights and interests, they hold an additional non-exclusive right, namely the right to be accompanied.
683 The Warrarn agree that the Ngarla have these rights, subject to the qualification that there is an intramural allocation of rights as between the Ngarla and the Warrarn. The State denies that the Ngarla hold any greater, or further, native title rights and interests than those which were determined to exist in Brown (No 1).
684 There are three main issues for determination:
First, whether the Ngarla have a right of exclusive possession.
Secondly, and in the alternative, whether the Ngarla have the particular Divided Rights. That is, if the Ngarla do not have a right of exclusive possession, can the right of exclusive possession be divided and can the Ngarla claim particular exclusive rights. The State denies that the right of exclusive possession can be divided.
Thirdly, whether the Ngarla have the right to be accompanied and whether it is a non-exclusive right, as the Ngarla claim. The State denies both.
685 The State contends, and the Ngarla do not dispute, that in order to establish a native title right to exclusive possession, the Ngarla must demonstrate that:
1. a right to exclusive possession was possessed as a right under traditional law and custom at sovereignty; and
2. that they have continued to acknowledge and observe the laws and customs giving rise to the right of exclusive possession from sovereignty until the present.
686 However, the State and the Ngarla do not agree on the test for exclusive possession, in particular, on the evidence required to show the acknowledgment and observance, at sovereignty and today, of laws and customs under which the right of exclusive possession arises.
The test for exclusive possession: what is the required evidence of acknowledgment and observance of traditional laws and customs?
687 The Ngarla and the State agree that the appropriate test for determining whether a native title right exists is whether there is real acknowledgment and observance of a relevant traditional law and custom. However, the Ngarla and the State do not agree on what evidence is required to demonstrate acknowledgment and observance. While the Ngarla agree that there must be a “real” acknowledgment and observance, they say that this word is a gloss on the language of s 223(1)(a) of the NTA and should not be taken to give any additional content to the requirement that the right exists under traditional laws acknowledged and traditional customs observed.
Evidence of enforcement or compliance
688 The Ngarla submit that the evidence only need establish ‘the continued existence of normative rules under which each of the rights and interests claimed are possessed’. They say that it is unnecessary to identify separately the extent of, and evidence going to, the acknowledgment and observance of traditional laws and customs. The Ngarla refer to Yorta Yorta at [42], where Gleeson CJ, Gummow and Hayne JJ observed that there is no need to distinguish between what is a matter of traditional law and what is a matter of traditional custom, although together these rules must have normative content.
689 The Ngarla say that a law or custom can be acknowledged or observed notwithstanding the absence of evidence of, or even means of, the enforcement of, or compliance with, the law or custom by the members of that group or community, or by other Aboriginal or non-Aboriginal people. The Ngarla submit that ‘[w]hat is relevant to that issue [of whether the Ngarla have acknowledged and observed a right to exclusive possession] is evidence as to the existence of normative rules amongst the Ngarla People to that effect, not evidence as to the actual exclusion of other Aboriginal people or non-Aboriginal people from the Overlap Area’. The Ngarla say that they have never contended that the test is one of “subjective belief” in a right. Rather, the Ngarla submit, there can be real acknowledgment and observance of a right under traditional law and custom, notwithstanding that the evidence reveals that the Ngarla have not, since European settlement, enforced a right. The Ngarla acknowledge that evidence of actual enforcement or attempts at enforcement may be strongly indicative of the existence of a normative rule but say that it is not necessary that such evidence exists.
690 The Ngarla submit that the position is no different to evidence in relation to other native title rights, such as a right to hunt (referring to Ward at [63]–[64]; De Rose (No 1) at [316]–[326]). However, the passage cited from Ward is in the context of the connection requirement. De Rose (No 1) refers to this passage from Ward also in the context of connection and whether the connection could be maintained in circumstances where there has been absence from the claim area.
691 The Ngarla also cite Commonwealth v Yarmirr (2001) 208 CLR 1 at [16], where the majority of the High Court said:
Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders. The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions.
692 The Ngarla submit that these concepts were recognised by Finn J in Akiba (No 3) at [171] and [173] where his Honour said:
[171] Second, what are laws and customs? The plurality judgment in Yorta Yorta HC touched on this subject helpfully, but not conclusively: at [41]-[42]. Having noted the jurisprudential debates the “laws and customs” terminology might provoke, but also the lack of any need to distinguish between what is a matter of traditional law and what is a matter of traditional custom, the judges indicated (at [42]):
[42] … 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. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.
In [Harrington-Smith] at [996]…, Lindgren J enlarged upon this by reference to the following comments of Professor H.L.A. Hart, in The Concept of Law (OUP New York, 1994) in relation to “rules” (at p 57):
What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of “ought”, “must”, and “should”, “right” and “wrong”.
…
[173] After discussion with counsel, I have settled upon the following working definition of “custom” as suited to the distinctive circumstances of this matter. It is that “customs” are accepted and expected norms of behaviour, the departure from which attracts social sanction (often disapproval especially by elders) …
693 The State submits that the test for exclusive possession is a more rigorous one, that:
… proving exclusive possession native title requires "real acknowledgment and observance" of laws and customs giving rise to exclusive possession and "effective" exclusion (by which the [State] means at least a reasonable degree of practical assertion and action by the members of the group claiming the right and some degree of acknowledgment or acceptance by those subject to it: complete enforcement of exclusive possession is not required). Subjective belief or knowledge is relevant, but there must be these other objective elements to the test for exclusive possession. The test is traditional laws and customs acknowledged and observed, not just belief.
694 The State adds that a litigant should not be able to succeed in establishing land ownership merely by testifying that they think the right exists.
695 The State does not submit that a right of exclusive possession must have been strictly or mostly enforced in order to be recognised and acknowledges that in some circumstances, enforcement and physical exercise of right can lapse to a greater or lesser degree and not necessarily be fatal. However, the State submits, the exceptions and allowances made in particular cases on the basis of particular facts should not be expanded.
696 It is necessary to consider whether there has been evidence of real acknowledgment and observance of traditional laws and customs since sovereignty (Mabo v Queensland (No 2) (1992) 175 CLR 1 at p 60; Bodney v Bennell at [179] and [186] and Hayes v Northern Territory (1999) 97 FCR 32 at [53]). For example, in Hayes v Northern Territory at [53], Olney J found that the traditional laws acknowledged and customs observed did not extend to exclusive entitlement. The evidence in that case did not support the proposition that the claimant groups, in practice, enjoyed, nor that they claimed the right to, exclusive possession and occupation, use and enjoyment of the country. There was no evidence that others had sought permission to enter the land or establish a permanent residence, or that, in recent times, persons had been excluded form entering or remaining on the claimed land.
697 In Yarmirr at [90], the majority in the High Court observed that before examining whether there was a demonstrated capacity to exclude others, it was necessary that the evidence established a right, under the relevant traditional law and custom, to exclude other persons. In that case, there was evidence about the need to seek permission before entering the claimed area, but that the traditional requirement to seek permission only applied to Aboriginal people. The majority’s reasons at [92]–[93] accepted that evidence of the need for Aboriginal people to seek permission does not, alone, demonstrate an entitlement under traditional law and custom to exclude, as the claimants chose, anyone and everyone from the claimed area. Further, there was a “fundamental inconsistency” between an asserted native title right of exclusive possession to the exclusion of all others and common law public rights and they could not stand together (at [98]).
698 In that case, the trial judge considered that the evidence was not sufficient to support a claim of exclusive possession. At its highest, the evidence suggested that members of the claim group would on occasion seek permission, and by inference, though the evidence was not strong, that other Aboriginal persons probably did likewise (at [87]). The High Court considered that the trial judge understood the evidence as ‘not revealing any assertion of a right, under the relevant traditional laws and customs, to exclude such persons. Only if there had been some asserted right to exclude would questions of capacity to enforce have arisen’. The majority of the High Court upheld the trial judge on this point (Yarmirr at [86]–[93]).
699 The Ngarla contend that evidence that members of a society have knowledge of laws and customs can be prima facie evidence that the laws and customs are acknowledged and observed. They submit, in effect, that evidence that by traditional law and customs, they are acknowledged as having a right to exclusive possession and a right to permit entry or exclusion is sufficient to establish that right. They rely on De Rose (No 1) at [335], where the Full Court at [335] commented on the necessary analysis of the statutory concept of traditional laws acknowledged and customs observed. The primary judge had drawn a ‘sharp distinction’ between knowledge of traditional laws and traditional customs (which he accepted was present) and adherence to these laws and customs (which he thought had eroded away). In De Rose (No 2) the Full Court considered that the “knowledge” of the claimants, which was reflected in their performance of traditional site specific ceremonies and songs, and their apparently genuine belief in the significance of those ceremonies and songs, was probative of their continuing acknowledgment and observance of traditional laws and customs.
700 The Ngarla also rely on Western Australia v Ward (2000) 99 FCR 316 (Ward (FC)) at [243] where Beaumont and von Doussa JJ said:
… Acknowledgment and observance may be established by evidence that traditional practices and ceremonies are maintained by the community, insofar as that is possible, off the land, and that ritual knowledge including knowledge of the Dreamings which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation. Evidence of present members of the community, which demonstrates a knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.
701 The Ngarla submit that evidence that members of a society have knowledge of laws and customs can be prima facie evidence of the acknowledgment and observance of those laws and customs, even if the acknowledgment and observance is attenuated due to the circumstances of European settlement. The Ngarla say that this is not inconsistent with Yorta Yorta at [51]–[52], as they say that the majority of the High Court was there speaking of the situation where there was mere knowledge of laws and customs and the society had ceased to exist.
702 However, Ward (FC) does not stand for the proposition that mere knowledge of laws and customs is sufficient where practical acknowledgment and observance has been attenuated, by European settlement or otherwise. The Full Court mentioned evidence of ritual knowledge as well as evidence that traditional practices and ceremonies are maintained. Further, the Full Court was discussing “connection”, rather than rights recognisable under s 223(1)(a) of the NTA, specifically acknowledgment and observance of traditional laws and customs giving rise to a right of exclusive possession. Subsequent cases that have cited this passage of Ward (FC) have considered it relevant to the question of connection (see Bodney v Bennell at [169] and Neowarra at [348]). Significantly, Ward (FC) was decided before the High Court’s decision in Yorta Yorta. As to knowledge alone, Gleeson CJ, Gummow and Hayne JJ asked in Yorta Yorta: ‘Has the society ceased to exist? Does not the survival of knowledge of the traditional ways suggest that it has not? Or is it shown that, although there is knowledge, there has been or is no observance or acknowledgment?’. Yorta Yorta suggests that mere knowledge is not ‘acknowledgment and observance’ and the fact that it is the effects of European settlement that have caused the loss of the law or custom is not relevant (at [52] and [90]). Justice Lindgren in Harrington-Smith at [936] said that “mere knowledge” fell short of both acknowledgment and observance.
703 The test for exclusive possession must be traditional laws and customs acknowledged and observed, not just belief that they should be or that they might be. In De Rose (No 1), the Full Court said that the knowledge of the claimants was reflected in their performance of traditional site specific ceremonies and songs, and their apparently genuine belief in the significance of those ceremonies and songs. Mere knowledge of a law or custom is not sufficient.
Exclusion based on role as “gatekeepers”
704 The Ngarla also rely on Griffiths v Northern Territory (2007) 165 FCR 391, where the Full Court held that there was more than one basis upon which a right of exclusive possession could be made out. At [127] the Full Court said that it was not necessary for a finding of exclusivity that the group should assert a right to bar entry to their country on the basis that it was “their country”. The Full Court said (at [127]) that:
The question of exclusivity depends upon the ability of the appellants effectively to exclude from their country people not of their community. If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have, in our opinion, what the common law will recognise as an exclusive right of possession, use and occupation. The status of the appellants as gatekeepers was reiterated in the evidence of most of the indigenous witnesses and by the anthropological report which was ultimately accepted by his Honour. We would add that it is not necessary to exclusivity that the appellants require permission for entry onto their country on every occasion that a stranger enters provided that the stranger has been properly introduced to the country by them in the first place. Nor is exclusivity negatived by a general practice of permitting access to properly introduced outsiders.
(emphasis added)
705 From Griffiths, control of access to country flowing from spiritual necessity because of the harm that “the country” will inflict upon unauthorised entry will support a determination of exclusive rights where the evidence also demonstrates that those sanctions are mediated through the claimant community in their acknowledgment and observance of those laws and customs. The evidence in Griffiths was to the effect that, while those within the community were generally free to move between country areas, those outside the community should, and did, ask permission before entering the country, as they feared danger from the countryside and lacked the knowledge of the correct manner of speaking to the spiritual powers in the land (Griffiths at [73]–[77]). This evidence was supported by a number of witnesses, by reference to consultations about access to land and spiritual sanctions actually being visited upon unauthorised entry (see, for example, Griffiths at [80]–[82] and [88]).
706 Griffiths is not authority for the proposition that knowledge or belief that a group can exclude persons, or even that there is a right to exclude persons under a normative rule, absent any practice or assertion, is sufficient to establish a right of exclusive possession. The evidence in Griffiths is of a higher order than mere knowledge or belief.
Acknowledgement and observance of laws and customs in relation to permission
707 The question of acknowledgment and observance of laws and customs in relation to permission, that is, whether there is an extant normative rule that access to or use of land or waters by persons who are not the native title holders for a particular area requires the permission of the native title holders, has been considered, relevantly in a number of cases.
708 In Akiba (No 3) Finn J said (at [257] and [301]):
[257] … Importantly for present purposes, the Applicant contends that what was and is done in a community’s waters by its members was and is done in virtue of their ancestors’ original occupation, that it is done in accordance with, or in the exercise of rights under, traditional laws and customs. Such is not the case with other users of the waters of the Strait. I accept this and I equally accept, as did Sundberg J in Neowarra at [310] that a society’s normative system containing laws and customs relating to access to, and use of territory, do not cease to embody such laws and customs because others who are strangers to that society are unaware of, disregard, or simply do not accept those laws or the strictures they impose …
…
[301] Finally, as I have previously indicated, I do not consider that the permission requirement ceases to be embodied in the Islanders’ laws and customs because it is disregarded by, and cannot be enforced against, strangers to their society: see Neowarra at [310].
709 In Neowarra at [310], Sundberg J held that:
The permission for access custom is still observed for the purposes of s 223(1)(a). It would be wrong to approach the analysis on the basis of whether or not non-Aboriginal people respect the custom. Certainly, many Aboriginal witnesses complained, with different degrees of heat, about the non-observance of the custom by white people, thereby asserting the existence of the custom and deploring its non-observance by white intruders.
710 His Honour considered that in determining whether the custom of being asked for permission to enter a stranger’s land had been modified or terminated ‘it is appropriate to take into account all the circumstances in which the claimants are placed’ (at [310]). The evidence was that while non-Aboriginal strangers did not ask for permission, the ‘general tenor’ of the evidence was that Aboriginal strangers did, in fact, seek permission and that, apart from non-Aboriginal strangers, the system appeared in practical terms to operate in accordance with the normative rules of the society (at [309]). Justice Sundberg considered (at [310]) that most Aboriginal people respected the system, though the dispersal of some of the community meant that there were sometimes practical difficulties in observing it (at [310]). The fact some members of the society flouted the rule did not mean that the custom had been lost. Justice Sundberg considered that ‘it would be unworkable and unreasonable’ to expect the observance of a custom such as being asked for permission to enter land, to continue unaltered in the changed circumstances of that case (at [310]). His Honour noted the evidence of some witnesses who said it was more than just good manners and the countervailing submission that a number of witnesses said that it was just good manners but did not indicate the effect of any such conclusion.
711 The Ngarla contend that the general history of the Overlap Area may be of some relevance to the issue of whether there has been acknowledgment and observance of laws and customs relating to permission, citing Gumana (2005) in support. The evidence in that case was that permission was required as a matter of Yolngu law. While it was acknowledged that such permission would usually be assumed and withdrawal would be viewed as a significant break in friendly relations, the evidence was that the permission could be withdrawn (at [206]). The Northern Territory submitted that, as many persons entered the land without permission, the rights were not rights of exclusive possession. Justice Selway held at [203]–[213], and in particular at [208], that this misunderstood the issue. The question was one of fact: is there a relevant tradition, and what is it? Justice Selway said ‘in this case there has not been any submission that the witnesses were not telling the truth. If the persons who know the relevant Aboriginal tradition give evidence to the Court that it consists of a right to exclude, then save for issues of credit or misunderstanding I can think of no reason why I should not accept their evidence’. At [212]–[213], Selway J found that the fact there was evidence of persons entering country without permission where it was impossible to obtain it, was not evidence that there was no traditional norm requiring permission, ‘any more than the fact that people break the law by speeding proves that there is no law against doing so’. His Honour said (at [213]):
[I]t seems to me that the actual practice of the claimants and their ancestors in relation to European visitors is consistent with a right of exclusive possession. Up until at least the 1930s the Yolngu people asserted their rights to land by the exercise of force. Thereafter they used what means were available to them to assert their rights. They made their paintings and sent them to the federal Parliament. They took the political and subsequently legal steps available to them to enforce those rights. Until the decision of the High Court in Mabo they could obtain little in the way of assistance from the courts. Nevertheless, in Milirrpum they attempted to do so. This case is merely the latest aspect of a more protracted campaign. For my part it is difficult to imagine what more the Yolngu people, including the claim groups, could or should have done lawfully to enforce their rights.
712 Justice Selway also said (at [211]):‘It is not inherently unlikely that a person may have a legal right to exclude, but that others are entitled to assume that they have permission to enter and use the land in the absence of any express exclusion’.
713 In Hayes v Northern Territory, Olney J drew attention to the evidence that, as between themselves, Aboriginal people may be expected to seek permission before embarking on activities on land, but there was no evidence that in recent times any Aboriginal person or group had been excluded from entering or remaining on the land, or that Aboriginal or non-Aboriginal persons sought permission to enter on the land or to establish a permanent residence there.
714 In Daniel, many Ngarluma and Yindjibarndi people thought that others should ask their permission to access or conduct various activities on the claim area (and some people occasionally did). However, Nicholson J found that this was insufficient to establish a right to control access to the area and said (at [292]) that:
My impression of the evidence is 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.
Conclusion
715 The Ngarla submit that a right of exclusive possession has been recognised in many native title determinations throughout Australia, including in the coastal Nyangumarta consent determination (adjacent to Ngarla) (Hunter). The State notes that in addition to Brown (No 1), all of the other determinations of native title made in the Pilbara have been determinations of non-exclusive rights (referring to Daniel v State of Western Australia [2005] FCA 536; Thudgari; Hayes on behalf of the Thalanyji People; and Hughes). While acknowledging that these cannot determine the outcome in this proceeding, the State says it is consistent with its submissions about the nature of Pilbara land-holding groups and the impact of European settlement upon the region, including the breakdown of the local descent group system.
716 It is not in dispute between the State and the Ngarla that real acknowledgment and observance is required. The issue between them is the necessary evidence of acknowledgment and observance. The Ngarla say that what must be demonstrated on the evidence is the normative rule. They say that a law or custom can be acknowledged or observed, notwithstanding that there is no evidence that it has been enforced or complied with. The Ngarla refer to and rely on previous decisions in which there has been acknowledgment and observance of a law or custom, notwithstanding difficulties in actual enforcement.
717 While the cases referred to by the Ngarla and the State are of interest, the question of exclusive possession is determined by the evidence. It is helpful to consider conclusions reached on exclusive possessions in other cases, but each case must be viewed in its own context. I also note that three of the cases referred to by the State were consent determinations.
718 Mere knowledge of a law or custom requiring permission or of control of access is not sufficient for a group to have a right of exclusive possession. There must be some real acknowledgment or observance, although evidence of actual enforcement or actual exclusion is not necessarily required. Evidence that there is a normative rule, that persons do ask for permission even if that permission is given as a matter of course, attempts at enforcement and/or assertions of the right to control access, may be sufficient. However, each case will be dependent upon its own facts to determine the extent of acknowledgment and observance of the law or custom.
The evidence in this case generally
719 The Ngarla submit, in summary, that the evidence from Ngarla witnesses, which should be accepted, is to the effect that a law or custom of exclusive possession is still acknowledged and observed, albeit it is generally not enforced because it has been unenforceable in practice. The Ngarla say that the evidence in this case is not relevantly distinguishable from other case in which exclusive possession has been accepted.
720 The State submits that there is ultimately insufficient evidence to support the Ngarla claim to exclusive possession. The State warns that the frequent use of the word ‘permission’ connotes, in context in this case, evidence of what ‘should’ or ‘could’ happen, rather than what does happen by reason of European settlement and its effect on the pre-existing traditional laws and customs. The State does not say that the Ngarla witnesses should not be believed, but says that, as a matter of human nature, a person who is asked whether others should ask permission to do something which affects them is likely to say “yes”. The latter speculation is not really relevant and does not, in the absence of cross-examination, derogate from the evidence.
721 The State says that in other cases in which exclusive possession has been found, in particular Neowarra and Griffiths, the evidence was stronger or of a much higher order than the evidence in this case. The evidence demonstrates, the State says, that Ngarla people have not sought, nor been practically able, to acknowledge or observe traditional laws or customs giving rise to exclusive possession for many years. The State says that Ngarla people have long ago accepted the reality that they cannot control access to their land and, rather than seeking to exclude others, they have welcomed them and formed convivial relationships with them.
722 Fundamentally, the dispute between the State and the Ngarla is as to whether:
(a) the evidence supports actions that have been taken rather than mere belief as to what should happen; and
(b) there is observance of a traditional Ngarla right to exclusive possession.
Evidence of a right to exclusive possession at sovereignty
723 The Ngarla must demonstrate that a right to exclusive possession was possessed as a right under traditional law and custom at sovereignty.
724 I accept the Ngarla submission that the Court is entitled to draw inferences about the content of the traditional laws and customs at sovereignty from contemporary evidence and that if the evidence establishes a contemporary normative rule, it may be reasonable to find that such a normative rule existed at sovereignty (Yorta Yorta at [80]; Ward (FC) at [240]; Gumana (2005) at [201]–[202]; Harrington-Smith at [1297]). In Gumana (2005) at [201], Selway J said that the mere assertion is not sufficient to establish continuity of tradition. But, where there is a clear claim of continuous existence of a custom or tradition that has existed at least since settlement supported by credible evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had “always” been observed, in absence of evidence to the contrary, the inference can be drawn that it existed at sovereignty. This did not appear to be at issue on appeal and was applied in Griffiths and Sampi.
725 The Ngarla rely on the evidence of Dr Smith, who considers that the laws and customs as they apply to land tenure today were unlikely to have been significantly different at sovereignty. Dr Smith draws the inference that at sovereignty, permission was required by non-Ngarla people to enter Ngarla land, based on the following:
The Ngarla consult with, and are consulted by, other land owners about permission to access and use country.
In keeping with Ngarla law and custom, ‘in addition to consultation regarding access, it is a right of Ngarla people that they have some control about what happens on country’.
The Ngarla belief that some mythological beings assume a physical presence at specific sites, and the prevention of injury to strangers is one reason why the Ngarla group insists that outsiders must seek Ngarla permission to access Ngarla country.
726 The Court is entitled to draw inferences about the content of the traditional laws and customs at sovereignty. The inference that a law or custom existed at sovereignty in the evidence by Dr Smith is drawn in relation to the land tenure system. Although that is relevant to exclusive possession, Dr Smith does not directly draw the inference that the laws and custom of Ngarla exclusive possession existed at sovereignty.
727 The State contends that there is insufficient evidence to support a finding that the Ngarla people held rights amounting to exclusive possession according to traditional laws and customs at the time of sovereignty, whether this be held by the Ngarla people as a whole or by sub-groups or individuals. The State also accepts that there is insufficient evidence to support a finding that the Ngarla people definitely did not have exclusive possession.
728 The State contends that if any right of exclusive possession is to be inferred from the evidence, the right resided with the local descent group. The State relies on the experts’ comments on the Radcliffe-Brown land tenure model, which refers to the country of a “local group”.
729 While there was general agreement among three of the four experts that this model applies to the Ngarla, it is not clear from the evidence whether the “local group” applied to Ngarla descent groups or, if it did, how the particular content of Ngarla traditional laws and customs gave rise to a right of exclusive possession, extrapolated back to pre-sovereignty, by reason of the application of the model.
Consideration
730 I have previously accepted that the evidence demonstrates that the Ngarla have a system of runs and estates. I am prepared to draw the inference that there was, under Ngarla laws and customs, a system of runs and estates and land ownership that existed in the Overlap Area at sovereignty.
731 From the evidence, it would seem that it is the local descent group has the right to make decisions about a particular run, according to the customs and traditions of the wider Ngarla group. Within each descent group, there is a senior person who has the authority to speak for that country. It is not clear how this interacts with communal Ngarla rights in the right to speak for Ngarla country, either now or at sovereignty. For example, Dr Smith says that a ‘principle of ownership operates at the communal level in the sense that all Ngarla members ‘have a say’ in affairs that relate to Ngarla land and waters’.
732 The expert evidence does not enable me to reach a firm conclusion as to whether any right of exclusive possession lies with Ngarla people generally or with a local descent group, either now or at sovereignty. However, the evidence does lead to the conclusion that the Ngarla (generally, or the descent group), had exclusive possession at sovereignty, in that there was a restriction on non-Ngarla people entering on Ngarla land without permission.
Evidence of a contemporary right of exclusive possession
733 The Ngarla must also demonstrate that they have continued to acknowledge and observe the laws and customs that give rise to the right of exclusive possession from sovereignty until the present.
734 The evidence referred by both the Ngarla and the State is similar in many respects to that evidence that has been discussed previously on the question of whether the Ngarla have given the Warrarn “permission”. The Ngarla rely on the evidence of permission as demonstrating that they have a right of exclusive possession and the State again says that the evidence does not show that there has been “permission” as such. It will be necessary to repeat some of this evidence in order to consider the evidence, and the submissions of the parties on that evidence, in the particular context of the question of exclusive possession.
735 The evidence on which the Ngarla rely to establish a right of exclusive possession centres on three main subjects:
That the Ngarla people have a right to speak for the country generally;
That Ngarla people have an obligation to look after and protect the country as “gatekeepers”; and
That non-Ngarla people should ask permission before entering Ngarla land.
736 As to the latter, the Ngarla submit that they have acted, and do act, on the belief that such permission should be sought and that this is an extant law and custom, albeit that it is not always enforceable in practice. They rely on evidence of the permissions that have been given in the past for the conduct of Law ceremonies at Strelley and on evidence from Dr Smith, Charlie Coppin and Stephen Stewart of previous requests for permission to access Ngarla land to collect bush medicine, to camp or to work.
737 Although the State agrees that the Ngarla people have continued to acknowledge and observe traditional laws and customs since sovereignty, the State says that the evidence demonstrates that Ngarla people as a whole, in groups or individually, have not sought to, nor been practically able to, acknowledge or observe traditional laws or customs giving rise to exclusive possession rights for many years.
738 The State submits that the evidence supports six propositions. Each of those conclusions and contentions, in summary, will be considered in turn below, together with the Ngarla response.
739 The question of whether a traditional law or custom has been adapted is relevant to a number of these propositions. In Yorta Yorta at [82]–[83], Gleeson CJ, Gummow and Hayne JJ said that a change to, adaptation of, or interruption of enjoyment of, the exercise of native title rights will not necessarily be fatal to a native title claim. However, the key question is whether the change, adaptation or interruption is such that the law and custom can still be seen to be traditional law and custom. If the change or adaption is of such a kind that it can no longer be said that the rights or interest asserted are possessed under the traditional laws acknowledged and the traditional customs observed, that may be fatal to a native title claim.
Key evidence of Ngarla witnesses relating to exclusive possession
740 Before turning to the State’s key propositions, it is useful to consider the key evidence of Aboriginal witnesses on exclusive possession. Mr Brown gave extensive evidence on the “permission” requirement and it is useful to summarise his evidence, relied upon by both the State and the Ngarla, in some detail. He said that under Ngarla law a non-Ngarla person should ask permission to practise the Law on Ngarla country, travel through, go hunting or fishing, cut down trees or take decorations for ceremonies. He said that a stranger cannot come through and go hunting and fishing without asking him. Under Ngarla law the person would get killed if he or she did, although that cannot happen now because he would get into trouble with white law for that. In cross-examination, when Mr Brown was asked whether one would have to ask permission to hunt or fish, he said: ‘Yes. Mostly restriction on pool, going to the pool, what we call yinta’. Mr Brown described the introduction of strangers to country (milyankul). After introduction, the stranger would be told where he could and could not go and where he could fish and hunt. The stranger would be free to hunt where he was told.
741 Mr Brown also said: ‘You can let other people use the land, with permission … They can come and use their law on the land if we let them’. However, he explained that: ‘Under Ngarla law, if any other person wants to come to a family run to travel through they should ask. But if they are just passing through and don’t see you beforehand, it is ok if they tell you afterwards’. It is not clear whether this applies to Ngarla people who are not part of the local descent group or to non-Ngarla people. Mr Brown also said that ‘[i]t is wrong not to ask’. However, he acknowledged that the rule regarding the need to ask permission was ‘gradually petering off … and fading away’. He agreed that in the old days, it was a really strict rule. This acknowledgment was qualified shortly thereafter by the following statement that: ‘Yes, in a way, yes, but now get bit more younger ones coming in now. I mean, in the middle there he’s sort of fading away’. Mr Brown agreed in cross-examination that it was “OK” for a non-Ngarla person to ‘just pass through’. However, he said that the rules were a bit tougher in the ‘early days’ when there were many Ngarla people around and before white man’s law came in, and that a stranger could not then just pass through because it was ‘hostile country’. He also said that permission was not required if nobody was around to ask and in circumstances of emergency.
742 Mr Brown said that the need for permission to hunt, fish or camp on family runs applies to people from different Ngarla family runs, as well as to strangers and that ‘they do not have any different rights from people who are not Ngarla to do things in my family run without permission. They have to ask’. He said that if people want to go onto his family run for hunting or fishing, they usually mention it when they have meetings or see him and he usually says OK. Mr Brown also said if there is permission asked to build something big or permanent, such as mining or a farm, all the Ngarla people would make a decision. However, if it was on his run, he would have the most say. Mr Brown stated that if he couldn’t find the correct Ngarla person to ask before he went onto their family area he would tell that person upon his return. He said that ‘the same rules apply to white people as to Aboriginal people but they don’t take notice’. Mr Brown said that for a Ngarla person to go into another Ngarla family’s country he should get permission first. He said that because such a person is Ngarla he ‘already knows what he’s up against’ but it is nonetheless appropriate to ask. He described seeking permission as a ‘slight rule’ and ‘the polite way to do it’.
743 Charlie Coppin says that: ‘If someone who is not Ngarla wants to go to my country they got to ask me first … If someone been there on Ngarla country before mucking up, and we heard about them … we won’t let them have access. … People do come and ask me if they can camp on Ngarla country. Some people tell me after they have been camping. It used to happen a lot more than it does now. People go where they want to go now. These days they don’t ask if they are just passing through, or doing a bit of fishing and hunting. But the Law is that they should come and see me, and I will tell them they can go’. Mr Coppin also says: ‘It used to be that other Ngarla people would have to ask the owner before they could come into another family’s country. … It is different now. Now people don't have respect, they ignore the law and don’t ask – some do, but most don’t’.
744 Joe Coppin says that: ‘It is forbidden for someone who is not Ngarla to come onto Ngarla country and practise law and culture without asking for permission first. Traditionally the Ngarla have the same rights in Ngarla country for example I can build a house, go hunting or fishing in the Cooke’s country or the Lee’s country. You can tell them you are going onto their country, but we all share’.
745 Nora Cooke says that: ‘People visit the country but they aren't supposed to if they are not Ngarla. They are supposed to ask for permission first’. Ms Cook says that ‘they should ask for permission out of respect because that is our land and we have sites there’ and one should not ‘just go into other people’s country shooting things, you have to respect the people and respect the land’. She also says that that ‘[p]eople get punished if they go on the wrong side – where you are not supposed to go’ and that was why you always ask for permission about where you can and cannot go. Ms Cooke says that Ngarla can go anywhere in Ngarla country ‘because we all one mob’. While each family had a particular area that they speak for under traditional law and custom, ‘we still all Ngarla. We share. We have the same rights over all Ngarla country unless it is sacred or restricted but generally it belongs to all the Ngarla mob’.
746 Kevin Draper says that: ‘If the Warrarn mob or anyone else wants to do things on Pilu country like cut down trees or perform ceremonies, they need my family’s permission’. Pilu country is within the Overlap Area. Mr Draper mentioned that Charlie Coppin is a caretaker for Pilu.
747 Stephen Stewart says that he visits the Overlap Area regularly and says that ‘[i]f I go out there I always ask Kurtiri first because he’s the country-holder, the right one to ask permission. If I go over the Warralong side, on Njamal country, I’ll let one of the Njamal men like Joe Taylor know. I always do this’. He also says that ‘[i]f someone wants to camp on someone’s country, they must ask the people who speak for the country’.
State proposition 1: History of the Overlap Area
748 The State’s first proposition is that the historical reality of the Overlap Area and the events which have occurred in and around it argue against the objective establishment of any extant traditional law and custom giving rise to a right of exclusive possession. While the State accepts that the history of the Ngarla people and the area may be taken into consideration, the State submits that the historical facts are such that there is no longer any real acknowledgment of their traditional laws and any real observance of their traditional customs which would give rise to a right of exclusive possession (referring to Yorta Yorta at [107] and [120]). The State says that the facts of this case are relevantly analogous to Daniel and distinguishable from Neowarra and Griffiths on that basis.
749 Many of these historical changes have been agreed by the parties in the Agreed Facts (see Appendix A). Key elements of that asserted change have been:
There was significant Ngarla depopulation, as a result of a variety of factors including disease and conflict, by as early as 1911. There has been a change to the number of Ngarla family groups.
There were successive waves of non-Aboriginal immigrants coincident with pastoralism and pearling; the establishment of ports in Port Hedland and Condon; and cycles of often intense mining activity.
In addition, there were increasing numbers of Aboriginal immigrants, in particular, an increase in migrants from the desert areas. Mr Brown acknowledged that the Nyangumarta people had come to Ngarla country ‘long time ago’ and that they were ‘no strangers’.
Increasing limitations were placed on access to country by the pastoral industry. The Ngarla peoples’ own access to country was (and still is) subject to the permission of pastoralists. For example, Mr Brown said that the pastoralists at De Grey usually say no unless they know the Ngarla people. He also said that it was now difficult for Ngarla people to get out on their country to look after it.
The Ngarla have no control over the pastoral lessees under the common law. Doris Eaton, for example, accepts that the Warrarn, as pastoral lessees had the right to build a house on Strelley. However, Doris Eaton went on to say that the Warrarn would have to ask permission for other activities, such as holding ceremonies or cutting down trees.
Convergence on the Pilbara by Aboriginal people during the pastoral strike in the 1950s. Charlie Coppin says that as a result of the strike, Aboriginal persons from all over the Pilbara came into the Hedland area. Many Ngarla were themselves excluded during the pastoral strike by the pastoral lessees.
The State says that while the land was acknowledged as Ngarla or Njamal country, there was little suggestion that visitors were expected to ask permission to be in the area in this time. The State says that the evidence concerning this period was only in relation to permission to conduct Law business. There is no direct evidence of the seeking of permission to enter land in this time period, other than the evidence already referred to.
More recently, Ngarla country has been subject to much development related to the mining industry. Again, the State says that the Ngarla people have had no influence over this and that it is only very recently that the Ngarla have been consulted about mining activity. Mr Brown, for example, stated that the site at Mt Goldsworthy was blown up and ‘[t]here was nothing we could do about it then. We did not find out until after it had happened’. However, Mr Brown also said that ‘I have told developers or miners that they cannot mine in places’ and he gave examples of where the Ngarla have prevented mining, had done everything in their power to stop mining, or had reached an agreement with the mining company (see further below at [814]–[822]).
750 The Ngarla point to cases where historical changes have not precluded a continuing right to exclusive possession.
751 That there have been changes is agreed. It is necessary to examine the consequences of those changes on subsequent practices to understand if the “tide of history” has washed away that right.
State proposition 2: Permission is not sought or if it is sought, it is more a matter of respect
752 The State’s second proposition is that while many Ngarla people think non-Ngarla should ask for permission, there is little evidence of permission actually being sought at all or, if sought, it is sought after the fact. To the extent that there is any form of “permission”, the State says that it appears to be sought as a matter of courtesy and respect, rather than as recognition of a right to control access to land. There does not appear to be any real consequences of failing to observe the relevant protocols. Moreover, the State says that there is no evidence of any request for entry ever being refused.
753 From the key evidence referred to above at [740]–[742], the State emphasises the following factors:
Witnesses such as Charlie Coppin gave evidence that some people asked for permission after the land has been accessed. The State says that Charlie Coppin is the only witness to say he has actually been asked for permission in this way and that he does not say who had asked, when, or in what circumstances. The State emphasises that Charlie Coppin says that ‘[t]hese days [people] don’t ask if they are just passing through, or doing a bit of fishing or hunting’ and that [i]t is different now. Now people don’t have respect’.
While the State’s second proposition is about non-Ngarla persons and permission, it appears that Charlie Coppin is referring to permission as between Ngarla descent groups. He also says that some still do follow that Law.
Nora Cooke says that while non-Ngarla people ‘are supposed to’ ask for permission before visiting Ngarla country, they visit without doing so and that people should ask for permission ‘out of respect’.
However Ms Cooke also says that people get punished by the people and spirits if they go on the wrong side.
Witnesses have acknowledged that the old rules have gone and that people no longer ask for permission. Mr Brown said that previously, a person could be killed for failing to seek permission but acknowledged that the rule regarding the need to seek permission was ‘gradually petering off … and fading away’. The State says that there is no evidence that anyone ever sought permission from Mr Brown to enter the Overlap Area (or Ngarla country generally) and the Ngarla do not point to any such evidence.
754 Additionally, the State says that:
Mr Brown acknowledged that the Ngarla people’s own access to country had been subject to the permission of non-Aboriginal persons, such as pastoralists and that this made it difficult for Ngarla people to get onto country and look after it.
Stephen Stewart suggested that before he was born (approximately 1925), and when he was young, Nyangumarta and other non-Ngarla Aboriginal people did seek permission from Ngarla people to stay and work on pastoral stations in Ngarla country. However, the State says that there does not appear to any suggestion that this practice continued past Mr Stewart’s youth.
755 The Ngarla contend that the second proposition confuses the existence of a normative rule with its enforceability in contemporary circumstances.
756 The Ngarla refer to the evidence of the Aboriginal witnesses set out above as evidence of the law or custom of permission being required to access Ngarla country. Dr Smith’s evidence is that such a Ngarla law and custom exists. The Ngarla refer to the evidence of Dr Smith discussed above at [726], although this evidence relates to the law at sovereignty.
757 The Ngarla say that they have acted, and do act, on the belief that permission is required. They rely on:
The evidence of permissions or access that had been specifically given to the Warrarn. Mr Brown stated, by reference to the Warrarn, that when someone mentioned that ‘somebody gave them the country … they couldn't have gave them the country; they must have gave them a visa. … If you come from England, you only get a visa for six months. If it runs out, you've got to go’. In their joint statement, Charlie Coppin, Stephen Stewart, Joe Taylor and Joe Coppin say in relation to the Warrarn, ‘we let them stop with us’. However, in context, this observation relates to participation in Law ceremonies.
The evidence in relation to Law ceremonies, as examples of permission being given (for example Strelley and rainmaking sites).
Dr Smith’s evidence that he witnessed two senior Nyangumarta women conferring with Charlie Coppin and Jeffrey Brown seeking permission to collect bush medicine on Ngarla country.
Charlie Coppin, who states: ‘people do come and ask me if they can camp on Ngarla country’.
Stephen Stewart, who remembers that when Nyangumarta and other mobs came to work on Pardoo and other stations, they had to ask permission from the Ngarla families whether they could stay there.
Mr Brown said that he would go and ask Charlie Coppin if he wanted to fishing in Makanykarra pool or, if he could not find him, tell him when he got back.
758 The Ngarla submit that the evidence is that non-Ngarla persons should seek permission to enter or conduct activities in Ngarla country and that this is generally rooted in the pre-sovereignty rules regarding permission to enter Ngarla estates.
759 The evidence as to a current practice or acknowledged rule whereby non-Ngarla persons seek permission to enter Ngarla estates is equivocal. Permission is sought for the purpose of conduct of, and attendance at, Law ceremonies. There is also limited evidence as to the ability to hunt or fish and the taking of resources for use in ceremonies. However, it is not clear that non-Ngarla persons seek permission or, indeed, that the Ngarla expect permission to be sought for other activities.
State proposition 3: Non-continuation of local descent groups
760 The State’s third proposition is that the local descent group system that was in operation at sovereignty has ceased to operate. Since the local descent groups were the only entity which may have held exclusive possession rights at sovereignty, their loss has been accompanied by the loss of that right. The State contends that the evidence as a whole suggests that the local descent group system has functionally broken down and that the traditional laws and customs which gave rise to a right of exclusive possession held by those local descent groups at sovereignty are no longer acknowledged or observed. The laws and customs which have survived, are, the State submits, ‘merely remnants of the original system which lack the consistency, coherency or practical effect to constitute a normative system giving rise to a right of exclusive possession’.
761 The evidence supports the Ngarla contention that there is acknowledgment and observance of laws and customs generally regarding responsibility for and inheritance of estate areas and that there is a relationship between those areas and particular Ngarla family groups. For example, Mr Brown gave evidence of 34 descent group areas and their geographical areas. He could identify the caretakers and location of each group about which he was asked. Mr Brown also spoke about what can and cannot be done on runs, and who would need to ask for permission for particular activities. Charlie Coppin identifies his estate by identification of its boundaries, totems, stories, sites, songs and ancestors. Nora Cook speaks of inheriting the Jinkiri clan land from her father. She says that her children would inherit her country and that she has shown her children the country.
762 However, the evidence is less clear whether there has been acknowledgment and observance of laws and customs regarding permissions between estate groups or whether the laws and customs regarding local descent groups are “traditional” laws and customs that have been acknowledged and observed by the Ngarla since sovereignty.
763 The State says that there has been a structural change to the local descent group system, due to the fact that effectively only four Ngarla families remain to care for 34 identified local descent groups. The State says that this is not a continuation of the local descent group system and that the local descent groups have coalesced into communal ownership, functionally maintained by a few senior individuals. This represents a significant departure, the State says, from the position at sovereignty whereby a person would only be a member of one local descent group and where membership was transmitted patrilineally. The State submits that, even if a local descent group system remains, there is little actual acknowledgment or observance by the Ngarla people of those traditional laws and customs under which local descent groups had a right of exclusive possession over their respective areas. The State says that the local descent group system has not continued substantially uninterrupted since sovereignty.
764 The Ngarla contend that there has been continued observance of customs and laws regarding estates and that there has been an adaptation of traditional laws and customs in recognition of community responsibility for deceased estates. The Ngarla say that there is evidence of the continued acknowledgment and observance of a permission rule as between Ngarla families and that, if the evidence does not clearly establish this, there may have been an adaptation of the rules about permission among Ngarla People, at least in relation to deceased estate areas. The Ngarla say that if the laws and customs continue to be acknowledged and observed, particularly in relation to the giving of permission, then this powerfully demonstrates that the Ngarla people’s communal title includes a right of exclusive possession.
Evidence on the breakdown of descent groups and system of communal ownership
765 Dr Smith suggests that the Ngarla people have identified 34 local descent groups within Ngarla country. Currently, only four surviving family groups comprise the claimant group (the Browns, the Cookes, the Coppins and the Lees) and Dr Smith suggests that these surname sub-groups correspond with local descent groups. The evidence is also that these local descent groups speak for a number of different estates. For example, Mr Brown and Jeffrey Brown speak for different estates. Inheritance of a run or estate is based on descent. A person could go as far back as grandparents and possibly great grandparents to inherit a local descent group area.
766 A person may have a number of local descent group areas for which he or she is responsible. For example, Mr Brown had three local descent group areas, which he described as ‘my runs’ that he had inherited by descent from his father, from his mother and from his mother’s mother. He had four deceased group areas which he had come to care for on behalf of the wider Ngarla group, by himself or with other Ngarla persons, by way of genealogical connection or by having responsibility for a neighbouring run. Mr Brown had another local descent group area for which he said he was the only person with a genealogical connection, although it is unclear whether he inherited this run or was its caretaker. Charlie Coppin has two local descent group areas which he has inherited by descent, from his father and from his mother’s father. He also has five local descent areas which he has come to care for on behalf of the wider Ngarla group, by himself or with other Ngarla persons, by way of genealogical connection or by having responsibility for a neighbouring run. This includes Pilu (in the Overlap Area), which he looks after for Kevin Draper, to whom the run belongs but who has chosen to identify as Kariyarra.
767 In the case of deceased local estate groups, the estates are ‘inalienably connected’ to deceased families according to Dr Smith. In a practical sense, Dr Smith says that the ownership or caring for those areas may devolve to the communal ownership of the wider Ngarla group, while an individual may take the lead in maintaining that country. In the case of deceased estates, the basis on which a person may come to have responsibility for a local descent group area is varied. That individual may have that role as a result of a genealogical connection and seniority. Additionally, the role of “caretaker” may be based on having responsibility for having a neighbouring run, although the neighbouring estate may also have a genealogical connection. It seems that there may also be one or more “caretakers” for a deceased estate. There are also some local descent group areas for which no particular person has a responsibility and which the Ngarla people, as a whole, maintain. For example, Mr Brown said that Jurali was being cared for by ‘all the families’ and that ‘the Ngarla as a whole’ look after Wuyungu as, although Nora Cooke has the closest run, she does not know the land very well. Dr Smith says that if the Ngarla people cannot find a connection for someone to be a “caretaker”, then the whole of the Ngarla people have the authority to speak for deceased estates.
768 The “caretaker” does not “own” that local descent group area. Charlie Coppin says: ‘Somebody has always got to look after country. If there is no family left for a particular country, then people close to that area have to look after it. They can’t be the country owners but they can be like a caretaker. You can't replace a country owner and a country owner can’t give their country away’. Dr Smith agrees that “caretakers” can speak for the estate, but not as owner. He says that no Ngarla person without a descent connection can assert that he or she is the traditional owner for a particular estate.
Evidence of Acknowledgement and observance of the permission rule as between local descent groups
769 I have previously considered much of the evidence regarding the requirement for permission in the context of the Warrarn claim. However, the question now to be considered is more specific: whether the Ngarla acknowledge and observe the requirement for permission as between local descent groups.
770 Mr Brown described the rules of permission as between Ngarla families. The key parts of his evidence relating to local descent groups and permissions have already been summarised above at [741]–[743]. He said that a Ngarla person should ask permission when entering another Ngarla person’s country and that Ngarla people do not have any different rights to those of non-Ngarla people to do things in his area without his permission. Mr Brown also acknowledged that the requirement to seek permission was gradually fading away and that this was related to the fact that there were fewer Ngarla families today and that many of the estates had families missing.
771 The key evidence of Charlie Coppin was summarised above at [743]. In particular, it is worth noting that Mr Coppin says that it used to be that Ngarla people would ask for permission before they came into another family’s country, but now most do not. Further, Mr Coppin states that he sometimes goes into other family areas in Ngarla country without asking permission but tells them when he returns. However, he then said: ‘I often go with people for that country. I tell them I might come back there next time and they say OK. I would feel a bit bad if I went to another family’s area without telling them’. Mr Coppin also says that he would definitely ask permission if he wanted to build a house in another Ngarla family area, although there is no evidence that this situation has actually arisen. Stephen Stewart says that he visits the Overlap Area regularly and says: ‘If I go out there I always ask Kurtiri first because he’s the country-holder, the right one to ask permission’. Other Ngarla witnesses, such as Joe Coppin and Nora Cooke do not appear to recognise any requirement to seek permission before accessing or conducting activities upon the area of another Ngarla local descent group (see above at [744] and [745]). Joe Coppin and Nora Cooke belong to a younger generation than that of Mr Brown and Charlie Coppin.
Consideration
772 This evidence is, in essence, that any traditional law and custom concerning permission that may have existed at sovereignty was a permission from the “owner” of the land. This was generally seen as the local descent based group for each run. As those descent based groups have largely ceased to exist, other Ngarla persons, or the Ngarla communally, have taken responsibility for the run. The question is whether, even if permission is sought, that is a relevant permission from the traditional owner of the land and whether any change to this traditional law and custom was an adaptation.
773 The State points to the evidence that, at sovereignty, Ngarla who were not part of the descent based local group sought permission to enter that Ngarla land and that this custom has disappeared with the trend to communal ownership. The Ngarla accept that the evidence does not clearly demonstrate whether the permission rules as between Ngarla estate groups are acknowledged and observed to the same extent today as at sovereignty. They say that there may have been an adaptation of the rules about permission amongst Ngarla people, at least in relation to deceased estate areas.
774 Many of the elderly Ngarla witnesses considered that a Ngarla person should seek permission before entering the local descent group area of another Ngarla person, although they have adapted this somewhat. For example, although Mr Brown said that it was wrong not to ask permission to go hunting or fishing in another estate’s area, he also said that if he could not find the correct Ngarla person to ask, he would tell them upon his return. However, the younger generations of Ngarla witnesses, such as Nora Cooke and Joe Coppin do not appear to acknowledge and observe a requirement that a Ngarla person should seek permission before accessing or conducting activities on the area of another Ngarla local descent group.
775 The Ngarla evidence is somewhat contradictory. On one hand, they maintain that a Ngarla person must ask the descent-based owner of Ngarla land for permission to enter that person’s land or to carry out activities on the land. On the other hand, they also say that such permission is, today, frequently sought after the event or not at all. Younger Ngarla witnesses also claim that, at least presently, all Ngarla share rights in Ngarla land and that it belongs to the Ngarla people.
776 From the evidence, which is scant, while the older Ngarla such as Mr Brown, Charlie Coppin and Stephen Stewart may observe the traditional way of asking permission from the descent based holder, the younger generation do not do so. The conclusion is that, while at sovereignty there may have been laws and customs acknowledged and observed whereby permission was sought before entering upon a descent-based owner’s land and while some Ngarla may still observe those laws and customs, they are no longer widely acknowledged or observed.
777 The reason for this change is related to the necessary transition to communal caring for Ngarla land where there is no descent-based owner and/or a breakdown in the observance of traditional law and custom, even within the Ngarla themselves.
778 However, this does not necessarily preclude a conclusion that the traditional rule as to permission are no longer acknowledged and observed as between Ngarla and non-Ngarla persons in relation to Ngarla land. That is, this conclusion does not necessarily preclude a Ngarla communal right to exclusive possession of Ngarla land. The relevant question is whether the change in the local descent group system of ownership and permission is an adaptation of the traditional law and custom. In part, this question depends upon whether the current system of “communal ownership” is a structural change, or whether it is an adaptation of traditional laws and customs.
779 The State says that the current laws and customs regarding local descent groups and land ownership differ from the situation at sovereignty. At sovereignty, a person could only be a member of one local descent group, and thereby could only be associated with one local descent group area. Further, at sovereignty, membership of a local descent group was transmitted patrilineally. Since a person can claim from both mother and father, and from as far back (possibly) as great-grandparents, the State submits that a person could in theory claim eight local descent areas. Mr Brown claims ownership of three local descent areas by descent. By contrast, Dr Brunton described Radcliffe-Brown’s account, where Radcliffe-Brown wrote that it was ‘impossible for a man to leave his local group and become naturalized or adopted into another’.
780 There have been changes to the system of runs and estates since sovereignty, in particular, in the case of deceased estates. In this regard, the evidence of Dr Smith about changes since sovereignty and, in particular, about the ownership of land, is relevant. Ngarla land is presently held either by the local descent based group, or cared for by a Ngarla neighbour or relative, or by a senior Ngarla person as “caretaker”, or by the Ngarla communally.
781 Dr Smith explains that the Ngarla have coped with the depletion of their numbers and the resultant difficulties where there are no living members connected to an estate or run by assigning it to the whole of the Ngarla people who then have authority to speak for the land. That does not mean that the land is owned by persons not genealogically connected to the land because the land is, in their view, inalienably connected to the deceased estate. The land remains Ngarla country by way of an underlying communal title. Ngarla persons without a descent connection to the area cannot assert that they are traditional owners for the particular estate, but can only act as “caretakers”.
782 From the evidence:
The “caretaker” is never seen to be the “owner” of the deceased estate under Ngarla traditional law and customs. The “ownership” of the deceased estate is not transferred.
I am prepared to infer that Ngarla traditional laws and customs at sovereignty had a concept of residual communal title of Ngarla land. The Aboriginal witnesses refer to ‘Ngarla land’ or ‘Ngarla country’ and also specifically refer to a local descent group as speaking for particular land or having ownership of particular land. Under Ngarla traditional laws and customs, it seems that these two concepts of ownership are not mutually-exclusive. For example, while the person responsible for a run would have the most say, Mr Brown also said that if permission is sought to build something big or permanent, such as a mine or a farm, all the Ngarla people would make that decision. Similarly, Dr Smith says that a ‘principle of ownership operates at the communal level in the sense that all Ngarla members ‘have a say’ in affairs that relate to Ngarla land and waters’. Mr Brown said that Teddy Allen had no say in a run until there are no biological descendants left and no Ngarla people left.
I accept that the Ngarla system of land ownership at sovereignty was descent based and could not be passed outside that group. However, ownership has not been passed outside that group. Since membership of the whole Ngarla group is only by descent, the residual role of “caretaker” remains descent-based, as does “communal ownership”. The descent connection is not necessarily limited to the owners of a particular run, but extends to the Ngarla people as a whole.
783 There has been a profound effect on the Ngarla population as a result of European settlement and history. A key question is whether the present system of ownership of and responsibility for estates arises from the normative system at sovereignty, or whether there has been a substantial interruption to the acknowledgment and observance of traditional laws and customs (Yorta Yorta at [96]). While there may be change, it must find its origin in pre-sovereignty law and custom (Bodney v Bennell at [120]).
784 The State says that the passing of land outside the specific descent-based group represents a significant departure from the position at sovereignty. However, there has been no “passing of land” in the sense that ownership has been passed. I do not consider that the system of appointment of a “caretaker” or communal responsibility for deceased estates means that there has been a substantial interruption to the acknowledgment and observance of descent-based ownership and responsibility for Ngarla land. Rather, there has been an acceptable adaptation of the traditional system, in circumstances where the traditional laws and customs included a concept of communal ownership or entitlement. That is, the adaptation finds its origin in pre-sovereignty laws and customs (Bodney v Bonnell at [120]).
785 I accept that there has been an adaptation of the Ngarla traditional laws and customs regarding the system of runs and estates. The changes that have occurred represent an adaptation of the local descent group system, which does not preclude a continuing right to exclusive possession of Ngarla land by the Ngarla. However, the evidence of the adaptation of the system of runs and estates to communal ownership over certain of that land is not sufficient evidence that the Ngarla have continued to acknowledge and observe the law or custom of exclusive possession substantially uninterrupted (Yorta Yorta at [89]–[90]; Bodney v Bonnell at [96]).
State proposition 4: Ngarla people as gatekeepers
786 The Ngarla submit that there is evidence that the Ngarla are “gatekeepers”, as in Griffiths. The Ngarla say that one of the reasons why they insist that outsiders wishing to access their country seek permission is so that they can prevent spirit entities from being disturbed and prevent strangers on the country from being injured. The Ngarla contend that it follows that Ngarla People have a right of exclusive possession generally in relation to the Overlap Area. Alternatively, they say that the evidence establishes (relevantly to the Overlap Area) a specific right to control access to the Mikurrunya site.
787 The State says that only four witnesses gave evidence relevant to the factual matters discussed in Griffiths and that there is some, but very little, evidence that the requirement for permission to be sought is so that the visitors can avoid harm to themselves or to country. In other words, the evidence as a whole does not, the State submits, support a conclusion that the Ngarla are ‘gatekeepers’ in the sense discussed in Griffiths.
Evidence of Ngarla witnesses in respect of the fourth proposition
788 Mr Brown said that if a person was a complete stranger he may not give that person permission to come onto his country because ‘they don’t know the area and the proper thing to do’. He said that if a person sang to Ngarla country in the wrong language when he or she went out to a yinta pool where there was a spirit snake, that person may be drowned or eaten by the snake. The snake might not be happy, or the person may ‘get into difficulty’, or the persons might not catch any fish. Mr Brown stated that a person would have to ask permission before going to the yinta and be properly introduced. He said that there were things you have to do on Ngarla country to greet the land or waters, and that this must be done by a Ngarla person. According to Mr Brown: ‘If a stranger goes swimming in a pool in Ngarla country, the snake (Katakatara) can drown them. If I went with them I could speak to the Katakatara and they should be safe’. Kata-Katara can be appeased by being spoken to in Ngarla language by a Ngarla person.
789 Charlie Coppin says that Mikurrunya, within the Overlap Area, is a dangerous place for which he has responsibility. He also says:
If a person asks to go on my country, I might send my son along with him to show him my country … When you belong to the country you have to do things proper way. At Makanykarra pool you got to take a mouthful of water and blow, then say the words: Nyaya ngalajirri yintakapu mirta yinpa nanya kurapilu ... This means I belong to this country. When you go to any pool there is a snake in there that doesn't like strangers, so you got to say those words.
790 Charlie Coppin says that you could be eaten by the snake at Makanykarra pool, if you got too close to it.
791 Nora Cooke states that she does not fish very long at the Makanykarra river because the spirit gets annoyed and wants people to leave. Nora Cook says:
… people from other communities, they should ask for permission and out of respect because that is our land and we have sites there. … People get punished if they go on the wrong side - where they are not supposed to go. They get punished by the people and spirits. That is why you should always ask for permission about where you can and can't go when you go into a community.
792 Nancy Wilson says that if a person was not Ngarla or Aboriginal and wanted to go fishing near the main waterhole, he or she would need to go with a Ngarla person who could speak with the spirit for that person. If a person failed to do things the proper way, or went where they were not meant to go, the Dreamtime snake which lived in the waterhole could swallow that person. Ms Wilson also states that there were other bad spirits which could kill a person if he or she did not do what was meant to be done or went into forbidden areas. It is not clear from Ms Wilson's evidence whether this also applied to Ngarla people but, on the face of the evidence, it would seem so. Ms Wilson also said that there was a snake at the Makanykarra pool and says that you have to spray water and say that you belong to country, otherwise the snake can ‘smell it if you are not Ngarla’.
Evidence of spirits that may be disturbed
793 The evidence with respect to spirits that may be disturbed by or injure strangers includes:
Dr Smith repeats the essence of the evidence of Mr Brown and Charlie Coppin. He describes Kata-Katara as a dangerous snake spirit that lives in deep permanent pools in the Makanykarra area and can swallow up strangers to Ngarla country if they are not properly introduced. He says that Ngarla people can perform certain rituals to appease Kata-Katara.
As described by Dr Smith, Parlkumarra is another potentially dangerous spirit snake that is associated with rain and must not be interfered with, otherwise big rains will come. It has a physical manifestation in the Olive Python and is found in rock holes and pools throughout the Makanykarra area.
Dr Smith and Mr Brown describe Pilankujarra, a dangerous two headed spirit snake that guards jakungu, sites where a kind of edible frog are found, which can tie you up and rob you of everything.
Warlurlungu, as described by Dr Smith, are small whirlwinds that are the harbingers of malevolence.
Dr Smith and Mr Brown say that Jilyamalangu are little spirit people who play with children and then steal them away. Dr Smith says that Jilyamalangu are not very dangerous, but are frightening.
“Ngarrka” was described by Mr Brown as a god ‘that looks after us and after the country’. Ngarrka can also have destructive and punitive power. According to Mr Brown, ‘if we do not look after the country he will get angry and then the plants and animals will face extinction’. Dr Smith describes Ngarrka as an omnipotent being who resides in the sky, but does not describe Ngarrka as a dangerous spirit, unless one is cruel to an innocent creature.
Mr Brown said that Yakarnu may become nasty, with powers to harm people.
Mr Brown also said that Jinanyju is a kind of dangerous spirit woman with a little child and that Maralka is a skeleton spirit that you dream about. Jirnu-jirnura is a good spirit.
Mr Brown stated that the spirits of deceased people can play tricks on you and should be avoided and that ‘[i]t is not good to muck around near a grave or dig around there. We teach people about where they are’.
794 Kata-Katara and Parlkumarra occur in the Makanykarra area. Pilankujarra occurs at Julijangunya, Wilurrkapanya and Karralyanya. Jilyamalangu occur at Warrpikannya and Warnmarrnya, in the vicinity the Overlap Area. These are all places within the Overlap Area. There is no evidence that the other spirits occur within the Overlap Area specifically.
Consideration
795 Dr Smith says that the Ngarla people insist on strangers asking for permission. He says:
This is one reason why the Ngarla group insist that outsiders (including non-Aboriginal people, and other non-Ngarla Aboriginal people) wishing to access Ngarla country must first seek the group’s permission. The Ngarla do not wish such spirit entities to be disturbed and nor do they wish strangers to the country to be injured. Kurtiri is especially wary of strangers wandering in the vicinity of the pools in the Makanykarra area, and this explains why he often directs strangers away from the vicinity.
796 Apart from this evidence of Dr Smith, the evidence with respect to the seeking of permission so that spirit entities are not disturbed primarily relates to specific sites in Ngarla country. It is unclear from the evidence whether spiritual harm may be done because a person was not introduced to country or because the site itself is “dangerous”. Nancy Wilson’s evidence is also unclear as to whether the ‘forbidden areas’ are dangerous in and of themselves or whether the Ngarla could make them ‘safe’ for others by managing the spirits.
797 The State submits that:
The Ngarla evidence is of a completely different order to that in Griffiths. The majority of the evidence in this case did not address the reason why permission was required. If a reason was provided, it flowed from respect, not because of spiritual necessity or sanctions for unauthorised entry.
The evidence of spiritual sanctions or dangers related only to specific yinda within Ngarla country, not as to the Overlap Area as a whole. There was no suggestion that access to Ngarla country as a whole could be occasioned by spiritual harm. The State says that similar evidence in Daniel of a ritual involving blowing out water did not result in exclusive possession rights (Daniel at [1279] and [1334]).
To the extent that these examples may suggest that the Ngarla are “gatekeepers” in the Griffiths sense, the content of the relevant traditional laws and customs have not been described or explained.
798 In Griffiths, the Full Court said (at [127]) that it is not a necessary condition of the exclusivity of native title rights and interests in land or waters that the native title holders should frame their claim as sort of analogue of a proprietary right. Nor is it necessary that they:
… should assert a right to bar entry to their country on the basis that it is “their country”. If control of access to country flows from spiritual necessity because of the harm that “the country” will inflict upon a unauthorised entry, that control can nevertheless support a characterisation of the native title rights and interests as exclusive.
799 The Full Court also emphasised that the question of exclusivity depends upon the ability effectively to exclude people not of the community. The Full Court referred, in this context, to the status of the claimants as “gatekeepers” for the purpose of preventing harm to people not of their community and avoiding injury to the country. In that case, the Full Court said that a proper characterisation of the effectively uncontested evidence led to the conclusion that the claimants, as a community, had exclusive possession, use and occupation of the application area.
800 The evidence in this case does support spiritual necessity and consequential harm for unauthorised entry and contact with respect to specific sites, such as pools, on Ngarla land. The site identified in the Overlap Area is the Makanykarra pool at Mikurrunya and there are specific dangers identified regarding the spirit-snake at that pool. The Ngarla submission concerning the danger for people who enter Ngarla country without permission or without an accompanying Ngarla person is to the effect that such persons may offend or interfere with spirits associated with the specific sites. However, apart from identifying the spirits, the evidence does not establish that the Ngarla seek to prevent strangers from entering the Overlap Area to prevent spirits being disturbed. That is, there is no link between the concept of permission and dangers caused by disturbing spirits and there is little or no evidence of dangers that may be caused by disturbing those spirits. Otherwise, the dangers seem to be general and not associated with authorised or unauthorised entry, such as the Jilyamalangu. The evidence does not extend to general harm or spiritual sanction that may arise simply because of unauthorised entry.
801 The Ngarla have provided evidence to support a claim to control access to the Makanykarra pool at the Mikurrunya site. Charlie Coppin is, within the discussion in Griffiths, the Ngarla “gatekeeper”, as the Ngarla person responsible for that site. However, the evidence does not establish that the Ngarla people have exclusive possession to the Overlap Area as a whole by reason of being “gatekeepers”, nor have they explained how the Ngarla people as a whole have control of a specific site. The Ngarla people have not applied for individual rights, or rights of a sub-group within the Ngarla people. However, there is evidence that Charlie Coppin has a specific right to control access to the Makanykarra pool at the Mikurrunya site. The site would seem to be part of Charlie Coppin’s run and under Ngarla traditional laws and customs, and as the representative or owner of that run, he has the right to control access to that site.
802 The evidence establishes a specific right to control access (in the Griffiths sense) to the Mikurrunya site under Ngarla traditional laws and customs. The person who exercises that right is determined intramurally and is governed by the laws and customs of the Ngarla, being the relevant normative society.
State proposition 5: Permission is generally only sought in relation to Law Ceremonies
803 The State submits that the evidence does not support a law or custom requiring ‘permission’ to be given to non-Ngarla Aboriginal persons to have access to or to reside in an area. Apart from repeating its submission that the conduct of initiation ceremonies is a consensus process, not a matter of “permission”, which I have generally rejected, the State says that the “permission” evidence is almost completely limited to aspects of initiation ceremonies, although the State acknowledges that there were one or two references to taking flora and fauna in an unsustainable way.
804 The Ngarla submit in response that the evidence does not restrict the requirement for permission, as the State suggests, although they accept that the focus of the hearing was on the issue of permission in relation to the conduct of Law ceremonies. The Ngarla contend that the evidence is consistent with the Ngarla right to “speak for” country (referring to Ward at [14]).
805 I have already considered the evidence in relation to permission generally.
806 By way of example, the State and the Ngarla refer to the evidence of Mr Brown, referred to above at [740]–[742], but characterise his evidence differently. The State says that Mr Brown’s evidence was that permission is not required if a non-Ngarla person is just passing through or it is an emergency. The State also mentions that Ngarla people have, at times, been absent from Ngarla country for many years. The Ngarla say that Mr Brown’s evidence was that there is still a rule that permission should be sought before accessing Ngarla country, though it is not as strongly enforced as it used to be. The Ngarla also refer to the evidence of Charlie Coppin, Nora Cooke and Stephen Stewart (above at [740], [745] and [747]). The Ngarla note that ‘passing through’ has quite a different meaning now to that prior to sovereignty. “Pass through” can now mean driving through with barely any impact on country. Prior to sovereignty, it would have involved camping, hunting and taking resources. The Ngarla say that contemporary rules about passing through are not incompatible with traditional rules, albeit there may have been some adaptation post-sovereignty to technological and historical changes.
807 The Ngarla position seems to be that they accept that access for the purposes of entry and crossing the country does not require permission but that permission is required where entry will have impact on the country.
808 Evidence about permission, other than the evidence in relation to the previous propositions, centred around the permissions that were sought for the conduct of Law ceremonies. The evidence supports the proposition that permission continues to be sought by the Aboriginal groups of the Pilbara from the Ngarla to conduct Law ceremonies, including initiation ceremonies, in the Overlap Area. I note that it is not certain as to whether, in the past, permission has also been sought from the Njamal or whether the Njamal must seek permission in respect of the Overlap Area. Given that the Warrarn claim focused on rights and responsibilities accorded to leaders in the Law, it is unsurprising that the focus of the hearing and the evidence was on evidence in relation to Law ceremonies.
809 The conclusion from the available evidence is that permission is not required for entry on or access to the Overlap Area, apart from access for the purpose of participation in Law ceremonies. The evidence does support a belief, at least on the part of older Ngarla, that permission is required from other Aboriginal people for hunting, fishing and the taking of resources, including those used in Law ceremonies.
State proposition 6: Requirement to seek permission doesn’t apply to non-Aboriginal people
810 The State submits that the requirement to ask for permission does not extend, even in principle, to non-Aboriginal persons and that there is no evidence of non-Aboriginal persons being given, or asking for, permission to do anything on the Overlap Area, or in Ngarla country generally. The State points out that Ngarla witnesses generally acknowledge that prior to the introduction of the NTA, non-Aboriginal persons did not need to ask for permission before accessing Ngarla country. Although evidence was given regarding access and activities of mining companies and developers, the State says that this was in the context of involvement in the NTA future act regime. Prior to this, the State says, there was nothing that could be done to influence or control such projects.
811 The Ngarla contend that the State’s submission confuses the existence of a normative rule with its enforceability in contemporary circumstances. The Ngarla submit that discussions with mining companies have extended well beyond the framework of the native title future act regime. In addition, the Ngarla submit that when Aboriginal people did gain some means of enforcement through the Aboriginal Heritage Act 1972 (WA) and the NTA, there was an exercise of such rights, which is of evidentiary value (referring to De Rose (No 2) (at [103] and Gumana (2005) at [213]).
The evidence in respect of the sixth proposition
812 The State and the Ngarla both refer to Mr Brown’s statement where, after referring to the rules about permissions and Ngarla runs, he said that ‘[t]he same rules apply to white people as to Aboriginal people, but they don’t take notice’. The State also refers to Mr Brown’s agreement that it was ‘okay’ these days for non-Aboriginal People to pass through the area. The Ngarla emphasise that after this statement he said that this did not happen in the early days when the rules were tougher.
813 The State also points to the overriding control of pastoral lessees.
814 Mr Brown said that ‘I have told developers or miners that they cannot mine in places’ He said that Ngarla persons sought the assistance of the old Land Council to stop proposed development at Mikurrunya and a ‘while back’ at the Makanykarra hills. Mr Brown also said that when Newcrest wanted to put a pipeline under Ngartinyjikapunya, the Ngarla had discussions with Newcrest and reached an agreement.
815 The State submits that Mr Brown’s discussions with developers and miners took place in the context of the NTA future act regime. The State says that it is reasonable to assume that the agreements in the previous paragraph were future act agreements under the NTA. The Ngarla take issue in their reply submissions with the characterisation of the Boral Agreement as a future act agreement (see below).
816 The State says that Mr Brown acknowledged that prior to the future act agreements under the NTA, there was nothing which could be done to influence or control access to such projects. Mr Brown said that there was an important site at Mt Goldsworthy that was blown up. He said that there ‘was nothing we could do about it then. We did not find out until after it had happened’ and that it ‘was before the days of native title so we couldn’t do anything about it’.
817 Mr Brown also said that at Mikurrunya the creation of a quarry started ‘before the Heritage Act come on’ and Charlie Coppin added, ‘Yes. We can’t do anything else with it’. Similarly, Charlie Coppin says that the Ngarla people did not like to see the destruction of Mikurrunya for the creation of a quarry, that it happened ‘before Native Title’ and he agrees that “native title” helped to stop such things.
818 Specifically, the Ngarla and the State both refer to evidence in relation to Ngarla persons seeking to prevent Boral from damaging the Mikurrunya site in 2008. The State says that it is reasonable to assume that this again was in the context of the application of the future act regime of the NTA. The Ngarla say that the agreement with Boral for Mikurrunya covered a range of tenements and activities in relation to which the Ngarla People had no native title future act rights.
819 The registered area of the Mikurrunya site encompasses the Tabba Tabba Quarry, the subject of mining leases held by Boral. That quarry has, according to the Boral Agreement between the Ngarla native title claimant group and Boral, been in operation since approximately the mid-1970s. The Boral Agreement is dated 27 November 2009 and acknowledges that the members of the Ngarla people have knowledge and custodianship of the Mikurrunya site, ‘within close proximity to Tabba Tabba Quarry’. The quarry was operated by other mining companies and quarry operators prior to Boral obtaining ownership of the mining leases. Access to the quarry was historically by access tracks to the Great Northern Highway and the Old Great Northern Highway and Boral applied for further mining tenements for an access track to the quarry. The stated purposes of the agreement include to facilitate the grant of the tenement applications, to recognise the historical impact of the quarry on the Mikurrunya site and to provide compensation to the Ngarla people for the effects of the grant of the tenement applications on their native title rights and interests.
820 It is apparent that there has been access to the Mikurrunya site prior to the agreement with Boral. The Boral Agreement acknowledges the distress caused to the Ngarla by earlier work in connection with the quarry. The State says that there is no evidence of Ngarla people seeking to assert, or asserting a right to exclude others from the Mikurrunya site prior to the Boral agreement. Further, the Boral Agreement appears to have been provoked by a separate incident. Mr Brown says ‘We found people quarrying near Mikurrnuya, the 3 sisters. We went to the old land council and stopped them. When they started up again last year, we did everything we could to stop them’. The latter seems to refer to what became the Boral Agreement.
821 The Boral Agreement says that the Ngarla people have a registered claim under the NTA and that they enjoy the protection and benefits of all “future act” procedural rights under the NTA. It also recites that the Mikurrunya site was registered on the Register of Aboriginal sites under the Aboriginal Heritage Act 1972 (WA) in February 2009. The parties to this agreement are Clifton Cooke, Alexander Brown, Charlie Coppin and Jeffrey Brown on behalf of the Ngarla native title claimant group and Boral, and the Ngarla are described as the people with custodianship of the site.
822 Mr McKellar, a lawyer for the Pilbara Native Title Service (PNTS), says that he was the claim lawyer in 2008 for the Ngarla in the dispute between the Ngarla and Boral regarding mining at a quarry at Mikurrunya in 2008. He says that Boral operates, and has historically operated, a quarry at Mikurrunya. In 1996, Boral applied for a general purpose lease, to which the Ngarla objected and in the years that followed, Boral did not substantially use the quarry. In November 2007, Boral recommenced mining at the quarry and in 2008, a number of senior Ngarla people instructed PNTS to request that Boral cease unauthorised mining activities on, and rehabilitate, the area, and develop a heritage management plan. The Ngarla objected to the grant of a miscellaneous licence to access the quarry and lodged a complaint with the Department of Indigenous Affairs and Department of Mines and Petroleum.
Consideration
823 In De Rose (No 2) at [103] the Full Court observed that s 223(1)(a) of the NTA is concerned with present possession of rights and interests and present acknowledgment of observance of traditional laws and customs, although they said that historical continuity was not irrelevant. The Full Court observed that there was no reason why the actions of the appellants after 1994 (when the proceeding were commenced) in attempting to assert their rights in relation to the claim area should not be taken into account. The context of that observation appears to be in relation to failure to visit sacred or secret sites for a period of time. As Selway J said in Gumana (2005) at [230], connection can be retained to the land even though it is not actually visited for a time and discussed at [208]–[213] that the fact that persons entering country without permission where it was impossible to obtain it was not evidence that there was no traditional norm requiring permission. Justice Selway commented (at [213]) that people may assert their rights by such means as are available to them but that until the decision of the High Court in Mabo (No 2) they could obtain little in the way of assistance from the courts. They did what, practically, they could.
824 The Ngarla say that even if the actions of the Ngarla seeking to prevent Boral damaging the Mikurrunya site was the exercise of statutory rights, it is evidence of the exercise of rights of exclusive possession.
825 I accept, for reasons similar to those discussed in Gumana (2005) at [213] and De Rose (No 2) at [103], that this evidence is relevant to whether the Ngarla have acknowledged and observed a right of exclusive possession since sovereignty, as it demonstrates an attempt to enforce Ngarla traditional laws and customs, in particular the right to control the use of, and the taking of resources from, Ngarla land. However, this evidence is not sufficient to show that there has been continuity in the acknowledgment and observance of traditional laws and customs.
826 The evidence about the acknowledgment and observance of the requirement for non-Aboriginal people to seek permission to access Ngarla land is, to say the least, scanty. There is a general assertion of a traditional custom of seeking permission to enter Ngarla land and assertion that the same rules apply to non-Aboriginal persons. There is no evidence that this has been required or enforced by the Ngarla or observed by non-Aboriginal persons. The fact that there has been a recent agreement between Ngarla and Boral concerning Mikurrunya is not sufficient to establish continuity of any general requirement for non-Aboriginal persons to seek permission to enter the Overlap Area. The evidence regarding development seems to be less about exclusion of non-Aboriginal persons from the Overlap Area, and more about the protection of, and respect for, specific sites.
Conclusion on the Ngarla claim to exclusive possession
There was, according to traditional laws and customs at sovereignty, a belief that permission was required to enter Ngarla land and, in particular, a run on Ngarla land.
The Ngarla have acted, in the past, but do not, as a society, presently act on the belief that permission is required to enter the Overlap Area.
The historical reality of the Overlap Area and the events which have occurred in and around it made difficult the objective establishment of any extant traditional law and custom giving rise to a right of exclusive possession.
The evidence suggests that the local descent group system in operation within the Overlap Area of permission as between estate groups existed at sovereignty but has ceased to operate in a functional sense. However, the traditional law and custom of permission as between local descent groups has been adapted, in that for deceased estates, the land holding entity has been adapted from the local descent group to the Ngarla people as a whole, with a “caretaker” responsible for that estate. This adaptation does not preclude a continuing communal right to exclusive possession.
There is no present control of access by Ngarla persons to other runs on Ngarla land.
There is limited evidence of a belief that unauthorised access by outsiders to Ngarla land may be dangerous or, that the Ngarla people are the ‘gate-keepers’ in the Griffiths sense. However, there is evidence that Charlie Coppin acts as a ‘gate-keeper’ of the Makanykarra pool at the Mikurrunya site and has a right to control access to that site, in accordance with the traditional laws and customs of the Ngarla.
The evidence as a whole does not support the acknowledgment and observance of a law or custom requiring “permission” to be given to non-Ngarla Aboriginal persons to have access to the Overlap Area. There is acknowledgment and observance of a requirement in respect of non-Ngarla Aboriginal persons conducting certain activities on the land, in particular, Law ceremonies and the taking of resources from the land or otherwise damaging the land.
The evidence does not support the conclusion that the Ngarla people presently acknowledge or observe, or have acknowledged or observed since sovereignty, a requirement that non-Aboriginal persons should ask for permission to access Ngarla land, other than activities that endanger the Mikurrunya site and, perhaps, by extension, other specific sites.
827 These findings lead to the conclusion that the Ngarla have rights over the Overlap Area but they are not rights that extend to exclusive possession of it.
828 It can be seen that while I have concluded that the Ngarla do not have exclusive possession of the Overlap Area, they do continue to acknowledge and observe certain rights. This is consistent with the understanding that the rights being assessed are rights according to traditional law and custom and the ongoing recognition of the rights that make up that “bundle of rights”. Whether these rights can be held in the absence of a general right of exclusive possession is the next question to be considered.
829 The Ngarla assert that if they do not hold a general right of exclusive possession, they nevertheless hold the following additional native title rights in addition to the rights that they hold in relation to the determination in Brown (No 1). These are the non-exclusive right to be accompanied and the following additional exclusive rights:
Exclusive rights to:
(a) Prevent Aboriginal people who are not Ngarla from:
(i) opening Law or other ceremonial grounds in the Overlap Area; or
(ii) accessing Law or other ceremonial grounds in the Overlap Area contrary to traditional law and custom.
(b) Prevent Aboriginal people who are not Ngarla from gathering resources from the Overlap Area for use in ceremonies or cultural activities.
(c) Control access by others to the land and waters comprising the Mikurrnya site.
830 In the Statement of Issues, the Warrarn say that they agree that the Ngarla have these rights, subject to the qualification that there is an intramural allocation of rights as between the Ngarla and the Warrarn. However, in their final written submissions, the Warrarn appear to say that that where a right to exclusive possession has been extinguished, a native title holder may not have a capacity to exclude a person from an area. It is not clear whether this submissions relates only to extinguishment or whether it also relates to the question of Divided Rights.
831 The State does not agree that the Ngarla have these additional exclusive rights. The State says that exclusive rights cannot be divided and that particular exclusive rights cannot be recognised in the absence of a general right to exclusive possession. Alternatively, the State contends that the divided exclusive rights should nevertheless not be recognised, as they are not justified by the evidence.
Can divided rights be recognised in the absence of exclusive possession?
832 The State says that the divided exclusive rights sought by the Ngarla are merely aspects of a right of exclusive possession, and are merely another way of expressing a right to control access to, and the use made of, the land. The Divided Rights, the State says, inevitably and unavoidably involve an exercise of the right to control access to land. The State submits that if a general right of exclusive possession has been lost, the Divided Rights must also have been lost. The State contends that in the absence of a general right of exclusive possession, these ‘divided’ exclusive rights cannot be recognised or continue to exist.
833 The Ngarla contend that particular exclusive rights can be recognised in the absence of a general right of exclusive possession. They say that it is a question of fact whether there are specific rights to exclude people from undertaking particular activities or whether the evidence establishes a general right of exclusive possession. They say that the particular native title right that exists under traditional laws and customs presently acknowledged or observed may not always correspond to a general right of exclusive possession, nor any right which has an equivalent in the common law.
834 The Ngarla say that if there is a specifically identifiable right to control access to particular sites and to control the establishment and use of Law grounds, then it may be inferred that it was also the case at sovereignty. The Ngarla accept that the evidence does not clearly establish whether the various aspects of exclusive possession were severable at sovereignty. The State submits that there is no such evidence and that there is no basis to infer that these were separate and severable rights at sovereignty. Rather, the State says that the Ngarla must identify the content of the traditional laws and customs that are said to have allowed for the separate and severable rights at sovereignty.
835 The Ngarla’s alternative contention is that even if there was a law and custom at sovereignty regarding access and permission for Ngarla country, there is no reason why the NTA will not recognise a lesser right based on an adaptation of that traditional law and custom post sovereignty, such that the Ngarla no longer consider their permission is required generally, but still acknowledge and observe a normative rule that permission is required by others for particular purposes. The Ngarla say that such a right is still rooted in traditional law and custom (referring to Yorta Yorta at [79], [82]–[83]) and does not impose any greater burden on the Crown’s radical title than was the case at sovereignty. The State says that the more particular rights claimed by the Ngarla are different from and do not resemble the ‘holistic right’ of exclusive possession that would have existed at sovereignty, referring to Alyawarr (FC) at [148], and therefore says that they cannot be acceptable adaptations of a general-pre sovereignty right of exclusive possession.
836 The majority of the High Court in Ward described the right of exclusive possession in terms of a ‘right to control what others may do on or with the land’; as a ‘right to say who could or could not come onto the land’; and a ‘right to be asked permission about how and by whom country may be used’ (at [95], [192] and [88] respectively). The majority held that, absent a right of exclusive possession, it was doubtful that ‘there is any right to control access to the land or make binding decisions about the use to which it is put’ (at [52]). Further, where a right to control access to land had been extinguished, the majority of the High Court made it clear that ‘the continuation of a traditional right to say who could or who could not come onto the land in question’ had been extinguished (at [192]).
837 In Alyawarr (FC), the Full Court said that the granting of pastoral leases had a partially extinguishing effect upon native title rights and interests insofar as they comprised the right to exclude other persons from entering the land. The question considered by the Full Court was whether that partial extinguishment left in place a qualified right to exclude persons other than the pastoral lessees, their invitees and other statutory entrants. The Full Court said (at [148]) that, having regard to what was said by the majority of the High Court in Ward, ‘it seems that the right to control access cannot be sustained where there is no right to exclusive occupation against the whole world. The underlying rationale for that conclusion is that particular native title rights and interests cannot survive partial extinguishment in a qualified form different from the particular native title right or interest that existed at sovereignty’.
838 The Full Court concluded that a partial right to exclude did ‘not resemble the holistic right of exclusion which went with exclusive possession and occupation at the time of sovereignty’. The Full Court expressed concern about the separation of limited rights extending only to other Aboriginal persons. However, the Full Court also drew a distinction between the position where the native title holders represented a subset of a wider society incorporating other groups bound by the same traditional laws and customs and intramural workings of traditional laws and customs such as the exclusion of women from law grounds. To the extent that native title holders could collectively exclude particular members from certain areas, the Full Court said that that is a matter best left to the intramural workings of the traditional laws and customs.
839 Alyawarr (FC) was cited with approval in Gumana (FC) at [172]. The Full Court there said that there was no evidence of two traditional rights to make decisions about access to and use and enjoyment of the intertidal zone, one being exercised against those who were governed by the same traditional laws and customs and one being exercised against other persons. Rather, the Full Court said that ‘[t]here was only one holistic right’.
840 In Attorney-General (NT) v Ward (2003) 134 FCR 16 at [27], the Full Court recognised that the right to make decisions about the use and enjoyment of the area by Aboriginal persons who will recognise those decisions and observe them pursuant to their traditional laws and customs was not extinguished by, or incompatible with, a pastoral lease that extinguished the right to control access to the land. A similar conclusion was reached by Mansfield J at [74] in Gumana v Northern Territory (No 2) [2005] FCA 1425 (Gumana (No 2)). Relying on these cases, the State submits that to the extent that Courts have recognised a right to make decisions about the use and enjoyment of land in circumstances where a general right of exclusive possession does not exist, such rights are not directed at all Aboriginal people but at those who are governed by the traditional laws and customs. The State says that a more limited form of a right in this case would not require recognition as a native title right.
841 The Ngarla submit that Alyawarr (FC) and Gumana (FC) concerned partial extinguishment of rights and are not contrary to their submissions in respect of particular divided rights. In any event, the Ngarla say that the Full Court in Alyawarr at [145] and [151] accepted that a right to exclude Aboriginal people who are governed by the traditional laws and customs of the native title holders survives any extinguishment, in circumstances where the native title holders were a group within a broader society. The Ngarla say that if I were to accept the Warrarn’s assertion of a ‘broader society’, such a right is open and supported by the evidence in this case.
842 The particular native title rights relevant to this aspect of the Ngarla case are the rights previously discussed relevant to the conduct of Law ceremonies. Those distinct rights are rights in relation to land and ownership of the land. They were present at sovereignty and have been continuously acknowledged and observed as part of the traditions of the normative society, the Ngarla society. The acknowledgement and observance of those rights extends to the other societies of the Pilbara which are similarly bound by them, although they remain separate normative societies. Those traditional rights would, of their nature, be exercised only as against other Aboriginal people. They are directed to Aboriginal people governed by those same traditional laws and customs concerning Law ceremonies held in the Pilbara. The Divided Rights do not arise by reason of, and are not an incident of, an asserted general right to permit or control access to Ngarla land. They are not part of a single holistic right of exclusive possession and they survive extinguishment of a general right of exclusive possession. They arise from the right of the landowner specifically to veto the conduct of Law ceremonies on his or her land after the process of consensus in which the elders of the different Pilbara societies participate.
843 The particular native title rights that exist under traditional laws and customs as presently acknowledged and observed may not always correspond to a general right of exclusive possession, nor any other right which has an equivalent in the common law (Ward at [90], [95]). That is the case with respect to the Divided Rights.
844 In contrast to the situation in Alyawarr (FC) and Gumana (FC), in the present case, the limited, or more particular rights do not arise from the extinguishment of a general right of exclusive possession by reason of competing, incompatible rights, such as a pastoral lease. The Divided Rights are separately identifiable rights that existed at sovereignty, or are a legitimate adaptation of the general right of exclusive possession that existed at sovereignty.
845 Although, as the Ngarla accept, the evidence does not clearly establish whether at sovereignty these rights were severable, I accept that these rights today are specifically identifiable. I infer that this was also the case at sovereignty and that these particular rights were not an incident of a ‘holistic right’ of exclusive possession which would have existed at sovereignty (Alyawarr (FC) at [148]). Even if they were, I accept that there has been an adaptation of that general exclusive possession right, in the sense that, while there is no longer a right to control general access to the Overlap Area, other rights have continued to be observed and enforced.
Evidence of each of the Divided Rights
846 Although I have concluded that each of the Divided Rights is specifically identifiable, presently acknowledged and observed and I am prepared to infer that each existed at sovereignty, it is useful to consider the evidence for each of the rights individually, in order to deal with the State submission that there is no evidentiary support for the particular Divided Rights claimed.
Opening Law grounds and other ceremonial grounds in the overlap area
847 There is no need to repeat the extensive evidence already set out in these reasons. The evidence supports a Ngarla right to open Law and other ceremonial grounds in the Overlap Area and a right to prevent other Aboriginal people from doing so.
Accessing Law or other ceremonial grounds in the Overlap Area contrary to traditional Law and custom
848 The evidence establishes that access to Law or other ceremonial grounds in the Overlap Area for the purpose of attending at or participating in ceremonies does require, according to traditional law and custom, the permission of the Ngarla owner of the land. There is no evidence as to whether or not, according to traditional law and custom, access can be had to such areas outside of those ceremonies. If such access can be had, there is no evidence that establishes that permission is required in those circumstances.
Gathering resources from the Overlap Area for use in ceremonies or cultural activities
849 There is evidence of the Ngarla people seeking to prevent others gathering resources from the Overlap Area for use in ceremonies. Charlie Coppin says, and I accept, that no-one can use ochre from Mikurrunya. He also says that Ngarla people use their own ochre for painting their mark. There was evidence from Teddy Allen, who said that Nomads asked him for permission to cut down trees for a corroboree at Warralong and Kevin Draper said that the Nomads should ask for permission to cut down trees on Pilu country. Dr Smith says that there are local protocols that govern, for example, the extracting of resources that are necessary or essential for the conduct of ceremony and who can access them and the local landholders have to be asked before they are accessed. Bruce Thomas says that sacred objects are collected from Tabba Tabba Creek. This followed permission from the Ngarla.
850 The evidence does support a presently existing right according to traditional law and custom, to control the gathering of resources for such use. That right is acknowledged and observed by the Ngarla and is acknowledged and observed by other societies in the Pilbara. It is, similarly, a right that survives a loss of the right of exclusive possession.
Control access by others to the land and waters comprising the Mikurrunya site
851 Contrary to the State’s submission that there is no evidence that Ngarla people seek, or assert, a right to exclude others from the Mikurrunya site, the evidence is that Charlie Coppin has a specific role as gatekeeper of the Mikurrunya site. It is a special traditional right and obligation associated with that particular site.
852 The rights to protect and control access to the Mikurrunya site have been explained within the context of obligations for and associations with that site according to traditional law and custom. It is a separate right peculiar to that site and requires the person or persons within the Ngarla responsible for that site to control access by others to it. It continues to be observed and enforced and has been recognised as a specific right by others.
853 On the evidence, the Ngarla acknowledge and observe the traditional Divided Rights. These were separate rights at sovereignty, part of the bundle of native title rights possessed by the Ngarla. The right to control access to Mikurrunya is acknowledged and observed as against Aboriginal people and non-Aboriginal people. The Ngarla do not claim the other Divided Rights in respect of non-Aboriginal persons. In respect of the right to prevent other Aboriginal persons from opening Law grounds and accessing Law grounds and gathering resources, the question is whether these Divided Rights extend to “Aboriginal people who are not Ngarla”, as claimed by the Ngarla, and not only to Aboriginal people who are governed by the traditional laws and customs acknowledged and observed.
854 Other cases have found that when a general right of exclusive possession no longer exists, due to extinguishment, there may be a right to make decisions about the use and enjoyment of the land by Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders (Attorney-General (NT) v Ward at [27] and Gumana (No 2) at [74]).
855 A difficulty arises in respect of the category of non-Ngarla Aboriginal people. As the Full Court recognised in Gumana (FC), such persons are also members of the public. However, in the present case, the only other Aboriginal persons who have expressed interest in access to the Overlap Area are the Warrarn and, perhaps, the Njamal. Both are governed by the relevant traditional laws and customs that are common to the people of the Pilbara; the Warrarn profess to acknowledge and observe Ngarla traditional laws and customs.
856 The evidence is not sufficient to enable a conclusion to be drawn that the Divided Rights (other than the control of access to Mikurrunya) extend to a right in respect of Aboriginal people generally. There is no evidence that the Divided Rights, as acknowledged and observed by the Ngarla, extend to non-Ngarla Aboriginal persons who do not recognise themselves to be governed by the Ngarla traditional laws and customs in respect of those rights.
857 The State submits that it is not necessary to make an order that the Ngarla have a right to exclude persons that acknowledge and observe the laws and customs of the Ngarla, as that is a matter that is best left to be worked out intramurally. I will consider that question after submissions as to the orders to be made.
858 The Ngarla assert that, in addition to the rights recognised in Brown (No 1), they have an additional non-exclusive right, irrespective of a general right of exclusive possession, to:
Be accompanied on to the Overlap Area by those people who, though not native title holders and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Overlap Area, are:
(i) spouses of Ngarla;
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Overlap Area.
859 The Ngarla maintain that the spouse or other person is not a native title holder and does not have a right that would be recognised or enforced as a native title right. However, they contend that the right to be accompanied is a right possessed by the Ngarla people under their traditional laws and customs, that it is one of the bundle of rights that make up the Ngarla communal title and that this is consistent with the evidence.
Characterisation of the right to be accompanied
860 The Ngarla say that non-exclusive rights of this kind have been accepted as native title rights in De Rose (No 2) at [171] and numerous consent determinations, including in Hunter v Western Australia. The State says that the concession in Hunter was made in the context of a mediation and that the State reserved its right to challenge the right in an appropriate forum. In respect of other consent determinations, the State submits that the cases do not provide any reasons for the right to be accompanied and are of limited assistance to this Court.
861 The State submits that the right to be accompanied is an aspect of a right of exclusive possession and is merely another way of expressing a right to control access to the land. It refers to the statement of the majority of the High Court in Ward that ‘a right to say who could or could not come onto the land’ would be extinguished by the grant of a pastoral lease. The State says that “could” and “could not” are both aspects of the one right to exclusive possession, and the right to say who “could” come onto land would be meaningless if unbundled from the right to say who could not come onto the land. The Ngarla submit that nothing was said by the High Court in Ward that is contrary to their claim to the right to be accompanied. The issue of a non-exclusive right to be accompanied by others was not addressed in Ward and the Ngarla say that it would be reading too much into the High Court’s general obiter comments to say that that case is authority for the proposition that a right to be accompanied is an exclusive right.
862 The Ngarla further contend that the right to be accompanied is not a meaningless right and is not antithetical to the common law (s 223(1)(c) of the NTA) and can therefore be recognised as a native title right. In particular:
A Ngarla person can have a native title right to access the Overlap Area without having a right to exclude others. That is a recognised and valuable property right.
It is an offence to reside on Crown land without the permission of the Minister or reasonable excuse (s 267(2)(a) of the Land Administration Act 1997 (WA) (Land Administration Act)). A Ngarla person exercising a native title right has a reasonable excuse. Absent a right to be accompanied by a spouse, the spouse may be committing an offence by residing with the Ngarla person in the Overlap Area.
Similarly under the general law, a licensee may (depending upon the term of the licence) confer upon an invitee a lawful right to enter and remain on premises, even though the licensee themselves does not have a right of exclusive possession.
863 The State states that it does not seek to prevent the Ngarla people from inviting or being accompanied by spouses or ceremony participants onto the Overlap Area. The question is, the State says, whether the right is capable of being recognised under the NTA, and not whether it would harm anyone if the right to be accompanied was not recognised.
864 The State says that whether the Land Administration Act would apply is beside the point and is not a reason to recognise a right to be accompanied. However, I note that the Ngarla’s reliance on that Act was in response to the State’s suggestion that the right was meaningless. The Ngarla do not assert that, by itself, the Land Administration Act is a reason to recognise a right to be accompanied.
865 The Warrarn point to the Land Administration Act which, they say, provides several examples of permits which do not have any necessary connection to a right to exclude: for example, a permit to clear land (s 118), a permit to sow and cultivate non-indigenous pasture on specified land (s 119), and a permit to a pastoral lessee to use land for agricultural purposes (s 120). The Warrarn agree with the Ngarla that the right to permit may have some legal effect even where the native title holder does not have a right of exclusive possession, also referring to s 267(2)(a) of the Land Administration Act.
866 The Warrarn also agree with the Ngarla that the right to permit does not necessarily require a right of exclusive possession. However, the Warrarn agree with the State that a right to exclude cannot exist without exclusive native title rights. In particular, the Warrarn say that where a right to exclusive possession has been extinguished, the native title holder may not have the capacity to exclude a person, although the native title holder may still have the capacity to permit a person to do certain things, such as to permit the spouse to accompany him or her in activities on the country, or to permit a person to obtain resources for domestic purposes. Therefore, the Warrarn contend, permissions given by the Ngarla to the Warrarn are permissions which can be given to them in the absence of a right of exclusive possession.
867 Further, the State submits that the right to be accompanied is a personal, reciprocal right, with the character of a ‘reciprocity based right’ as described by Finn J in Akiba (No 3), and should therefore not be recognised as a native title right. Rather, the right of an invitee is not a right in relation to land and waters but is the result of a set of relationships between the invitee and a particular person.
868 The Ngarla submit that the issue of reciprocal rights and the reasoning in Akiba (No 3) does not arise in relation to the right to be accompanied by spouses. It is no different from any other claimed right held by native title holders, such as a right to hunt. They say that the state of a Ngarla native title holder’s relationship with his or her spouse and the identity of his or her spouse is irrelevant to the existence of the right. The Ngarla say that it is a right in relation to land because the content of the right is to be accompanied onto the land that is the subject of the native title.
869 The State submits that a further issue is whether or not the right to be accompanied is (as it is pleaded) a group right (that is, a right held by the Ngarla people as a group) or an individual right held by individual Ngarla people. The State says that the former is hard to envisage in practical terms, because a large group of people cannot administer such a right and that the latter is problematic because the Ngarla do not claim individual rights. The State says in particular, in both circumstances it is difficult to see how the conflict between the rights of two individuals be reconciled, such as if one Ngarla person wanted to be accompanied by a person that another Ngarla person wanted to keep out.
870 In response, the Ngarla say that the alleged difficulty of recognising a group right to be accompanied does not exist. Recognition of, for example, a group right to hunt does not mean that the right can only be exercised by each and every member of the group hunting together. Individuals within that group may hunt individually, in exercise of a right derived from their membership of the group. The meaning of a group right was usefully explained in this regard in Harrington-Smith at [536].
In my view, which is consistent with [27]–[44] of the Full Court’s judgment in De Rose (No 2), the expression “communal, group or individual rights or interests” reflects a taxonomy. The “community” is the “society” which sustains the traditional laws and customs in question, and is therefore the largest possible right or interest-owning entity (for example, the Meriam people in Mabo (No 2)). At the other extreme is the individual. Any right or interest-owning entity lying between the individual and the community is a “group”. A group may be numerically small, as in De Rose, or numerically large, as in the case of the Wongatha claim group. On the other hand, a numerically small or large number of individuals may all hold only individual rights and interests. Everything depends on the content of the traditional laws and customs. Many, perhaps most, or even all, groups will have a fluctuating membership. Again, all depends on how the group is identified by the traditional laws and customs. In the case of group rights and interests, the individual members of the group (claimants) have rights and interests by reason of that membership. Their rights and interests will not, however, necessarily be identical. A member may have “active” or “productive” rights and interests only in a particular area, and his or her rights and interests in the remainder will then be only “nominal”, “residual” or “theoretical”. As ever, the governing consideration is the traditional laws and customs. But the individual’s rights and interests will always arise from his or her membership of the group; they will not arise directly and without group mediation, from the laws and customs of the society.
871 The State admits that certain other people have often accompanied Ngarla people to places within Ngarla country, including the Overlap Area, as a matter of fact. However, the State submits that there is no evidence that Ngarla people have a right to be accompanied in that way and draws a distinction between observable behaviour and rights.
872 The Ngarla submit that the existence of a Ngarla traditional law and custom permitting a Ngarla person to be accompanied onto the Overlap Area by their non-Ngarla spouse was referred to in the evidence and was not challenged:
Mr Brown said that ‘if a Ngarla person marries a non-Ngarla person, then the non-Ngarla person can come with the Ngarla onto their country’. When asked what rights a non-Ngarla wife had in Ngarla country, Mr Brown answered ‘nothing’. Mr Brown also said that the Ngarla man was allowed to bring his wife onto Ngarla country.
Dr Smith described the right of a spouse as a ‘contingent right’; for example to hunt and fish, that ‘flows through [the Ngarla] core right as a person who has a fundamental proprietary relationship to that area and is more generally to Ngarla country’.
873 In relation to the right to be accompanied onto the Overlap Area by people required by traditional law and custom for the performance of ceremonies or cultural activities, the Ngarla refer to the evidence about the participation of a broad spectrum of Aboriginal people in Law ceremonies, in particular, the granting of permission to persons to participate in Law ceremonies.
Consideration
874 The right to say who cannot come on to the land is a right of exclusive possession. While the right to say who can come on to the land can also be said to be a right of exclusive possession, the right to be accompanied on to the land can also be characterised as a separate right, associated with ownership of the land, within the context of, and as part of the bundle of, native title rights. The right to admit is not coextensive with the right to exclude.
875 The evidence in respect of the right of a Ngarla person to be accompanied by a spouse is not extensive. The evidence tends to be directed to the rights of the spouse himself or herself, to the effect that the spouse cannot own or speak for the land, as that is contrary to the normative system of descent based ownership. However, the non-Ngarla spouse has a right to go with the Ngarla person on Ngarla country and to carry out activities in that country, as permitted. That right, properly considered, arises by reason of Ngarla native title rights in the land. Such rights would be limited by any restrictions, under traditional law and custom, placed on the Ngarla spouse. I accept that any right of a non-Ngarla spouse is a contingent right, as described by Dr Smith, and as such, it can rise no higher than the Ngarla rights over the Overlap Area and is dependent, or contingent, upon those rights.
876 I accept the Ngarla submissions. In particular:
The Ngarla, individually, by reason of descent based rights and as members of the group that holds communal rights have, under traditional laws and customs in the Overlap Area, the right to live on and go on to the land.
The rights that are possessed include the right to permit another person to be present or to come on to the land, perhaps on conditions such as appropriate welcomes and speaking to resident spirits.
This right to be accompanied is a group right, and whatever the extent of the right of an individual to permit other persons to enter the land; any disputes between members of the group would be governed by intramural law and custom. The evidence supports a right to be accompanied by a spouse and a right to permit others to enter and remain for the purposes of the Law ceremonies or other ceremonies or cultural activities.
It is not a meaningless right for the reasons given by the Ngarla and is not, in my view, antithetical to the common law which recognises a right to confer upon an invitee a lawful right to enter and remain where there is no right of exclusive possession.
The right to be accompanied by a spouse and the right to permit access for Law and cultural activities is by reason of, and bound up with, the traditional rights in the land. This is exemplified by the evidence as to the recognised right of the native title holder to open Law grounds and to give and withhold permission for the conduct of Law ceremonies on the land. That right carries with it the right to permit, or be accompanied by, those people who participate in those activities. That right and the right to bring a spouse on to the land are not mere personal rights. The spouse cannot have a native title right in the land but may be a necessary person to enable descent based rights of the native title holder to continue. The Ngarla clearly recognised that the position of the spouse under traditional law and custom was different to mere invitees, with regard to rights to hunt and reside. The right to be accompanied by a spouse or person required for the performance of ceremonies or cultural activities is a right related to Ngarla land and is not dependent upon a relationship in the Akiba (No 3) sense. This does not mean, however, that in utilising that right, the recipient obtains a right in the land. What is granted to the recipient is a personal right.
877 Despite the fact that they do not have exclusive possession, and subject to any extinguishment (considered below), the Ngarla do have the right, as sought, to be accompanied. That right arises from, and is one of the bundle of, native title rights in the Overlap Area, which are held by the Ngarla. It is not a right that arises by reason of exclusive possession of the land. It is not an exclusive right.
Part 8: Extinguishment and section 47A of the NTA
878 The Overlap Area is subject to two leases: the Pastoral Lease (3114/1281) and the Special Lease (3116/9217). Unless the Ngarla can establish that s 47A of the NTA applies, native title will have been wholly extinguished in the area of the Special Lease and partly extinguished in the area of the Pastoral Lease, such that any exclusive native title rights will have been extinguished. So much is not in dispute.
879 The Ngarla and the Warrarn have not disputed that the non-native title rights and interests that exist in the Overlap Area are as described in unchallenged evidence adduced by the State. I will therefore assume, as the State submits, that these non-native title interests are accurately described in these affidavits and that all of the tenures in the Overlap Area were validly granted. The parties also agree that certain areas the subject of previous exclusive possession acts, as defined in s 23B of the NTA, do not form part of the Overlap Area (see the list at [20] above).
880 It is agreed by the parties that, subject to the Special Lease which extinguished native title, the grant of any other land, mining or petroleum tenure in the Overlap Area did not operate to extinguish any of the non-exclusive native title rights and interests as found in Brown (No 1), as those tenures had no greater effect upon native title than the earlier grant of pastoral leases over the area.
881 This agreement between the parties as to extinguishment is subject to the asserted right to be accompanied which the State contends is an exclusive right. It is a non-exclusive right and consequently would also survive any partial extinguishment in the area of the Pastoral Lease. The Ngarla accept that if it were an exclusive possession right, it would be extinguished by the Pastoral Lease, subject to the application of s 47A of the NTA.
882 The extinguishing effect on most of the non-native title rights and interests in the Overlap Area has been agreed between the parties. The only dispute between the parties as to extinguishment of native title rights is whether s 47A applies to disregard prior extinguishment over the area of the Pastoral Lease and over the area of the Special Lease. The relevance of s 47A to the Pastoral Lease is lessened by the fact that I have found that, apart from Mikurrunya, the Ngarla do not have a right of exclusive possession to the Overlap Area. Although I have also found that the Ngarla have acknowledged and observed the Divided Rights, the Ngarla appear to accept that these exclusive rights would be extinguished if s 47A does not apply to disregard prior extinguishment of the area of the Pastoral Lease. There is therefore no need to consider questions that may arise if the rights granted by the Pastoral Lease are consistent with the Divided Rights.
883 Section 47A of the NTA provides that in certain circumstances any extinguishment brought about by a grant, vesting, holding or reservation, and the creation of any other prior interests in relation to the area, other than the grant of a freehold estate for the provision of services, is to be disregarded. Section 47A(1) sets out the conditions under which extinguishment will be disregarded. It provides that s 47A will apply in circumstances where:
(a) a claimant application is made in relation to an area; and
(b) when the application is made:
(i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or
(ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and
(c) when the application is made, one or more members of the native title claim group occupy the area.
884 Section 47A(3) of the NTA provides for the effect of the determination:
If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the grant or vesting or of the creation of the trust or reservation; or
(ii) the validity of the creation of any other prior interest in relation to the area; or
(iii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.
885 The non-extinguishment principle is outlined in s 238 of the NTA. As summarised by the majority of the High Court in Ward at [7], It involves the ‘suspension of what otherwise would be native title rights and interests so that, whilst they continue to exist, to the extent of any inconsistency (which may be entire) they have no effect in relation to the “past act” in question. The native title rights and interests again have full effect after the “past act” ceases to operate or its effects are wholly removed’.
886 Applying these provisions, a finding that s 47A applies will not affect the validity of the Pastoral Lease or the Special Lease and will not prevent the exercise of pastoral and associated activities, or rights under the grant, because the non-extinguishment principle will apply. This means the Ngarla peoples’ native title will be suspended as regards those leases to the extent of any inconsistency.
When the applications were made
887 The first step in determining whether s 47A of the NTA applies is to consider the relevant native title determination application (or applications) and the date it was (or they were) lodged. In the case of a combined or amended application, the time when the application “was made” is the time when each underlying application was filed in the Federal Court, not the date of any combination of those claims (Rubibi v Western Australia (No 4) (2004) 138 FCR 536 at [28]–[37]; Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116 at [172]).
888 For s 47A of the NTA to operate with respect to the relevant applications, the State says that it must be shown that all of the necessary conditions existed as at the following dates:
(a) 3 October 1995, being the date on which the Warrarn native title determination application WAD 82 of 1998 was filed;
(b) 7 April 2005, being the date on which the Ngarla native title determination application WAD 77 of 2005 was filed; and
(c) The date on which each of the pre-combination Ngarla applications, in which land and waters fall within the Overlap Area, was lodged (i.e. 14 October 1996 for WAD 6126 of 1998 and 28 July 1997 for WAD 6185 of 1998). The current Ngarla native title determination application WAD 6185 of 2008 was created by an order on 10 August 1999 combining four native title determination applications, only two of which concerned land that fell within the Overlap Area.
889 The State says that the only relevant applications are in (b) and (c) above, as the Warrarn are not asserting the application of s 47A of the NTA. However, the Ngarla and the State agree that nothing turns upon the above dates. Both the Pastoral Lease and the Special Lease were in existence at the time that each of the Ngarla native title determination applications was made and all of the facts upon which the Ngarla rely to establish the application of s 47A existed at the time that each of the three relevant claims were lodged.
890 For s 47A of the NTA to apply, s 47A(1)(c) requires that when the application is made, ‘one or more members of the native title claim group occupy the area’. The State admits, and the Warrarn do not seem to dispute, that one or more members of the Ngarla native title claim group ‘occupied the area’ of the Pastoral Lease and the Special Lease within the meaning of s 47(1)(c) of the NTA at the time each of the relevant Ngarla native title determination applications were made.
891 The Ngarla rely generally upon evidence of Ngarla connection to the Overlap Area, and, in particular, on evidence that Ngarla people visited and conducted activities upon the Overlap Area from time to time. This is described by Mr O’Connor and the Ngarla witnesses. Charlie Coppin says that he has visited the Overlap Area regularly and describes his activities on the Overlap Area, including keeping an eye on Mikurrunya, collecting ochre from Kurilkarra, camping and hunting. Mr Brown said that he visited the Overlap Area regularly for most of his life, Stephen Stewart says that he visits the Overlap Area regularly and that he goes hunting. Joe Coppin says that he goes hunting in the Overlap Area. Mr O’Connor says that that Ngarla and Njamal people from Port Hedland do in fact access the Overlap Area to carry out traditional economic activities. The Ngarla say that similar evidence was sufficient to establish “occupation” in Moses v Western Australia and Sebastian.
892 Applying the general approach to the meaning of “occupy” that was set out by the Full Court in Moses v Western Australia at [215]–[216], I am satisfied that the evidence establishes occupation by one or more members of the Ngarla claim group for the purposes of s 47A(1)(c).
The meaning of “held expressly for the benefit of … Aboriginal peoples”
893 The effect of the requirement in s 47A(1)(b)(ii) of the NTA that the area is held ‘expressly for the benefit of … Aboriginal peoples’ was discussed by the Full Court in Moses v Western Australia. Their Honours noted at [128] that the phrase had been considered on a number of previous occasions and that there were two approaches. One approach, taken in Neowarra and Rubibi Community v Western Australia (No 7) [2006] FCA 459 (Rubibi (No 7)), permitted consideration of the question from the perspective of the entity holding the beneficial interest in the land, set in the legislative context in which the entity was established. This enables a consideration of the nature, objects, internal structures and composition of the entity that holds the land and its actions upon acquiring the interest, to determine the purpose for which the land is held.
894 The other approach, taken in Hayes v Northern Territory and Risk v Northern Territory [2006] FCA 404, restricted consideration to the perspective of the legislative or executive structure under which the grant or transfer itself was made, or to the perspective of the instrument which granted the relevant interest. On this view, s 47A only operates where the legislation underlying a grant, or the grant itself, imposed a condition that it is intended to secure the indefinite future use of the land for the express benefit of Aboriginal persons (Risk at [881]). That is, if this latter approach is adopted, the nature or purpose of the entity holding the land is not relevant.
895 The Full Court in Moses v Western Australia concluded at [145] that competing considerations supported the approach to the construction of s 47A(1)(b)(ii) of the NTA adopted in Risk and Hayes v Northern Territory. That reasoning is supported by the repeated use of “expressly” in the context of the sub-section. The Full Court explained at [142]–[143] that if the Neowarra and Rubibi (No 7) approach were accepted, the lessee of an ordinary lease from the Crown could defeat the Crown’s reversion by the lessee’s own act of, for example, subleasing the area expressly for the benefit of the Aboriginal people.
896 The Full Court concluded that s 47A(1)(b)(ii) of the NTA was not enlivened. Their Honours relied on the absence of any legislative or executive indication that the pastoral lease or freehold titles were held for the benefit of Aboriginal peoples (at [152]). The Memorandum and Articles of Association did not, at the relevant time, require the business to be conducted for the benefit of Aboriginal peoples. The Full Court also noted that there was no finding made that individual shareholders held their shares for the benefit of Aboriginal peoples, as distinct from their individual personal interests (at [153]). However, the Full Court said that, despite its preference for the Risk and Hayes v Northern Territory approach, ‘the position is not free from doubt’ (at [154]) and was careful to state (at [138] and at [145]) that each case addresses particular facts and that other combinations of facts may enliven s 47A(1)(b)(ii). Despite its preferred construction, the Full Court considered the outcome under the Neowarra approach (at [154]). On the Neowarra approach, the result was not that the company held the area expressly for the benefit of Aboriginal peoples. At best, the Full Court said, the facts might support the proposition that the majority shareholder, or even the shareholders, wished the Company to conduct its business and activities for the benefit of Aboriginal peoples. The Full Court said (at [154]) that had the majority shareholder ‘procured the Company to change its memorandum and articles of association by that time to require its business and activities to be conducted for the benefit of Aboriginal peoples, there may then have been some similarity to the circumstances’ addressed in Neowarra and adopted in principle in Rubibi (No 7).
897 Section 47A(1)(b) sets out the circumstances where extinguishment is to be disregarded. Those circumstances include where the grant of the lease took place under legislation that makes the specified provision and where the area is held expressly for the benefit of, or held on trust for, Aboriginal peoples. In Moses v Western Australia, the Full Court observed that Neowarra and Rubibi (No 7) appeared to permit consideration from the perspective of the entity holding the beneficial interest in the land set in the legislative context in which the entity was established. Their Honours also recited the submission that if too narrow an approach is adopted, that is, equating the legislation with the terms of the beneficial interests, s 47A(1)(b)(ii) would have a very limited operation outside the circumstances which are already covered by s 47A(1)(b)(i). Again, emphasis was placed on the requirement that the area is held “expressly” for the benefit of Aboriginal peoples, that being the structure of the granting instrument. Factors such as the legislation under which the lessee was established may, their Honours said, result in the application of s 47A(1)(b)(ii) (at [149]). However, it was not suggested that this is the only relevant factor. Reference was also made to the absence in that case from the Articles of Association of the company of any provision requiring its business and activities to be carried out expressly for the benefit of Aboriginal peoples and the fact that individuals held shares for the benefit of Aboriginal peoples.
898 The Full Court did not address the “trust” limb of s 47A(1)(b)(ii).
Application of s 47A(1)(b)(ii) to the Pastoral Lease
899 The parties agree that, subject to the application of s 47A of the NTA, native title has been partially extinguished in the area of the Pastoral Lease, such that the Ngarla people’s native title rights and interests comprise the following non-exclusive rights:
(a) access, and to camp on, the Overlap Area;
(b) take flora, fauna, fish, water and other traditional resources (excluding minerals) from the Overlap Area;
(c) engage in ritual and ceremony on the Overlap Area; and
(d) care for, maintain and protect from physical harm, particular sites and areas of significance to the Ngarla on the Overlap Area.
900 As I have found that the Ngarla have the right to be accompanied and that this is a non-exclusive right, that right would also survive any partial extinguishment.
901 The Ngarla say that s 47A(2) of the NTA applies to disregard the partial extinguishment of the Ngarla native title by the Pastoral Lease. The Ngarla rely on the application of s 47A(1)(b)(ii) in respect of the Pastoral Lease on the basis that it is held expressly for the benefit of Aboriginal peoples. It is not in dispute that s 47A of the NTA applies to pastoral leases (see Neowarra at [699]–[703] and Moses v Western Australia at [121]).
902 Despite an early indication that the Ngarla also relied on the alternative basis in that subsection, that the area is held on trust expressly for the benefit of Aboriginal peoples, the Ngarla made it clear in their written submissions in reply that this basis is no longer advanced.
903 The Pastoral Lease was issued pursuant to the Land Act 1933 (WA) (the Land Act) to Strelley Pastoral Company on 31 January 1994 and registered on 11 July 1994. It has a term commencing on 31 January 1994 and expiring on 30 June 2015. At all relevant times Strelley Pastoral Company has been the lessee of the Pastoral Lease.
904 The State submits, and the Ngarla do not appear to dispute that:
There is nothing in the Land Act which would suggest that the Pastoral Lease was to be held expressly for the benefit of Aboriginal people. There is nothing in the terms of the lease document itself to suggest this. Accordingly, s 47A(1)(b)(ii) is not enlivened by reason of the legislation under which the Pastoral Lease was granted or by the terms of that grant.
Strelley Pastoral Company was incorporated under the Companies Act 1961 (WA). There is nothing to suggest that incorporation under that Act so constrained the activities of Strelley Pastoral Company as to enliven the subsection.
905 In Risk and Hayes v Northern Territory, the Pastoral Lease was also issued under the Land Act. If the same approach is adopted, s 47A(1)(b)(ii) of the NTA does not apply to disregard partial extinguishment by the Pastoral Lease, as was the case in Moses.
906 If the Neowarra/Rubibi (No 7) approach is applied, it becomes relevant to consider the Memorandum and Articles of Association of Strelley Pastoral Company. Clause 2(a) of the Memorandum of Association provides that one of the objects of the company is:
To engage in any activity either of an educational industrial commercial professional or other nature advancing or improving or tending requisite or incidental to advancing or improving the status standard of living development education and/or training of natives as defined in the Native Welfare Act 1963 of the State of Western Australia resident in the State of Western Australia or the like people resident elsewhere and/or to enable such natives or like people to combine together to establish conduct and maintain enterprises and business undertaking wherein the management and control shall be vested in such natives aforesaid.
907 The Memorandum of Association (clause 7) and Articles of Association (clauses 4 and 23) also provide that the shares in the company were to be held by ‘natives’ except for shares numbered 1 to 4 inclusive. Share number 4 has never been issued.
908 The Ngarla submit that, unlike Moses v Western Australia, at all relevant times the Pastoral Lease has been held expressly for the benefit of Aboriginal peoples (in a communal or collective sense). The Ngarla say:
That the lease is held expressly for the benefit of Aboriginal peoples is expressed in the memorandum of Strelley Pastoral Company, specifically referring to clause 2(a), and in the documentation concerning the approval for the company to purchase the lease.
The fact that the benefit for Aboriginal Peoples may have included business or commercial activities is not inconsistent with s 47A of the NTA. The Ngarla refer to Moses v Western Australia at [154], where the Full Court referred to ‘business and activities conducted for the benefit of Aboriginal peoples’.
While the company could also operate for other objects, the facts at all relevant times were that the purpose was for the communal benefit of the broader Nomads group. This was the purpose for which the Pastoral Lease was purchased and operated, and the Ngarla say that this is evidenced by the Submission by the Nomads Group to the Federal Cabinet and the documentation concerning the approval for the company to purchase the lease, including correspondence from the Strelley Pastoral Company to the Minister for Lands and correspondence with the Under-Secretary of the Lands and Surveys Department. The letter to the Minister indicated that, with the exception of three shares, the shareholders of Strelley Pastoral Company were all to be Aboriginal persons, and that it was intended that Strelley Station would provide housing, education, medical and recreational centres, to meet the needs of the Group. In the letter to the Under-Secretary of the Lands and Surveys Department, the establishment of community type housing and basic amenities were described as a ‘secondary intention’. The Ngarla say that this correspondence is evidence that both the State Government and the company intended that the area was to be held for the benefit of Aboriginal people.
Only shares 1 to 3 were issued to non-Aboriginal people and they were held on trust for the holders of all ordinary shares, being the Aboriginal shareholders. All the other shareholders were Aboriginal.
909 The Ngarla submit that these facts also make the case analogous to the decision in Neowarra, which the Full Court in Moses v Western Australia did not say was clearly wrong. In particular, they rely on the statement of the Full Court in Moses v Western Australia that if the articles and memorandum said that business and activities were to be conducted for the benefit of Aboriginal peoples, there may have been some similarity with the circumstances in Neowarra.
910 The State submits that even if the Court were to take the Neowarra approach, the Strelley Pastoral Company does not hold the Pastoral Lease expressly for the benefit of Aboriginal peoples. This grant is not, the State says, relevantly distinguishable from the Mt Welcome pastoral lease and the Mt Welcome Pastoral Company considered in Moses v Western Australia, which failed even on the more liberal Neowarra approach to the interpretation of s 47A(1)(b)(ii) of the NTA. The State says:
As to the objects of Strelley Pastoral Company, clause 2(a) of the Memorandum of Association is independent of, and completely separable from, all other objects of the company. The objects, when taken as a whole, do not require its business and activities to be expressly for the benefit of the Aboriginal people. Many of the other objects are directed to a range of commercial activities carried out for the benefit of the shareholders and the company itself. Accordingly, Strelley Pastoral Company may carry out the object in clause 2(a) but is under no obligation to do so. For example, clause 2(l) of Strelley Pastoral Company’s Memorandum of Association provides that Strelley Pastoral may ‘conduct and carry on the business of farmers pastoralists [and] graziers…’ and for such purposes ‘purchase and acquire by all lawful means land of any tenure livestock and plant equipment of any kind…’. There is no suggestion in clause 2(l) that such pastoral business is to be carried on to benefit Aboriginal people generally or that any land tenure acquired for the purpose of carrying out that business is to be held for the benefit of Aboriginal people generally.
As to shareholders, there is no obligation that requires the shareholders to hold their shares for the benefit of Aboriginals persons generally, as distinct from their individual personal benefit (see Moses v Western Australia at [152]). The trust deeds of two of the three non-Aboriginal shareholders (Donald McLeod and Raymond Butler) indicate that they held their shares for the benefit of the ordinary shareholders of Strelley Pastoral Company and not for Aboriginal persons generally. Raymond Butler said that the third non-Aboriginal shareholder, Robert Telford, made an oral declaration of trust, with the ‘other Aboriginal shareholders’ as beneficiaries. Only Aboriginal persons could hold the ordinary shares.
As to subscriber shares, the Articles of Association provide that the first three shares of the Strelley Pastoral Company (the subscriber shares) were to be issued to non-Aboriginal persons. Any other shares were to be issued to Aboriginal persons and any transfer of shares was to be only to Aboriginal persons (clauses 4 and 23). However, it appears that the Articles of Association expressly provided that shares 2 and 3 (held by Raymond Butler and Robert Telford) could be transferred to non-Aboriginal persons. The actual number of additional shares issued to Aboriginal persons was small, being between 8 or 9 at any given time. Further, considerable control of the activities of Strelley Pastoral Company was to remain vested in the non-Aboriginal holders of the subscriber shares. For example, Share 1 (which was issued to Donald McLeod) was a ‘Governing Director’s Share’ and the holder was able to exercise considerable control. However, the State admits that the rights created by Share 1 appear to have terminated upon Mr McLeod’s death.
The evidence as to the intention or purpose of Strelley Pastoral Company in acquiring the Pastoral Lease does not suggest that the intention was to hold the land for the benefit of Aboriginal people generally. Correspondence from the company to the Minister indicated that there would be little likelihood that the transaction would go ahead if the pastoral lease was to be vested in the Aboriginal Lands Trust, as the long-term object of Strelley Pastoral Company was to ‘obtain a maximum independence both financially and territorially’. Correspondence from Strelley Pastoral Company also stated that it was intended that the Station will provide a home and a base for members of the group, that ‘Strelley itself will be operated as a pastoral property running both sheep and cattle’ and that:
It is the intention of the directors of the lessees company that Strelley will continue to be run as a pastoral property to supplement the Nomad’s income from mining and to provide some of the more responsible members with experience in the operation and administration of a pastoral property.
911 The Warrarn submit that s 47A of the NTA does not apply to the Pastoral Lease to restore any native title right to control access which has been extinguished by the grant of the Pastoral Lease. They say that the corporation that holds the Pastoral Lease does not hold the lease expressly for the benefit of Aboriginal People within the meaning of s 47A(1)(b)(ii) of the NTA, and that the shareholders do not hold their shares expressly for the benefit of Aboriginal Peoples. The Warrarn say that the shareholders of the company are not limited to persons claiming to hold native title and specifically point out that when the Warrarn determination application was made, Raymond Butler held a share in the company.
Consideration
912 As provided for in the Memorandum of Association, Strelley Pastoral Company has a width of activities and objects. The objects of the company, including the advancement or improvement of the lives of “natives”, are linked to any activity, not limited to or expressed in terms of the holding of land. However, not all of the objects in the memorandum are said to be for the purposes of advancing or improving the lives of Aboriginal people. For example, another object is the conduct of the business of farmers, pastoralists and graziers and, for such purposes, to purchase and acquire and deal with land.
913 Donald McLeod’s Governing Director’s Share carried a right, inter alia, to be a director of the company and to appoint other directors. Shares 2 and 3 were known as Permanent Directors Shares. Donald McLeod and the Permanent Directors made declarations of trust in favour of the holders of all of the ordinary shares on issue in the capital of Strelley Pastoral, that is, the Aboriginal shareholders.
914 However, as in Moses v Western Australia at [152], there is and was no obligation upon the individual shareholders to hold those shares or to exercise the voting rights with respect to those shares for the benefit of Aboriginal peoples communally or collectively, rather than for individual personal benefit.
915 While it is apparent that all shares were held either by or on behalf of Aboriginal people, it is not stated in each object of Strelley Pastoral Company that the object is for the benefit of Aboriginal people. It is stated that each paragraph should be construed as if each defined the objects of a separate company. It follows that, while one of the objects of the company, (a), is to carry out activities for the benefit of Aboriginal people, that object does not apply to objects (b) to (z). The objects are not drafted such that (a) has priority or such that the remaining objects are to be construed as subject to (a). The Strelley Pastoral Company may carry out the object in clause 2(a) but is under no obligation to do so.
916 Accepting the evidence that the shares were held either by Aboriginal people or on behalf of Aboriginal people, it does not follow that the land the subject of the Pastoral Lease was held expressly for the benefit of Aboriginal people communally or collectively. There was no such express limitation on the allowed objects and there is no reason to conclude that the activities provided for were so limited.
917 It follows that s 47A(1)(b)(ii) of the NTA has no application to so much of the Overlap Area as is the subject of the Pastoral Lease.
Application of s 47A(1)(b)(ii) to the Special Lease
918 The parties agree that, subject to the application of s 47A of the NTA, the land and waters the subject of the Special Lease do not form part of the Overlap Area, being land and waters where previous exclusive possession acts have occurred and native title has been wholly extinguished.
919 The Ngarla contend that s 47A(1)(b)(ii) applies to disregard the total extinguishment of the Ngarla native title by the Special Lease on the basis that the area is held expressly for the benefit of Aboriginal people or, alternatively, that it is held on trust expressly for the benefit of Aboriginal people.
920 The Special Lease is held by the Strelley Housing Society. It was granted pursuant to s 116 of the Land Act to Strelley Housing for the special purpose of housing, agriculture and grazing on 15 May 1986. It was registered on 21 May 1986 and was granted for a term of 50 years commencing 1 April 1985. Prior to August 1994, the leased land was to be used solely for the purposes of housing, agriculture and grazing. In August 1994, the purpose for which the leased land was to be used was changed to residential.
Held expressly for the benefit of Aboriginal People
921 The State submits, and the Ngarla do not appear to dispute that:
There is nothing in the terms of the Land Act which would suggest that the Special Lease was to be held expressly for the benefit of Aboriginal people. Further, there is nothing in the terms of the lease document itself to suggest this. The purposes for which the Special Lease was granted do not include the benefit of Aboriginal persons and nothing in the specified purposes themselves (or the lease document) suggest such a limitation.
Strelley Housing was incorporated under the Associations Incorporation Act 1885 (WA). There is nothing to suggest that incorporation under that Act so constrains the activities of Strelley Housing as to enliven s 47A(1)(b)(ii) of the NTA.
922 As neither the Land Act nor the Associations Incorporation Act 1885 (WA) provide or suggest that the Special Lease was to be held expressly for the benefit of Aboriginal people, s 47A(1)(b) is not enlivened by reason of the legislation under which the Special Lease was granted.
923 I will nonetheless consider whether the reasoning in Neowarra/Rubibi (No 7) is applicable in the particular set of circumstances of this case, given that the Full Court held that the position was not without doubt.
924 The Ngarla submissions concern the Neowarra approach and rely on the following:
The benefit is expressed in the Constitution and Rules of Strelley Housing. Clause 3(b) provides that the objects include ‘to provide dwelling houses for the group’. The group is defined in clause 2(v) as ‘the group of aboriginals who for the time being are members of the Nomads group who live a communal existence principally at Strelley Station Port Hedland and who otherwise reside from time to time at various places in that portion of the State of Western Australia as lies north of the 24th degree of latitude and west of the 123rd degree of longitude’. In 1976, two years after Strelley Housing was incorporated, there were about 500 people living at Strelley Station.
The other objects in clause 3 are (a) to receive and expend the grants of money, (c) to maintain and repair any buildings provided by the society, (d) to hold any estate or interest or licence in land and to deal with the same in such a manner as shall be allowed by the Constitution, and (e) to do all such other lawful things as are incidental or conducive to these objects.
As well as having that object, all funds and property of Strelley Housing are to be available at the discretion of the Committee of Management for the purpose of carrying out the objects of Strelley Housing provided that no portion thereof shall be paid or applied directly or indirectly by way of dividend bonus or howsoever by way of profit to any member (clause 9(e)), except if subject to a special trust; and the members were not to benefit from the property of the Society on a winding up (clause 13). Hence the property held by Strelley Housing was for communal or collective benefit, as distinct from the individual personal interests of the persons who happened to be members at any particular time.
925 The Ngarla say that these facts distinguish this case from the Mt Welcome pastoral lease considered in Moses v Western Australia and are analogous to the Kupungarri pastoral lease in Neowarra.
926 The State submits that even if the Neowarra approach is applied, s 47A(1)(b)(ii) of the NTA does not apply to the Special Lease.
927 The State contends that Strelley Housing was formed for the benefit of a small group of people which includes both Aboriginal and non-Aboriginal people and not for the benefit of Aboriginal people generally. For example, Donald McLeod was an original member of Strelley Housing and the State says that he must, therefore, have been a member of the ‘group’ who may benefit. The State says that it is not clear whether there are any other non-Aboriginal members, but says that there would appear to be potential for such members and the fact that Strelley Housing had non-Aboriginal members means the Court should not conclude that the Special Lease is held expressly for the benefit of Aboriginal people.
Consideration
928 The Constitution of Strelley Housing provides that the purpose of the activities of Strelley Housing, including the holding of an estate or interest in land is to provide dwelling houses for “the group”. The group is defined to mean ‘the group of aboriginals who for the time being are members of the Nomads Group …’. While Donald McLeod was made a member of the Society, he appears to be the only non-Aboriginal member and the term “member of the Society” is defined to mean any person who is accepted as a member of the Group, that is, accepted as member of the Nomads.
929 Strelley Housing, under its Constitution holds the Special Lease expressly for the benefit of Aboriginals. The fact that Don McLeod was made a member of the Society does not derogate from the stated object. While there are other objects not expressly stated to be for the benefit of the group, reading the objects together, it is apparent that the objects in clause 3 are facilitative of the object to provide dwelling houses for the group.
930 This is in contrast to the Pastoral Lease, where it is expressly stated that each paragraph should be construed as if each defined a separate object, which severs those objects from the object of carrying out activities for the benefit of Aboriginal peoples.
931 In Neowarra, Sundberg J found at [704] – [707] that the Kupungari Aboriginal Corporation Inc held a pastoral lease “expressly for the benefit of … Aboriginal people”. The objects for which that corporation was incorporated included the provision of education and training for its members, and helping and encouraging them to ‘manage their affairs upon their own lands’. The members of the association were Aboriginals who live at Mt Barnett Aboriginal Community who were not admitted to membership. All ‘funds or property’ of the association were to be used 'for the purpose of carrying out its objects.
932 The objects of Strelley Housing are similar to those in Neowarra. I consider that the particular circumstances of this case are analogous to those in Neowarra and, as was left open by the Full Court in Moses v Western Australia, it follows that s 47A(1)(b)(ii) of the NTA applies to so much of the Overlap Area that is the subject of the Special Lease and that the rights otherwise held by the Ngarla over that area have not been wholly extinguished.
Held on trust expressly for the benefit of Aboriginal people
933 Given my conclusion that the Special Lease is held expressly for the benefit of Aboriginal people, it is not necessary to consider the alternative basis for the application of s 47A of the NTA based on an asserted constructive trust.
934 I have found that s 47A(1)(b)(ii) has no application to the Overlap Area the subject of the Pastoral Lease. Any exclusive possession rights otherwise held by the Ngarla over that area have been extinguished. However, the non-exclusive possession rights have not been extinguished.
935 I have found that s 47A(1)(b)(ii) applies to the Overlap Area the subject of the Special Lease and that any exclusive and non-exclusive possession rights otherwise held by the Ngarla over that area are not thereby wholly extinguished.
Conclusion
936 I have found that the Ngarla have the following rights in respect of so much of the Overlap Area that is subject to the Pastoral Lease:
(a) access, and to camp on, the Overlap Area;
(b) take flora, fauna, fish, water and other traditional resources (excluding minerals) from the Overlap Area;
(c) engage in ritual and ceremony on the Overlap Area;
(d) care for, maintain and protect from physical harm, particular sites and areas of significance to the Ngarla on the Overlap Area; and
(e) be accompanied on to the Overlap Area by those people who, though not native title holders and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Overlap Area, are:
(i) spouses of Ngarla;
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Overlap Area.
937 I have found that the Ngarla have the following non-exclusive rights in respect of so much of the Overlap Area that is subject to the Special Lease:
(a) access, and to camp on, the Overlap Area;
(b) take flora, fauna, fish, water and other traditional resources (excluding minerals) from the Overlap Area;
(c) engage in ritual and ceremony on the Overlap Area;
(d) care for, maintain and protect from physical harm, particular sites and areas of significance to the Ngarla on the Overlap Area; and
(e) be accompanied on to the Overlap Area by those people who, though not native title holders and who (for the avoidance of doubt) cannot themselves exercise any native title right in the Overlap Area, are:
(i) spouses of Ngarla;
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Overlap Area.
938 I have found that the Ngarla have the following exclusive rights in respect of so much of the Overlap Area that is subject to the Special Lease:
(a) Prevent Aboriginal people who are not Ngarla and who recognise themselves as governed by the Ngarla traditional laws and customs relating to these permissions from:
(i) opening Law or other ceremonial grounds in the Overlap Area that is subject to the Special Lease; or
(ii) accessing Law or other ceremonial grounds in the Overlap Area that is subject to the Special Lease, for the purpose of participating in Law ceremonies, contrary to traditional law and custom.
(b) Prevent Aboriginal people who are not Ngarla and who recognise themselves as governed by the Ngarla traditional laws and customs relating to these permissions from gathering resources from the Overlap Area that is subject to the Special Lease for use in ceremonies or cultural activities.
939 It is not presently clear whether Mikurrunya is within the area the subject of the Special Lease. If it is, the Ngarla retain exclusive rights in respect of that site. If Mikurrunya is within the area the subject of the Pastoral Lease, exclusive possession of that site has been extinguished.
940 As previously stated, I will consider the question of whether it is appropriate to make an order that the Ngarla have the Divided Rights, and the terms of such an order, after submissions as to the orders to be made.
941 The Warrarn claim has not been made out. The Warrarn Group and the Warrarn Named Individuals do not have any native title rights and interests in the Overlap Area within the meaning of the NTA.
942 By reason of the restricted evidence given in this proceeding, these reasons will not be published until the parties have had the opportunity to consider whether any matters should be kept confidential. I will hear from the parties as to the appropriate orders to be made to give effect to these reasons.
| I certify that the preceding nine hundred and fourty two (942) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. |
Associate:
Dated: 29 November 2012
APPENDIX A
Parties’ Agreed Statement of Facts
GENERAL HISTORY OF THE PILBARA REGION AND THE AREA OF THE NGARLA OVERLAP PROCEEDING
PRE SOVEREIGNTY CONTACT
1. European contact with the Pilbara region of Western Australia (which region includes the area of this proceeding) pre dates the assertion of sovereignty in 1829.
2. The earliest written records of the Pilbara region came from the crew of ships which sailed along the coast from the sixteenth century onward. These included voyages by Abel Tasman in 1644, two voyages by William Dampier in 1688 and 1699, a French scientific expedition captained by Nicholas Baudin in 1802 and an expedition led by Lieutenant Philip King in 1818 upon the instructions of the British Admiralty.
3. In 1699 William Dampier observed signs of human habitation along the Pilbara coast during his voyage. Similarly, whilst off the coast between present day Port Hedland and mouth of the De Grey River, Nicholas Baudin reported seeing clouds of smoke from small inland fires. Neither explorer attempted to communicate with any Aboriginal inhabitants of the region and, like those of their contemporaries, records from these voyages generally contain few references to the dress, weaponry or customs of the Aboriginal inhabitants of the area.
ASSERTION OF SOVEREIGNTY AND THE BEGINNINGS OF THE SWAN RIVER COLONY
4. Sovereignty was asserted by the British Crown in respect of the colony of Western Australia at the mouth of the Swan River on 2 May 1829.
5. Unlike those colonies established on the eastern seaboard of Australia, the Swan Rivercolony was not intended to be a penal colony but was designed as a private capitalist venture. The British Government planned upon the colony being self reliant and, accordingly, did not propose to provide settlers with convict labour, funding or other assistance to develop the colony.
6. In order to entice settlers the British Government agreed to a scheme put forward by investors whereby land in the proposed colony would be allotted in exchange for, and according to, the amount of capital invested in the colony by a settler. This scheme was regarded as both generous and favourable, generating such interest in the Swan River colony that it was dubbed "Swan River mania" by the British Press. By the end of 1830 almost 2,000 settlers had come to Western Australia.
7. In the years following, however, the colony was beset by numerous problems due to its isolation and the fact that preparations for settling the land had been inadequate. Land was granted and occupied in a haphazard fashion by settlers who often lacked the appropriate skills and equipment to utilise it. This was compounded by a general lack of a ready labour force and because agriculture was successful only in the limited fertile soils of the Swan Valley.
8. Many disillusioned settlers returned to Britain during the first twenty years of the Swan River colony and the population of the colony in 1850 consisted of approximately 5,200 settlers. The colony had not expanded to any great extent beyond Perth and the Swan Valley at that point.
9. However, following the introduction of convict labour in the 1850s and 1860s, considerable development and expansion of the colony occurred. Although this slowed when convict transportation ceased in 1868, the period between 1850 and 1870 saw the exploration and opening up of new areas in the Kimberley, Pilbara and Wheatbelt, the start of new industries, the expansion of the pastoral industry and the rise of a valuable pearling industry off the northwest coast.
EXPANSION INTO THE PILBARA
Gregory Expedition: 1861
10. In 1861 Francis Thomas Gregory, an assistant in the Survey Department, became the first overland explorer of note to venture into the Pilbara. Gregory's expedition was funded by the British Government and the Royal Geographic society, in large part due to pressure within the colony to open up new land for settlement. The expedition was intended to determine the location of land suitable for agriculture and grazing.
11. Gregory's party established a base camp at Hearson Cove, on the present day Burrup Peninsula, and undertook two expeditions from this camp. Gregory's first expedition headed in a general south-west direction from Hearson Cove encountering the Maitland, Fortescue, Hardey, Sherlock, George and Harding rivers and crossing over the Hamersley Ranges. Gregory's second expedition travelled through much of the country surrounding the area of the current proceeding. This second expedition began at the Hearson Cove and travelled in a general south-east direction across the Sherlock, Yule, Strelley and then Shaw rivers. The party continued to head east following a tributary of the Shaw River, ultimately reaching the Oakover and De Grey rivers which they followed northward to their junction with the Strelley River, continuing west until they reconnected with their original path at the Yule River before heading back towards Nickol Bay.
12. Gregory's second expedition encountered several groups of Aboriginal people, including groups near the Sherlock River, between the Yule and Turner rivers, near the Nullagine River, on the Oakover River and in the plains between the De Grey and Shaw rivers. Some of these encounters were hostile, however, in many instances the expedition avoided contact with the Aboriginal people that they saw. No specific groups of Aboriginal people were named by Gregory in his journals.
Early Pastoral Settlement
13. Gregory's favourable assessment of the country led to the arrival of the first pastoral settlers in 1863 and settlement commenced in earnest in 1865 when numbers of white settlers arrived to take up pastoral leases. Pastoral stations were initially established on the coastal plains before land was subsequently taken up further inland.
14. These settlers were aided by special land regulations which took effect from 1863, namely Terms under which the new Territories of Western Australia as open for occupation, promulgated by the Colonial government to assist north-western land development. These regulations created, amongst other things, a new land division called the "North" district, which comprised all that part of the colony lying north of the Murchison River. The North district was classified largely as "Class C" land which could be secured on an 8 year pastoral lease. Further, in order to encourage settlement, the Government offered free pasturage for twelve months, during which time settlers could select land of up to 100,000 acres which they could occupy free of rent for a further three years.
15. Among the first settlers in the Pilbara area were Walter Padbury and his brother-in-law Charles Nairn who established what was to become known as De Grey Station in 1863.
The De Grey Station is located on the coast at the De Grey River and falls within the area of the Ngarla and Ngarla #2 (Area A) Determination. Nairn and Padbury eventually abandoned their venture after four years due to financial pressures, low wool prices and poor seasons.
16. However, in 1868 J. McKenzie Grant and Alexander Edwin Anderson took up the land that had been originally leased by Padbury and Nairn. They were later joined by Charles Harper, a businessman who had considerable experience in the pearling industry.
17. Pastoral leases were progressively taken up in the area following the establishment of De Grey Station, and in some cases, were carved out of the original area of the De Grey Station.
18. Warralong Station was established in 1894 by Tom and George Hardie who purchased the land from McKenzie Grant and Alexander Anderson of De Grey Station. The station was located approximately 100 kilometres from Port Hedland within the area now the subject of the Warrarn and Njamal #10 native title claims. Warralong passed out of the Hardie family's hands in 1972 and was purchased by the Robinson family who owned the adjoining Coongan Station (established in early 1890s).
19. In 1976 both Coongan and Warralong Stations were purchased by members of the Warrarn native title claimant group, who were assisted in their negotiations by Donald McLeod.
20. Pardoo Station, which is located on the coast east of De Grey Station and falls within the area of the Ngarla and Ngarla #2 (Area A) Determination, originally formed a part of De Grey Station. It was excised in 1902 and purchased by Frank S Thompson.
21. Pippingarra Station, located partially within and partially to the west of the area of the Ngarla and Ngarla #2 (Area A) Determination, was established in 1903 by John Elliot Richardson. Pippingara was carved out of Boodarie Station (established in the 1880s) when the owners of Boodarie, one of whom was Richardson, dissolved their partnership. The Richardson family took the eastern or Beebingarra Creek run of Boodarie which became the present day Pippingarra Station. The Richardsons owned Pippingarra until 1974 when it was sold to the Aboriginal Lands Trust.
22. Strelley Station, part of which is located within the area of the present proceeding, was established in approximately 1904 and the earliest recorded shareholders were E.A. Mitchell, J.L Stewart and W.M.R. Corney. In 1905 Hubert Hardey bought Mitchell's share and five years later Stewart opted out. Strelley was owned by Corney and Hardey for 37 years until 1947 when it was purchased by L.L. Miller and family.
23. In 1970 Strelley station was put up for sale following the death of L.L. Miller.
24. In the later part of 1971 Don McLeod made an offer for the station with the intention that it was to be owned by Strelley Pastoral Pty Ltd.
25. Approval for the transfer of Strelley Station to Strelley Pastoral Pty Ltd was given in 1975.
26. Members of the Warrarn native title claim group had been residing in, and working on, Strelley station from approximately 1972 after their original offer to purchase was made.
Establishment of Urban Centres
27. In 1872 the port of Condon was established near the De Grey River within the Ngarla and Ngarla #2 (Area A) Determination Area. It was officially gazetted as 'Shellborough' but was known generally as Condon or Condong. Condon was the first urban centre in the region and was established to serve as a port for the rapidly expanding pastoral industry in the region. It also served as a base for the pearling industry and the starting point for prospectors who flocked to the gold and tin discoveries at Marble Bar and Nullagine in the 1880s.
28. At its height between 1898 and 1899 the town's population was approximately 200 people. However, the emergence of a preferred site at Port Hedland saw the population drop to 12 by 1905. Condon was eventually abandoned completely and many of the town's buildings were dismantled and moved to Port Hedland.
29. Port Hedland was gazetted as a town in 1896. Whilst the area of Port Hedland was originally overlooked and even disparaged as a potential townsite, interest in the area increased as the need to have a port closer to the Nullagine goldfields than Cossack (near Roebourne) developed. In 1899 the first lease over the jetty was granted and by the 1920s Port Hedland was on its way to becoming the principal port along the northwest coast.
IMPACT OF SETTLEMENT UPON ABORIGINAL PEOPLE IN THE PILBARA REGION
Disease
30. Disease was as significant factor in the decline of Aboriginal populations in the Pilbara.
31. In 1865 and 1866 an outbreak of smallpox passed through the De Grey River region killing large numbers of Ngarla people. The owners of De Grey Station estimated that the outbreak killed almost half of the Aboriginal population at De Grey. The outbreak was said to come from the east and made its way to the Murchison River, reportedly killing one third of the Aboriginal population in the Pilbara and Murchison regions. A further smallpox outbreak occurred in the De Grey River region in 1870.
32. Other diseases, such as measles, influenza and dengue fever also took their toll upon Aboriginal people in the Pilbara who had little immunity to the introduced diseases. Prospectors travelling between Condon and the newly discovered tin and gold fields further south caused additional disease epidemics between 1880 and the early twentieth century.
33. Sexually transmitted diseases (STDs) were also a contributing factor in population decline amongst Pilbara Aboriginal groups. By 1899 STDs were evident in the region and by 1907 were at epidemic levels. The incidence of STDs became so acute that in 1908 "lock hospitals" were established on Bernier and Dorre Islands near Carnarvon. Aborigines from all over the Pilbara were transferred and held there for treatment, however the death rate on these islands was high and very few Aborigines ever left the islands once interned.
Conflict
34. Conflict between the Aboriginal population and European settlers occurred as the new arrivals took control of the land including important water sources utilised by the local population.
35. The early European settlers were greatly outnumbered by the Aboriginal people and typically isolated from the centres of colonial administration and influence. This bred an atmosphere of fear and isolation amongst many pastoralists who were inclined to distrust the local Aboriginal population. Coupled with the fact that Pilbara Aboriginal people were noted for their resistance to the incursion by European settlers and often stole stock or threatened and speared settlers, reprisals on both sides led to a loss of life.
36. There was conflict in the De Grey River region between Aboriginal people and European settlers almost from the beginning. In the early 1860s at least 40 Aboriginal people from the region were killed by Europeans. Several clashes between settlers and local Aboriginal people occurred in the decade between 1860 and 1870 and physical conflict was still occasionally occurring in the late 1880s.
Population Loss
37. As a result of a variety of factors, including disease and conflict, there was a significant decrease in the local Aboriginal population in the De Grey River area in the thirty years between 1880 and 1911.
38. There is no accurate figure of the population of Ngarla people in the De Grey River area at the time of settlement. When McKenzie Grant took up De Grey Station in the 1870s he estimated that the population of the 'De Grey tribes' was approximately 500 people (being 200 men, 200 women and 100 children). Harper, McKenzie Grant's partner, also estimated that there were "several hundred" Aboriginal people in the De Grey River delta that that time.
39. By the late nineteenth century the numbers of Ngarla persons had significantly diminished.
40. In 1893 Charles Straker, a travelling inspector employed by the Aborigines Protection Board reported that there were 317 Aboriginal people on De Grey Station, 49 of whom were aged or infirm. Similar numbers were reported in the same year by the Officer in Charge of the Roebourne Police Station.
41. In 1899 travelling inspector G.S. Olivey reported that 258 men, women and children were usually resident upon De Grey Station, however this number did not include the elderly. Olivey reported that only 4 births had occurred during the twelve months before his visit.
42. In 1910 Constable Ryan who was attached to the Port Hedland Police Station indicated that there were only 157 Aboriginal people on De Grey Station. In 1911 Constable Ryan indicated that the number had dropped to 130, of whom 30 were old and infirm.
Desert Migration
43. Desert Aboriginal peoples began migrating into the Pilbara region from the early to mid twentieth century. Individual migrants and small family groups initially settled on outlying pastoral stations which bordered the desert on the eastern margins of the Pilbara region. Desert migration increased dramatically following a series of droughts in region in the 1920s and was further encouraged by the establishment of a ration depot on the north eastern fringe of the De Grey River basin at Lochinvar Station. Desert migrants then began moving slowly to westward towards, and within, the territory of coastal Pilbara groups such as the Ngarla.
44. Initially the desert migrants would periodically return to their traditional territory, often during the summer break period given to pastoral station workers. However, as station settlements became permanent and were viewed as 'home' by the new migrants, desert people often stopped returning to their traditional territory.
Missions
45. The Pilbara, unlike other areas of Western Australia, was relatively unaffected by Christian missions, the first not being introduced until 1945. This was largely the result of Pilbara pastoralists who, fearing alienation of their land, competition over their Aboriginal workforce and criticism from missionaries, strongly lobbied against the introduction of missions in the Pilbara.
46. As a result, there were very few reserves set aside for Aboriginal people compared with other areas of the State and Aboriginal people were, in general, dispersed throughout the station areas rather than concentrated in mission settlements. Aboriginal people were generally not exposed to the formal education and competing religious ideas typically evident at Christian missions. That being said, Pilbara Aborigines were not unaffected by the mission system and some, typically children, were removed by authorities to missions. However, on the whole, the Pilbara Aboriginal population had less contact with missions than Aboriginal people in other parts of the State.
Pearling
47. Aboriginal groups located on the coast of the Pilbara were heavily impacted upon by the pearling industry and the pearling boom that occurred from the late 1860s to the end of the nineteenth century.
48. Aboriginal men and women were in great demand as pearl divers and shell openers during the pearling boom and the practice of "blackbirding", whereby Aboriginal people were kidnapped and forced to work in the pealing industry, became commonplace throughout this period. Aboriginal women were also taken by pearlers as prostitutes, further contributing to the spread of STDs amongst the Aboriginal population in the region.
49. Many early pastoral leases, such as De Grey Station, included a coastal strip which gave station owners pearling rights to the sea whilst the tide was out, allowing pastoralists to engage in profitable 'dry shelling' in this area. Some stations also operated pearling fleets. At one stage a pearling enterprise established by the owners of De Grey Station had some 30 vessels plying the coast between Port Hedland and 50 miles eastward of the De Grey harvesting in excess of 80 tons of shell. The success of the De Grey Station venture attracted others to the area from more established pearling sites such as Cossack, further down the coast.
50. During this period pearling was a far more profitable venture then pastoralism and the profits generated by it often provided the cash to develop struggling pastoral stations. Pearling was also a convenient side venture for station owners because it did not interfere with the shearing season. The pearling season in the North-West ran from October through to April whilst shearing and its preparations occurred between April and October. As a result Aboriginal workers who were employed as station hands would often spend six months of the year on the pearling grounds and six months on the station.
51. Coastal Aboriginal groups bore the initial impact of the pearling boom. However, the influence of the pearling industry later spread inland as pearlers sought a ready labour force which could no longer be supplied from the local coastal populations alone. Consequently, many Aboriginal people were taken far from their traditional areas to work in the pearling industry and often had little chance to maintain contact with their own people. For example, in 1871 the owners of De Grey station noted that nearly all of the Aboriginal inhabitants for hundreds of miles up and down the coast were concentrated in the De Grey area as a result of the pearling industry. This resulted in tensions between the local inhabitants and other non residents, with disputes and quarrels arising between the different groups.
52. Aided by Aboriginal labour the pearling industry transformed from a local concern to a major economic enterprise. In 1875 it was estimated that Cossack employed approximately 1000 workers. Similarly, in 1882 it was estimated that between three to four hundred Aborigines were employed pearling on the Condon reefs near De Grey Station and that number was expected to be increased before the end of the next season to five or six hundred.
53. Conditions on pearling luggers were sometimes brutal and Aboriginal workers were often exploited and abused. In response, legislation was introduced in 1870 and 1873 which regulated the employment of Aboriginal men and banned the use of Aboriginal women entirely. This led to the employment of Malay divers in preference to Aboriginal labour and in 1888 the introduction of apparatus diving in the pearlin industry caused Aboriginal divers to disappear from the industry altogether.
Mining
54. Mining activity in the west Pilbara commenced in the early 1870s with the discovery of copper deposits at Whim Creek. Gold was later discovered at Whim Creek in the early 1880s and the Pilbarra Goldfield (60 kilometres south east of Whim Creek) was declared in 1888. The ensuing gold rush lasted until 1904. However, as the more readily accessible gold in the Pilbarra area was taken, prospectors flocked to the Marble Bar and Nullagine region, enticed by stories of rich finds which were made in the late 1870s and early 1880s.
55. As with commencement of other industries in the Pilbara, such as pearling, the mining boom and the spread of prospectors inland hastened the spread of disease epidemics to Aboriginal populations who had previously had little, or no, contact with European settlement.
56. The finding of alluvial tin around Nullagine in 1892 was also significant. Aboriginal people who worked the tin fields introduced the use of a "yandy", a traditional flattened dish, to separate minerals. Aboriginal miners, particularly women, were extremely proficient in the use of the yandy and this allowed them to compete effectively with European prospectors and earn an income. As a result "yandying" for tin allowed small groups of Aboriginal miners to set up, and support themselves, independently from pastoral stations. Yandying was also to prove important during the pastoral strike movement in the 1940s and 1950s as it provided an income and a means of support for families who had been displaced from pastoral stations.
57. In 1906 approximately 300 Aborigines were working the tin fields, developing a small scale subsistence economy by selling bags of alluvial tin and gold for provisions. There is some indication that Aboriginal labour was also utilised by gold diggers and mining companies through the early period, despite legislation restricting the employment of Aborigines in the industry.
58. The employment of Aboriginal people in the mining industry often created fear amongst pastoral settlers who were concerned that mining groups would attract Aboriginal labour away from stations and into an environment where it was much more difficult to police their actions. For example, in 1904 the Roth Royal Commission reported that pastoralists feared that independent, cash earning, Aboriginal miners would be able to stage an uprising due to their ability to purchase firearms and attempts were made periodically to return Aboriginal people to pastoral employment. This created a great deal of long standing antagonism between the mining industry and the pastoral industry in the Pilbara region.
Pastoral Era
59. From the beginning of European settlement in the Pilbara the pastoral industry relied heavily upon Aboriginal labour. Pastoral stations often started with very few people and owners found it difficult to recruit European workers from the south. Convict labour was also unavailable to pastoralists in the Pilbara after the Colonial government promulgated the Terms under which the new Territories of Western Australia are open for occupation in 1863, which contained a clause whereby "no convicts or persons holding a ticket's leave or person under sentence of penal servitude shall be induced or allowed to remain within the northern portion of the territory of WA". This inability to utilise convict labour or recruit a European workforce ensured the dependency of Pilbara settlers upon Aboriginal labour.
60. In the early days of Pilbara settlement Aboriginal people whose traditional lands encompassed the area of newly created pastoral stations were given food, clothing, tobacco and other novel or appealing items as incentive to encourage them to work on that particular station. When such incitements did not work, physical force was also commonly used to compel Aboriginal people to 'sign up' for work. Once an Aboriginal person had been 'signed up' by a station owner they were typically viewed as the property of the station to which they were signed and stations were bought and sold according to the number of acres, sheep and Aboriginal workers. Aboriginal workers, at least in the early years, were generally unable to leave a station and seek work elsewhere.
61. Accordingly, a pattern developed whereby the station on which an Aboriginal person was employed was typically on, or close to, their traditional lands. After the early years of settlement the pastoral era was relatively stable and particular families and individuals often remained for long periods on certain stations. Over time, Aboriginal people came to be associated with, and view a particular station, as 'home'.
62. In 1893 Charles Straker, a travelling inspector employed by the Aborigines Protection Board reported that "with the exception of four natives whose country is on the Yule river, the whole of the natives employed [on De Grey Station] belong to the Shaw and De Grey rivers. They are practically on their own country and have never been away or worked for other masters. The older proportion of natives have been on the Station since it was settled from 26 years ago and the younger ones were born here."
63. Further, the practice of pastoralists in dismissing Aboriginal workers over the slow summer period to reduce operating costs allowed for extended breaks ("pinki" or "pinkeye") away from the station and often helped to maintain traditional law and custom as such breaks were typically taken or used for ceremonial activity and the visiting of kinspeople.
THE DECLINE OF THE PASTORAL ERA AND THE PASTORAL WORKERS STRIKE
The decline of the Pastoral Era
64. Although Aboriginal labour was initially integral to pastoral stations, significant changes in pastoral technology and technique as well as changing economic, political and social conditions gradually altered patterns of Aboriginal employment in the Pilbara and eroded Aboriginal employment upon, and association with, particular pastoral stations.
65. The fencing of paddocks and the introduction of windmills in the 1890s, the introduction of mechanical shearing and the unionisation of the white shearing industry at the end of the nineteenth century and the replacement of horses for mustering and boundary checks with cars and motorcycles all contributed to the erosion of Aboriginal employment.
66. A succession of droughts between 1936 and 1946, coupled with poor management practices, led to station foreclosures and a further reduction in Aboriginal pastoral employment.
67. World War Two (WWII) also hastened the decline of Aboriginal employment in the pastoral industry and resulted in many local Aboriginal people moving into regional centres, such as Port Hedand, seeking employment. The introduction of regulations to prevent war-time profiteering and restrictions upon wool prices greatly affected the pastoral industry and its capacity to employ workers. However, at the same time, fear of Japanese invasion and white depopulation of the Pilbara area led to a demand for Aboriginal labour within Port Hedland. Many Aboriginal people, who could no longer find work on pastoral stations, took labouring jobs with the Armed Forces, whilst others enlisted into the Armed Forces or commenced working on the Port Hedland docks.
68. Additionally, many Aboriginal people employed by the Armed Forces during WWII discovered that the wages and conditions offered by the Armed Forces were significantly better than that they had received on pastoral stations. The far greater equality in treatment, pay and conditions experienced by Aboriginal people during WWII made many reluctant to return to pastoral stations after the war's end.
69. The differential treatment in respect of pay and conditions experienced by Aboriginal pastoral workers was also one of the catalysts for the Aboriginal pastoral workers strike which, in turn, resulted in a decline of Aboriginal pastoral station employment as many of the Aboriginal people involved in the strike chose not to return to pastoral station work when the strike was over, opting instead to remain in self managed communities or seeking other employment outside the pastoral industry.
Aboriginal Pastoral Workers Strike
70. The Aboriginal pastoral workers strike had much of its origins in the ideas and activities of Donald William McLeod, a non Aboriginal man and an itinerant prospector and miner who also had some experience in the pastoral industry. McLeod became interested in the conditions of Aboriginal workers whilst working in the Ashburton and Pilbara districts in the late 1930s and early 1940s.
71. When the pastoral strike began, there was no award coverage for Aboriginal station workers at either the State or the Federal level and Aboriginal people were expressly excluded from the Federal Pastoral Workers' Award. From the 1890s to the 1920s it was common for Aboriginal workers to be paid only in rations, clothing and board. During the 1920s small cash payments were made to approximately half of key Aboriginal station stockmen, however these cash payments slowed, or were stopped, during the depression of the 1930s. Aboriginal women were generally not paid at all during this period. Pay and conditions upon the pastoral stations following WWII therefore differed significantly from that experienced by many Aboriginal people who had received the same, or similar, rates of pay as their European co-workers from the Armed Forces during WWIII.
Skull Springs Meeting: 1942
72. In 1942 McLeod was invited to a major gathering at Skull Springs, located on the Davis River at the edge of the Western desert in the eastern Pilbara.
73. McLeod had been invited by his friend and employee Kitchner, a senior Aboriginal elder from Roy Hill, to discuss his concerns regarding the treatment of Aboriginal pastoral workers.
74. Two hundred Aborigines from 26 language groups were present and the meeting lasted six weeks.
75. McLeod was the only European present.
76. At the end of the meeting it was agreed that a strike would be held on 1 May, as soon as the war ended. However, as there were generally no phones or radios and most Aboriginal pastoral workers could not read or write Dooley BinBin, a desert Nyangumata man, and Clancy McKenna, an Aboriginal man from Port Hedland, were selected to spread word of the impending strike to stations in the area.
May Day Strike: 1 May 1946
77. McLeod spent a number of years after the Skull Springs meeting attempting to negotiate better pay and conditions for Aboriginal pastoral works but met with little success.
78. Local authorities, such as the Department of Native Affairs and the police were aware of the threatened strike and kept an eye upon suspected leaders. Pastoralists, who were also suspicious of visits by McKenna and Dooley to their stations, questioned their station hands for information but learnt little.
79. The May Day strike of 1946 did not ultimately occur as anticipated and was closer in nature to a series of tentative stop work meetings than a strike.
80. The main stations affected by the May Day strike were Munda, Roy Hill and Indee.
81. On both Munda and Roy Hill employees stopped work on 1 May 1946 but were told by station managers to return to work or they would face removal by the police. Accordingly, most employees returned to work on the same day without any improvement to their wages or conditions.
82. However, on Indee Station employees refused to return to work and the entire Aboriginal staff left the station.
83. At Warragine Station the strike commenced two days early. However, like at Roy Hill and Munda, station employees returned to work the next day without any improved wages or conditions after the station manger called the police.
84. Some stations, such as Pardoo, Mallina, Warralong and Boodarie were unaffected by the May Day strike.
85. On others, such as Strelley, strike organisation was inadequate to bring about a protest on 1 May.
86. De Grey Station employees also did not participate in the official strike. They were sympathetic to the station organisation and considered that the station was too busy to be involved in the official strike. However, unlike other stations, they successfully negotiated a 10 shilling wage increase prior to 1 May 1946.
87. Shortly after 1 May 1946 Clancy McKenna, Dooley BinBin and McLeod were arrested and later sentenced to three month imprisonment for 'enticing' Aboriginals from their place of employment, a contravention of the Native Welfare Act 1954 (WA). These arrests strengthened rather than weakened the solidarity of the strike movement and other strike leaders came to the fore in the absence of McKenna, Dooley and McLeod.
Race Times Strike
88. Given that many stations and employees did not participate in the May Day strike, strike leaders recognised that some further stimulus was required to encourage workers to join the strike movement. A second strike was then organised to coincide with the annual Port Hedland racing carnival in August 1946.
89. Pastoral workers were traditionally given a week off during race-times and station owners were reluctant to refuse this following the May Day strike, fearing that their workers would join the strike movement in protest. Consequently Aboriginal people from all over the Pilbara began converging upon Port Hedland for race week. However, police attempted to keep the Aboriginal workers out of Port Hedland, stopping them at Four Mile camping ground (Puriyakannya) near the Port Hedland turn-off (approximately six kilometres outside of Port Hedland).
90. A meeting of all Aboriginal people was held and it was decided that they would defy police orders and walk into the Two Mile camp on the outskirts of Port Hedland. Overnight approximately 400 Aboriginal people walked into Port Hedland and refused to be moved from the Two Mile campsite, setting themselves up permanently in the town.
91. Following these events the strike movement gained momentum amongst Aboriginal workers in the region and very soon approximately 20 out of 22 stations in the Pilbara were subject to strikes.
92. Strike camps were established outside of Port Hedland at Twelve Mile (an old timber reserve) and inland at Moolyalla near Marble Bar. Whilst numbers of resident strikers fluctuated, these two places remained the epicentre of strike activity.
Ration Dispute and March to Port Hedland Police Station
93. A number of attempts were made to pressure the strikers to return to work, including a refusal to issue rations coupons for sugar and tea until workers returned to pastoral station employment. Wartime rationing still applied at this time and whilst the Aboriginal strikers had money to purchase supplies they could not do so without ration coupons which were customarily held by stations managers.
94. In December 1946 McLeod, at the request of the strikers, went with Clancy McKenna and Dooley BinBin to the Port Hedland Police Station to request the return of the striker's ration coupons. Upon arriving at the police station McLeod was arrested for breaching section 39 of the Native Welfare Act 1954 (WA) which prevented a non-Aboriginal person from being within 100 metres of a group of Aboriginal people.
95. When McKenna and Dooley returned to the strikers at Two Mile camp without McLeod it was decided that they would attempt to free him from the police station and a large gathering of Aboriginal men (approximately 200) marched four abreast into town and own the main street to the police station. Seeing this, the police quickly released McLeod and the strikers, finding McLeod had been released, returned peacefully to Two Mile.
96. The following day arrangements were made for rations of sugar and tea to be issued to the strikers.
The End of the Strike
97. In total the actual Aboriginal pastoral workers "strike" lasted three years with active strike action ceasing in late 1948.
98. Around this time pastoral stations were making improvements to pay and conditions, station labour was being used more efficiently, amenities had improved and experienced Aboriginal workers were getting increased wages. Some stations had also agreed to pay the rates being asked by the strikers and this had been approved by the Department of Native Welfare.
99. Further, the Seaman's Union placed a ban on loading wool from stations who did not pay the rates required by the strike movement.
100. As a result some Aboriginal people returned to their previous work on the pastoral stations. However, the heyday of the pastoral era was coming to a close and many Pilbara strikers never returned to work on the stations. Rather they continued employment within co-operative ventures established during the strike movement or moved into towns seeking further employment opportunities.
Cooperative ventures arising out of the Aboriginal Pastoral Workers Strike
101. After first settling at Twelve Mile in the early days of the strike movement it quickly became clear that there was little money, food or clothing and no work to support the large number of people who had initially joined the strike movement. In order to survive without pastoral station employment the strikers were required to find new ways to support themselves and their families.
102. The strikers split into small groups, which generally consisted of family or kin with a chosen leader, and moved from Twelve Mile to find work. Their activities were directed by McLeod and Aboriginal strike leaders from Twelve Mile who supplied stores and equipment to work groups, delivered food and picked up materials collected to be sold on the group's behalf.
103. The work carried out by the strikers was varied and consisted of such things as mining for tin, wolfram, tantalite, beryl or gold, collecting buffel seed or oyster shell to bag and sell or culling kangaroos and wild goats and selling their skins. Some strikers took seasonal jobs on stations during the mustering and shearing season.
104. In 1948 the strike movement, under McLeod's direction, established the Northern Development and Mining Company Pty Ltd (NDM) to handle the group's business and mining operations. At its peak between 1951 and 1953 NDM had 700 members. All income produced by the individual work groups was centralised in NDM, allowing for greater expenditure and expansion.
105. With profits made largely from mining ventures NDM purchased Yandeyarra, Meentheena, Alisa Downs and Riverdale Stations. A house was also acquired to serve people attending Marble Bar Hospital as outpatients.
106. However, by late 1953 mineral prices had dropped, NDM's mineral sales were held up as a result of litigation over a joint venture it had entered into with an Adelaide company and difficulties had arisen arose over a contaminated shipment of columbite.
107. In 1954, with NDM having debts of over $22,000 the State Government pressed for liquidation. Company membership dwindled to approximately 350 people, with many people choosing to return to pastoral stations or set up independently.
108. NDM was ultimately liquidated.
109. The Department of Native Affairs sought to salvage the situation by setting up the Pilbara Natives Society. However this venture lasted less than two years due to the Department's unfamiliarity with mining enterprises, its lack of day to day supervision over the Society's operations and the Aboriginal peoples' general suspicions regarding the Department's motives. Over this period there was an exodus of several hundred people from the strike group.
110. After the failure of the Pilbara Natives Society, McLeod was asked by the remnants of the strike group to return and a new company, Pindan, was set up in 1955.
111. By 1959 Pindan employed around 300 Aboriginal people, approximately one third of the Aboriginal people in the area.
112. Pindan's profits rested on a number of industries, including mining of alluvial minerals, fishing, hunting and outside station work.
113. Pindan people were spread within a radius of 160 kilometres of Port Hedland and were housed across six work camps, two camps for the elderly and infirm and an administrative depot.
114. As with NDM, wage payments were minimal with income produced being centralised with Pindan.
The Split
115. By 1959 there were growing tensions and internal conflicts within the leadership of Pindan and two factions emerged, the first consisting of McLeod and his largely desert Aboriginal followers and the second consisting of Peter Coppin and Ernie Mitchell, two Nyamal men, and their largely riverline / coastal Aboriginal followers.
116. Supporters of Mitchell and Coppin believed that McLeod had too much influence with the group and was no longer working in their interests. They questioned where Pindan's money was going and why McLeod had so much control over it. Faction members also wanted to be paid wages for their work and see a general improvement in their quality of life, instead of having profits funnelled into increased capitalisation.
117. On the other hand supporters of McLeod favoured his management of Pindan and believed that Mitchell and Coppin were becoming too close with the government and its representatives. They also disagreed with the way in which Mitchell and Coppin were supervising the group's mines.
118. According to John Wilson in this Master Thesis Authority and leadership in a 'newstyle' Aboriginal Community: Pindan, Western Australia (1961):
(a) a further factor in the growing internal conflict between the two factions was the desert and riverline / coastal Aboriginal group dichotomy which had been a latent tension in the Pilbara region for a significant period of time. Although desert people outnumbered the riverline / coastal people within Pindan by 2:1, most of the positions of power within Pindan were held by riverline / coastal people on whose traditional country the company operated;
(b) the riverline / coastal people also typically had better English and business skills having had much greater contact with Europeans;
(c) riverline / coastal people within Pindan tended to associate more with each other, as did desert people with desert people. This meant that communication between groups was often restricted, providing fertile ground for conflict; and
(d) tensions had also arisen around the conduct of Law business and the ritual status and decision making power which was to be accorded to local riverline / coastal lawmen in contrast to those from the desert.
119. In 1959 the internal tensions and dissatisfactions within Pindan could no longer be contained. A meeting was organised at Two Mile camp in Port Hedland during race time on 9 and 10 August 1959 to discuss the future leadership of Pindan.
120. The meeting was attended by hundreds of Pindan members. During the meeting a vote resulted in McLeod having to resign his position within the Pindan structure and by the end of the meeting it was clear that Mitchell and Coppin had succeeded.
121. This meeting resulted in a split within Pindan as it became clear that the two factions could no longer remain separate and continue to work together. This caused bitterness within the Pindan group and broke family and social ties with people having to choose what faction they were going to follow.
122. McLeod's Aboriginal followers, under the leadership of Jacob Oberdoo and McLeod, formed the Nomads Company and in the early 1960s commenced mining operations in and around the Roebourne area.
123. In the early 1970s the group purchased and moved to Strelley Station, later acquiring the adjoining Coongan / Warralong Station as well as Lalla Rookh and Callawa Stations.
124. After the split Peter Coppin's and Ernie Mitchell's followers continued working the mining fields around Marble Bar. However, the group's main inspiration was to reacquire Yandeyarra Station which had been taken over by the State Government when NDM went bankrupt in 1954.
125. Mitchell and Coppin later established the Mugarinya Pastoral Company and after Mitchell's death in 1970 Coppin took over leadership of the group and the company.
126. In 1974 Mugarinya eventually re-acquired Yandeyarra Station on a leasehold basis from the Aboriginal Lands Trust, Yandeyarra having been converted into an aboriginal reserve in 1972.
127. Coppin's followers subsequently ended their mining ventures and progressively moved onto the property.
THE IRON ORE BOOM
128. Between 1900 and 1940 mining in the Pilbara was largely insignificant. Whilst several minerals were discovered in commercial quantities, exploration was carried out on only a minor scale. However WWII stimulated the demand for minerals such as tin, silver, manganese, tungsten and beryl which led to an increase in mining for these minerals in the Pilbara. The search for other minerals also intensified.
129. Whilst the first recorded iron ore deposits in the Pilbara date back to the 1800s, development of the industry did not begin until the 1960s. In 1952 Lang Hancock discovered a large iron ore field in the Pilbara near the Turner River and in 1957 the chance discovery by Stan Hilditch of the massive Mt Whaleback iron ore deposit (some 400 kilometres south of Port Hedland) provided some indication that the Pilbara contained one of richest iron ore fields in the world.
130. However, despite such finds, the common perception was that mineral resources were scarce in Australia and consequently the Commonwealth Government enacted an embargo on exporting iron ore whilst the Government of Western Australia banned the pegging of claims for iron ore prospects. These restrictions were eventually lifted in 1960, sparking an iron ore boom. With large American, British and Japanese firms ready to invest in the Pilbara to mine the ore development was rapid.
131. This iron ore boom resulted in great changes to the Pilbara region. Large scale mining projects and associated industrial developments transformed once small scale towns such as Port Hedland, Dampier and Cape Lambert into major regional centres and ports, with an associated influx of workers associated with the iron ore boom. Secondary commercial, administrative and bureaucratic activities also expanded to support the new iron ore industry.
132. Further, many new inland towns such as Goldsworthy, Shay Gap, Newman, Tom Price, Pannawonica and Paraburdoo were created by mining companies to provide accommodation for workers who were employed to mine nearby deposits.
133. For example, Goldsworthy, located approximately 100 km east of Port Hedland within the boundaries of the Ngarla claim was created in the late 1960s to service the iron ore mine at Mount Goldsworthy, after which it is named. However the mine later closed and the town was dismantled and removed.
134. In all ten new towns, four new railways and three new deepwater ports were constructed in the Pilbara region between 1962 and 1975. The estimated population grew from 3,243 in 1961 to 47,284 in 1981.
135. The population of the Pilbara region in 2006 was estimated at 44,333, however this population is often highly transient with many workers being employed on a "fly in fly out" basis.
136. The large majority of the local Aboriginal population in the Pilbara have traditionally not been involved in the mining industry, with few opportunities being made available and the vast majority of labour being imported externally.
GOVERNMENT POLICY AND LEGISLATION AFFECTING ABORIGINAL PEOPLE
137. European settlement in Western Australia was accompanied by government activity, policy and legislation which impacted upon local Aboriginal people.
138. Prior to self government in 1890, policies regarding Aboriginal people were directed by the British Government and were reflected in such documents as Governor's Stirling's Proclamation in 1829 and Instructions as to the Office of Governor issued in 1931. In general these sought to equate Aborigines and Europeans before the law and suggested that Aboriginal people were to be treated as British citizens and were to have the same right to protection of their physical wellbeing.
139. However, a great disparity soon developed between the policies of the British Government and the colony's overwhelming concern regarding the requirements of the settlers and its actual treatment of Aboriginal people. Reports of cruelty towards Aboriginal people increased the official demand for the protection of Aboriginal people from the Colonial Office in England and led towards the passage of specific legislation, such as the Pearl Fisheries Act 1873 (WA), which defined basic employment conditions to minimise exploitation.
140. In 1883 a Native Commission was appointed to consider measures which could be taken in the interests of Aboriginal people and in 1886 the Aborigines Protection Board (APB) was established under the Aborigines Protection Act 1886 (WA). The APB answered to the Governor and appointed travelling inspectors who did tours to assess the living and working conditions of Aboriginal people. The APB was empowered to distribute rations, medicine, clothing and blankets to Aboriginal people, manage Aboriginal reserves and generally supervise all matter affecting Aboriginal people. The Aborigines Protection Act 1886 (WA) also outlined minimum employment conditions and introduced employment contracts for Aboriginal people.
141. Upon the grant of self government in 1890 the British Government initially attempted to retain authority over Aboriginal people and wanted a guarantee that Aboriginal people would be adequately cared for by the Western Australia government. Self government became conditional upon this guarantee and attempts were made to formalise this into the Constitution Act 1889 (WA). For example, section 70 of Constitution Act 1889 provided that 5,000 pounds or one per cent of colonial revenue for each year, whichever was greater, was to be spent on Aboriginal welfare.
142. In 1897 the Aborigines Act 1897 (WA) was passed. This legislation abolished the APB, replacing it with a government department, the Aborigines Department, which retained the same responsibilities as the APB. The Aborigines Act 1897 applied to Aboriginal people of full descent and 'half-caste' Aboriginal people who lived with full descent Aborigines. The Aborigines Act 1897 also sought to repeal the revenue provision contained in section 70 of the Constitution Act 1889.
143. Under the Aborigines Act 1897 the Aborigines Department had the power to appoint 'protectors' of Aboriginal people who were to watch over, and care for, the welfare of Aboriginal people in their locality. Typically protectors were public servants who already held posts in a regional area, such as police, magistrates, telegraph officers, JPs or church officials. In most cases the job was honorary, although occasionally expenses would be paid for specific work.
144. This devolution of day to day responsibility from the central administration to local protectors led to a great deal of control over Aboriginal affairs residing at the local level. However, for those protectors whose official role involved the control of Aboriginal people, such as the police or magistrates, a conflict often arose between their official role and that of protector, with many Aboriginal people doubting the motives of the protectors.
145. In 1904, following public outcry about the labour conditions and treatment of Aboriginal people, the Roth Royal Commission was established to investigate the Government's handling of Aboriginal affairs. The Commission made a number of wide ranging recommendations, many of which were criticised by the government and not ultimately incorporated into the new Aborigines Act 1905 (WA).
146. The Aborigines Act 1905 (WA) gave extensive powers to the government over all aspects of the life of Aboriginal people including employment, movement and family. The Aborigines Department was made into a full government department under the control of the Chief Protector of Aborigines who was responsible to the relevant Minister of the Crown. The Act broadened the definition of an Aboriginal person, thereby extending the categories of Aboriginal people to whom the Act applied. The Chief Protector was made the legal guardian of all Aboriginal children under the age of 16 years and was given the power to enforce the removal of such children from their parents. The Aborigines Act 1905 also gave the government power to restrict and/or control the movement of Aboriginal people and to acquire and manage their property, including their wages. Employers were required to apply to local protectors to employ Aboriginal people and were to negotiate on working conditions with them (usually sufficient rations, clothing and blankets and medical attention where necessary).
147. In 1934 concern over the mistreatment and slavery of Aboriginal people led to the Mosley Royal Commission. The Commission largely denied the allegations of mistreatment of Aboriginal people and exonerated the Aborigines Department. This led to the introduction of the Aborigines Act Amendment (Native Administration) Act 1936 (WA) which amended the Aborigines Act 1905, extending the provisions and government controls contained in that Act.
148. Such controls were gradually repealed from the mid 1950s with the introduction of the Native Welfare Act 1953 (WA) and the Native Welfare Act 1963 (WA). This last Act omitted provisions by which government representatives retained legal guardianship over Aboriginal children.
149. In 1944 the Native (Citizenship Rights) Act 1944 (WA) was passed which allowed Aboriginal people to obtain a certificate of citizenship upon complying with certain requirements. Aboriginal persons making an application under the Act had to demonstrate, amongst other things, that they had "dissolved tribal and native associations" (except for lineal descents and first degree relatives) and had "adopted the manner and habits of civilised life". The holder of a certificate of citizenship was no longer considered an 'Aboriginal' for the purpose of the various native welfare Acts and was to have all of the same rights, privileges and immunities as any other citizen.
CLAIMANT APPLICATIONS
150. Native title determination application WAD 82 of 1998 / WC 95/61 was made on 3 October 1995.
151. Native title determination application WAD 6126 of 1998 / WC 96/101 was made on 14 October 1996. The application covered land within the Ngarla Overlap Area.
152. Native title determination application WAD 6152 of 1998 / WC 97/15 was made on 18 February 1997. The application did not cover land within the Ngarla Overlap Area.
153. Native title determination application WAD 6178 of 1998 / WC 97/50 was made on 7 July 1997. The application did not cover land within the Ngarla Overlap Area.
154. Native title determination application WAD 6185 of 1998 / WC 97/62 was made on 28 July 1997. The application covered land within the Ngarla Overlap Area.
155. An application to combine the native title determination applications referred to in paragraphs 151, 152, 153, and 154 above was filed with the Federal Court on 19 July 1999.
156. On 10 August 1999, the Federal Court made an order combining the native title determination applications referred to in paragraphs 151, 152, 153, and 154 above, with application WAD 6185 of 1998 as the lead application.
157. Native title determination application WAD 77 of 2005 / WC 05/2 was made on 7 April 2005.
STRELLEY
STRELLEY PASTORAL COMPANY
158. Strelley Pastoral Pty Ltd ACN 008 761 144 ("Strelley Pastoral Company") was incorporated on 15 September 1972.
159. Share number 1 in Strelley Pastoral Company was issued to Donald William McLeod in 1972.
160. Mr McLeod died in 1999.
161. Share number 2 in Strelley Pastoral Company was issued to Raymond John Thomas Butler in 1972.
162. At all times since it was issued, Mr Butler has continued to hold that share.
163. Share number 3 in Strelley Pastoral Company was issued to Robert Cecil Telford in 1972.
164. In July 1997, Mr Telford transferred share number 3 to Sambo Bina.
165. Share number 4 in Strelley Pastoral Company has never been issued.
166. As at 3 October 1995, the shares in Strelley Pastoral Company were held by:
(a) Donald William McLeod;
(b) Raymond John Butler;
(c) Robert Cecil Telford;
(d) Toby Jones;
(e) Amy Jones;
(f) Sambo Bina;
(g) Bardy Naire;
(h) Alec Snowy;
(i) Bill Marney;
(j) Elsie Ginger; and
(k) Biddy Thomas.
167. As at 3 October 1995, no other person held shares in Strelley Pastoral Company.
168. As at 14 October 1996, the shares in Strelley Pastoral Company were held by:
(a) Donald William McLeod;
(b) Raymond John Butler;
(c) Robert Cecil Telford;
(d) Toby Jones;
(e) Amy Jones;
(f) Sambo Bina;
(g) Bardy Naire:
(h) Alec Snowy;
(i) Bill Marney;
(j) Elsie Ginger; and
(k) Biddy Thomas.
169. As at 14 October 1996, no other person held shares in Strelley Pastoral Company.
170. As at 18 February 1997, the shares in Strelley Pastoral Company were held by:
(a) Donald William McLeod;
(b) Raymond John Butler;
(c) Robert Cecil Telford;
(d) Toby Jones:
(e) Amy Jones;
(f) Sambo Bina;
(g) Bardy Naire:
(h) Alec Snowy;
(i) Bill Marney;
(j) Elsie Ginger; and
(k) Biddy Thomas.
171. As at 18 February 1997, no other person held shares in Strelley Pastoral Company.
172. As at 7 July 1997, the shares in Strelley Pastoral Company were held by:
(a) Donald William McLeod;
(b) Raymond John Butler;
(c) Robert Cecil Telford;
(d) Toby Jones;
(e) Amy Jones;
(f) Sambo Bina;
(g) Bardy Naire;
(h) Alec Snowy;
(i) Bill Marney;
(j) Elsie Ginger; and
(k) Biddy Thomas.
173. As at 7 July 1997, no other person held shares in Strelley Pastoral Company.
174. As at 28 July 1997, the shares in Strelley Pastoral Company were held by:
(a) Donald William McLeod;
(b) Raymond John Butler;
(c) Toby Jones;
(d) Amy Jones;
(e) Sambo Bina;
(f) Bardy Naire;
(g) Alec Snowy;
(h) Bill Marney;
(i) Elsie Ginger; and
(j) Biddy Thomas.
175. As at 28 July 1997, no other person held shares in Strelley Pastoral Company.
176. As at 7 April 2005, the shares in Strelley Pastoral Company were held by:
(a) Raymond John Butler;
(b) Toby Jones;
(c) Amy Jones;
(d) Bardy Naire;
(e) Bill Marney;
(f) Beryl Ponce;
(g) Dick McKenna;
(h) Biddy Bunwanie;
(i) Gladys Jack; and
(j) Monty Hale.
177. As at 7 April 2005, no other person held shares in Strelley Pastoral Company.
178. Each of the following persons are or were Aboriginal people:
(a) Toby Jones;
(b) Amy Jones;
(c) Sambo Bina;
(d) Bardy Naire;
(e) Alec Snowy;
(f) Bill Marney;
(g) Elsie Ginger;
(h) Beryl Ponce;
(i) Dick McKenna;
(j) Biddy Bunwanie;
(k) Gladys Jack;
(l) Monty Hale; and
(m) Biddy Thomas.
179. Each of the persons in paragraph 178 above are or were one of the Fourth Applicant or persons with whom the Fourth Applicant claims to hold or have held native title in the Ngarla Overlap Area.
STRELLEY PASTORAL LEASE
180. Strelley Pastoral Company became the lessee of pastoral lease 3114/510 by transfer from the then existing lessees of that lease, which transfer was registered on 11 February 1975.
181. Pastoral lease 398/768 was issued to Strelley Pastoral Company on 3 October 1998 and registered on 6 October 1988.
182. Pastoral lease 398/768 had a term commencing on 22 March 1988 and expiring 30 June 2015.
183. Pastoral lease 398/768 was surrendered and included in pastoral lease 3114/1281 by surrender registered on 28 January 1994.
184. Pastoral lease 3114/1281 was issued to Strelley Pastoral Company on 31 January 1994 and registered on 11 July 1994.
185. Pastoral lease 3114/1281 has a term commencing on 31 January 1994 and expiring on 30 June 2015.
186. At all times since 31 January 1994, Strelley Pastoral Company has been the lessee of Pastoral lease 3114/1281.
THE STRELLEY HOUSING SOCIETY INCORPORATED
187. The Strelley Housing Society Incorporated was incorporated on 22 January 1974.
188. Special lease 3116/9217 dated 15 May 1986 and registered on 21 May 1986 has been granted to The Strelley Housing Society Incorporated for a term of 50 years commencing on 1 April 1985.
189. Prior to August 1994, the leased land was to be used solely for the purposes of housing, agriculture and grazing.
190. In August 1994, the purpose for which the leased land was to be used was changed to residential.
OTHER FACTS
191. Aboriginal people may identify along a scale ranging from intensely local to broadly regional, according to context. An individual may fit into group formations of various sizes and compositions.
192. The Kajarrinya law ground was established in the early 1950's with the knowledge of the Ngarla people.
193. The following Aboriginal people:
(a) Massey Challawarie - Mangala identification;
(b) Sambo Bina – Nyangumarta identification;
(c) Paddy Egan - Mangala identification;
(d) Billy Pindu - Yilbaridja identification;
(e) Bruce Wantari - Nyangumarta identification;
(f) Brumbi - Nyangumarta identification;
(g) Charlie Yilyuru - Nyangumarta identification;
(h) Paddy Wakaji - Nyangumarta identification;
(i) Dooley Binbin - Nyangumarta identification;
(j) Tommy Muccall - Nyangumarta identification;
(k) Ginger Noogera - Nyangumarta identification;
(l) Jacob Winjarrka - Nyangumarta identification;
(m) Snowy Karayanarra- Nyangumarta identification;
(n) Sam Jalin - Nyangulllnrta identification;
migrated west of their traditional homelands during the twentieth century and had been permitted to reside in the area and participate in the conduct of traditional law activities in the area in which they were residing.
APPENDIX B
Warrarn evidence in support of ‘Long Term Physical Association with Strelley’
The following is a summary of the evidence referred to by the Warrarn in Part 3 of their final written submissions. The evidence of the State and the Ngarla in response is referred to elsewhere in these reasons.
The Nomads Group
The Nomads Group was a class of people with a fluctuating membership according to John Wilson. The census figures for the group were:
1946: 400
1951: 773
1952: 663
1954: 364
1955: 280
1959: 270
Since the 1940s, the Nomads Group have lived in the Strelley, Warralong and Coongan area.
In the 1940s, the Nomads Group set up a series of camps around the Pilbara, both within and close to the claim area, according to Crow Yougarla.
In 1956, Crow Yougarla says that 14 leaders (Massie Challawarrie, Sambo Bina, Paddy Egan, Billy Pindu, Bruce Warntarri, Brumbi, Charlie Yilyuru, Paddy Wakaji, Dooley Bin Bin, Tommy Muccan, Ginger Noogera, Jacob Winyjarka, Snowy Karlyamanarra, and Sam Jalin) were given rights and responsibilities in respect of the Law and the land by Ernie Mitchell and Coombie. The country for which Crow Yougarla says that the rights were transferred includes the Strelley, Warralong and Coongan areas.
In 1959 there were 9 Pindan camps or settlements within a 100 mile radius of Port Hedland, including one at Strelley.
Crow Yougarla says that in 1973 the Nomads Group purchased Strelley Station.
In 1976 there were about 500 people at Strelley. John Bucknall says that the major decision makers in 1976 were Jacob Oberdoo (Minyun), Snowy Judamia (Jiterrmarra) and Crow Yougarla, supported by Massie Challawarrie, Sambo Bina (Yawarta), Bruce Warntawari, Charlie Ilyuru, Dooley Bin Bin, Tommy Muccan, Ginger Ngoogera (Noogra), Jacob Winjerger, Snowy Kalyamarri, Sam Jarlin, Billy Thomas, Joe Judamai, Toby Jones and Roy Toby. The women who were strong leaders were Rosie Oberdoo, Nancy Judamia, Molly Williams, Caroline Jula and Amy Jones.
In September 1977 at Strelley Station the Nomads group comprised a population of 692 people who were resident in Garden Camp (Leslie Mukie), Middle Camp (Crow’s), Billy’s Camp, Ginger’s Camp and houses, including one for Snowy Judamia and one for Jacob Oberdoo.
In 1999, Crow Yougarla said that members of the Nomads group ‘continue to live at the Strelley and Coongan Stations’.
Monty Hale, Bruce Thomas and Kevin Fred, in their joint statement, say that old people like Dooley Bin Bin, Jacob Oberdoo, Snowy Judamia and Crow Yougarla were the old people, who were the Law carriers, had everything they needed to run the Law at Strelley and did not need permission to open the Strelley Law ground.
Monty Hale:
Monty Hale went through Law at Kajarinya in 1955 when 21 years old.
From 1972 on, Monty Hale says, he has been at Strelley. The Warrarn also say that evidence is that Monty Hale has participated in Law at Strelley since this time. The evidence referred to by the Warrarn in support is that Monty Hale practises Law at Warralong, which is the same law as they have been running from before at Strelley.
Monty Hale’s oldest brother was Jacob Oberdoo.
Jacob Oberdoo was one of the leaders in the Law at the Strelley Law ground when Lindsay Hardcase went through the Law.
Jacob Oberdoo was the top leader and one of the 3 main decision makers in the Nomads group at Strelley.
It is in this context that Monty Hale gave evidence that all the senior people in the Warrarn claim are dead. It is to be inferred that he was referring to the generation of leaders which included his brother. All of the leaders of that generation have passed away except for Monty Hale.
Monty Hale is acknowledged as a leader in the Law by Lindsay Hardcase.
Bruce Thomas:
Bruce Thomas went through the Law at Strelley Law ground in 1973 or 1974.
When he married (after he had been through the second Law ceremony) Bruce Thomas stayed at Strelley.
Bruce Thomas worked at the school at Strelley.
Biddy Bunwarrie:
Biddy Bunwarrie came to live at Strelley in 1970 when it was first bought and now lives at Warralong.
She primarily identifies as Coastal Nyangumarta according to Dr Smith.
Along with the other members of the Nomads community she lived at Nine Mile and Marble Bar before coming to Strelley in 1970.
According to the genealogical charts, Biddy Bunwarrie was married to Mick Waynardu.
Mick Waynardu was one of the leaders in the Law with Peter Coppin, Jacob Oberdoo, Snowy Judamia and others at the Strelley Law Ground and later Warralong. He was one of the leaders when Lindsay Hardcase was put through the Law.
Winnie Coppin says that Biddie Bunwarrie is a Business Girl.
Elizabeth Bunwarrie:
Elizabeth Bunwarrie came to Live at Strelley in 1970 when it was first bought and now live at Warralong. It is unclear on the evidence, but it seems likely that she went to school at Strelley.
She is the daughter of Biddie Bunwarrie.
The Warrarn say that she was married to Frank French (dec) a former named applicant on the Warrarn claim, but do not refer to any evidence in support of this statement.
Kevin Fred:
Kevin Fred grew up with the Nomads at Strelley and worked and went through the Law at Strelley. He is recognised as a leader in the Law by Lindsay Hardcase. His grandfather was Sam Jalin, a leader in the Law at Kajarinya.
Crow Yougarla
Crow Yougarla was not competent to give evidence. His affidavit was tendered in the proceeding.
Crow Yougarla’s sister was married to Jacob Winjarrka.
Crow helped bring the rain ceremony to Strelley.
Crow Yougarla and Crow’s brother were leaders in the Law at Strelley.
Mary Rollands/Rowlands
Mary is married to Monty Hale.
She was previously married to Sambo Bina. Sambo was the brother of Dooley Bin Bin and one of the leaders of the Strelley community. Dooley Bin Bin is referred to extensively in the Wilson thesis and is acknowledged in the evidence as a leader in relation to the Strelley Law ground.
She is a Business Girl.
Kathleen Thomas
Kathleen Thomas is the daughter of Sambo Bina. She lives in Port Hedland and was married to the deceased brother of Bruce Thomas.
Kathleen Thomas was said to have been a midwife to one of the births on Strelley Station in the early 1990s.
She was described as an elder woman of the Fourth Applicant group in whom women's songs and stories, including the Minyiburu, are vested.
Nancy Judamia
Nancy Judamia did not provide a witness statement but was called to give evidence with Elizabeth and Biddie Bunwarrie at Mikurrunya and again at Tjartutu.
She was identified as one of the Business Girls by Winnie Coppin and was regarded as a strong leader at Strelley in the 1970s.
Nancy was married to Snowy Judamia (also written Jiterrmarra).
Snowy Judamia was one of the leaders in the Law at the Strelley Law ground when Lindsay Hardcase went through the Law.
Snowy was one of the 3 main decision makers in the Nomads group at Strelley. The Warrarn say that Snowy Judamia was very senior in the Law and had associated rights and responsibilities. Mr O’Connor says that Snowy Judamia was in charge of the relocation of sacred objects and that he was involved in a consultation with the late Peter Coppin prior to the signing of the Yarrie Agreement. Mr O’Connor says that with the passing of Snowy Judamia, Mr Coppin became the last of the heavies in the Law.
Gladys Jack and Polly Jack
Gladys Jack is the daughter of Sam Jarlin / Jarliny who was one of the leaders of the Strelley community in the 1970s. He was one of the fourteen people to whom Crow Yougarla says rights and interests were transferred in 1956.
Polly Jack was also married to Snowy Judamia.
Polly and Gladys Jack were identified by Winnie Coppin as Business Girls.
May Chapman
May Chapman was married to Billy (Bit Bit/ Pit Pit) Thomas. Bit Bit worked together in the law with Peter Coppin, Snowy Judamia and others. John Bucknall says that Bit Bit was a senior, though not leading, Nyangumarta lawman.
May Chapman was one of a group of women who attended Court with Doris Eaton at Kajarinya and later at Port Hedland. She was identified as one of the Business Girls. She is a member of the Martu native title claim group. She lived with her husband and his other wife Biddy Thomas at Strelley and later at Warralong.
Topsy Yarbala (Bamba)
Topsy Yarbala was present at the hearing in Port Hedland.
She was married to Paddy Yarbala. Paddy Yarbala was Maggie Ginger’s brother and Bruce Thomas’s uncle.
Paddy Yarbala lived on Yarrie Station. He brought the rain ceremony from Yarrie to Strelley with his brothers and other skin brothers.
Maggie Ginger (deceased)
Maggie Ginger gave evidence in the proceeding. She said that she was born at Yarrie station. She came to Strelley in 1970 and has lived there and in Port Hedland since that time. She participated in the rain ceremony at Strelley which was brought there by her brothers Paddy Yarbala and Bill Marney and others. It is now looked after by her son Bruce Thomas.
Maggie Ginger lived at Strelley Station most of her life.
Elsie Ginger
Elsie Ginger is said by Elizabeth Bunwarrie to be one of the Warrarn group.
She was a shareholder in Strelley Pastoral Company as at 3 October 1995, 14 October 1996, 18 February 1997, 7 July 1997 and 28 July 1997.
She is Gladys Jack's sister's daughter.
She assisted Gwenda Bucknall in the production of genealogies over a number of years at the Strelley School. While the assistance is supported in the evidence, there is no evidence that these meetings took place on Strelley Station, although I note that Ms Bucknall worked at Strelley School.
Selena Brown
Selena Brown was a second wife to Maggie Ginger. This may mean that she was the second wife to one of Maggie Ginger’s husbands.
She was described as an elder woman of the Warrarn in whom women's songs and stories, including the Minyiburu, are vested.
She assisted Gwen Bucknall in the production of genealogies over a number of years at the Strelley School. While the assistance is supported in the evidence, there is no evidence that these meetings took place on Strelley Station, although I note that Ms Bucknall worked at Strelley School.
