FEDERAL COURT OF AUSTRALIA

Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714

THE COURT ORDERS THAT:

1.    By 4 August 2014 the applicants and the first respondents file a draft determination of native title reflecting these reasons for judgment

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

REASONS FOR JUDGMENT

THE APPLICATION

1    In this proceeding, which was filed on 12 August 2002, the applicants, on behalf of the Pilki People, seek a determination of native title over an area of unallocated Crown land.

THE APPLICATION AREA

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

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

THE LEGAL ISSUE

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

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

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

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

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

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

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

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

the joint hearing

10    This proceeding was heard together with applications WAD 6284 of 1998, WAD 108 of 2008, WAD 50 of 2010 and WAD 299 of 2011 by the Birriliburu People for a determination of native title. The Birriliburu application areas are also in the Western Desert region and are to the north west of the Pilki application area. The same legal issue arises in both proceedings and the legal argument in both cases was addressed together, by the same counsel. As a result, the sections in both reasons for judgment which describe the submissions of the parties and the consideration of the legal arguments differ only in relation to the separate evidence given in each case.

THE EVIDENCE

The Evidence of Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker

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

12    Mr Hogan was born in May 1955 in the bush in South Australia near the Western Australia border in Kulal. He claims rights in the application area through his father, who was born at Lingka in the Spinifex Native Title Determination Area.

13    Mr Hogan’s life story is mirrored in the stories of other members of the claim group. He explained what happened when he was perhaps eight or nine:

MR HOGAN:    … then we have to left that place. Just before the nuclear – nuclear bomb was going to be taking place in Maralinga. And we – we’ve walked across this – across the border and are now looking for – for the families of – that was in that land. But they’ve already has left and thing and we was the last lot of families roaming round looking for families that time.

MR BLOWES: Yes.

MR HOGAN: And we – we couldn't find them, so we started walking back just into the middle – middle the land there till – till we met one of the missionaries that came – was couple of white – white fellas and a couple of Aboriginal people that – they come across and started looking for us and they picked us up and – and then we – they took us into Cundeelee then.

14    Cundeelee was a mission east of Kalgoorlie. Members of the claim group later left Cundeelee to establish a new community a little to the south at Coonana on the Trans Australian Railway Access Road.

15    Mr Hogan explained what happened next:

MR HOGAN: … the elders of this lands there, they started talking about when they going to move back and go back to their home own home ground and things and – what they left and went away. And the bigger – big move was – didn’t – didn’t took us far, so they – they’ve moved on – they found a – found a water site in the station property - - -

…

And that place was Double Pump.

16    Double Pump is about halfway between the southern boundary of the application area and the Trans Australian Railway Line.

17    Then, members of the claim group moved north east, yet closer to the application area, and settled at Yakatunya. Here, the community acquired funding as compensation resulting from the Maralinga nuclear testing on their country. They used this funding to buy a bulldozer and grader. With that equipment they made a road back to their country and created the settlement at Tjuntjuntjarra.

18    Mr Sinclair was born in May 1970 in Kalgoorlie and now lives in Boulder, a suburb of Kalgoorlie. He claims through his father who was born in the east of the application area. Mr Sinclair also grew up in Cundeelee.

19    Mrs Kennedy was born in February 1954 in Kalgoorlie. She claims rights through her mother. She was with the community as it shifted out of the desert to Cundeelee and then back to country via Double Pump, Yakatunya and then Tjuntjuntjarra. She left Tjuntjuntjarra for Kalgoorlie three or four years ago because her husband became sick and needed dialysis.

20    Mr Walker was born in the bush near Kurala la and the Watala Rockhole and lived around Pipalyatjara or Mount Davis. In due course he joined the other members of the claim group at Cundeelee and ultimately moved with them to Tjuntjuntjarra.

21    Mr Walker was born “a long time ago, no motorcar”.

22    Mr Walker said that in his early days “never seen the white people”. In an exchange which was revealing of his background Mr Walker was asked:

MR BLOWES:    … And what did you reckon about white people?

23    And he replied:

LENNARD WALKER: When I seen that white face at first time they’s never been seen - never been seen a white - white man. Yes, I seen a first white man I seen, I took off and run away.

24     There was evidence, which was not contested, from each of the four indigenous witnesses of how they acquired knowledge of laws and customs from their old people.

25    Mr Hogan went through law at Cundeelee. He identified a number of old men who were in the courtroom during the hearing who taught young people about the law, and Mr Hogan said that many of his old teachers had now died. Mr Hogan has been involved in law business in many places including in the Northern Territory and in South Australia. Indeed, the hearing occurred just as law business in Tjuntjuntjarra concluded. Mr Hogan explained:

MR BLOWES: Alright. And have there been people from Warburton here recently?

MR HOGAN: Yes, they – they have passed through here - - -

MR BLOWES: When did they leave here?

MR HOGAN: - - - when we be – when we live – when we took over operating. And they – they pass through this thing from Warburton, Wiluna Jameson, Blackstone, you know.

MR BLOWES: What about – what about recently? When did they last - - -

MR HOGAN: They just started – over in – only just left about two days ago, And lot of them – lot of them have gone up to Australia and left on – in that –couple of days and they paint it on they wouldn't wear that.

MR BLOWES: Yes.

MR HOGAN: And - - -

MR BLOWES: I see you’ve got some red colouring in your hair. What’s that?

MR HOGAN: That’s a – that – that’s a - the traditions of our – our tribal laws and things and you could - you know? And that – that – that thing then represent you – you know, those people are – they carry that - laws and things and, you know?

MR BLOWES: Is that - - -

MR HOGAN: The proper other traditional owners, you know? We – we – we don’t - - -

MR BLOWES: Have you got that red in your hair because of some things happening here recently?

MR HOGAN: Yes. We – we just had a thing, and I did – you know, it’s only just – just it’s a red ochre that – that – that are on there.

MR BLOWES: Yes. So it was the final part of some law business that was here in Tjuntjuntjarra - - -

MR HOGAN: That’s it and that run - - -

MR BLOWES: - - - just a couple of nights ago.

MR HOGAN: - - - and then we – we just finish.

26    Mr Sinclair was taken at Tjuntjuntjarra to go through the law and learnt from people of the previous generation. Mrs Kennedy learnt the stories of her people particularly from her maternal grandmother, with whom she wandered in the bush, from her mother, from her uncle Roy Underwood who sat with her whilst she gave evidence at the hearing, and from other relatives, particularly Fannie Willis, with whom she lived after her mother died.

27    Mr Walker went through the law at Cundeelee. He said:

I learning from the old people then and learning full up kid because old people I learning from them.

28    Nor was there any dispute that members of the claim group took and used resources for personal use and sustenance. It is thus unnecessary to set out that evidence.

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

30    Mr Hogan said:

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

MR BLOWES: Alright.

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

31    This passage came at the end of a segment of evidence which does not read very coherently on transcript, but which conveyed a meaning when the evidence was given in Court where it was possible to observe the manner in which Mr Hogan gave the evidence. The questioning concerned the Pilki concept of ownership of country. Mr Hogan clearly conveyed the view that the Pilki People had the right to determine how the land was used – “that’s their every right”. He said that his people should not be going to the government to ask what they can do with their land, “[g]overnment’s got nothing to do with it”. He said that his people do not want white people telling them what to do with the land – “this is my land. It’s our land.” He explained that the Pilki People had been approached by mining companies and initially had refused permission for mining on the country. He said that later people “gave in”. Mr Hogan disagreed with the decision. He explained how the Pilki People were able to say no initially:

[F]rom start was no, no mining or anything. Because this is – this is the Aboriginal people’s land and what – what’s on this land is – is valuable. Valuable things like this is for the people, you know?

32    Asked whether there are traditional laws about making and selling paintings of Pilki country, Mr Hogan said:

MR HOGAN: … you can come up from your own homeland and say, “I’ll paint this. I’ll paint a” – no. This is our – this is our traditional owners who are painting. They are – they are actually painting they own birthplace. You know?

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

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

…

MR HOGAN: … Ngurra is Land.

MR BLOWES: Whose land?

MR HOGAN: These traditional people here.

33    In an exchange with the Court following examination in chief, Mr Hogan explained the source of rights in land as follows:

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

MR HOGAN: Yes, I did.

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

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

HIS HONOUR: Yes.

MR HOGAN: - - - in this country.

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

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

34    During cross-examination, Mr Hogan made clear his view that the Pilki People had the right under traditional law to control the taking and use of resources without hindrance, particularly from government.

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

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

MR QUINLAN: Yes.

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

35    Mr Sinclair said “[w]hat’s there on the land is theirs”. And that which is under the land, “they belong to us”. He explained that under traditional law the traditional owners could refuse mining companies permission to mine on the country. The Pilki People can make artefacts from timber on the land “because it belong to them”, and under traditional law, the Pilki People have a right to sell those artefacts.

36    Mrs Kennedy said that all the things on the country such as lizards, bardi or witchetty grubs, marlu or kangaroo, salt bush and trees “all belong to us”, “to the traditional owners of that place’. In the following exchanges Mrs Kennedy explained that strangers are not entitled to come and take resources of the Pilki country without permission.

MR BLOWES:    … if a stranger came in and started cutting down a tree or anything like that, would that be regarded – considered as okay by Anangu or is that not?

MRS KENNEDY: No, they mustn’t.

…

MR BLOWES: And if you went to somebody else’s country and there was a lot of sandalwood there and you thought you could make a business there Anangu way, can you do that or can you – or you have to - - -

MRS KENNEDY: No, I can’t go onto somebody else’s country and do it.

37    She also explained that if a mining company wanted to mine on the country, it must seek permission from the old people.

38    Mr Walker also gave evidence that the animals on the land “belong to the people” and that the people “own the ground”.

39    There was also some evidence of activities involving the use of resources of the country for sale. Mr Hogan told of the sale of paintings of the country made by elders, and also of the sale to tourists of necklaces made from seeds. Mr Sinclair spoke of the sale of artefacts. Mrs Kennedy made and sold baskets and said that clap-sticks with burnt decoration and spears were sold. Mr Walker said that artefacts are sold to white people in the town. He also gave evidence of young people shooting and selling rabbits.

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

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

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

HIS HONOUR: Yes.

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

HIS HONOUR: Yes.

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

42    And further:

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

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

HIS HONOUR: Yes.

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

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

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

45    Dr Cane, the anthropologist engaged by the applicants who was present when the evidence was given, provided the following insight which I accept:

I know the people and I know – I don’t know if this helps the court, but I might just elaborate it if I can in the context of the hearing, but I’ll speak fairly frankly, but I don’t want to be accusative in the context of doing that. But, for example, the hearing started on the morning and that night the business had finished at four o’clock in the morning.

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

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

So that there’s a lot of things in that courtroom pervading, so I know those things because I know the people. So, the evidence has to be contextualised in that way.

46    Having said this, there is no reason that the evidence, so far as it goes, should not be accepted at face value. There is no doubt that it was given without any guile and was genuine. Insofar as there are gaps in the elaboration of the relevant laws and customs, they were addressed by the evidence of Dr Cane.

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

The Evidence of Dr Cane

48    Expert evidence was given by Dr Cane. He holds a PhD from the Australian National University conferred in May 1985. His thesis was entitled ‘Desert Camps: a case study of stone artefacts and Aboriginal behaviour in the Western Desert’. In his report, Dr Cane described his experience relevant to this proceeding as follows:

10.    I have worked in the Western Desert (and adjacent arid areas) since 1980. I have researched, written and published on traditional subsistence patterns, and co-authored a monograph regarding land use and resources across central, Western and South Australia in 1985. I have worked with people living in the Great Victoria Desert since 1986, and conducted a vast number of field trips across it. I co-authored a volume detailing the archaeological, anthropological and environmental values of the Nullarbor Plain (South Australia) in 1988 and 1989 and assessed the world heritage values of the plain in 1992. I researched [and] co-authored the management plan for the Unnamed Conservation Park in 1990 and redrafted that plan for the Mamungari Conservation Park in 2011.3

11.    I have conducted a large number of field trips in land adjacent to Pilki, through Spinifex (adjacent east of the claim area) and between Plumridge Lakes and Lake Rason, around the Tropicana Gold Mining area (adjacent west of the claim area), since 1991 and have made many trips south across the Nullarbor Plain (south of the claim area). I have written or reviewed many native title connection reports across and beyond the desert, including two that deal with the territory and rights to land along the eastern margin of the Western Desert, as well as several reviews of native title reports that relate to country along the western margin of the Western Desert.

[Footnotes omitted.]

49    Dr Cane’s curriculum vitae attached to his report lists many publications including books, papers, and reports which he has authored since 1985. A large number of these publications are concerned with the Western Desert area. Dr Cane’s expertise in the area is impressive. There was no challenge to it, and no basis for any challenge.

50    Dr Cane was briefed by Central Desert Native Title Services, which provided a concise background to the issue in contention and defined seven questions on which Dr Cane was asked to report and provide an opinion.

51    In a refreshing display of independence, Dr Cane approached his response to the questions raised as follows:

3.    It is my view that the particulars sought in relation to the seven points identified above are better understood in relation to a contextual discussion of information relating to the tradition of trade and the meaning of commerce. It is my intention, therefore, to provide contextual background relating to trade and exchange as activities in the traditional context. A number of the more general points will be addressed in this background so as to provide the court with as much relevant information as possible and so inform the more particular elements of the terms of reference (to which I will return in the conclusion of the report).

52    In other words, he did not wish to be confined to a rigid framework which would not have given the Court a proper view of the way in which the Pilki People fit within the broader Western Desert and wider general Aboriginal community. This contextual discussion, which will shortly be detailed, occupies 89 pages. That discussion is followed by a further 17 pages which respond directly to the questions briefed.

53    The contextual discussion is detailed and very helpful. The major points relevant to the questions raised in the proceeding will be referred to now, but all of the discussion provides a well-rounded picture of the Pilki society.

Linguistic Evidence

54    Dr Cane first surveyed the definition of commercial activity in the English language and concluded:

Commerce is in this sense ‘trade’ and ‘commercial’ is trade and exchange, defined as the transference of merchandise and commodities for personal and social benefit through mediums of current and equivalent value (typically money).

55    He then considered whether such a concept exists in the Western Desert languages and concluded:

The linguistic insights into past commercial activity thus identify ‘trade’ and fair dealing as a traditional concept and see the role of money and buying and selling as an adaptation of the western tradition.

56    Then, in a lengthy section comprising 19 pages of the report and entitled “Trade in the past”, Dr Cane explained the evidence of trading by Aboriginal people, not limited to what he described as “the postage” of the Pilki application area. This section is divided into two parts. The first deals with the pre-sovereign era, and the second with the time after sovereignty.

Trading activity pre-sovereignty – archaeological evidence

57    In respect of the pre-sovereign era, Dr Cane referred to archaeological evidence acquired in the last 30 years which provides insight into the antiquity, scale, and nature of trade by Aboriginal people across Australia. There are separate discussions of trade in ochre, shell, grindstones, ground stone axes, stone knives, wooden implements and tobacco.

58     The archaeological evidence discloses a number of ancient sites where ochre was mined and from where it was traded. After referring to sites in Arnhem Land and in the Western Desert, Dr Cane continued:

31.    The best documentation of ochre trade comes from a mine called Pukardu in the Flinders Ranges. The red ochre at Pukardu is formed by haematite within joints and cavities in dolomite as gathered as sediments and mixed with either urine or water and made into large transportable cakes. These cakes were then circulated in regulated trade, with one ethnographic account indicating the ochre was traded for manganese, boomerangs, fire sticks, feather-down, bagged grass seed flour and meshed bags. The ochre cakes weighed about nine kilograms, with men carrying several amounting to about 30kgs on journeys to and from the mine. Combined loads of ochre and grindstones [43-44] were recorded historically as being transported distances of about 200km from the mine. There are accounts of expeditions consisting of 50 to 80 men travelling 400km return over 6-8 week periods to obtain and trade the ochre. One expedition of 56 men is reported transporting 1.5 tons of ore in one expedition. This and other ethnographic examples suggests over 600 tons of ochre have been quarried from the mine - suggesting exploitation and trade of this scale has only taken place over the last 300 years - a timeframe supported by regional archaeological investigations.

32.    The Pukardu mine is in the southern part of the arid zone and notionally within an ‘Eastern Desert’ cultural tradition - although there appears to have been a degree of cultural convergence between ‘Western Desert’ and ‘Eastern Desert’ traditions, with language, religion and kinship being transitional across the margin of both cultural areas: ochre, as a demonstrative example, was called karko by the Kaurna (from the Adelaide Plains) and karku by the Diyari (near Lake Eyre) - as is also the case (Karrku) amongst the Walpiri (and Pintupi, Kukatja, Walmatjari and Ngarti) in the Tanami and Great Sandy Deserts.

[Footnotes omitted.]

59    Then Dr Cane described evidence of trade in ochre to the Pilki area as follows:

33.    The largest of all ochre mines known in the desert area is Wilgie Mia in the Weld Ranges near Meekatharra. Wilga Mia is an ancient open cut mine about 1000 years old. It has a quarry face measuring 30m by 20m from which ochre was mined from scaffolding. The mining face opened into a mineshaft that was 60m long. At least 24,000 tons of stone were quarried to extraction about 6,000 tons of high-grade ochre. The ochre seems to have been traded 450-600 km across the south-western corner of the Western Desert and it appears likely that implements coated with it (if not the ochre itself) were traded across the Great Victoria Desert and Nullarbor, to Ooldea and Eucla, thus passing by (if not through) the Pilki claim area.

[Footnotes omitted.]

60    Dr Cane then described the evidence of instances of trade in baler shell and said, in relation to the Western Desert area:

39.    Trade in shell was certainly established across the desert at least 2,300 years ago. Baler shell (Melo amphora) was traded from Australia’s northern coast across some 1,700km of desert, reaching western central Australia and the Great Victoria Desert. Akerman recorded some ‘very old’ baler shell trade items at Wiluna in 1973 associated with the Milpali Tjukurrpa (he says Kurkati, which is a sacred component of the same narrative, see 4.1.1). He mapped the trade route along which the baler shell is likely to have travelled from the Pilbara into the Western Desert: from Port Headland to Marble Bar, Jigalong, Wiluna, Leonora, Mt Margaret, Laverton and finally the Warburton Ranges and Docker River. He also saw more recent pearl shell at Wiluna and concluded that the ‘western ward trade routes are still maintained’ noting that Central Australian ‘bean tree shields have also been seen at Wiluna and Cundeelee’.

[Footnotes omitted.]

61    In due course, trade in baler shell gave way to trade in pearl shell which Dr Cane described thus:

41.    The importance of baler shell in the trade networks of the desert diminished during the historic period in favour of pearl shell (Pinctada maxima and P. albina). Baler shell was still popular in the early 1890s but was replaced rapidly through the desert by pearl shell from around 1900. Traditional systems of exchange are thought to have accelerated in post contact times as a consequence of centralized settlement and better transport combined with the ready availability of a comparatively new resource - pearl shell as a by-product of the pearling industry from the 1870s. This conjunction of resource availability and improved mobility saw the spread of the shell over the western half of the continent, as far south as Yalata and Cundeelee (see figure 3, and separate plate appended to this report) and thus within the cultural confines of the Pilki claim area, in no time at all: pearl shells (with distinctive patterns) seen at Cundeelee in 1973 had travelled over 4000 km to that destination in just 20 years.

[Footnotes omitted.]

62    As to the trade in grindstones Dr Cane reported:

42.    Millstones for seed grinding were highly valued across the arid regions of Australia because of the importance of grass seeds as a staple food resource. …

43.    … The value of grindstones in the Pilki area was demonstrated to me when visiting that site. Pilki is situated on an open sand plain, with little access to suitable stone for seed grinding. A grindstone was located there belonging to antecedent Lily Green. People recognised the dish, and made quite a fuss about it, noting that the old woman had always wanted to come back and get it.

44.    … Grindstones from another quarry at Tooths Nob on the margin of the Flinders Ranges were traded as far north as Boulia, 1,000km away. There are over 370 quarry pits here resulting in the production of an estimated 500,000 to 1,500,000 millstones: an activity of industrial proportions. Trade here was linked to trade at Pukardu ochre mine – ‘each man carried back either a slab of stone or lump of ochre on his head’ and requiring ‘some kind of permit from the intervening tribes’. …

    [Footnotes omitted.]

63    In his oral evidence, Dr Cane said that the grindstone referred to in the previous paragraph as belonging to Lily Green was now at Tjuntjuntjarra. He said that it was formed from a water-rolled pebble and hence came from a very large river. He thought that it was traded from the Pilbara or from the south west.

64    Dr Cane reported that material for making ground stone hatchet heads was scarce in the Western Desert and was traded south from the Kimberley into the arid zone from eastern and northern Australia. He explained thus:

46.    The largest axe quarries known were in the Mt. Isa area and are over 1000 years old (quarries with similar antiquities are also recorded across Central Australia). In the Mt. Isa area some quarries extend over 2.5 sq. km with evidence for an estimated 800,000 axe blanks being made and stockpiled for trade. If it is assumed that the stockpile represents 75% of production, and the quarry is about 1000 years old, then this indicates the production of about 1,000 axes per year, and if other quarries in the Mt. Isa district are included, axe production may have been in the order of 10,000-15,000 axes per year – ‘reflecting a considerable surplus above normal replacement needs’ and implicitly, production in anticipation of demand. Axe production was tedious work, requiring two days to finish an axe for use (often delegated to women), the ethnographic figures suggesting some 20,000 - 25,000 man (women) hours of labour were dedicated per year in the production of Mt Isa axes. The axes were also highly standardized suggesting a routine application of a set sequence of production Mt Isa axes were distributed over 1000km from their source - as far as the Finders Ranges.

    [Footnotes omitted.]

65    Then Dr Cane referred to the trade of desert hardwoods out of the region thus:

50.    Certain Eucalyptus and Acacias provide resilient woods for hunting spears although the best material this regard was Acacia dictyophleba (see also Table 1). This grows in isolated groves throughout the Western Desert. The wood was highly sought after for spears and was traded from remote parts of the Great Sandy Desert east with the Walpiri for sacred materials and ochre from Karrku. The tree grows as a slender upright sapling, spear shaped and ready for straightening. I travel [sic] with five men to one well-known location near the Forebank Hills in 1982. These men had walked to the area from Lake Hazlett and the Carnegie Range, 200-250km away, in the protohistoric period and said the trip was a yearly occurrence in the pre-contact period. The last nomads to utilise the grove were Pintupi men living in the desert until 1985, who had, in fact, just returned from collecting spears at this location when they were contacted and brought into Kiwirrkurra. Permission was required to exploit the location, although the wood could, apparently be cut ‘for free’. Conditions were, however, set on the nature of exploitation - perhaps to protect the precious resource from over exploitation. The conditions allowed a visiting party to cut as many spears as possible in the course of one night, before leaving. The area was believed to be dangerous and certain rituals had to be performed before entering the area. There was no water in the local vicinity, thus encouraging shorter than longer stays, in any case. During the day and night we visited the resource the men worked all afternoon and most of the night cutting and straightening spears. One hundred and four spears were cut and straightened before returning to their community. Spears that were intended for trade were left unmarked, but those designated for personal use were marked with the signature of the person keeping them.

    [Footnotes omitted.]

66    Wild tobacco is common in the range country across the arid zone. Dr Cane explained:

53.    The most famous of the wild tobacco was the narcotic pituri, Duboisia hopwoodii. This grows across the arid zone (including the Great Vitoria [sic] Desert) but appears to have particular (hallucinogenic) qualities at a particular and reasonably small grove of 24,000 shrubs on the Mulligan River north east of Lake Eyre: the alkaloid nicotine here is 2.4 to 5 percent; more than twice the content of commercial cigarettes and other desert Nicotiana). Elsewhere in the desert, and across the Great Victoria Desert D. hopwoodii is known to be poisonous (it has much higher concentrations of the toxic alkaloid, D-nor-nicotine), and only used to contaminate water holes to stun and so hunt game more easily.

    [Footnotes omitted.]

67    The report described the significant trading operation of wild tobacco as follows:

54.    The shrubs near the Mulligan River were burnt to promote growth, harvested and the leaves dried in heaps. People travel return distances of over 1000km to obtain it. It was also traded with groups beyond the confines of the desert region in which it is located (figure 4). Records of the last pituri expedition provide some insights into the nature of the trade, and saw each member of the expedition loaded with about 30kg of dried leaves, suggesting about 900-1,600kg of dried leaf was transported annually from the grove. This level of harvesting would require the harvest of 500-900 shrubs annually, ‘this was direct, corporate, long-distance transfer of a commodity rather than the dissemination of prestige goods”.

[Footnotes omitted.]

Trading activity post-sovereignty

68    Dr Cane then explored the question of trade in resources after the arrival of Europeans. There was an examination of the work of early anthropologists. Stanner was quoted as writing that trade was “a system of primitive economics imperfectly recorded”. Dr Cane said that:

56.    The universality of trade across the Australian continent was documented in some detail by McCarthy in 1939 and classified by him into a system of local and regional ‘barter’ in the context of established ‘trunk’ routes.

[Footnotes omitted.]

69    McCarthy described the trading trunk routes in south east Australia, north Australia, the Lake Eyre District, central Australia, South Australia, and Western Australia. Although trade as a common feature of Aboriginal life throughout Australia is significant for this case, the South Australian trunk route is the most directly relevant. McCarthy’s work on that route was referred to thus:

(f)    South Australia (and surrounding the Pilki claim area): McCarthy notes that flint was trade from the Nullarbor and Bates is quoted as saying people at Eucla traded flints while others from the eastern Nullarbor (Yuria = Euria Rockhole) ‘brought materials to produce ceremonial colours: charcoal, soft red and hard red ochre, white pipe clay and yellow pigment and were ‘paid in return’ with dishes, spears, clubs and other weapons’. At Ooldea, on the north eastern margin of the Nullarbor Plain ‘stone-age barter’ involved pearl shell, red ochre and ‘flint knives’, as well as ‘spears ... spear heads ... fur string belts and forehead bands, curiously shaped meteorites [tektites], little tail tips of the tail of the rabbit bandicoot, clubs, Murchison ornamented shields - all found their way for immense distances along this great recognised continental route’. The reference to ‘Murchison ornamented shields’ may refer to shields coloured with haematite traded from the Wilgie Mai mine near Meekatharra (and discussed [33]).

70    Dr Cane concluded this section as follows:

59.    My assessment of the ethno-historic evidence is that it indicates a) an established tradition of trade across the continent, including the Western Desert, b) that trade took place across cultural boundaries and thus between people belonging to different societies with different traditional laws and customs c)that trade involved the movement of valuable goods, c) [sic] the value of these goods increased as they progressed along established trade routes - from where the raw material existed and the goods were made to where the material did not exist, the goods could not be made and acquired personal and social value. There is clearly a social and ceremonial aspect to trade across the country with different scholars attributing different emphasis on the social, religious and economic aspects of the tradition.

Linkages beyond the application area

71    Having explained the trading activities of Aboriginal people in Australia as a general phenomenon, Dr Cane moved to a consideration of the more local trading activities of the Pilki People. In order to understand that matter, Dr Cane explained the linkages which the Pilki People have to other Aboriginal groups both near and far, because those connections influence the relationships between people, including trading relationships. Dr Cane explained those connections thus:

60.    The Pilki claimants are members of the Western Desert Social and Cultural Bloc (WDSCB or Western Desert). They were nomadic people with ceremonial and social links to the east (Spinifex and Pitjantjatjara), north (Ngaanyatjarra), south (Ngatju) and west (Wongatha). The WDSCB is recognised in both law and anthropology as defining the society of a people across an area of the arid zone of Australia who adhere to more or less the same traditional laws and customs. The exact delineation of the area is not known although it is my opinion that it is best delineated by the geography of the religious traditions that underpin and give rise to its laws. The WDSCB thus extends as far as those religious narratives are recognised in country. This outline of the WSDSCB would, if delineated, have a somewhat denticular and amoebic plan anchored by the terminal points of (at least) the Wati Kutjara (Two Men), Wati Marlu (Red Kangaroo Man), Milpali (Sand Goanna), and Minyma Tjuta (Many Women) religious narratives.

72    In his oral evidence Dr Cane explained why he referred to the context beyond the application area. He said:

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

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

…

I don’t think people generally are aware of how substantial the system of trade was in the Australian continent and how old. So, it was a matter of information transfer really.

73    Dr Cane said that access to land and resources was defined and controlled by traditional laws and customs encapsulated in the Tjukurrpa, or dreaming, being a religious tradition that defined country, the society and the politics of the people related to that country. He then described ten Tjukurrpa that pass through the Pilki application area from surrounding country namely, Minyma Tjuta (Many Women, or Seven Sisters), Wati Nyiiru (Nyiiru is the name of the man known to chase the Minyma Tjuta), Wati Kuniya (Python Man), Wati Kalaya (Emu Man), Minyma Nyiarri (Mountain Devil Woman, also known as Papa Tjuta (Many Dogs)), Wati Marlu (Red Kangaroo Marlu) and Wati Kulpirr (Scrub Kangaroo Man), Milpali (Sand Goanna), Wati Kutjara (Two Men), Wati Wanampi (Water Snake Man), Minyma Karritjari (Karritjari is the Woman’s name).

74    One typical example which shows the extensive geographical reach of the dreaming stories is the Wati Marlu and Wati Kalpirr which Dr Cane related as follows:

(f)    Wati Marlu (Red Kangaroo Marlu) and Woti Kulpirr (Scrub Kangaroo Man): This Tjukurrpa relates to an extremely important and powerful Red Kangaroo Man who travels south from Warburton, chased by large numbers of dogs past a soak near Warburton (also called Pilki), south past Mitutu into the Pilki claim area, passing south onto the Nullarbor Plain near Yakatunya, before heading west, towards Double Pump and returning north along a similar path, near Jubilee Lakes in the Pilki claim area before tending north west, to Minnie Creek where the Tjukurrpa finishes. This Tjukurrpa is a very sacred men’s Tjukurrpa and is the primary Tjukurrpa revealed in initiation ceremonies and generational kinship. The Tjukurrpa has three extensions: a southern extension south summarised above; an eastern extension that goes east from Warburton into the Yankunytjatjara lands and a northern extension through the Great Sandy Desert to the Kimberley. The southern and eastern parts of the Tjukurrpa detail the four and two part kinship system used by the claimants (the two part system and related initiation practices are also prescribed by the Desert Finch, Wati Nyiinyii Tjukurrpa that passes 10 km to the east of the claim area within the Spinifex Native Title Determination Area).

    [Footnotes omitted.]

75    Not only do the dreaming stories traverse a wider area than the Pilki application area, but the personal linkages of the Pilki People go beyond that area. Thus, Dr Cane wrote:

66.    All of the families identified in the claim group have relations from other parts of the larger social environment, notably from the Spinifex Native Title Determination Area and from the margins of that Determination Area, the Maralinga Lands and Mamungari Conservation Park in South Australia.

76    He therefore observed:

69.    … People’s socio-geographic relationships are complicated and many people are related variously to large parts of contiguous country.

Post-sovereignty history of the Pilki People

77    Then, as a background to a more detailed analysis of trading activity since sovereignty, Dr Cane traced the history of the Pilki People since sovereignty. He explained the history of the period of first contact with Europeans and then the period which saw the movement of the Pilki People out of the desert.

78    In the period of first contact, in the late 19th century, explorers passed through country near the application area. Gold was discovered in Kalgoorlie in 1893 and in other areas in the region. A few pastoral leases were granted around the area. There was the odd dingo hunter or sandalwood cutter in the general area at this time. However, the European presence did not intrude into Aboriginal life. Official records of Aboriginal people in the area started about this time.

79    Then, in the second period, the 1930s and 40s, ration stations and missions were established in the area and people moved from the desert, including from the Pilki application area, to those places, particularly to Cundeelee, Warburton, Ooldea, Laverton and Cosmo Newberry. Thus, in 1934 Tindale recorded Pilki People in Ooldea. In the mid-1950s atomic testing took place at Maralinga. In order to prevent danger to people from the atomic tests, government officials travelled to the surrounding areas including the Pilki application area. Pilki People were camped at Kulkapin or Smith Station 10 km east of the Pilki application area. Four hundred people were contacted there and 313 transported from Kulkapin in 1954-5. Others came out of the desert on their own accord.

80    Dr Cane described the impact of the relocation from the desert as follows:

101.    The impact of settlement on Aboriginal custom and tradition was substantial in so far as it saw significant changes in the location and nature of people’s residence as well as an alteration to their patterns of settlement and mobility. Settlement life restructured their daily routine and altered subsistence and eating habits. Community life intensified patterns of social interaction and caused an obvious physical separation between themselves, their country and their religious locations. Resettlement from the desert took place within a decade and is thus as dramatic as any changes in the history of Aboriginal Australia. But these changes were equally a sharp, isolated episode within the cultural development of the local Aboriginal community, and were not a long-term malady. They also took place within a cultural context that gave the Spinifex People some choice as to which social changes they wished to accommodate and which they chose to reject. The influences of history were not unloaded onto a distant, unknowing and vulnerable Aboriginal ancestry but to a community with the resources and opportunities of the 20th century, particularly as the 1970s dawned. Unlike so many Aboriginal people who suffered social and territorial dislocation throughout the greater region, the Aboriginal people at Missions such as Cundeelee, Warburton and Ooldea met social change within a social climate of comparative choice, education and opportunity. The move was comparatively passive. There was no conflict, warfare, disease or theft of country by other people. The Aboriginal people also emerged from the desert with their traditions intact. Their store of customary knowledge had not been diminished by their historic exposure. There was no catastrophic fragmentation of the social group, no loss of communal knowledge and custom. The ritual, social and economic knowledge held between and linked across the generations and genders of people was secure.

81    He concluded:

103.    … The historic period linked with the pre-historic period and brought with it changes in activity, trade and resource use in the context of extant traditional law and custom.

Post-sovereignty trading activity – anthropological writings

82    Then Dr Cane referred in some depth to writings about trading activities undertaken in a traditional way in the geographic and cultural region of the Pilki application area. Thus, in 1905 the explorer Richard Maurice recorded hundreds of Aboriginal people assembled at Ooldea to barter. In 1911-13 Daisy Bates recorded trade in ‘articles of commerce’ from Eucla and the Nullarbor Plain northward. She particularly referred to trade in flint and described the flint exposures at Wilsons Bluff as a ‘great hereditary commercial asset’ of the people. She also wrote of trade in string made from the fur of wombat or kangaroo by way of barter for spears made from tree roots from the Pilki application area. Dr Cane then reported:

108.(d)    In 1919 Bates recorded additional detail about trade routes across and around the Nullarbor Plain: ‘there were two native highways of commerce, one leading from the Boundary Dam area [Forrest Lakes, WA, 200km east from Pilki] and the Nor'west to the head of the Bight, with a branch towards the Eucla area, the other skirting the eastern edge, coming from Ooldea southwards, ... where traffic has been carried on for many generations’. She notes that ‘along these respective routes articles of barter were carried, some of them, such as pearl shell and the like, coming from the far-off West Australian coast ... the Gasgoyne and Upper Murchison areas in Western Australia, being forwarded to Penong [South Australia] and further east for barter’. She says a ‘a species of spear made from special tree roots growing east of the headwaters of the Gasgoyne and Murchison, and north-east of the Laverton district, and called “yoojan” or ‘nyoojan” ... is bartered all along the south coast of South Australia, and carries its name with it throughout its journeys. “Karratr”, mother-of-pearl shell is also vended’.

    [Footnotes omitted.]

83    In 1920 Daisy Bates wrote that, at a large gathering of Aboriginal people, water was paid for by trading flint, string, and pearl shell.

84    The report of Dr Cane then referred to the adaptation of the traditional trading methods to modern usages. He said:

108.(g)    The Station Master at Ooldea, in 1930 (A.G. Bollam) also recorded that people travelling to Ooldea ‘congregated at that place to barter their spears, boomerangs, wommerahs, shields, clay, etc., for goods or weapons of other tribes’. He recorded, ‘the blacks, like other primitive people ... traded by bartering. Their economic system had not developed to the extent of employing a medium of exchange. But at Ooldea, and at other places where they touch the line, they rapidly acquire the money-making habit, and they quickly recognize and appreciate coins of various values. By the process of bartering, the products of the north of Australia find their way to the Great Australian Bight, and those of the west to the tribes of the east. Thus it is a common thing to find a pearl shell from the north of Australia tied around the neck of a black who has come into Ooldea’.

    [Footnote omitted.]

85    In 1941 and 1942 the Berndts moved to Ooldea. Dr Cane recorded their observations about traditional trading thus:

108.(h)    … ‘In pre-European times routes existed throughout the Desert region along which passed articles of trade. From the north-west came the pearl-shell, from the north the native tobacco (‘balandu), and from the south wombat-fur for twine. Red-ochre and pipeclay were also traded. Continual intercourse was maintained in this way among the tribes, and during the meeting of people at ceremonial time those goods were exchanged. Those from the south exchanged the wombat-fur twine for ochre, while parties coming down the water-hole rotes [sic] from the north brought ‘balandu, receiving in exchange at Ooldea for food or material objects. The important pearl-shell, used in the initiation ceremonies of both sexes and also for magical purposes, was passed through the hands of one tribe after another until it reached the more south-eastern region of the desert. Specimens were never common in a tribe and always cost a bundle of good spears, a hair-belt or other objects.

86    After recording further examples of traditional trade in and about the Pilki application area, Dr Cane concluded:

109.    These accounts reveal the existence of established trade routes over vast areas between the Nullarbor Plain and Great Victoria Desert (encompassing Ooldea, Eucla and implicitly the Pilki area) of at least 900km (as the crow flies) to the Murchison, 600km to the Everard Ranges, and perhaps as far as 1700km to the North West Shelf, Kimberley or Gulf of Carpentaria (2000km if material travelled via the Lake Eyre Basin). The ethnography also conveys an impression of extensive trade between Aboriginal people across both the southern portion of the Great Victoria Desert and Nullarbor Plain, and adjacent areas beyond: the Murchison, Goldfields (west) and Everard Ranges (north). Items traded included, amongst other things, chalcedony, fur string, tobacco, weapons and pearl shell, with an indication that trade items a) increased in value the further they travelled [sic] from their source and b) were exchanged for items of equivalent or greater value, c) were received as a kind of fee for resources (such as water at Ooldea) and fetched a fixed and, at times seemingly inflated price. The underlining principles of traditional exchange in the region seems to have been the acquisition of alternative precious, valuable and necessary items for subsistence (food and water) material need (fur twine) and ceremonial activity (ochre and pearl shell). This tradition of exchange appears to have translated easily into trade for other exotic and useful items with people from further afield as soon as the people and the new items presented themselves in the region.

Recent trading activities

87    Dr Cane next dealt with the evidence of modern trading activities against the background of the history of the Pilki People and the ethnographic material concerning traditional trade. He said:

111.    … The commercial adaptions made by the residents of this corner of the Western Desert hint at a rapid encapsulation of their traditions of barter and exchange with the commercial interest of missionaries, prospectors wood-cutters, and travellers in the colonial context. The evidence points to the ready recognition and acceptance of the money as an item of value and useful exchange by the local people. Further ethno-historic evidence points to the speed at which money was incorporated into the local economies and describes the manner in which traditional resources were exchanged and notions of proportional value were given to it - even if, initially, money was seen as nothing more than another form of inorganic material (as ‘stones’) for barter.

88    The report then documented the sale of articles at Ooldea by Aboriginal people to tourists passing through by train on the Trans Australia railway line. The trade started in the 1920s and continued until the 1950s when the people were relocated from Ooldea to Yalata on the coast. Over those years the range of products and the scale of the trade in them increased. That caused Dr Cane to say:

112.    The speed with which Aboriginal people took to the commercial benefits of trade at Ooldea suggests an inherent capacity to do so - to both understand the nature of the exchange and encompass it as part of their existing system of reciprocation.

89    Initially articles sold were boomerangs and spears and carved wooden model animals. Later, sacred items, hair belts, headdresses and photo opportunities were traded. By 1932 the trade had become so substantial that railway authorities passed a bylaw prohibiting Aboriginal people from approaching the train and forbidding employees to ‘sell, barter, exchange or otherwise make available either directly or indirectly any food, clothing, or money to any aboriginal’.

90    At this time the Aboriginal people in the area traded dingo scalps, cat skins and later fox skins.

91    The senior men at Ooldea negotiated the sale of 20 large wooden goanna totemic boards to Mr Harrie Green, a missionary, who later offered them for sale to the museums of Queensland and South Australia.

92    It also appears that some Aboriginal men mined copper near Warburton in the 1960s.

Resources of the application area

93    Dr Cane then undertook a detailed review of the resources available in the Pilki application area and concluded:

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

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

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

Statements of expert opinion

94    Immediately before Dr Cane directly addressed the questions formulated in the brief, he provided a general summary, which includes the following:

144.    Archaeological evidence points to an ancient tradition of trade and exchange across the Australian continent on a large scale that saw resource extraction, production, and the distribution of raw materials and finished products in a regulated, anticipatory manner [46, 56.3]. The archaeological record is supplemented by an ethno-historic accounts [sic] that describes both regional and local trade and exchange in a wide range of resources (weapons, tools, decoration, twine, bags, baskets, skins, stone, ochre and pigments, shells, tobacco and drugs (section 3.2)) in established routes across cultural boundaries and geographic zones [58] - from and between the tropical north, arid center and temperate south of Australia [56, 56a-f].

95    Then Dr Cane set out each question and provided his answer in relation to the following questions:

150.    Identification and consideration of the laws or customs applicable in the claim area at and since sovereignty (1829) or first contact with non-Aboriginal people (early 1900s) which involve any emic concept of, or comparable to:

(a)    Ownership of an area of country;

…

(c)    Ownership of resources of (‘owner’) country; ...

96    Dr Cane responded:

151.    In regard to (a) and (c), it is my view that the term ‘ownership’ is confusing and is better framed in the context of ‘rights’ in country and resources. It might be argued that no single Aboriginal person definitively ‘owns’ or controls ‘country’ and its resources, but that many people (in companionship) have rights in them - as a consequence of personal histories, social relationships and ritual status. Together those people might be seen as the traditional ‘owners’ of country’ but that notion of ‘ownership’ would, in the final analysis, require distillation in terms of rights and the rights of individuals in that country. This is not to say that the claim group could (and would) not present themselves, and be recognised, as the ‘owners’ of the country (and resources contained in it) according to other Western Desert people, but is to say that substance of that ‘ownership’ is a composition of right holders, with different and qualified rights in relation to the country and resources they claim ‘ownership’ of (according to their laws and customs and in the context of, in my experience, internal discussion and negotiation). I am happier with the phrase ‘many traditional owners’ than ‘traditional owner’ and prefer the phrase ‘many traditional right holders’ to either, whilst recognising that the totality of the claim group gives rise to a reasonable notion of land and resource ‘ownership’ in the broader sense of possessing country without qualification in the context of Western Desert traditional law and custom.

    [Footnotes omitted.]

97    And in relation to the following question:

167.    Identification and consideration of the geographic extent, at and since 1829 or 1900s, of the area over which any material resources of the claim area were traded (directly or indirectly) and from which material resources were brought into the claim area, pursuant to the laws or customs applicable to the area.

98    Dr Cane answered:

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

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

99    In re-examination, Dr Cane said in relation to [168] of his report set out in the previous paragraph:

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

THE SUBMISSIONS OF THE PARTIES

100    Mr Blowes SC, who appeared as counsel for the applicants, contended that the evidence established that the traditional laws and customs of the Pilki People provided for unrestricted access to and use of the resources of their country. All of the witness attested to the right imparted by their ancestors to access and take the resources of the country for whatever purpose they chose, including taking the resources for both commercial and non-commercial purposes.

101    Mr Blowes, relied on the judgment of Finn J in Akiba v Queensland (2010) 204 FCR 1; [2010] FCA 643 (Akiba) in which it was determined that the Torres Strait Islander People had a right to access and take resources of the sea for any purpose, including for commercial purposes. His Honour said at [523]:

I have already foreshadowed what the Islanders consider to “belong to” them within their respective marine areas, and to be the uses to which those resources can be put when taken by them. Their evidence on what belongs to them is consistent: "If they are in my waters, they are mine": Nelson Gibuma. It is similarly consistent on what they can take. Taking was, and is, subject to the injunction against waste and the obligation to conserve resources for the next generation. As was said in Bully Saylor's oral evidence:

MR BLOWES: [Is there] any idea come down to you from old people about protecting the sea or things in the sea?

BULLY SAYLOR: Yes. To protect them thing in the sea, you've got to think about our future generation, got to look after it for their sake.

BULLY SAYLOR: We been through the same, our forefathers looking after it for us, and we do the same for our future people, and they going to do the same for their future people. And that's how we protect something, looking after it.

BULLY SAYLOR: Don't waste it.

102    And his Honour explained the historical context as follows:

526    That such resources could be used in trade has a long and well chronicled history. There is no euphemism in Mullins’ description of the Islanders as “avid traders”. In his account of the canoe trade, Haddon (1904, at 296-297) reported Wilkins’ explanation of equivalent values in commodities (mostly marine) that individual Western and Top Western islands would give for a Fly River canoe. As Wilkins said, “Each island had its price for a canoe”.

527    The Islander evidence was that marine products were historically, and are today, taken for the purpose of exchange and sale. The late Walter Nona described the evolution in this:

We always used things from the sea for trade or exchange for things we didn’t have and when money came we sold things from the sea for money to get things we needed. Selling things for money is new because money is new; but we always exchanged and traded things for what we needed. In that way, selling things for money is no different.

528    While there may be some disagreement about the use of the word “commercial” in this setting, the evidence establishes beyond question that the Islanders sold marine resources for money - the sea provided their “income” - and after the advent of the marine industries, for some number of the Islanders, this was done regularly and systematically.

103    Mr Quinlan SC, who appeared with Ms Lendich as counsel for the State, argued that the applicants had not established that the Pilki People had a right under traditional laws and customs to access and take resources of the claim area for commercial purposes.

104    At the centre of the case for the State was the proposition that it is necessary to prove that commercial activity has been conducted by the Pilki People in order to establish that the right exists. The State contended that there was no evidence of such activity in the present case. The evidence would need to show a regular and systematic regime of commercial exploitation undertaken as a right under traditional laws and customs. The State accepted that there was evidence of a right to take resources to share, and to engage in gift exchange, but contended that this was not evidence of a traditional right to exploit resources commercially.

105    Further, the State said that the evidence established that the taking of resources was constrained by gender, status, personal or community need, or that is was the exercise of a right and responsibility to care for land. These constraints demonstrated that the right to access and take resources was not a right to access and take for any purpose.

106    Other evidence of trade, so it was argued, was far removed from commercial exploitation. Timber was used to make spears, boomerangs, shields and digging sticks, but all for use in daily living and law business.

107    As to the evidence which went beyond the use of resources for personal use, for sharing or for gift exchange, the written submissions of the State contended:

39.     The evidence in was that boomerangs, spears and watis were generally made for “joy” and to hunt for personal use.

40.     While there was some evidence that some paintings and artefacts may have been sold, that evidence is not evidence of a traditional right to take for commercial exploitation. Mr Hogan’s evidence was that before the “white man” there was no selling.

41.     Mrs Kennedy’s evidence was that people could sell their own spears. In addition, Mrs Kennedy’s evidence was that bush tobacco was not exchanged, just shared.

42.     The evidence of a qualitative difference between what, it is submitted, was traditional use, taking and exchange by an individual (or group) and for “big things” (akin to commercial exploitation) such as mining, for which, it is submitted, there was no traditional analogue. Decisions in relation to those matters appear to involve the wider group rather than being exercised as a matter of traditional right.

    [Footnotes omitted.]

108    The State focused on that part of the evidence of Dr Cane in which he said that he did not know of any trade of any resources out of the application area.

109    The State contended that the evidence in the present case contrasts with the evidence in Akiba. That was the first occasion in which a Court found a right to exploit resources commercially. But in Akiba, there was evidence that the Islanders were “avid traders”. They had engaged in trading historically and, both then and now, made income from fishing.

110    Then the State contended that the applicants were forced by the absence of evidence of commercial activities to rely on trading as an incident of an underlying ownership of the land. This, it was contended, is contrary to the authority of Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Ward), which held that native title is a collection of specific rights proved by the activities carried out as of right under traditional laws and customs.

111    The State next argued that the applicants were required to articulate their rights with a degree of precision. They could not, by characterising their rights broadly, capture rights which did not exist at sovereignty, such as the right to take resources for commercial purposes. That would pick up a range of activities which were not contemplated by traditional laws and customs.

112    Then, the State submitted that the applicants sought to rely on evidence that commercial activity was not prohibited by traditional laws and customs in order to establish that such activity was permitted by traditional laws and customs. But, the State argued, the mere fact that no rule exists constraining an activity does not mean that there is a right to conduct that activity under traditional laws and customs.

113     In oral submissions, the State focused on an argument that only traditional rights and interests are recognised as native title rights and interests, and the rights to access and take resources for any purpose is not a traditional right. At sovereignty, the Pilki People had a right to access and take resources for sustenance, exchange, and for cultural and spiritual purposes. But the claimed right to access and take resources for any purpose is of a different quality. Mr Quinlan put it thus:

There is a qualitative difference between the kind of activity in the harsh Western Desert environment of take what you need, make your – the implements that you need, share with people for cultural, spiritual purposes and the maintenance of relationships, look after your family, etcetera. And embarking on an activity which necessarily requires the exploitation of land and the accumulation of surplus beyond need for the purposes of a generation of a commercial profit.

That’s a different activity on the land.

114    Finally, the State contended that the right claimed is a novel right. A long list of consent determinations was produced showing that the native title rights and interests recognised in those determinations were non-commercial. And, in the cases in which a right to exploit resources for commercial purposes was contested, such as Yarmirr v Northern Territory (1998) 82 FCR 533; [1998] FCA 771; The Lardil Peoples v State of Queensland [2004] FCA 298; Sampi v Western Australia [2005] FCA 777; Northern Territory v Alyawarr (2005) 145 FCR 442; [2005] FCAFC 135; Gumana v Northern Territory (No 2) [2005] FCA 1425; Rubibi Community v Western Australia (No 7) [2006] FCA 459; Banjima People v State of Western Australia (No 2) (2013) 305 ALR 1; [2013] FCA 868; (Banjima), the Court rejected the claimed right on the basis that the evidence adduced in those cases did not support the establishment of such a right.

CONSIDERATION

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

116    The evidence given by Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker concerning the right to access and take the resources of the country was somewhat limited. There were understandable reasons for their reticence. These reasons were outlined earlier in this judgment. There was no challenge to their qualifications to speak on the issue or to their bona fides. There could be no such challenge. Each of the witnesses was steeped in the traditions of their people and had direct experience of the traditional laws and customs of the claim group. Although their evidence was not elaborate, it did establish that, under the traditional laws and customs, the country belonged to the Pilki People and they were entitled as of right to access and take the resources for any purpose they saw fit. That included a right to access and take the resources for trading purposes. In this context, their country included all that was in, on and under the land. Any limitations in this evidence which arise from its brevity are more than remedied by the report and evidence of Dr Cane.

117    As Dr Cane intended, the contextual discussion, as well as the responses to the questions in his brief, were of great assistance to the Court in understanding the place of commercial dealings in traditional laws and customs, in the history of the Pilki People as a separate group, and also as part of both the wider Western Desert community and the Aboriginal people of Australia generally. It must be said that the report is of a rare standard of excellence. Again, there is no doubt of the qualifications of Dr Cane to provide an opinion on the question of the laws and customs of the Pilki People concerning the right to access and take resources of the land.

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

84.    Interruption of use or enjoyment, however, presents more difficult questions. First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.

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

120    Dr Cane’s report details the archaeological and ethnographic evidence which demonstrates that trading activity has been a long standing part of Aboriginal life. Trade occurred over long distances, along established trade routes. It also occurred within smaller regional areas including within the Western Desert in which the Pilki application area is located. Trading relationships reflected engagements which Aboriginal people had with each other through shared dreaming stories which passed through the country of a number of Aboriginal peoples. Trading relationships also followed relations which developed between neighbouring Aboriginal peoples.

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

122    In relation to the argument of the State that, unlike in Akiba, this activity did not amount to substantial commercial activity sufficient to substantiate a right to take resources for commercial purposes, regard must be had to the context in which the right is claimed. This country is harsh and has very limited resources which may be traded. Given those conditions, there has been little human settlement in the areas. Against that background, the activities which have been undertaken reflect the opportunities available in an environment which provides limited trading opportunities.

123    The State did not engage with the extensive evidence of trading activity given by Dr Cane, and the more limited evidence given by Mr Hogan, Mr Sinclair, Mrs Kennedy and Mr Walker. Dr Cane described the extensive and ancient trading activities which were undertaken pre-sovereignty in ochre, baler shell, pearl shell, grindstones, ground stone hatchet heads, desert hardwoods and wild tobacco across established trading trunk routes. He also described the trading activities which were undertaken post-sovereignty in the early part of the 20th century in flint, string, pearl shell, tobacco, and ochre. Dr Cane described the trading activities of the claimants in more recent times, particularly associated with the sale of articles to tourists on the Trans Australian railway at sites such as Ooldea and Zanthus. Mr Hogan gave evidence of the sale of paintings of the country made by elders, and the sale of necklaces made from seeds. Mr Sinclair gave evidence of the sale of artefacts. Mrs Kennedy made and sold baskets, and gave evidence of the sale of clap sticks with burnt decoration and spears. Mr Walker told of artefacts being sold to white people in towns, and of young people who shot and sold rabbits. The State was only able to argue that the evidence of trading activity was insubstantial by largely ignoring the scope and depth of the evidence of Dr Cane. It cannot be said that the trading activity was insubstantial.

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

125    The evidence of Dr Cane of pre-sovereignty trade among Aboriginal people, including the Pilki People, along defined trunk routes, and the trade by Pilki People post-sovereignty, for instance, by the sale of articles to tourists along the Trans Australia railway line, demonstrates that the trading activity is a traditional activity. The argument of the State should not be accepted. There is no difference in quality between the activity conducted pre-sovereignty and the activity conducted after sovereignty. They are not activities of a different quality, but a continuum of trading activity of a similar nature.

126    Then, contrary to the argument of the State, the fact that the exercise of the right to access and take resources for any purposes is constrained by internal rules, such as the right to take subject to personal or community need, does not detract from the existence of the right. For instance, there is no inconsistency between the holding of that right and the requirement within the society that the elders approve the exploitation of a particular resource or a resource in a particular quantity. That is a rule about how the society exercises the right, rather than a limitation on the scope of the right itself. As Finn J found in Akiba at [523]-[524], though customary constraints against waste and the obligation to conserve resources for future generations existed, this was not inconsistent with a right to take resources for any purpose. Such constraints were found to be a constraint of the manner of taking things, not the right to do so.

127    The State criticised the applicants’ formulation of the claimed right as lacking in precision. This submission is the extension of the State’s argument that the applicants have not proved a right to access and take resources for any purpose. If that argument is established, it follows that the claimed right is expressed too broadly because, on that view, the right must be expressed as limited to the access and taking of resources for non-commercial purposes.

128    However, once it is accepted, as it should be in this case, that the evidence establishes a right to access and take resources for any purpose, there is no lack of precision in expressing the right as such. So much is demonstrated by Akiba. Finn J found that the applicants had a right to access and take resources for any purpose. A majority in the Full Court of the Federal Court held on appeal that the Queensland fishing legislation which regulated commercial fishing had extinguished the right to take resources for commercial purposes. The argument by which the High Court allowed the appeal in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia 300 ALR 1; [2013] HCA 33 depended on an acceptance by the High Court of the broadly stated right to take and use resources for any purpose. For instance, Hayne, Kiefel and Bell JJ said:

65    In this case, the majority in the Full Court identified the starting point for consideration of extinguishment as “whether the activity which constitutes the relevant incident of native title is consistent with competent legislation relating to that activity” (emphasis added). The essential premise for the analysis that followed was that the relevant “activity” was to be identified as “taking fish and other aquatic life for sale or trade” and that the activity identified in this way was an “incident of native title”. That premise is flawed.

66    The relevant native title right that was found to exist was a right to access and to take resources from the identified waters for any purpose. It was wrong to single out taking those resources for sale or trade as an “incident” of the right that had been identified. The purpose which the holder of that right may have had for exercising the right on a particular occasion was not an incident of the right; it was simply a circumstance attending its exercise.

67    Focusing upon the activity described as “taking fish and other aquatic life for sale or trade”, rather than focusing upon the relevant native title right, was apt to, and in this case did, lead to error. That shift of focus, from right to activity, led to error in this case by inferentially reframing the question determinative of extinguishment as being whether the statutory prohibition against fishing for a particular purpose without a licence was inconsistent with the continued existence of a native title right to fish for that purpose. But the relevant native title right that was found in this case was a right to take resources for any purpose. No distinct or separate native title right to take fish for sale or trade was found. The prohibition of taking fish for sale or trade without a licence regulated the exercise of the native title right by prohibiting its exercise for some, but not all, purposes without a licence. It did not extinguish the right to any extent.

68    The Full Court's focus upon a particular activity was not consistent with the plurality’s observation in Ward that reference to activity “is relevant only to the extent that it focuses attention upon the right”. The focus upon the activity led to the majority framing the relevant question as being whether the identified activity was “consistent with competent legislation relating to that activity”. But extinguishment of native title rights and interests is not to be determined by asking whether the federal or State legislature has asserted control, or dominion, over a particular activity, and then concluding that the relevant native title right no longer includes the right to pursue that form of activity. To pursue an inquiry of that kind would be apt to revive some variation of the adverse dominion test for extinguishment rejected by this Court in Ward. The enactment of legislation controlling some activity which may be undertaken in exercise of a native title right or interest presents a question about extinguishment. The extinguishment question is to be answered by deciding whether the legislation is inconsistent with the relevant native title right or interest; it is not determined by observing only that there is legislation which governs or affects the exercise of the right.

    [Footnotes omitted.]    

[Emphasis in original.]

129    The attempt by the State to place reliance on the large number of consent determinations which limit the right to access and take resources to non-commercial purposes does not advance the matter. Those determinations reflect the outcome of negotiations which doubtless involved compromises on all sides and responded to the interests rather than the rights of the parties. For the same reason the applicants gain no assistance from those consent determinations which included a right to access and take resources for commercial purposes.

130    Neither do the cases relied on by the State in which a right to access and take resources for commercial purposes was rejected assist its argument. In some of those cases the Court found that the facts did not support the claimed right, and in other cases no claim was made for a right in those terms. Those cases tell us nothing about how the facts of this case should be determined. To seek to compare the facts of those cases with the facts of the present case is an arid exercise because the question depends on proofs specific to the individual case. One example illustrates the point. The State contended that the position in this case is similar to that in Banjima, where it was found that there was insufficient evidence of the right of the claimant group to trade in the resources of the land and waters. At [800] Barker J said:

Indeed, as pointed out, there is very limited evidence of a right to trade at all. Brian Tucker did mention that in the past people would trade in meat and shells with neighbouring groups. Little other evidence was given about trade and the topic was not dealt with in any direct way by either of the anthropologists. Sharing of resources with countrymen was disclosed, but not trading in a commercial sense.

131    In the present case there was extensive evidence of the history of trading as an established feature of Aboriginal life in the Western Desert region. In contrast to Banjima, the matter was dealt with directly by Dr Cane.

132    The State contended that the applicants’ approach to the establishment of the right to access and take resources was contrary to the authority of Ward at [76] and [83]-[95]. The applicants, so it was said, argued from an assertion of ownership of the country that the Pilki People had a right to access and take resources for any purpose. In the passages referred to in Ward, Gleeson CJ, Gummow, Gaudron and Hayne JJ explained why they regarded the approach to the extinguishment of native title taken by the trial judge as wrong. Their Honour's recorded the approach of the trial judge at [86] as follows:

The reasons for judgment of the primary judge say little about the nature or content of the rights and interests possessed under traditional law and custom which were either alleged by the claimants or found to have been established. The starting point taken by the primary judge was his conclusion:

“that the claim area, and surrounding lands, were inhabited by organised communities of Aboriginal inhabitants at the time of sovereignty and that, as had already been observed in respect of Aboriginal communities elsewhere in Australia, the Aboriginal people who occupied the claim area at sovereignty functioned under elaborate traditions, procedures, laws and customs which connected them to the land.”

From this the primary judge concluded that “[i]t follows that the Aboriginal communities which occupied the claim area at sovereignty possessed native title in respect of that land.”

[Footnotes omitted.]

133    Then at [93] they said:

The finding that predecessors of the claimants occupied the claim area at sovereignty does not, without more, identify the nature of the rights and interests which, under traditional law and custom, those predecessors held over that area. The fact of occupation, taken by itself, says nothing of what traditional law or custom provided. Standing alone, the fact of occupation is an insufficient basis for concluding that there was what the primary judge referred to as “communal title in respect of the claim area” or a right of occupation of it.

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

CONCLUSION

135    In the result, in accordance with s 225(b) of the Native Title Act the determination of native title in favour of the applicants should include a native title right to access and take for any purpose the resources of the determination area. The parties should now finalise the terms of the determination in accordance with these reasons for judgment.

Associate:

Dated:    4 July 2014