FEDERAL COURT OF AUSTRALIA

BP (Deceased) on behalf of the Birriliburu People v State of Western Australia [2014] FCA 715

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.

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.

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.

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 APPLICATIONS

1    These reasons for judgment address an issue which arises in four applications for a determination of native title which are referred to as Birriliburu #1, Birriliburu #2, Birriliburu #3 and Birriliburu #4.

2    The circumstances in which the applications were made and their relationship with each other is as follows. On 29 September 1998, proceeding WAD 6284 of 1998 (Birriliburu #1) was filed. At that time a small part of the application area was subject to exploration licences which prevented the application of s 47B of the Native Title Act 1993 (Cth) (the Native Title Act) with the result that the area of the exploration licences could not be the subject of exclusive rights.

3    By 26 May 2008 those exploration licences no longer existed and thus they did not prevent the application of s 47B.

4    On 26 May 2008, proceeding WAD 108 of 2008 (Birriliburu #2) was filed in respect of the area within Birriliburu #1 which had previously been the subject of the exploration licences.

5    On 20 June 2008, a consent determination was made in respect of the area covered by Birriliburu #1 except the area within Birriliburu #1 covered by Birriliburu #2.

6    However, when Birriliburu #2 was filed there were five relatively small parts of the application area subject to other exploration licences which prevented the application of s 47B. By 18 July 2011, these other exploration licences no longer existed and thus did not prevent the operation of s 47B.

7    On 18 July 2011, proceeding WAD 299 of 2011 (Birriliburu #4) was filed in respect of the five smaller areas within Birriliburu #2 previously covered by the other exploration licences.

8    On 15 March 2010, proceeding WAD 50 of 2010 (Birriliburu #3) was filed. It covered an area outside but adjoining to the south of the area of Birriliburu #1 and being the area of the Glenayle pastoral lease.

THE APPLICATION AREAS

9    The application areas are near the centre of Western Australia. The general location is to the fairly near north of Wiluna and to the more distant west of Warburton.

10    The areas are surrounded by other areas which have been the subject of native title determinations, namely, Martu in the north, Ngaanyatjarra in the east, Muntiltjarra Ngalia and Wiluna in the south, and Gingirana in the west. The southern portions of the Canning Stock Route run across the application areas from the central north to the south west. Part of the Gunbarrel Highway marks the southern boundary on the eastern side of the application areas.

11    The application areas are in an arid zone. The Australian Bureau of Meteorology annual rainfall figures from 1946 to 2001 for Earaheedy Homestead immediately to the south of the application areas record an annual average rainfall of 230 millimetres. The summers are long and hot. Daytime temperatures from October to April are regularly over 30 degrees centigrade and often exceed 40 degrees centigrade.

12    The application areas are in the Western Desert region. Parts of the areas are sand and dune desert areas, and parts are shield desert, that is to say, broad plains with hill belts of rock.

13    Ethno-archaeologist Richard Gould, who worked in and around Warburton to the east of the application areas, thought that the region was “the harshest physical environment on earth ever inhabited by man before the industrial revolution”.

14    Because of the remoteness and harshness of the area it was one of the last to be penetrated by non-Aboriginal people. For the same reason the population of the areas has always been sparse, and today there are no people who permanently live in the application areas.

THE LEGAL ISSUE

15    The only active respondent is the State of Western Australia (the State). It does not dispute that the Birriliburu People, on whose behalf the applicants bring the proceedings, have native title in the application areas. It agrees that there should be a determination of native title in respect of the areas. The only contentious issue remaining between the parties concerns the nature and description of the right of the Birriliburu People to access and take resources of the application areas.

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

17    The State accepts that the Birriliburu People 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 Birriliburu People have established a right under traditional law and custom to access and take resources of the areas for commercial purposes.

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

19    The evidence must be directed to native title as defined in s 223(1) of 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.

20     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

21    This proceeding was heard together with the application by the Pilki People for a determination of native title, WAD 6002/2002. The Pilki application area is also in the Western Desert region and is to the south east of the Birriliburu application areas. The same legal issue arises in both proceedings and the legal arguments for both cases were addressed together by the same counsel. The evidence led in each of the proceedings was separate, save for part of the expert evidence of Dr Scott Cane which was relied on by the applicants in both proceedings. 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 Ms Long, Ms Anderson, Mr Farmer and Mr Wongawol

22    Evidence was given by four members of the claimant group, namely, Lena Long, Roxanne Anderson, Darren Farmer and Robert Wongawol. Much of their evidence was uncontentious and need only be referred to briefly.

23    Ms Long was born in the 1940s in the bush at Well 7 on the Canning Stock Route. Ms Anderson was born in the bush in 1968 at Barwidgee near Lake Maitland, south east of Wiluna. Mr Farmer was born in January 1970. His mother was from the Glenayle station area and his father was from Irril, which is a rock hole in the east of the application area. Mr Wongawol was born in June 1971. His father, Forky Wongawol, was from around Lorna Glen or Matuwa, Wongawol, Windidda Earaheedy and Granite Peak, all to the south of Birriliburu #3 application area. His mother came from Carnegie, to the east of his father’s country. There is no dispute that each of the witnesses has a connection with parts of the application areas.

24    It was not in contention that the Birriliburu People who lived on country hunted and used the resources of the land for food and shelter. For instance, Ms Long spent her early years wandering in the bush with her parents. They lived in wiltjas made of sticks and they hunted kangaroo and emu. They dug the ground searching for goannas and bardi or witchetty grubs, and wild plants. Her grandfather made shields and spears from timber gathered from the country.

25    There was also no dispute that it was customary for Aboriginal groups to exchange gifts of spears or boomerangs made from materials taken from the country to cement cordial relations between peoples. Mr Farmer explained the custom as follows:

[Y]ou’ve got a lot of different language groups and different regions. You’ve got the Putjiarra, you’ve got the Mantijiljarra, you’ve got Kartujarra, you know, all the different language groups. One going into – Putjiarra might go into a Mantijiljarra area, therefore they’ve got to take – before they enter that area they’ve got to take some gifts as a way of I suppose opening up that door for them to – you know, when you give them that spear to that other one – to the Mantijiljarra person, that Mantijiljarra person will then give something in exchange, but at the same time will give more than that. He’ll be saying, “Well, now you’re right, you can come into my country.” And that as long as you come under my – our rules, this is the way we do things and what not, you know.

26    The witnesses explained how they acquired knowledge of the laws and customs governing Birriliburu society. Their knowledge came from old people, particularly grandparents, parents and uncles and aunts. For instance, Mr Farmer was taught by an old knowledgeable man, Billy Patch. Mr Farmer told the Court how Mr Patch was a mentor to him.

DARREN FARMER: … we went out – you know, we learnt about - and that part of our country out bush, you know, associating with the community as a whole and understanding about the community group as a whole, and how we fit in and what sort of – what sets of laws and rights we need to understand and we need to know about as we’re getting older, and responsibility for our country and responsibility to family and the community at large, you know.

MR BLOWES: And did you spend any time with him out on any of the country that you’re connected with?

DARREN FARMER: Yes.

MR BLOWES: What sort of […] opportunity did you have to spend time with him out on country that you’re connected with?

DARREN FARMER: Yes, we went out bush or camping at different times. Even as kids we used – they used to take us out bush, but as we got older we went through law and things like that and they – we – they took us out again pretty much around in the same areas but we could see the country differently as to when we was kids growing up, you know, because we’ve been told then that a new different set of rules and responsibilities that come with us with going through law that requires we practise for looking after our country.

27    Mr Farmer went through the law at Jigalong when he was about 16 or 17. Since then he has been involved in law matters in many and various places including Jigalong, Parrngurr, Parnwood, Wylung, (Gilgar), Bidyadanga, Wangkatjungka and Yandeyarra. Ms Anderson told how she learned the dreamtime stories from her extended family around the campfire as they were travelling. Mr Wongawol was also taught by Mr Patch.

28    Again, there was no dispute that Ms Long, Ms Anderson, Mr Farmer and Mr Wongawol were knowledgeable people about the laws and customs of the Birriliburu People. Their words on transcript reflect only part of the cogency of their evidence. In each case, the way in which they responded to questions displayed a deep, ingrained, genuine and natural understanding of the laws and customs of their people. Particularly when it came to some of the evidence yet to be referred to about what they are entitled to do on their country, they displayed an apparent bewilderment at questions which they thought had answers so obvious that it seemed difficult for them to know why the questions were being asked. This naïve bemusement made their evidence that much more compelling than the mere words on the pages of transcript.

29    Mr Wongawol explained that Tjukurrpa, or dreamtime, provides the stories about how the country was created. He explained:

[T]he Tjukurrpa … it was put there for us, … it's been created by we call Tjapanyura. … he put us on this earth here and he told us it was the - look after this place, … he created Tjukurrpa, all them sort of things, beings, and yes, just so we follow that. …

… we've got Tjukurrpa going right through the - all around, through Birriliburu.

… we've got the Two Goanna Mans. They call them Wati Kutjara, Two Goanna Man, they wander around everywhere and they leave their - wherever they've been, you know they leave some things there. That's a sacred site we call where they were sitting down or something or where they went and digging things when they was on their travelling, following the - following the Seven Sisters around.

30    The dreaming song lines start outside the application areas, go within it, through it and beyond it, connecting people of the region to the same laws and customs.

31    Mr Farmer described Tjukurrpa thus:

It’s got things to do with ceremony, it’s got things to do with day to day activities, it’s got things to do about how we function as a society. We’ve got rules about not only how we interact and function as a community, but we’ve got rules for looking after country. White fellas they’ve got their environmental policies about country and looking after country and we’ve got our cultural rules about how we look after country and how we see country, you know. And there are things like that. And we’ve got all these different sets of laws that have been handed down through generation to generation, but also that’s coming back from Dreamtime, you know.

32    The Tjukurrpa has rules about whom a person may marry by reference to skin groups. Ms Long gave evidence thus:

MR BLOWES: …     [T]hose rules about skin and those words about skin and who – you know, which skin you’re going to be if you’ve got a particular matter, where do those rules come from?

LENA LONG:     My ancestors I suppose, old people before me.

… They're not new rules. That's been going on and on through the ages.

… Dreamtiming Tjukurrpa, yes.

MR BLOWES:         So what sort of reasons is that important, is the Dreamtime, the Tjukurrpa important? Got anything to do with those skin rules you were talking about?

LENA LONG:     …     They've been going through before my time through the ages that my - like old people tell me that I was born a karimarra because my mother is a milangka. That went through - right through - back long time before my mother even knew, even my grandmother.

MR BLOWES: …     And do those skin rules they have, they tell you which person you can marry and all that kind of thing?

LENA LONG:         Yes.

33    Similarly, the skin rules apply throughout the region beyond the application areas.

34    The witnesses spoke of their relationship with their country, or ngurra, under their laws and customs. Mr Farmer explained:

… when we’re talking about ownership over a particular area we say we can identify a person or particular groups of people as owners for that country, but we don’t say “owner’, we say “ngurarritja”. Ngurarritja is still the traditional owner for their country, but that’s – that’s the way we see it.

…

MR BLOWES: Now, when you’re thinking about ngurarritja and the English word “owner”, in your mind do you understand them to be exactly the same or are they ---

DARREN FARMER: They’re the same.

35    In cross-examination Mr Farmer clarified the meaning of ngurarritja thus:

MR QUINLAN: You said to Mr Blowes when he asked you about that English word “owner” and “own”, and you said that people have been using it more recently.

DARREN FARMER: Yes, traditional owners.

MR QUINLAN: Yes. Was that something that’s been started to be used since – was that something that started to be used after Mr P took you through the Martu area?

DARREN FARMER: No, that’s been used all the time. That – if I can explain it this way: when we’re talking about traditional owners, as I said we talked about – we identify ourself with this fella might be – we might say well, I’m the ngurarritja, we the ngurarritja. We the owner for this ngurra. And that’s the way we’ve always been. It’s always been like that. But the word “traditional owner” has been used more recently because of this kind of environment.

MR QUINLAN: Yes.

DARREN FARMER: That’s all – that’s the only way I can explain it to you.

MR QUINLAN: Yes. So, am I right that that word, the traditional owner word, wasn’t the way that it was explained to you using that word with Mr P?

DARREN FARMER: No, it wasn’t that way. We’re ngurarritja.

MR QUINLAN: Yes. He used the language word that meant - - -

DARREN FARMER: Yes.

MR QUINLAN: - - - that you had the particular responsibility for a particular area?

DARREN FARMER: Yes.

36    When asked what ngurarritja can do on their country, Mr Farmer said in examination in chief:

DARREN FARMER: … If we want to do something there on country, whatever it is then we can pretty much as traditional owner or as ngurarritja we can say yes, we can do that. We follow all those principles and at the end of the day we’ll get a – to say yes or no whether we want to do it. There’s nothing stopping us from doing what we want to do on country, nothing from a cultural context.

37    And when asked about what is included in the country, he said:

[W]e look at country not only what’s on top and what’s there, but also what’s on the ground – what’s on the – underneath the ground. That’s – we see that – what’s in that area and we identify that area and what’s inside that area, either on top or underneath, we own that. We – we have the right to speak for that, you know. And what we’ll do with that, either what’s on top or on the bottom, we can make a decision about what we’re going to do and we will – there’s nothing stopping us from doing what we’ve got to do on country.

38    Mr Farmer said that the trees are, and whatever grows on the country is, part of the country. And so with the animals and other things that live on and under the ground. He said, “we are the owners of that”. Water in soaks is also part of the country. Mr Farmer said:

In some places you’ve got to go down further, you know a good distance down, but most – most of the time they’re pretty close up. But the point of – the thing behind that is that if a – whatever resource or something that might be sitting on top or – and is still going down underground, we still consider that – again we still consider that to be ours. We’re the owner of that, whether that be water or whether that be other resources, minerals or whatever because it’s still part of our cultural society as such [sic] as the spiritual and cultural connections and involvement.

39    Mr Farmer was asked about making decisions for mining on the country. He responded:

You know, we – again we’ll get a – in the first instance we identify the ngurarritja for that area, whoever that mining interest might be. We’ll find out who the traditional owners are, then we’ll bring them all to get the traditional owners along with those other people that have both direct and indirect cultural responsibilities and custodial responsibilities with them. And collectively together we can sit down and make a decision about either yes or no.

MR BLOWES: Alright. So what about this possibility, that Martu people [Aboriginal people of the Western Desert] or, say, you became aware that there were was some – a lot of minerals on a certain place on your country, Martu way could you do anything about that if you wanted to – if you wanted to go and get those minerals as a Martu person on your country?

DARREN FARMER: If it’s not – if it’s not close to any significant site or cultural sites or whatever, if it’s clear and if it’s a long way from anything like that, so important from a cultural point of view, yes, we can go and get it. But if it’s close to an important site or something like that, then we’ve got to come back and find – get the others and bring them and sit down and talk to them together, you know.

40    Mr Farmer said that under the traditional laws and customs the Birriliburu People could operate a sandalwood harvesting business or a tourist facility, a vineyard, or a market garden on their country. He explained:

… if you’re talking about commercial activities, then yes, it can happen.

… there’s nothing stopping us from doing what we want on our country, as long as we follow those cultural protocols and the right people are involved and are involved in part of the process, you know.

41    Ms Long similarly said that everything on the ngurra belonged to the people including plants, animals, and water in the soaks. She said:

It belong to the land and we can hunt in that ngurra country. So it belong to us. We live there.

42    Ms Long said that if a mining company wanted to mine on the country then under the laws and customs of the Birriliburu People, the company should speak to the elders because, “we’re owners of the land” and therefore it is up to the elders to decide yes or no.

43    Mr Wongawol also said that if a mining company wanted to mine it was up to the traditional owners to say yes or no, “[b]ecause they’re the owner, traditional owner for that little area”.

44    Mr Wongawol explained what was included in country as follows:

ROBERT WONGAWOL: The hills, the trees, the creeks, the rockholes, all them sort of things.

MR BLOWES: When you look at your country and you see - is there - do you see anything that doesn't belong to the traditional owners?

ROBERT WONGAWOL: That doesn't belong to them?

MR BLOWES: Mmm.

ROBERT WONGAWOL: No, it's all belong to them. Nothing doesn't belong to them.

45    Then there was specific evidence of commercial activities involving the sale of resources on the country. Ms Anderson said that in about 1988 she sold emu chicks to an emu farm in the area. Ms Long collected pop mulga seeds and sold them to mining companies for regeneration of used mine areas. Ms Long also told the Court how her people hunted kangaroos in order to sell the skins. Wooden articles made from trees on the country were sold to tourists. Ms Long said that her cousin, Tony Pattison, sold spears to tourists. Ms Long said that her cousin harvested sandalwood from his country in the application area. It was not clear on the evidence as a whole whether this enterprise was conducted by non-indigenous people who employed Birriliburu People to do the work. However, as Mr Farmer said, the Birriliburu People have the right under traditional laws and customs to take the sandalwood themselves.

The Evidence of Dr Sackett

46    Expert evidence was given by Dr Lee Sackett. His credentials were not in doubt. His 1975 PhD thesis concerned some of the cultural aspects of the Aboriginal people around Wiluna. He spent time with them in field work undertaken for the thesis in 1972-3. Dr Sackett taught anthropology at the University of Adelaide for 20 years until 1995. In 1994, he provided a report for a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) by Western Desert people. He then spent three years working as the manager of land tenure at the Central Land Council in Alice Springs, including providing anthropological advice. Since 1998, Dr Sackett has worked as a consultant and provided numerous reports in relation to native title applications, especially for land in the Western Desert and in areas surrounding the present application areas such as the Wiluna claim to the south. He has engaged with the present claimant group over many years during visits to their country in 1974, 1999 and 2003. Dr Sackett has published many academic papers over a long period, with a particular emphasis on Western Desert people. In the expert anthropological report he provided for this case dated 16 September 2013, Dr Sackett drew on his own research and also on the extensive research of other scholars which he has recorded and analysed in his report.

47    Dr Sackett’s report took the form of answers to questions posed by his instructor, Central Desert Native Title Services, and was directed to the narrow dispute presently under consideration. In responding to those questions, Dr Sackett has drawn on and incorporated by reference certain parts of a much larger and more detailed Connection Report, which he earlier provided for the purposes of the native title application as a whole. It is reasonable to infer from the State’s agreement that native title exists in the application areas, that it regarded Dr Sackett’s report as cogent and persuasive.

48    The primary source of evidence of the traditional laws and customs of the Birriliburu People is the evidence of Ms Long, Ms Anderson, Mr Farmer and Mr Wongawol. Together with Dr Sackett’s report, that evidence provides a consistent picture of the relevant laws and customs.

49    At [37] of his report, Dr Sackett set out the issue he was asked to address concerning the use of resources as follows:

Identification and consideration of the laws or customs applicable in the claim area at and since 1829 or late 1800s relating to:

(a)    the kinds of resources that may be utilised,

(b)    the purposes for which resources may be utilised; and,

(c)    in particular, whether the utilisation of resources is subject to constraint by those laws and customs by reference to:

(i)    any particular resources, such as flora and fauna, or resources actually utilised in the then past (e.g. at sovereignty);

(ii)    any particular method of taking such resources, such as hunting and foraging;

(iii)    any particular purpose or purposes for which such resources may be taken, such as for living and surviving; or trade or commerce;

(iv)    the existence, views or actions of persons who do not acknowledge or observe those laws and customs.

50    In the discussion of this issue he stated:

38.    I noted in my original report [the Connection Report] that it was my view that claimants could “freely engage with their countries because they own them, and know their physical and mythological attributes.” This would mean they and their ancestors could freely take and use the resources of the area. (I further explore the way people view, use and value the resources of their country below.) It was not open slather, however.

39.    In Western Desert society, men as men, and as the makers and bearers of spears, principally hunted; women as women, and as the bearers of digging sticks, principally gathered. Some, owing to totemic affiliations, could not hunt/gather/consume particular species. More than this, there were rules surrounding the preparation of that which was hunted/gathered. These perhaps were and are most apparent in relation to the cooking and cutting up of kangaroo. And there were rules as which portions of the kangaroo went to which relatives of the hunter/cook.

40.    This said, I am not aware of any rules constraining people’s general accessing of resources or any constraining the general use to which they might be put. That is, I am not aware of any rules specifying that certain resources could not be taken, that certain resources could be taken but not exchange [sic] or traded with others, and so on.

    [References omitted.]

51    When discussing later in his report the question whether, under traditional laws and customs, visitors to country are required to seek permission to access country, Dr Sackett elaborated as follows:

81.    In my experience, claimants are of the firm view that non-Aborigines should seek their permission to access Birriliburu country. I noted one claimant specifically singling out miners in this regard. However, it is more encompassing than that. I recently was told of people coming upon members of a four-wheel drive tourist party near the Calvert Range, located in the Martu Determination area, having traversed portions of the Birriliburu Determination area from the east. They were in the area without permission, and claimants pulled them up and remonstrated with them.

82.    There are two immediately apparent reasons for claimants demanding others get their permission before accessing the Birriliburu area and its resources. First, and this is most manifestly relevant to miners, claimants hold that the resources of the country are their resources. As I reported in my original report [the Connection Report], “Claimants hold that the resources in their country, its waters, its quarries and ochre deposits, its plants and animals, whether these latter are native to the countryside or introduced species, eg camels, cats and rabbits, belong to them.”

83.    Birriliburu claimants are by no means alone in this. Tonkinson et al noted that Martu claimants “hold that the resources, including water, flora, fauna and minerals in their country belong to them.”

84.    Second, and again as I related in my original report:

Because claimants have rights in … sites [in the country], they are responsible for protecting them. They say that should they fail in their duties they ‘might get knocked on the head’, they ‘might get killed’ or they ‘might get sick and die’ … [I]n their Law they must safeguard sites on their lands and punish those who desecrate or otherwise interfere with them. Failing this, they themselves expect to be punished for not doing their duty, ie for failing in their responsibilities to and towards the places.

85.    As it happens, this is not just an abstract issue for claimants. As I reported, claimants feel responsible for damage miners caused to a site in the Woolnough Hills. This, even though the miners had not sought their permission or ensured, through proper survey procedures, sites would be protected. From the claimants’ point of view, and from the point of view of their neighbours, they as owners had failed to look after that which they are responsible for looking after – even if the failure to do so was beyond their control.

    …

86.    In my experience and opinion, claimants, and other Western Desert people, are of the view that non-Aborigines should, in conformity with Western Desert law and custom, seek their permission to access their country. As far as I am aware, this is neither a new nor recent position. Rather, linked as it is to notions of ownership of resources and concern for sites, it to my mind comes across as a longstanding one.

    [References omitted.]

52    At [42] he expressed the following opinion:

In my experience and opinion, claimants and their ancestors had the right to access and use the resources of their lands. They also had the responsibility of dealing with the resources according to various rules. In this regard, it essentially was/is the treatment of resources that was/is subject to rules, and not so much a landowners right to access and use them.

53    At [44] of his report, Dr Sackett set out the question he was asked to address in relation to trade as follows:

Identification and consideration of the geographical extent, at and since 1829 or the late 1800s, 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 in the claim area.

54    Having drawn a distinction between trade and gift exchange, Dr Sackett discussed the former as follows:

47.    Trade appears to have gone on both within the confines of the Western Desert and between Western Desert peoples and non-Western Desert peoples. Regarding the former, Gould, writing of stone artefacts unearthed at Puntutjarpa Rockshelter near Warburton, remarked that some came from a quarry some 290km to the east.

48.    As for trade items that move from outside the Western Desert, Bates mentioned how “[s]pears and other products … came from the Upper Ashburton and from districts still further north and north-east, for barter amongst the Lake Way [ie Wiluna area] and other tribes.”

49.    Certain sacred items likewise came from outside the Western Desert. Bates for instance, noted ones coming to the “Thaduna and Lake Way districts” from “Ashburton coastal tribes”. Tindale and Mountford likewise reported items of a secret nature being traded from north and northwestern coastal districts into the Western Desert.

50.    I am not aware of claimants trading items or materials from the Birriliburu area in recent years with either other Western Desert people or non-Western Desert Aborigines. I am aware, though, of other areas within the Western Desert where such things as particularly potent mingkurlpa (wild tobacco) are collected for trade with others.

51.    As well, as recently as the 1970s, the sacred objects alluded to above were sought through trade by claimants and claimants’ ancestors.

52.    Today, however, trade is most apparent not with or through neighbouring Aboriginal peoples, but with non-Aboriginal people. As I noted, this included claimants:

(a)    collecting wood from the claim area and fashioning artefacts for sale to tourists;

(b)    gathered seeds from the claim area for propagation to sale to collectors, nursery wholesalers, and others;

(c)    pulling and processing sandalwood from the claim area for sale into both the domestic and overseas markets;

(d)    creating prints and painted canvasses with motifs representing claim area places and Dreamings for sale to tourists and on the Aboriginal art market.

53.    Here cash has taken the place of, or become, a commodity in the transaction. This said, I am not aware of anything in claimants’ law and customs proscribing such trade for sale. I have neither encountered rules against trade for sale in the research findings of others, nor have I come across such ideas during the course of my own research – either with claimants or their Western Desert fellows.

    [References omitted.]

55    Dr Sackett concluded at [54]:

In my opinion, in the pre-sovereignty period, claimants’ ancestors traded with other Western Desert people and, either through the latter or more directly, with non-Western Desert people. In my experience and opinion, this trade has extended into the more contemporary era. As it has, it has been extended to include non-Aboriginal people as well. In my opinion, this latter trade is but a continuation of that which occurred in the past.

The Evidence of Dr Cane

56    Dr Scott Cane prepared an extensive report primarily for the Pilki application. Part of that report ([26] – [59]) was tendered in this proceeding. Those paragraphs dealt with trade in both the pre-sovereign and sovereign period. They provided additional evidence to support the view of Dr Sackett expressed in the passage extracted in the previous paragraph of these reasons for judgment. In his oral evidence, Dr Sackett agreed with that part of Dr Cane’s report.

57    Dr Cane 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 these proceedings 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.

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.]

58    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.

Trading activity pre-sovereignty - archaeological evidence

59    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.

60     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.]

61    Then Dr Cane described evidence of trade in ochre to the Western Desert 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.]

62    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.]

63    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.]

64    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.

…

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.]

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 then described the significant trading in 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 claim of sovereignty by 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 [sic] 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.

THE SUBMISSIONS OF THE PARTIES

71    Mr Blowes SC, who appeared as counsel for the applicants, contended that the evidence established that the traditional laws and customs of the Birriliburu People provided for unrestricted access to and use of the resources of their country. All of the witnesses 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.

72    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.

73    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.

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

75    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 Birriliburu 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 actual 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.

76    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.

77    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.

78    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:

41.    While there is some evidence that some artefacts may have been sold to tourists and seeds collected and sold to mining companies for the rehabilitation of land. That evidence is not evidence of a right to take for commercial exploitation.

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 Martu group rather than being exercised as a matter of traditional right.

    [Footnotes omitted.]

79    The State relied on the evidence of Dr Sackett that the application areas are harsh, human population is low, resources in the area are scarce and there is no extraction of resources or stockpiling conducted by the Birriliburu People. These circumstances do not conduce to commercial activity.

80    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.

81    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.

82    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.

83    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.

84    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 Birriliburu 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.

85    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

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

87    The four indigenous witnesses said that all the resources of their country belong to the Birriliburu People to use as they determine. The expert evidence of Dr Sackett and Dr Cane was to the same effect. Traditional knowledge was imparted to each of the witnesses by old people with knowledge. Each of the witnesses was steeped in that knowledge and equipped to express their view of the traditional laws and customs of the Birriliburu People. The indigenous witnesses gave evidence in Wiluna near to their country. Their words, recorded on transcript, explain their understanding of the traditional laws and customs of their people. However, one aspect of their evidence which was referred to earlier in these reasons for judgment made it particularly compelling. That was the way in which the witnesses responded to the questions about their ownership of the resources of their country. Their obvious bewilderment at having to answer such questions, the answers to which seemed so obvious to them, added significantly to the impact of the words they used to explain the way in which their laws and customs suffused their lives. Their evidence was that they were entitled as of right to access and take the resources for any purpose they saw fit. That included a right to take the resources for trading purposes. In this context, their country included all that was in, on and under the land.

88    The evidence of Dr Sackett was compelling for other reasons. His long experience with the people of these and surrounding areas stretching over 40 years gave him a special understanding and perspective. It is noteworthy that he expressed a view about the right to access and take resources of the country in his earlier Connection Report, which was provided before the particular issue which is to be resolved in this part of the proceeding arose as a distinct matter.

89    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 and 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.

90     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 Ms Long, Ms Anderson, Mr Farmer and Mr Wongawol, was compelling. Even without evidence of trading activity, the right is established by this testimony.

91    However, the applicant’s case went beyond the evidence of the indigenous witnesses that there are traditional laws and customs which give the right to access and take resources for any purpose. They gave recent examples of commercial activities which involved selling resources from the country. Ms Anderson caught emu chicks and sold them to an emu farm. Ms Long collected pop mulga seeds and sold them to mining companies for the purposes of regeneration of used mining areas. Tony Pattison sold spears made from wooden articles to tourists. Others also sold wooden artefacts from the application areas to tourists. Ms Long told how people hunted kangaroos in order to obtain their skins for sale. Mr Farmer said that his people had the right to harvest sandalwood from the areas. Each of the indigenous witnesses said that the same traditional laws and customs which allowed them to use the resources of the country required mining companies to obtain permission of the Birriliburu People to undertake mining projects on their country.

92    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.

93    Further, the argument fails to engage with the evidence of historical trading activities provided by Dr Sackett and Dr Cane, and the opinions expressed by them of the existence of a long tradition of trading by Aboriginal people to and from the Western Desert region. For example, after a survey of the historical and archaeological evidence Dr Sackett concluded:

In my opinion, in the pre-sovereignty period, claimants’ ancestors traded with other Western Desert people and, either through the latter or more directly, with non-Western Desert people. In my experience and opinion, this trade has extended into the more contemporary era. As it has, it has been extended to include non-Aboriginal people as well. In my opinion, this latter trade is but a continuation of that which occurred in the past.

94    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 Sackett and Dr Cane.

95    The State relied on a number of constraints on the taking of resources to demonstrate that there was no right to access and take for any purpose. For instance, there was evidence that resources would not be wasted, and that some resources would be accessed only by certain prescribed categories of Birriliburu People. But Dr Sackett’s report expressed the view, which should be accepted, that these internal constraints did not prevent general access to the resources of the country. Further, these are rules about how the society exercises the right, rather than a limitation on the scope of the right itself. As Finn J held 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 constraints on the manner of taking things, not the right to do so.

96    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.

97    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.]

98    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.

99    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.

100    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 Sackett and Dr Cane.

101    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 Birriliburu 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.]

102    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.

103    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 specific 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

104    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

Schedule of Parties

    No: (P)WAD6284/1998

Federal Court of Australia

District Registry: Western Australia

Division: General

Applicants:     KENNY FARMER

    MARGIE JACKMAN

DUSTY STEVENS

    COLIN RICHARDS

    MUSSO MORRISON

    JOHNNIE RAY

    BRUCE RICHARDS

    GEOFFREY STEWART

    FRANKIE WONGOWOL

    ANDY CAMPBELL

Schedule of Parties

    No: (P)WAD108/2008

Federal Court of Australia

District Registry: Western Australia

Division: General

Applicants:    JIMMY MORGAN

TIMMY PATERSON

GARRY STEVENS

BP (DECEASED)

Schedule of Parties

    No: (P)WAD50/2010

Federal Court of Australia

District Registry: Western Australia

Division: General

Respondents:    LOUIS RAUERT WARD