FEDERAL COURT OF AUSTRALIA
Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752
ORDERS | |
DATE OF ORDER: | 29 JUNE 2016 |
THE COURT ORDERS THAT:
1. With respect to settling the form of the Determination or Determinations, the parties consult in relation to all matters that may be pertinent to a proposed form of Determination or Determinations to give effect to these reasons.
2. By 26 August 2016, the parties notify my Associate as to the form of Determination or Determinations if agreed, or if not agreed, each party is to notify my Associate of its proposed form of Determination.
3. There be liberty to apply to vary these orders.
4. Any order dismissing the State’s interlocutory application dated 15 October 2012 be made at the date of making the Determination or Determinations.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders | |
WAD 498 of 2011 | |
BETWEEN: | GS (DECEASED), PATRICK EDWARDS AND MERVYN SULLIVAN Applicant |
AND: | STATE OF WESTERN AUSTRALIA First Respondent SHIRE OF LAVERTON Second Respondent CORINA BENNELL, LISA BENNELL, MATTHEW BENNELL, CENTRAL DESERT NATIVE TITLE SERVICES LTD, COSMO NEWBERRY (ABORIGINAL CORPORATION), BRETT DIMER, HILDA DIMER, JARED DIMER, SHAUN DIMER, SHONDELLE DIMER/GARLETT, RON HARRINGTON-SMITH, HARVEY MURRAY ON BEHALF OF THE YILKA NATIVE TITLE CLAIMANTS, ALISON TUCKER (NEE BARNES), DANIEL TUCKER, FABIAN TUCKER, KATHY TUCKER, MICHAEL TUCKER AND QUINTON TUCKER Third Respondents ELECKRA MINES LTD AND SASAK RESOURCES AUSTRALIA PTY LTD AND URANEX NL Fourth Respondents TELSTRA CORPORATION LIMITED Fifth Respondent GOLD ROAD RESOURCES LIMITED Sixth Respondent |
JUDGE: | MCKERRACHER J |
DATE OF ORDER: | 29 JUNE 2016 |
THE COURT ORDERS THAT:
1. With respect to settling the form of the Determination or Determinations, the parties consult in relation to all matters that may be pertinent to a proposed form of Determination or Determinations to give effect to these reasons.
2. By 26 August 2016, the parties notify my Associate as to the form of Determination or Determinations if agreed, or if not agreed, each party is to notify my Associate of its proposed form of Determination.
3. There be liberty to apply to vary these orders.
4. Any order dismissing the State’s interlocutory application dated 15 October 2012 be made at the date of making the Determination or Determinations.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS | |
WAD 303 of 2013 | |
BETWEEN: | HARVEY MURRAY ON BEHALF OF THE YILKA NATIVE TITLE CLAIMANTS Applicant |
AND: | STATE OF WESTERN AUSTRALIA First Respondent PATRICK EDWARDS AND MERVYN SULLIVAN Second Respondents |
JUDGE: | MCKERRACHER J |
DATE OF ORDER: | 29 JUNE 2016 |
THE COURT ORDERS THAT:
1. With respect to settling the form of the Determination or Determinations, the parties consult in relation to all matters that may be pertinent to a proposed form of Determination or Determinations to give effect to these reasons.
2. By 26 August 2016, the parties notify my Associate as to the form of Determination or Determinations if agreed, or if not agreed, each party is to notify my Associate of its proposed form of Determination.
3. There be liberty to apply to vary these orders.
4. Any order dismissing the State’s interlocutory application dated 15 October 2012 be made at the date of making the Determination or Determinations.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MCKERRACHER J:
TABLE OF CONTENTS
CHAPTER 1 – CONNECTION – YILKA CLAIM
1 The Yilka applicant and the Sullivan Edwards applicant (Sullivan applicant) claim native title. The first respondent (State) opposes the claim. In these reasons, in four chapters, I have, for the most part, addressed issues raised by the parties in the same or similar order as an agreed list of issues that I directed the parties file and which their submissions, most helpfully, have addressed.
2 The Yilka No 1 claim (WAD 297 of 2008) was lodged on 15 December 2008. The Court and parties, including a not insignificant entourage first set foot (in this application) in the Claim Area on 31 October 2011 and extensive site evidence was heard in the course of hearing the Yilka applicant’s case. The Yilka No 2 claim (WAD 303 of 2013) was lodged on 1 August 2013, as a formality in order to attract the operation of s 47B of the Native Title Act 1993 (Cth) (NTA), and partially overlaps the Yilka No 1 claim. As per Court orders dated 29 August 2013, the Yilka No 1 and Yilka No 2 claims were ordered to be heard together, so that pleadings and evidence in both matters stand as pleadings and evidence in the other proceeding. The Yilka No 1 and Yilka No 2 claims are referred to collectively as the Yilka claim, unless specified otherwise. Similarly, the terms Yilka applicant and Yilka claim area, being the area the subject of the Yilka claim refer to those entities in relation to both claims.
3 The Sullivan applicant did not join in the hearing until relatively late in the piece. The Sullivan Edwards claim (Sullivan claim) (WAD 498 of 2011) was lodged on 7 December 2011. The area the subject of the Sullivan claim is referred to as the Sullivan claim area. On 1 March 2012, I ordered that both the Yilka and Sullivan claims be heard together pursuant to s 67 NTA. The parties were subsequently joined as respondents in each other’s claim, as per orders of 26 April 2012. Prior to that time, the Sullivan applicant did not participate in the evidence called on behalf of the Yilka applicant.
4 The three claims are referred to collectively as the proceedings (and sometimes as these proceedings or the present proceedings) and the totality of the areas of the Yilka claim area and the Sullivan claim area is referred to as the Claim Area. The term Yilka claim group means the persons on whose behalf the Yilka claim is made, and its members are also referred to as Yilka claimants. Similarly, Sullivan claim group mans the persons on whose behalf the Sullivan claim is made, and its members are referred to as Sullivan claimants.
5 For the Yilka applicant, evidence was given by some 16 lay witnesses, together with seven witnesses who only gave evidence during site visits. Many others attended the site visits voluntarily. There were also many people who participated in a demonstration of the preparation of bush tucker at the second last open site visit location at Yilurn. The site visits were followed by many days of more formal evidence with the tender of affidavits, the leading of oral evidence where necessary, and the tender of statements of various deceased persons who were regarded as possessing right in the Claim Area.
6 The Yilka applicant named its native title claim after a significant place on the Claim Area. It includes the area of the Cosmo Newberry Aboriginal Community (Cosmo Newberry Community), a number of large reserves for the use and benefit of Aboriginal people, some small reserves of other kinds, some small areas of unallocated Crown land (UCL), and a pastoral lease.
7 The Sullivan applicant claims a similar area, but shortly prior to closing submissions, amended the claim to reduce it by excising a small portion of its original claim area.
8 As explained by senior counsel for the Yilka applicant, Mr Blowes SC, there are a number of distinct features of this claim. The first of those is that it is a contested claim involving people of the Western Desert and the laws and customs of the Western Desert, which poses some special considerations for the application of the NTA. The Yilka applicant argues that these issues are not insurmountable. Secondly, and again, unusually, it is a claim that follows previous claims involving, to some extent, similar people and, to some extent, a similar area. This has created special considerations, not only by reason of detailed abuse of process submissions advanced by the State, but also because all of the parties have relied to some extent on the evidence and/or reasons in the very substantial judgment of Justice Lindgren in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1. As such, more than a passing familiarity with the evidence and reasoning in Wongatha has been necessary for the parties and the Court. A third feature of the claim is that not all claimants are resident in the Claim Area. The Yilka applicant argues this is not unusual; indeed, many claims have been determined where there are no residents in the claim area.
9 Since evidence was first given in the proceedings, two of the witnesses have passed away. Those two witnesses were Lincoln (Jayden) Smith (deceased), referred to as Jayden Smith, who was born near a location known as Minnie Creek, about which much evidence was given, on 30 June 1953, and the late Yinga Estelle Ross, referred to as Ms Ross whose mother was also born in that area in 1915.
10 There are two main lines of disputation in regards to the existence of native title, which are canvassed in this and the following chapter.
11 In respect of both the Yilka and the Sullivan claims, the State puts the applicants to proof and contends they have not come up to their pleaded cases. The State’s primary focus, however, has been on the contention that it is not open to advance either of the claims concerned due to findings in Wongatha. As will be seen, I do not consider that these arguments should be upheld. This is largely because I consider that these claims are entirely different claims from those argued and dealt with in Wongatha.
12 The other major dispute is between the Yilka applicant and the Sullivan applicant. Whereas, on the one hand, the Sullivan applicant simply says that the Sullivan claimants should have been included in the Yilka claim and has not objected to the Yilka claimants being included in its claim, the Yilka applicant strenuously maintains its position that the Sullivan claimants are not entitled to be within the Yilka claim. I have rejected that contention. The Yilka claim has been on foot for longer than the Sullivan claim and its presentation has been more detailed but, in substance, I have concluded that there is no reason why the Yilka claim should ever have excluded the Sullivan claimants. This is a conclusion which substantially accords with the views reached by the expert anthropologists in the case. While the Yilka applicant’s written submissions catalogue endless criticisms of and weaknesses in the Sullivan applicant’s evidence, to my mind, had such a microscopic analysis been taken to the Yilka case, similar problems would have arisen.
13 As a subsidiary issue, I can understand the State being confused as to exactly how the Yilka applicant was putting its case initially and, indeed, for some time. I do not think it has been as clear cut as the Yilka applicant’s indignation on that topic suggests. There has certainly been a significant argument over the issue of whether the claim simply constitutes an aggregation of individual claims, rather than a group claim.
14 This chapter deals with the existence of native title in respect of the Yilka claim. As such, while much of the discussion which follows is equally applicable to the Sullivan claim, the focus here is on the arguments put forward by the State in relation to the Yilka claim, and on the arguments made by the Yilka applicant in support of its claim.
15 An application for a determination of native title under the NTA is for rights defined by s 223(1) NTA. It is the NTA which governs consideration of the claim.
16 Section 223 NTA provides as follows:
223 Native title
Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(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.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
Statutory rights and interests
(3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.
Subsection (3) does not apply to statutory access rights
(3A) Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).
Case not covered by subsection (3)
(4) To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):
(a) in a pastoral lease granted before 1 January 1994; or
(b) in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.
17 In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, the majority of the High Court said (at [37]-[38]) (footnotes omitted):
37 First, it follows from Mabo (No 2) that the Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court. Secondly, upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown's acquisition of sovereignty and radical title. What survived were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.
38 When it is recognised that the subject matter of the inquiry is rights and interests (in fact rights and interests in relation to land or waters) it is clear that the laws or customs in which those rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system – the body of norms or normative system that existed before sovereignty. Thus, to continue the metaphor of intersection, the relevant intersection, concerning as it does rights and interests in land, is an intersection of two sets of norms. That intersection is sometimes expressed by saying that the radical title of the Crown was "burdened" by native title rights but, as was pointed out in Commonwealth v Yarmirr, undue emphasis should not be given to this form of expression. Radical title is a useful tool of legal analysis but it is not to be given some controlling role.
18 The applicants carry both an evidential onus and an ultimate onus, or a burden of proof, to the civil standard, namely, on the balance of probabilities. As noted in Yorta Yorta, there are challenges in the forensic task of proving facts back to historical and pre-historical times. The majority said (at [80]):
It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the [NTA].
19 Recently, in AB (deceased) (on behalf of the Ngarla People) v Western Australia (No 4) (2012) 300 ALR 193, Justice Bennett collected the case law helpfully where her Honour discussed the principles involved in drawing inferences in native title determination applications (at [106]-[108]):
106 In Yorta Yorta, Gleeson CJ, Gummow and Hayne JJ accepted that demonstrating the content of traditional law and custom may well present difficult problems of proof and that the court may be invited to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. They recognised that it may be especially difficult to demonstrate the content of traditional laws and customs in cases where it is recognised that the laws and customs have been adapted in response to European settlement. It was not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn (Yorta Yorta at [80] and [82]).
107 Justice Kirby in Mason v Tritton (1994) 34 NSWLR 572 concluded that inferences can be drawn in native title cases that a situation that exists at a particular time also existed at an earlier time. However, whether such an inference can be drawn depends upon whether the probabilities of the case favour the inference and whether intervening circumstances have occurred which would bring the situation to an end. His Honour noted that in more traditional Aboriginal communities the inference will be more easily drawn (at 887–889).
108 Similarly, in Gumana v Northern Territory of Australia (2005) 141 FCR 457 (Gumana (2005)), Selway J held at [198]–[201] that there was no “obvious reason” in that case why evidentiary inference (of the kind discussed in Mason v Tritton) was not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and the existence of rights and interests arising under that tradition or custom. However, Selway J continued to state that “[t]his does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement”. See also the application of Mason v Tritton in De Rose v South Australia [2002] FCA 1342 at [503]–[505] and [570].
20 These matters are not in dispute. However, the State makes a number of submissions in relation to issues of proof.
21 First, the State seeks to emphasise the unique nature of those particular claims, making it clear that the proceedings here have much in common with the proceedings in Wongatha, in particular, proceedings WAD 144 of 1998 (Cosmo claim) and proceedings WAD 6005 of 1998 (Wongatha claim), two of the eight overlapping claims in Wongatha. The State draws attention to the fact that Harvey Murray (HM), who is the named Yilka applicant, in his capacity then as a Cosmo claimant, has lodged an appeal from Wongatha and that the present proceedings raise many questions which it says are, if not the same as the matters considered in Wongatha, not materially distinguishable. The State says, therefore, that it is not surprising that the considerations given by Justice Lindgren in Wongatha to comparable conditions will often provide potential guidance on questions arising in these proceedings. It is suggested that decisions made by Justice Lindgren on questions of law, questions of mixed law and fact, and questions concerning the application of principles should be followed unless plainly wrong.
22 The State makes the point that this difficulty is compounded by the reliance placed by the Yilka applicant’s expert and lay witnesses, including anthropologists, Dr Scott Cane and Dr Lee Sackett, on evidence given before Justice Lindgren in the Cosmo claim, the Court’s summaries of that evidence, the use and interpretation of that evidence and the findings in relation to that evidence, as if it were part of the process of information gathering or preparation for the present claim. The State submits that such an approach places this Court at a disadvantage to Justice Lindgren in that, whereas Justice Lindgren had before him a body of direct evidence as well as ethnographic and other documentary evidence, some parts of the evidence which was direct evidence before Justice Lindgren is now before the Court in the present proceeding in the form of a lifeless record of those proceedings. There is other evidence not before this Court at all. Significantly, the State says, a portion of the evidence received and summarised by Justice Lindgren has been considered without the advantage enjoyed by Justice Lindgren and used by expert and lay witnesses for the applicants as if it were ‘research’ or ‘advice’ for the purpose of providing a foundation of evidence in the present proceedings.
23 While there certainly are similarities between the Yilka claim and the Cosmo claim, that is a matter primarily for consideration in relation to the abuse of process argument which the State advances. The Yilka claim is pleaded differently and advanced with evidence directed to the pleaded claim. There is the further complication in relation to the Cosmo claim that Justice Lindgren ruled that he did not have jurisdiction (in the absence of authorisation) to consider the Cosmo claim. Nevertheless, for completeness and in light of the fact that the evidence had been adduced, his Honour did go on to consider the evidence. There is no doubt that, to the extent his Honour made findings (on the assumption that he was wrong about lack of jurisdiction), those were findings reached on the basis of the facts before his Honour, in turn moulded by the pleadings and arguments developed in that case. While the abuse of process arguments will be considered in due course, it should not be readily assumed that whatever findings that were reached by his Honour on the evidence, arguments and pleadings in Wongatha should be adopted in these proceedings.
24 The process of evidence taking in the Yilka claim involved visiting and hearing evidence at different sites in the Claim Area, including the significant area of Minnie Creek. Evidence adduced by witnesses in the Yilka claim has been of a quite different nature to that adduced in the Cosmo claim, directed, as it were, to the pleadings in the Yilka claim, which, as will be seen, were cast in a distinctly different way from the pleading in the Cosmo claim.
25 I would also discount the suggestion that the evidence from Dr Sackett and Dr Cane, as anthropologists, was significantly influenced by the material relied upon in the Cosmo claim. Although the expert anthropologists had access to material from the Cosmo claim when preparing their draft reports, the final reports were prepared with access to the first tranche of the claimants’ evidence, which Dr Sackett attended in full, from 31 October 2011 to 11 November 2011, after HM gave evidence on 5-6 December 2011; and following two expert conferences, the first on 22 July 2011, and the second across 24 July and 16 August 2012. Before they gave their evidence in September 2013, the expert anthropologists had attended and/or had access to the transcript of the entirety of the evidence advanced for the Yilka applicant in regards to the existence of native title.
26 Secondly, the State submits that the manner in which the applicants’ cases are put, being principally based on the claims of individuals, has a bearing upon the extent to which it is open to the Court to draw inferences relating to an entire population of a claim group from the evidence of individuals. The State submits that inclusion of particular individuals in a claimant group is not a sufficient basis to permit the drawing of inferences concerning one individual from attributes of some other individuals in that group. The State argues that if this were the case, then mere assertion that individuals constitute a group would amount to proof of the existence of the group and the attributes of all who are said to be included.
27 In this regard, the State emphasises that the Yilka claim group is said to comprise approximately 400 to 500 people whilst the evidence suggests it may be well over 1000 people, excluding any Sullivan claimants. There is, the State contends, a very large number and proportion of people about whom very little is known. The State complains that the number and proportion of witnesses whom have not been heard and whose circumstances are mostly unexplained is far greater than in the Cosmo proceedings where 15 from a total of 128 group members gave evidence.
28 Although the topic will be examined more fully, it is not clear that there is support for the State’s submission that if a claim is, as it describes it, an ‘individual claim’, evidence by an individual will not be capable of giving rise to inferences about any other person. The evidence in this case, as in many others, of individual witnesses includes direct evidence about many other persons, including deceased persons. There is no reason why inferences should not be drawn in relation to such evidence, whether the inference pertains to other individuals or the existence of groups.
29 Although the State’s submission does draw on a figure of well over 1000 people within the Yilka claim group, and therefore submits that the number of witnesses called to give evidence was insufficient, it is doubtful whether the number of persons within the claim group itself would be that high. The number of claimants referred to in the various genealogies adduced in evidence is less than 500. Given the detailed analysis in the genealogies, I consider that this would be a more reliable figure than an apparently un-researched estimate in oral evidence.
30 The Yilka applicant points to the fact that in Akiba (on behalf of the Torres Strait Islanders of the Regional Seas Claim Group) v Queensland (No 2) (2010) 204 FCR 1, Finn J found no difficulty in reaching conclusions in favour of the claim group extending to tens of thousands of people (at [27] referring to some 53,000 Torres Straight Islanders of whom 3,806 presently resided in the relevant islands of the Torres Straight) on the basis of the evidence of 26 witnesses, which included between one to four witnesses from each of the 13 island communities in question: Akiba (at [96]-[97]). The Yilka claim is in respect of a much smaller claim group. If only one or two witnesses had been called, then there would be some force in the complaint raised, but the proportion of witnesses and participants in relation to the number of claimants, as discussed above, was significantly higher than the State submission might suggest.
31 Finally, as to the question of drawing inferences, as discussed by Bennett J in Ngarla, the State submits that the applicants have failed to discharge the onus of establishing continuity in the acknowledgement and observance of law and custom which would lead to the drawing of the requisite inference. In relation to Gumana v Northern Territory (2005) 141 FCR 457, to which Bennett J referred to in Ngarla, Selway J (at [194]-[200]) considered whether evidence of witnesses which, on its face, may establish that the witnesses and relevant elders believed there was a long standing custom that predated them, could establish customs going back to an earlier time or time immemorial. In that instance, the custom under consideration was belief that the Law came from the land and the sea. Selway J referred to a number of common law cases and set out an extract from Hammerton v Honey (1876) 24 WR 603 (at 604) to the effect that the usual course taken is that where persons of middle or old age state that in their time, usually at least half a century, the usage has always prevailed, that is considered, in the absence of countervailing evidence, to show that the usage has prevailed from all time. The State emphasises that usual practice is expressed to be dependent on there being evidence that certain conduct ‘has always prevailed’ and perhaps, more importantly, in the absence of ‘countervailing evidence’. Selway J observed (at [201]):
There is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom: see Lester G “Aboriginal Land Rights: the territorial rights of the Inuit of the Canadian Northwest Territories; a legal argument (1985) Repub vol 2, pp 884-906. Although no such inference would seem to have been relied upon in Millirrpum (see at ALR 110, 119-21; FLR 184, 197-8) Australian cases thereafter would seem to have relied upon such inferences, although without expressly acknowledging the common law authorities which plainly supported doing so: see, for example, Mason v Tritton (1994) 34 NSWLR 572 at 588; Yarmirr (FC) at [66]; De Rose at [259]; Lardil at [116] ff. This does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement: contrast [Yorta Yorta]. However, in my view where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had “always” been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement. That was not the case in [Yorta Yorta]. It is the case here.
32 The State argues that the problem in transposing this reasoning into the present claims is that in key respects, such as the formation of intermediate groups such as the Yilka and Sullivan claim groups, the evidence is that the practices or laws and customs have, in fact, not always prevailed. The State also submits that in other respects, the conditions that have existed so lack constancy and stability as to leave doubts about whether conditions could reasonably be expected or assumed to have been sufficiently stable to permit the continuity which the applicant is asking the Court to infer. The impact of settlements and the consequential option of living in groupings larger than those that were viable in pre-sovereignty times was an example given by the State of dynamic rather than static conditions. Not only is there an absence of evidence of important customs or traditions always prevailing, but there is affirmative evidence, it is submitted, by the State that they have not always prevailed. The State refers to Griffiths v Northern Territory (2006) 165 FCR 300 in which Weinberg J found that it was reasonable to infer continuity of acknowledgement and observation of laws and customs, as there was nothing to suggest that the ritual and ceremonial practices observed since the middle of the nineteenth century, in a largely unbroken pattern, were suddenly created or radically transformed from what had immediately gone before (at [577]). Weinberg J noted the limits of the process of inference in relation to ancestral occupation (at [583]):
I accept that there will be some cases where the need to go back 30 or 40 years beyond the earliest extant genealogy would render the process too speculative to permit an inference of continuity or connection to be drawn. However, in the present case, the position seems to me to be different. It is known that indigenous people occupied the Timber Creek region at least as far back as the time of the earliest explorers. It is also known that inhabitants of that area adopted laws and customs that were, ethnographically, very similar to the laws and customs that indigenous people in other parts of Australia followed. A number of the ritual practices that are documented at least as far back as the latter part of the nineteenth century are, in significant respects, similar to those followed by Aboriginal people since well before European settlement in this country. It would be wrong, in my view, to approach the issue of connection by turning a blind eye to these historical realities.
33 Similarly, the State cites Jango v Northern Territory (2006) 152 FCR 150, where Sackville J (at [504]) observed:
If the indigenous evidence consistently favoured a particular set of laws and customs, an inference might well be available that the laws and customs described by the witnesses have remained substantially intact since sovereignty, or at least that any changes have been of a kind contemplated by presovereignty norms. The evidence is not, however, consistent. Accordingly, the force of any inference that might otherwise be available is much reduced. Indeed, the fact that in modern times people apparently have adhered to such different versions of law and custom rather suggests that the changes that have occurred since sovereignty are not mere “adaptations”.
34 Also, in Bennell v Western Australia (2006) 153 FCR 120 (at [457]) Wilcox J noted the following matters:
457 In addressing these questions, I am conscious of the possibility that a native title claim may fail because of a discontinuity in acknowledgement and observance of traditional laws and customs, even though there has been a recent revival of interest in them and there is current acknowledgement and observance. I have in mind cases such as Yorta Yorta and the decision of Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404 (the Larrakia case). Before upholding a native title claim, the Court must be satisfied, on the balance of probabilities, of continuity of acknowledgment and observance, by the relevant community, from the date of sovereignty until the present time. Of course, there can never be direct evidence covering such a long time. However, inferences may be drawn, from evidence led at trial, concerning the situation in earlier times: see Yorta Yorta at [80] and [Gumana] at [195] – [201]. In the latter case, Selway J applied the principle enunciated by Jessell MR in Hammerton v Honey (1876) 24 WR 603 at 604:
It is impossible to prove the actual usage in all time by living testimony. The usual course taken is this: Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time.
35 However, the findings of continuity of the community, as opposed to the continuity of observance of law and custom, was subsequently found on appeal to have been erroneous: Bodney v Bennell (2008) 167 FCR 84 (at [70]-[78]) where the Full Court (Finn, Sundberg and Mansfield JJ) said:
70 The appellants contended that the questions the primary judge posed (quoted at [49]) are the wrong questions. The Commonwealth submitted that the correct question is whether acknowledgment and observance of traditional laws and customs has continued substantially uninterrupted since sovereignty. It is to be answered by ascertaining whether, for each generation of the relevant society since sovereignty, those laws and customs constituted a normative system giving rise to rights and interests in land, and in fact regulated and defined the rights and interests which those people had and could exercise in relation to the land and waters.
71 Since [Yorta Yorta] the approach propounded by the Commonwealth has been adopted in relation to the continuity issue. There at [87] the majority said:
acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned.
(Emphasis in original.)
72 In Risk v Northern Territory [2006] FCA 404 at [97](c) (Risk TJ) Mansfield J said that applicants for native title must establish, amongst other things, that:
the acknowledgment and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty, and the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs.
On appeal to the Full Court, the appellants did not attack that formulation, though they did unsuccessfully attack other parts of his Honour's summary of the requirements for establishing native title: Risk v Northern Territory (2007) 240 ALR 74 at [78]-[79]. The Full Court regarded the whole of his Honour's summary, including that quoted above, as an accurate statement of the effect of the cases, including [Yorta Yorta]: see at [78]-[98].
73 As appears from [49], the primary judge did not pose the continuity question in the form propounded by [Yorta Yorta]. Instead of enquiring whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted by each generation since sovereignty, he asked whether the community that existed at sovereignty continued to exist over subsequent years with its members continuing to acknowledge and observe at least some of the traditional 1829 laws and customs relating to land.
74 The [Yorta Yorta] formulation concentrates on continued acknowledgment and observance of laws and customs because the rights and interests the subject of a determination of native title (s 225) are the product of the laws and customs of the society. It is not the society per se that produces rights and interests. Proof of the continuity of a society does not necessarily establish that the rights and interests which are the product of the society's normative system are those that existed at sovereignty, because those laws and customs may change and adapt. Change and adaptation will not necessarily be fatal. So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional. An enquiry into continuity of society, divorced from an inquiry into continuity of the pre-sovereignty normative system, may mask unacceptable change with the consequence that the current rights and interests are no longer those that existed at sovereignty, and thus not traditional.
75 Consistently with the primary judge’s formulation at [49], his Honour’s conclusion quoted at [67] is cast in terms of continuation of a society.
76 The primary judge’s focus on the continuity of a society rather than continued acknowledgement and observance of laws and customs is seen in his treatment of the change from an essentially patrilineal system of descent to a mixed patrilineal/matrilineal system.
77 His Honour did not engage in the [Yorta Yorta] and Risk TJ 240 ALR 74 enquiry as to whether the laws and customs relating to descent had continued to be observed by each generation from sovereignty to the present. He made no findings about that. Rather he seems to have proceeded on the basis that provided the pre sovereignty society continued to exist, its members would have continued to acknowledge and observe those laws and customs. At [777] he said:
The descent rules are undoubtedly of great importance. However, changes to them must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices. I think the move away from a relatively strict patrilineal system to a mixed patrilineal/matrilineal or cognative system should be regarded as not inconsistent with the maintenance of the previous-settlement community and the continued acknowledgement and observance of its laws and customs.
78 The primary judge adopted a similar approach to the breakdown of the estate system. At [784]-[785] he said:
counsel [for the State] rightly say the claims made by the witnesses in these cases do not distinguish between “home areas’, inhabited by estate groups, and “runs”, larger areas to which they have access without the need for permission. Each of the witnesses only identified a relatively large area of land, his or her boodja, or country, to which he or she had access (as a matter of Noongar law, although often not under wajala law) without the need for permission.
It seems to me that “home areas” have effectively disappeared. Today’s boodjas are similar in concept to - although probably larger in area than - the ‘runs’ of pre-settlement times. I agree this is a significant change. However, it is readily understandable. It was forced upon the Aboriginal people by white settlement. As white settlers took over, and fenced, the land, Aborigines were forced off their home areas; the “bands” or “tribes”, comprising several related families, were broken up. Surprisingly, the social links between those families seem to have survived, but the related families ceased to be residence groups, together occupying a relatively small area of land. The ability to maintain the “home area” element of the pre settlement normative system was lost.
36 The State extracts from Jones v Dunkel (1959) 101 CLR 298 per Kitto J (at 305) the observation that one does not pass from the realm of conjecture into the realm of inference until some factors are found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.
37 In relation to the State submission that key aspects of the Yilka claim include ‘the formation of intermediate groups’, which the State contends is a law or custom that has not always prevailed, the Yilka applicant submits that this premise, which apparently lies at the heart of the State case, ‘rests on persistent refusal to accept the plain statements of the Yilka applicant about the way the case is put’. The Yilka applicant refers to the explanatory paragraph in the document entitled ‘Yilka Applicant’s fourth amended Points of Claim’ (Yilka POC) at [4]):
Any reference in the Form 1 and [Yilka POC] to the persons on whose behalf the Applicant has made the Yilka claim as a ‘group’ or ‘claim group’:
(a) except where the context requires otherwise – is no more than the adoption of a term used in Item (1) in the Table of Applications in s 61 of the [NTA];
(b) is not intended as a statement that they constitute an enduring social entity constituted under laws and customs of the WDCB;
(c) is intended to convey that they are the several persons and several groups of persons who have in common that they are the present possessors under traditional laws and customs of the WDCB of rights and interests in all of [sic] part of the claim area;
(d) it is not intended to convey, in relation to the exercise of rights by those persons, that rights are not exercisable to an extent individually and to an extent communally with other holder of rights; or that in any event rights are not exercised in a broader social context among people who share in the acknowledgement and observance of the same laws and customs.
38 The Yilka applicant argues that the evidence is clear that the several persons and descent lines of the Yilka claim group are merely the persons who, under the relevant laws and customs, are the possessors for the time being of the rights and interests in the Claim Area. There is no evidence of any ‘formation’, to use the State’s term, of the Yilka claim group other than being the persons identified by the application of traditional law and custom to the Claim Area. Nor, if that makes it a ‘group’, is there any evidence of it being an ‘intermediate’ group, being a term used by the State.
39 In any event, to the extent that the State submissions are based on continuity of the population that is not the case put by the Yilka applicant. The NTA prescribes that native title will depend upon continuity of a normative system. The existence of native title does not depend upon the possession of rights by descent, but rather, on what the traditional laws and customs say about how rights and interests are acquired and possessed. If those laws and customs do not limit the possession of rights and interests to the descendants of an ancestor who possessed such rights, then the NTA will not do so either.
40 The Yilka applicant argues with some force that it is a matter of comfortable inference that the laws and customs of the relevant Western Desert Cultural Block (WDCB) society were in existence at sovereignty. For this, it relies upon the agreement of all expert witnesses on the proposition that the WDCB system of normative laws and customs has had, to varying extents, a continuous existence and vitality since sovereignty, together with assertions of the Aboriginal witnesses that it has always prevailed. Further, as noted by Weinberg J in Griffiths, it is reasonable to infer that the recent ancestors from whom the present claimants acquired their laws and customs ‘did not simply invent them’ (at [577]). I accept this and the submissions referred to in this paragraph.
41 It is clear that all of the elements of the definition of native title in s 223 must be established (Yorta Yorta (at [33]). This emphasis flows from the statute and in the discussion in the High Court in Western Australia v Ward (2002) 213 CLR 1 (Ward HC) where Gleeson CJ, Gaudron, Gummow and Hayne JJ said (at [17]-[18]):
17. However, as indicated, the immediately relevant elements in the definition in s 223(1) of "native title" and "native title rights and interests" have remained constant. Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist "in relation to land or waters". Thirdly, the rights and interests must have three characteristics: (a) they are rights and interests which are "possessed under the traditional laws acknowledged, and the traditional customs observed", by the relevant peoples; (b) by those traditional laws and customs, the peoples "have a connection with" the land or waters in question; and (c) the rights and interests must be "recognised by the common law of Australia".
18. The question in a given case whether (a) is satisfied presents a question of fact. It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters "by those laws and customs". Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs.
(emphasis added)
42 The State emphasises the passage from Ward HC (at [64]), where the majority stressed that what is required by s 223(1)(b) NTA is first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a ‘connection’ of the people with the land or waters in question. Their Honours further said that whether or not there is a relevant connection depends, in the first instance, upon the content of traditional laws and customs and in the second, upon what is meant by ‘connection’ by those laws and customs.
43 If there is to be a determination of native title made pursuant to the requirements of s 223(1) NTA, it is to be made under s 94A in accordance with s 225 NTA. Section 225 provides:
225 Determination of native title
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
44 The determination of native title must be viewed from the Aboriginal perspective: Western Australia v Ward (2000) 99 FCR 316 per North J (Ward FC) (at [783]). The majority in Ward HC in the High Court also spoke (at [76]) about a ‘bundle of rights’ having indicated (at [18]) that, as a question of fact, it is necessary, not only to identify the laws and customs said to be traditional laws and customs, but, no less importantly, to identify the rights and interests in relation to land or waters which are possessed under those laws or customs. The majority in Ward HC (at [95]) indicated that the metaphor of ‘bundle of rights’ is useful in two respects. It draws attention, first, to the fact that there may be more than one right or interest and, secondly, to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional laws and customs. The Yilka applicant contends, in this case, that the rights in the asserted bundle of traditional rights are both specific and clear, even though they are broadly stated. As the Yilka applicant points out, there is no authority which precludes the claiming or a finding of broadly stated rights.
45 In Ward HC, the majority observed (at [14]) the evident difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests, but nonetheless, that was what was required by the NTA. It was pointed out that, in expressing this relationship the spiritual or religious is ‘translated’ into the legal. Their Honours said that this requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The notion of translation was reiterated in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, in the discussion of the Full Court (Wilcox, French and Weinberg JJ) (at [64]) of the idea of recognition which it said is central to the common law of native title and also to the NTA. Their Honours stated that the common law and the NTA define the circumstances in which recognition will be accorded to native title rights and interests and the conditions upon which it will be withheld or withdrawn. By this process, aspects of an indigenous society’s relationship to land and waters are ‘translated’ into a set of rights and interests existing under non-indigenous laws. The Full Court stressed that the term ‘recognition’ links it to the normative framework established by the common law and by the NTA as evidenced in its preamble. This process of translation was achieved by Finn J, through examination of the utility and practical outcomes of the relationship of people and their country and resources in Akiba (at [524], [525] and [529]) where his Honour said:
524 While there were customary and other constraints on the manner of taking things (for example, the method of taking dugongs – a matter not discussed in these reasons – or the widely but not uniformly accepted objection to using hookahs (diving apparatus) to catch crayfish), there were no constraints on what could be taken, though contrary views were expressed on whether dugong and turtle could be sold under customary law. Taking, I should add, was contrived in the main by considerations of utility. As Tom Jack Baira put it:
Our ancestors didn’t have a shop, they didn’t have money but they could use what they got from our area in whatever way was useful to them. Our ancestors did whatever they needed to do to survive. They lived off their areas, land and sea. We do the same.
So, for example, after shell meat had been used, the shells were used for decorative and aesthetic purposes, to collect water (if big) or as food bowls: Kris Billy. And among the things used were sand, shells, a vast range of marine species, coral, mangrove timber, etc. Or as the Applicant summarised it, basically everything edible or otherwise useful. I do not accept the State’s limitation that what can be taken are “living and plant resources”. It does not accord with the evidence.
525 While the Commonwealth has conceded the breadth of what could be accessed and taken, it has denied explicitly any “right to trade” or “to use for commercial purposes”. This is apparently for reasons of non-recognition by the common law. The right to trade in marine products of an area, it is said, presupposes exclusive possession of that area. I will return to this below. My present concern is with what, traditionally, were allowable uses of marine resources taken.
…
529 The point to be emphasised is that the fundamental resource-related right of use (cf Ward HC at [91]) was the right to take. Use of what was taken was unconstrained, save by considerations of respect, conservation and the avoidance of waste.
(emphasis added)
46 As the above paragraphs show, Finn J identified the practical effect of the relationship of people to their country, and ‘translated’ this into the right of use and the right to take.
47 Applying these principles to the current proceedings, the Yilka applicant asserts that the people who, under their traditional laws and customs, can call an area their ngurra, their country, may fully utilise and control access to that country and resources. There may be rules governing that right, but the overall effect of the relationship of the people to their country under their traditional laws and customs is, according to the Yilka applicant, ‘akin broadly to a notion of ownership and control’. It was emphasised in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209 (Akiba HC), that particular activities that may be conducted in accordance with a broadly described right could be regulated, even prohibited under non-indigenous law, without extinguishing the right (per Hayne, Kiefel and Bell JJ (at [613])). In this instance, a statutory prohibition against fishing for sale and trade without a licence was held not to extinguish the native title right to take resources for any purpose. The Yilka applicant argues that this supports the proposition that particular activities done in exercise of rights may be subject to particular rules under traditional law and custom without denying the existence of the right itself. There are some such rules apparent from the evidence in this case, such as rules against wastage of resources (as in Akiba: see [529] set out above), and rules about gender restricted access to sites etc, that may be regarded as simply regulation of the exercise of the right without detracting from its existence. The Yilka applicant argues, and the argument is supported by the Sullivan applicant, whose claim I discuss below, that laws and customs are what the people within the normative system say they are as recorded historically and as expressed by people today and also about their ‘remembered past’. If people are properly understood as saying it is, and according to their oral history it is, ‘theirs’, or that it ‘belongs to’ them, or that they are ‘owners’ of it, then that is what is to be regarded as the relevant law and custom under which their rights and interests are possessed, unless there is clear historical evidence to the contrary. The Yilka applicant submits that that is how their rights and interests properly are to be understood. There is, for example, no basis to inherently disbelieve claimants in relation to such matters, particularly when they are not challenged or contradicted.
48 There is also a distinction of some importance. While what people actually do as of right may well be an example of what they are entitled to do under their laws and customs, it will not necessarily be determinative of the scope of the right possessed under the laws and customs, unless the evidence is that those activities are all that they are entitled to do. For the Yilka applicant it is submitted that there is no basis or authority for confining rights and interests to particular activities apparently done as of right as at sovereignty or as at today. That would be to proceed incorrectly by reference to observable behaviour or activity or to wrongly assume and ignore evidence to the contrary that laws and customs only permit people to do what they actually did at a particular time in the past. In my view, this submission is correct. By analogy with common law freehold, the entitlement to use one’s land in a much broader way than one uses it, does not detract from the existence of the entitlement. The existence of a right will not depend on the right having been exercised in every manner possible.
1.1.4 Traditional laws and customs
49 As noted in Yorta Yorta (at [38]-[40] and at [43]-[45]), the rights and interests the subject of the NTA are those deriving from traditional laws and customs forming a body of norms that existed before sovereignty. Transmission of law or custom from generation to generation of a society is usually by word of mouth and common practice (at [46]). As noted in Yorta Yorta (at [46]), ‘traditional’ within the NTA context carries two other elements. First, it conveys an understanding of the age of the tradition, that is, if it existed pre-sovereignty and, secondly (at [47]):
… the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the people concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.
(emphasis in original)
50 The majority in Yorta Yorta also noted that there was no need to distinguish between the two terms in the expression ‘laws and customs’. However, the majority noted (at [42]):
… Nonetheless, because the subject of consideration is rights or interests, the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content. Without that quality there may be observable patterns of behaviour but not rights and interests in relation to land or waters.
51 In Akiba (at [171]-[173]) Finn J said:
171 Secondly, what are laws and customs? The plurality judgment in [Yorta Yorta] touched on this subject helpfully, but not conclusively: at [41]-[42]. Having noted the jurisprudential debates the “laws and customs” terminology might provoke, but also the lack of any need to distinguish between what is a matter of traditional law and what is a matter of traditional custom, the judges indicated (at [42]):
… the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters.
In [Wongatha (at [996])], Lindgren J enlarged upon this by reference to the following comments of Professor H.L.A. Hart, in The Concept of Law (OUP New York, 1994) in relation to “rules” (at p 57):
What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of “ought”, “must”, and “should”, “right” and “wrong”.
172 The question whether much of what has been advanced by the applicant as laws and customs amounts at best to no more than “observable patterns of behaviour”, has been put in issue primarily by the State. A factor of which account needs to be taken in considering this is the distinctive context in which this issue arises. Unlike mainland Aboriginal cases, there is little in the laws and customs relied upon that has any informing spiritual dimension at all: cf Ward FC at [242]. Much appears simply utilitarian; much seems prosaic. As Mr Hiley QC put it, “the absence of the spiritual element … is almost probably unique to this case”. Yet, it needs to be recognised that normative beliefs can be held about ordinary behaviour, as the fierce dispute over how properly to open soft boiled eggs in Swift’s Gulliver’s Travels suggests.
173 After discussion with counsel, I have settled upon the following working definition of “custom” as suited to the distinctive circumstances of this matter. It is that “customs” are accepted and expected norms of behaviour, the departure from which attracts social sanction (often disapproval especially by elders). I would note that reference to the sanction of public disapproval for deviant behaviour recurs in the evidence. I would also note in this regard Haddon’s comment (1908, 250; also to like effect, 1935, 130 and 288-289):
Rules of conduct were sufficiently defined and as far as possible enforced not by a special judiciary or executive body but by public opinion.
Judged by the above working definition, as will be seen, some number of the behaviours relied upon by the Applicant lacked, or were not shown to have, normative content.
(emphasis in original)
52 The word ‘society’ is not to be found in s 223 NTA (or elsewhere in the NTA). Wilcox, French and Weinberg JJ in Northern Territory v Alyawarr noted (at [78]):
78 The elements of a determination of native title are set out in s 225. It requires a determination of “who the persons, or each group of persons, holding the common or group rights comprising the native title are”. That requires consideration of whether the persons said to be native title holders are members of a society or community which has existed from sovereignty to the present time as a group, united by its acknowledgement of the laws and customs under which the native title rights and interests claimed are said to be possessed. That involves two inquiries. The first is whether such a society exists today. The second is whether it has existed since sovereignty. The concept of a “society” in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta. The relevant ordinary meaning of society is “a body of people forming a community or living under the same government” – Shorter Oxford English Dictionary. It does not require arcane construction. It is not a word which appears in the [NTA]. It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the [NTA], technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as “societies”. The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the [NTA] and confining its application in a way not warranted by its language or stated purposes.
53 It is a term which evolves from the judgment of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta (at [49]) where their Honours said that law and custom arise out of and, in important respects go to define, a particular society, a word which they said was to be understood as being ‘a body of persons united in and by its acknowledgment and observance of a body of law and customs’. Their Honours said, albeit in a footnote, that they had chosen the word society rather than the word community in order to emphasise the close relationship between the identification of the group and the identification of the laws and customs.
54 The State also draws attention to remarks of Toohey J in Mabo v Queensland (No 2) (1992) 175 CLR 1, where his Honour stated that the relevant society must be ‘sufficiently organised to create and sustain rights and duties’. The State emphasises that although the word society is not defined in s 223 NTA, the emphasis in that section on ‘traditional’ laws and customs, and the inseparability of consideration of laws and customs from consideration of the society from which they derive, requires the Court to consider questions relating to the relevant society.
55 Further consideration of society is raised below in Pt 4 (note that throughout these reasons a reference to a Part is generally a reference to that Part within the same chapter unless otherwise specified).
56 The majority judgment in Yorta Yorta established the requirement of continuity of the society and of the acknowledgment and observance of the traditional laws and customs which are claimed to give rise to the rights and interests under s 223 NTA (Yorta Yorta at [45]-[56]). At [74] of the Yilka POC, the Yilka applicant claims:
[T]hat when considering the continuity of acknowledgement and observance of laws and customs, it is necessary to distinguish them between:
(a) change and adaptation of the laws and customs of the WDCB themselves;
(b) changes in the circumstances in which those laws and customs were acknowledged and observed;
(c) the social and demographic outcomes that may result from the acknowledgment and observance of unchanged laws and customs in different circumstances;
(d) where participation in a practice is not mandatory – the laws and customs that apply when the choice is made to engage in the practice and the numbers or proportions of persons who engage in the practice in a given generation;
(e) ‘regional variation’ in the laws and customs that are acknowledged and observed and regional variability in the numbers who participate in non-mandatory practices governed by laws and customs;
(f) ‘expectations’ that many or most will engage in or be the subject of a practice, a law or custom that represents an ‘ideal’ but is not mandatory and a law and custom that includes mandatory participation in a practice; and
(g) where participation in a practice is mandatory – practices that all must engage in, practices that a particular segment of the population must engage in, practices in relation to which mandatory participation is subject to exceptions, and practices in relation to which the circumstances under which participation is required occurs once in a lifetime, rarely, or as an everyday aspect of life.
57 And at [75]:
[T]hat no change or adaptation of the WDCB laws or customs necessarily is involved where:
(a) the descendants of a person who held rights or interests through a particular pathway to connection in one area move (or the person in his or her own lifetime moves) to and acquires rights or interests on the basis of another pathway to connection in another area within the broader area of the WDCB. Such is ordinarily merely an instance of the application of the laws and customs;
(b) a person who has a recognised connection to and rights or interests in a particular area successfully asserts rights or interests in adjoining or other places through another pathway to connection such that his or her ‘my country’ area is geographically extended over those adjoining places or to those other places. Such is ordinarily merely an instance of the application of the laws and customs;
(c) a number of persons who each have a pathway to connection to the area settle relatively permanently in and become recognised as possessing rights in an area where a reliable supply of resources is available. Such ordinarily merely involves instances of the application of the laws and customs to the changed circumstances relating to the availability and reliability of resources; notwithstanding that over generations it may lead to a greater number of instances than in the past of recognition of rights or interests being possessed on the basis of a descent-based pathway to connection;
(d) at sovereignty there was a higher participation rate in a particular practice and a lower participation rate today where the laws and customs that apply to the conduct of the practice continue to be acknowledged and continue to be observed by those who participate in the practice.
58 The Yilka applicant has attempted to distinguish and isolate non-relevant change and adaptation from the kind of change that will defeat a native title claim. Relevantly, in Yorta Yorta (at [56]), the majority said:
For these reasons, it would be wrong to confine an inquiry about native title to an examination of the laws and customs now observed in an indigenous society, or to divorce that inquiry from an inquiry into the society in which the laws and customs in question operate. Further, for the same reasons, it would be wrong to confine the inquiry for connection between claimants and the land or waters concerned to an inquiry about the connection said to be demonstrated by the laws and customs which are shown now to be acknowledged and observed by the peoples concerned. Rather, it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs.
(emphasis in original)
59 The observations by the Full Court in Bodney (at [70]-[74]) are also pertinent to this analysis, where it was noted the importance of considering the continuity of observation and acknowledgment of traditional laws and customs, as opposed to merely considering the continuation of the society or community. Their Honours said:
70 The appellants contended that the questions the primary judge posed (…) are the wrong questions. The Commonwealth submitted that the correct question is whether acknowledgement and observance of traditional laws and customs has continued substantially uninterrupted since sovereignty. It is to be answered by ascertaining whether, for each generation of the relevant society since sovereignty, those laws and customs constituted a normative system giving rise to rights and interests in land, and in fact regulated and defined the rights and interests which those people had and could exercise in relation to the land and waters.
71 Since [Yorta Yorta] the approach propounded by the Commonwealth has been adopted in relation to the continuity issue. There at [87] the majority said:
acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned.
(emphasis in original)
72 In Risk v Northern Territory [2006] FCA 404 at [97](c) (Risk TJ) Mansfield J said that applicants for native title must establish, amongst other things, that
the acknowledgment and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty, and the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs.
On appeal to the Full Court, the appellants did not attack that formulation, though they did unsuccessfully attack other parts of his Honour’s summary of the requirements for establishing native title: Risk v Northern Territory (2007) 240 ALR 75 at [78]-[79]. The Full Court regarded the whole of his Honour’s summary, including that quoted above, as an accurate statement of the effect of the cases, including [Yorta Yorta]. See at [78] - [98].
73 … [T]he primary judge did not pose the continuity question in the form propounded by [Yorta Yorta]. Instead of enquiring whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted by each generation since sovereignty, he asked whether the community that existed at sovereignty continued to exist over subsequent years with its members continuing to acknowledge and observe at least some of the traditional 1829 laws and customs relating to land.
74 The [Yorta Yorta] formulation concentrates on continued acknowledgment and observance of laws and customs because the rights and interests the subject of a determination of native title (s 225) are the product of the laws and customs of the society. It is not the society per se that produces rights and interests. Proof of the continuity of a society does not necessarily establish that the rights and interests which are the product of the society’s normative system are those that existed at sovereignty, because those laws and customs may change and adapt. Change and adaptation will not necessarily be fatal. So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional. An enquiry into continuity of society, divorced from an inquiry into continuity of the pre-sovereignty normative system, may mask unacceptable change with the consequence that the current rights and interests are no longer those that existed at sovereignty, and thus not traditional.
(emphasis in original)
60 It is clear that some change to, or adaptation of, traditional laws and customs or some interruption of enjoyment or exercise of native title rights or interests in the period between sovereignty and the present would not necessarily be fatal to a native title claim: Yorta Yorta (at [83]). The majority held that the key question is whether the law and custom can still be seen to be traditional law and traditional custom. That is, is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant people? The Full Court’s statement in Bodney (at [74]), that the changed or adapted laws will remain traditional so long as they continue to sustain the same rights and interests that existed at sovereignty, is relevant in considering this question.
61 The Yilka applicant would argue then that the increased reliance, for example, on the pathway of descent rather than birth on country is not a significant change to the acknowledgment and observance of laws and customs, but simply a result of the changed circumstances whereby a greater number of births now take place in hospitals rather than on country. Although the change involves considerable social change, it is not a change to the available pathways recognised by traditional law and custom, nor is it a change to the rights and interests possessed as consequence of the application of a pathway to a person. Although, as a matter of behaviour, births taking place on country is no longer the norm, it does not mean that the continuous acknowledgment and observance of the pre-sovereignty laws and customs and the acknowledgment of them as traditional laws and customs has ceased or changed. That will be a separate enquiry, on the available evidence. Of course, the evidence supporting the submission is to be examined, but as a matter of principle, I accept the submissions advanced by the Yilka applicant as noted in this paragraph.
62 The Full Court in Bodney (at [163]) identified the genesis of the term ‘connection’ in the NTA as being derived from the judgment of Brennan J in Mabo (at 59-60) where his Honour said:
Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. But that is not the universal position. It is clearly not the position of the Meriam people. Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.
63 The connection requirement of s 223(1)(b) NTA was considered at length in Bodney (at [165]-[178]), from which I extract the following particularly relevant paragraphs:
165 First, despite the occasional propensity both to fuse and to confuse the inquiries raised by s 223(1)(a) and (1)(b), it is indisputable that they are distinct – the one relating to rights and interest in relation to land or waters, the other to connection with that land or those waters – notwithstanding that each is sourced in the traditional laws acknowledged and the traditional customs observed by the claimants in question: see [Ward HC] at [18]. While it may be the case in a given instance that the evidence necessary to establish connection will be the same as that used to identify the claimed rights and interests (and the State has contended that this is such a one: .., it is clear s 223(1)(b) serves its own purpose in s 223(1) and is not rendered largely redundant by s 223(1)(a): see Sampi [2005] FCA 777 at [1079]; see also [Wongatha] at [1880]. The distinction between the two inquiries can, as has been said, be “critical”: [Ward HC] at [19]. We will refer below to aspects of the independent work done by para (1)(b). What is to be emphasised here is that connection is not simply an incident of native title rights and interests as such. The required connection is not by the Aboriginal peoples’ rights and interests. It is by their laws and customs.
166 The presently important consequence of our last observation is that because the connection inquiry is not tied to the rights and interests claimed – though their character and their exercise may be important in a given case in demonstrating connection by the traditional laws and customs – the inquiry itself is not contrived by the nature of the rights and interests (“communal”, “group” or “individual”) claimed in an application. In a communal title claim, it doubtless is convenient shorthand to observe that connection with the claim area has to be established “at the communal level”: cf Sampi [2005] FCA 777 at [1079]; because, as the Full Court observed in Gumana FC 158 FCR 349 at [143], “the question is whether that community … has the required connection”. It equally is understandable that this shorthand should be used, in particular, in “multiple group” communal title claims – hence the observations in [Northern Territory v Alyawarr] at [111] that:
[Connection] involves the relationship of the relevant community to its country defined by laws and customs which it acknowledges and observes. The relationship may be expressed in various ways including, but not limited to, physical presence on the land. It does not depend upon the precise locus, within a community, of native title rights and interests intramurally allocated, provided that they can be regarded as held by the community as a whole.
(Emphasis added.)
167 However, this shorthand and the circumstances of its usage ought not deflect attention from the inquiry ultimately required by s 223(1)(b). We emphasise this for the following reason. Where, as in the present matter, it is contended that connection has been lost with a particular part of the claim area, because the connection to that area by the laws and customs has not been shown to have been substantially maintained, the connection inquiry itself must address that contention and, if it is established, its significance for the communal claim to that part of the area must be assessed: see eg Neowarra [2003] FCA 1402 at [357]. To foreshadow what we have to say, the primary judge did not consider it necessary to embark upon such an inquiry in relation to the Perth Metropolitan Area and so clearly erred.
168 Secondly, the laws and customs which provide the required connection are “traditional” laws and customs. For this reason, their acknowledgment and observance must have continued “substantially uninterrupted” from the time of sovereignty: [Yorta Yorta] at [86]-[89]; and the connection itself must have been “substantially maintained” since that time: [Ward FC] at [241]. As the Court observed in [Northern Territory v Alyawarr] at [92], perhaps not enough emphasis has been placed on the idea of continuity of observance as “a manifestation of connection”. We will return below to the significance of manifestation of connection. As will later become apparent, the requirements of continuity of observance and connection assume no little significance when one comes to consider whether observance and/or connection has been established sufficiently or at all in relation to the Perth Metropolitan Area.
169 Thirdly, as was made plain in the joint judgment in [Ward HC] at [64], the connection inquiry requires, first, an identification of the content of the traditional laws and customs and, secondly, the characterisation of the effect of those laws as constituting a connection of the people with the land. It is often observed, as in [Ward FC] at [243], that connection can be maintained by the continued acknowledgement of traditional laws and observance of traditional customs. The reason for this is that the laws and customs themselves characteristically will, in significant degree, presuppose or envisage direct connections with land or waters or will, if acknowledged and observed, link community members to each other and to the land or waters in a complex of relationships. Illustrative of this are the comments of Sundberg J in Neowarra [2003] FCA 1402 at [352] as to the s 223(1)(b) character of the laws and customs that were in evidence in that matter.
…
171 Fourthly, though the connection inquiry requires the formal characterisation of the laws and customs we have noted, it equally requires demonstration that, by their actions and acknowledgement, the claimants have asserted the reality of the connection to their land or waters so made by their laws and customs. A recurrent theme in Federal Court cases is the significance to be attributed to absence of physical presence upon the land with which connection by the traditional law and customs is claimed. Absence of physical presence as such is not a matter of present concern. But the case law on “presence” does illuminate that the connection itself must have a continuing reality to the claimants and that the evidence of how this is manifest is of no little importance in establishing present connection.
172 It is well accepted that an effect of European settlement on aboriginal communities was often enough to render it impracticable for them to maintain a traditional presence on substantial parts of their respective lands. However, it is equally accepted in decisions of this Court that such impracticability does not necessarily mean that the surviving members of such a community have not substantially maintained their connection with their land: [Ward FC] at [241]; Neowarra [2003] FCA 1402 at [349]-[351]. It may have subsisted at a spiritual and/or cultural level: see Yanner v Eaton (1999) 201 CLR 351 at [38]; and for this reason such evidence as there may be of attempts to overcome the absence of physical presence on land that is claimed is of real importance: see [Daniel] at [421] ….
173 In [Ward FC], Beaumont and von Doussa JJ, having described the relationship between Aboriginal people and their land as “primarily a spiritual affair”, commented at [243]:
Actual physical presence upon the land in pursuit of traditional rights to live and forage there, and for the performance of traditional ceremonies and customs, would provide clear evidence of the maintenance of a connection with the land. However, the spiritual connection, and the performance of responsibility for the land can be maintained even where physical presence has ceased, either because the indigenous people have been hunted off the land, or because their numbers have become so thinned that it is impracticable to visit the area. The connection can be maintained by the continued acknowledgment of traditional laws, and by the observance of traditional customs. Acknowledgment and observance may be established by evidence that traditional practices and ceremonies are maintained by the community, insofar as that is possible, off the land, and that ritual knowledge including knowledge of the Dreamings which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation. Evidence of present members of the community, which demonstrates a knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.
174 Put shortly it can properly be said, as French J has, that a requirement of connection “involves the continuing internal and external assertion by [a claimant community] of its traditional relationship to the country defined by its laws and customs … which may be expressed by its physical presence there or otherwise”: Sampi [2005] FCA 777 at [1079]; see also Neowarra [2003] FCA 1402 at [353].
175 Fifthly, the connection inquiry can have what may be described as a particular topographic focus within the claim area, the perimeter of which must itself be specified with reasonable precision: NTA, s 62(1)(b) and (2)(a) and (b); [Daniel] at [113]-[117]. This focus has been apparent, for example, in those cases where the claim area includes within its boundaries portions of land or waters for which there is no evidence of use by the claimants, or which are inaccessible. In such cases the courts have shown a distinct propensity to infer such connection as was practicable with such land or waters from Aboriginal activities in the surrounding areas which were supportive of a connection to the general area within which those apparently unused or inaccessible areas were located: see [Ward FC] at [262] and also [240]; Yarmirr TJ 82 FCR 533 at [91]-[98]; see also [Daniel] at [412] ff.
…
64 In Ward HC, the majority said (at [64]) that s 223(1)(b) NTA is not directed in terms as to how Aboriginal peoples use or occupy land or waters. Rather, what must be considered is whether, by traditional laws acknowledged and the traditional customs observed by the peoples concerned, they had a ‘connection’ with the land or waters. The process explained by the majority was that there is to be, first, identification of the content of traditional laws and customs. Second, there is to be a characterisation of the effect of those laws and customs as constituting a ‘connection’ of the peoples with the land or waters in question. The majority observed that, while there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom, the absence of evidence of some recent use of land or waters does not of itself require the conclusion that there can be no relevant connection. The Full Court in Northern Territory v Alyawarr also noted (at [92]) that while the relationship to the land may be evidenced by physical presence, there are other ways of evidencing this relationship, such as the maintenance of stories and allocation of responsibilities and rights in relation to it.
65 In relation to connection, the State contends that leaving aside the wati, the evidence in relation to which will be discussed below, the traditional connection asserted by the Yilka applicant and, for that matter the Sullivan applicant, is one pertaining to individuals and relating to a constellation of places to which each individual has recognised connections based on his or her own or an ancestor’s birth or long association. The State says it appears that that traditional connection has now been displaced or rivalled by associations of members of the Cosmo Newberry Community, which is within the Claim Area with a broad area to which all members of the society assert an homogenous connection. The State says how this emerges from the tradition asserted is unexplained.
66 The Yilka applicant rejects that characterisation of its case, which, it contends, seriously misrepresents the Yilka claim in a number of respects. The Yilka applicant contends that it is inadequate to characterise a person’s ngurra or ‘my country’ as a ‘constellation of places’. Further, it says that the claim is not a claim by the Cosmo Newberry Community in any sense. It does not include some members of the Cosmo Newberry Community and it includes many persons who are not members of the Cosmo Newberry Community. The Yilka applicant also rejects the contention that the claim is to an area in which ‘all members of the society assert an homogenous connection’, as this is not a claim by all members of the society and there is no suggestion of an homogenous connection. The issue of whether the Yilka claim involves a connection ‘pertaining to individuals’ is discussed in detail below.
1.1.8 Communal, group or individual rights
67 As to this topic generally, the discussion in Bodney (at [144]-[159]) is particularly comprehensive.
68 A specific issue arises in the proceedings regarding the requirements of the expression ‘communal, group or individual rights’ in s 223(1) NTA, in relation to the characterisation of the rights claimed. While s 223(1) uses the phrase ‘communal, group or individual’, this is in contrast to s 61 and s 225 NTA which use the phrase ‘common or group’ rights. The Yilka applicant argues that the reference to ‘communal, group or individual’ right in s 223(1) is intended merely to cover the field of possible arrangements for holding rights that might be thrown up by the traditional laws and customs under which they are possessed. It is suggested that there is no intention to limit the kinds of traditional rights that may be native title rights or to limit the traditional arrangements or manner of holding of such rights to three distinct categories. As an example of the more flexible approach, it is argued that there is no reason why traditional rights that have elements of all three characteristics, as do the traditional rights in this case, cannot be recognised. The rights here may be characterised as ‘individual’ in the sense that they devolve under traditional law and custom on the basis of individuals who meet the criteria set out in the Yilka POC [24] which is as noted:
Rights and interests in relation to land and waters are possessed by a person:
(a) who has a connection to the land and waters, through:
(i) his or her own birth and/or long association or holding senior ritual authority; or
(ii) the birth and/or long association of one or more of his or her ancestors,
by which the person claims to possess rights or interests in relation to the land and waters; and
(b) in respect of whom that claim is recognised under WDCB laws and customs.
69 They could also be regarded, the Yilka applicant says, as a ‘group’ right in two senses: first, because there are various groups of descendants of particular ancestors who possess rights; and secondly, because all of the persons whom traditional law and custom throw up at any given time as rights holders may be regarded as a group of persons who satisfy the Yilka POC [24] criteria. They could also be regarded as ‘communal’ in the sense that the laws and customs also establish complex intramural arrangements and accountabilities as between the rights holders and, to an extent, between the rights holders and a broader regional public who adhere to the belief system and laws and customs applicable in the Claim Area.
70 Although it was not apparently argued in Wongatha, Justice Lindgren, having said in relation to this issue that everything depends on the content of the traditional laws and customs (at [536]), stated the following (at [1135]):
In my view, s 223(1) reveals a taxonomy of the kinds of native title recognised by the NTA: communal, group and individual. The community, the largest possible native title owning entity, is in fact the society whose laws and customs are in question. The group is smaller, and ordinarily have a fluctuating membership (so, of course, will the community). The individual is the smallest possible native title land-owning entity.
71 In De Rose v South Australia (2003) 133 FCR 325 (at [38]-[39]), cited with approval in Bodney (at [145]), the Full Court apparently held some doubt as to whether the phrase involved a taxonomy as such. It noted that, if it was necessary for the purpose of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual rights and interests, the critical point appeared to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whereas group or individual rights and interests derive from a body of traditional laws and customs observed by the community, but are not necessary claimed on behalf of the whole community. The Full Court went on to say that the distinction between group and individual rights and interests (to the extent it matters) is more difficult to identify.
72 The Yilka applicant argues that, rather than the phrase being a taxonomy, it is a composite phrase. It is a phrase in the same way that the right of ‘possession, occupation, use and enjoyment against the whole world’ is a composite phrase conveying a single idea which is both inclusive of and larger than the four distinct ideas that the phrase includes.
73 In Northern Territory v Alyawarr (at [108]) the Full Court, noting with approval the findings of the primary judge, said:
His Honour gave consideration to cases in which estate subgroups had been found to constitute a broader composite community. He referred to Ward at first instance and Yarmirr. He said (at [132]):
In this instance I am satisfied that the claim group as asserted by the applicants does constitute an identifiable community, that its members identify and recognise those persons within the description as members of the broader community notwithstanding their different estate groups, and that the community as described lives under a common set of laws and customs. Within the claim group, there are different subgroups or persons who have a particular responsibility for particular parts of the claim or particular sites. The evidence shows nevertheless that there is a significant crossing or sharing of such responsibilities across particular persons from different estate subgroups which arises under the broader communal laws and customs. Not all community members enjoy the same rights in respect of all parts of the claim areas. For example, there are areas where women and children may not go, but the fact that there may be different individual rights in respect of different parts of the claim area does not mean that the claim group does not enjoy communal rights and interests over the claim area.
74 As noted in Bodney (at [154]), communal rights, interests and responsibilities can be enjoyed or distributed differentially; and a determination of communal title does not necessarily result in two rights or interests being held ‘in common’ by the members of the community. As also noted in Bodney (at [154] and [159]), it is not necessary for the purpose of s 94A and s 225 NTA to expressly address intramural relations of native title holders in a determination
75 The competing considerations on this topic will be considered further at Pt 6.3 below.
1.1.9 Claim group identification and membership
76 Section 225(a) NTA requires the Court to provide a description of the people who hold the rights and interests comprising the native title. That subsection provides that a determination of native title includes a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; …
77 In Moses v Western Australia (2007) 160 FCR 148 (Moses FC), the Full Court noted (at [370]) that s 225(a) NTA would ordinarily be satisfied if the name of the group is provided and stated that there is no automatic requirement that the determination set out in detail how the group membership is constituted or the criteria by which it is attained. Similar comments were made in Daniel v Western Australia (2004) 138 FCR 254 (at [49]-[53]), which drew on a number of native title cases to establish that the common practice is to define the native title holders simply by reference to their group name.
78 There is more of an issue where there is a dispute concerning the broad description of the peoples or the group and the criteria for membership; in such cases, it would be appropriate, if not necessary, for the Court to deal with such a question: Banjima People v Western Australia (No 2) (2013) 305 ALR 1 per Barker J (at [529]). In this case, as issues of ancestry had been raised, the Court found it appropriate to determine whether particular claimed apical ancestors were made out on the evidence (at [534]).
79 In contrast, in Aplin on behalf of the Waanyi Peoples v Queensland [2010] FCA 625, Dowsett J found that the disputed ancestor, Minnie, identified herself as a Waanyi woman and was accepted by Waanyi persons at certain places as a Waanyi woman (at [250]-[251]). However, she was not recognised by the contemporary Waanyi people as being a Waanyi person. Because the claim group did not recognise Minnie as a Waanyi person, they did not accept her descendants as Waanyi. Dowsett J said this was ultimately a matter for the group to determine (at [267]).
80 In respect of the Yilka and Sullivan claims, the criteria established by the laws and customs for possession of rights and interests is said to include ‘recognition’ of particular factual claims (that is, the existence of a birth on or long association with country, and the holding of senior ritual authority). Whether or not such recognition exists, the Yilka applicant contends, is expressly a matter for those charged under traditional laws and customs with the giving or withholding of recognition, but itself may be an issue for resolution by the Court about whether that recognition has been achieved where there is uncertainty or contest about that fact.
81 A recurring and significant theme in the Yilka applicant’s case is that the recognition condition is fluid in the sense that if a person has not been recognised at a given time, it is not necessarily the case that there will be no recognition for all time. In certain situations, there is the possibility of such a person achieving such recognition over a period of time, thus the door to ‘membership’ of the ‘group’ is left open for further persons who might at some point achieve recognition. This, it is said, is simply an aspect of the system of law and custom.
82 The competing arguments on this point are discussed further at Pt 1.3 and Pt 6.2.4, and consideration of who the native title holders are in the Yilka claim can be found at Pt 12 below.
83 The Yilka No 1 claim (WAD 297 of 2008) was made by the filing of the Yilka Form 1 ‘Native Title Determination Application’ on 15 December 2008. The Yilka ‘Second Amended Form 1 (Yilka Amended Form 1) was filed on 10 June 2011. The Yilka No 2 claim (WAD 303 of 2013) was made by the filing of the Yilka No 2 Form 1 ‘Native Title Determination Application’ on 6 August 2013, partially overlapping the Yilka No 1 claim area. The external boundaries of the Yilka No 2 claim area are essentially three small separate areas that are within the Yilka No 1 claim area. The Yilka No 2 claim was made for the purpose of seeking to attract the operation of s 47B NTA, which requires prior extinguishment of native title to be disregarded over areas of vacant Crown land in certain circumstances (as discussed in Chapter 3):
84 The State contends that there is more to take into account in relation to the history of the claims. It asserts that the Yilka claim group and the Yilka claim each have their genesis in the failed Cosmo claim, which, in turn, was a defensive step taken by members of the Cosmo Newberry Community in response to the making of two earlier native title claims by parties outside that community in respect of the land which they occupied. One such claim was made by Mrs D Sullivan (deceased), referred to as Mrs Sullivan on behalf of the Sullivan, Edwards and Winter families.
85 The State contends that, following the dismissal of the Wongatha claim and the Cosmo claim, no one was left with the standing of a native title claimant in respect of the Cosmo area (the terms ‘Cosmo’ or ‘Cosmo area’ are used to describe the area around the Cosmo Newberry Community generally, and at their broadest, refer to the collective area of the four Aboriginal reserves within the Claim Area). The State argues that it is reasonable to suppose that the NTA, and, in particular, Pt 2 Div 3 Subdiv P, which affords procedural rights including the ‘right to negotiate’ to certain native title claimants, would not have been overlooked by persons potentially able to qualify as native title claimants. Although the Yilka applicant denies that the Yilka claim is a defensive claim in the sense of pre-empting other possible claims, the State submits that the circumstances that existed following dismissal of the Wongatha and Cosmo claims clearly left an ‘attractive vacuum’.
86 The State also argues that it is apparent from the evidence that the instructions which led to the filing of the Yilka claim were given by the former Cosmo claimants and that any subsequent revision in the description of the Yilka claim in comparison to the Cosmo claim is not material in nature or effect, but rather, is a product of the guidance contained in the decision of Justice Lindgren in Wongatha and the recommendations of Dr Sackett. The relevant events on which the State relies in this regard, on which there was a deal of evidence, are as follows:
(a) on 5 February 2007, the Wongatha judgment was delivered and the time for lodgement of appeals was extended by consent, having regard to the scope, form and content of the reasons in Wongatha;
(b) on 5 April 2007, the Cosmo appeal was lodged;
(c) on 27 November 2007, there was a meeting of some former Cosmo claimants and representatives of the Central Desert Native Title Services (CDNTS). Those groups considered prospective candidates for group membership for a further claim based on the criticisms of Justice Lindgren regarding exclusion of some people from the Cosmo claim;
(d) on 6 April 2008, CDNTS, as representative of the former Cosmo claimants, on instructions to assist them in achieving a positive native title outcome, engaged an anthropologist, Dr Sackett, to assist by providing an opinion as to whether the Cosmo native title claim group was sustainable in its current form or close to its current form or whether it needed to be reconfigured to meet the requirements of the NTA and the State’s Connection Guidelines;
(e) on 7 April 2008, CDNTS briefed Dr Sackett on issues to be discussed at a meeting on 8 April 2008, including:
(i) whether or not there were Wongatha people who, according to the current claim group description, had connections to Cosmo and should properly be included in the Cosmo claim; and
(ii) whether or not there were Cosmo claimants who, according to the current claim group description should not be included in the Cosmo claim;
(f) on 23-24 April 2008, there was a meeting of the Cosmo Newberry Community which considered a description of the claimant group which specified two ‘ways of being in the claimant group’, namely, through either personal connections or descent from named ancestors;
(g) in May 2008, Mr Sean Calderwood of CDNTS conducted a literature review, in order to ‘finalise the claim group description’. He identified prospective ancestors including those ‘agreed to at the Cosmo meeting, which was held on 23rd April 2008’; being ‘ancestors agreed to by Cosmo and who are the ancestors of those people present at the Cosmo meeting’;
(h) in July 2008, Mr Calderwood reported on further research in respect of the issues noted in the memorandum to Dr Sackett dated 7 April 2008. He proceeded on the basis that there were two ways that a person could claim connection, being personal connection and descent as was the case in the Cosmo claim;
(i) in October 2008, Mr Calderwood reported on ‘verification of Cosmo Newberry claimants by non-claimants’. The report was an account of meetings of Mr Calderwood with senior regional figures addressing the ‘validity of certain individuals’ native title claims to the Cosmo area’. The views were short and only in respect of the late Mr Watson (referred to as Mr Watson), the late Mr Harris (referred to as Mr Harris), Mr Colin Turner, Taaput Rhys Winter (referred to as Rhys Winter), Dulkie Rundle, and the deceased sister of Dulkie Rundle. No opportunity appeared to have been allowed for comment on ‘the validity’ of claims by the Murray family, Sullivan family, Tucker family or others;
(j) on October 2008, there was a meeting of the Cosmo Newberry Community attended by ten members of the Murray family, two members of the Westlake family, Ms Ross and Mr Ron Bonney Junior. The meeting discussed ‘two ways to claim connection’, descent and personal connection, as in the Cosmo claim, and the status of particular individuals who were to be potentially included in the new claim;
(k) on 22 October 2008, Mr Michael Tucker contacted Mr Calderwood to (unsuccessfully) seek inclusion in the Cosmo Newberry native title claim of his family and the Barnes and Harris families;
(l) around 20-23 October 2008, Dereck Harris (referred to as Junior), Mr Rhys Winter, Mr Daniel Tucker and Mr Charles Edwards contacted Mr Calderwood to seek inclusion in the Cosmo Newberry native title claim;
(m) on 27 October 2008, Mr Michael Tucker contacted Mr Malcolm O’Dell (solicitor with CDNTS), Ms Sian Hanrahan and Mr Calderwood to again, unsuccessfully, seek inclusion in the Cosmo native title claim;
(n) on 6 November 2008, Mr O’Dell and Mr Calderwood contacted Mr Michael Tucker to arrange a meeting to discuss his connection to the Cosmo claim area;
(o) on 20 November 2008, Mr O’Dell, Ms Hanrahan and Mr Calderwood met members of the Tucker family and others who again, unsuccessfully, sought inclusion in the Cosmo native title claim group;
(p) on 4 December 2008, an authorisation meeting was held for the native title claim at the Cosmo Community Hall. The group description put to the meeting by CDNTS was explained as connection to the claim area, in accordance with the laws and customs of the culture, and recognition by others. Connection to country was said to mean through ancestors or personal connection as in the Cosmo claim. The name Yilka was chosen from six alternatives;
(q) on 15 December 2008, the Yilka Form 1 was filed asserting criteria for group membership, except the identification of apicals, and native title rights in terms identical to the final Cosmo Form 1;
(r) on 19 July 2010, the Cosmo supplementary notice of appeal was lodged.
87 The State asserts that, although the Yilka claim has been amended since its commencement, the substance of the group description has not been altered from that which is said to have authorised the making of the claim. The Sullivan claim, the State says is clearly derivative of the Yilka claim as formulated in the Yilka POC. (The State contends that the relevant points of claim filed on behalf of the Yilka applicant in the proceedings is the Yilka POC, filed on 9 August 2013, and in the Sullivan claim, the points of claim dated 10 September 2013 (Sullivan POC).)
88 The State’s description of and criticisms of the Yilka claim have drawn a fairly heated reaction from the Yilka applicant. The Yilka applicant makes the point that the State deals squarely with an abuse of process argument separately and the repeated reference by the State to the Yilka applicant rerunning the failed Cosmo claim in considering the connection issues is unhelpful (outside of the abuse of process arguments).
89 I think there is some merit in the response by the Yilka applicant on this point. Putting aside the abuse of process argument, if the claim stands up, it should be recognised. The fact that it is associated with another claim is relevant to the abuse of process argument, but not (at least in this instance) consideration of the claim itself. It is also doubtful whether the history of the manner of making the claim detracts from the way the claim was actually put before the Court in order for it to be determined. In particular, the Yilka applicant rhetorically asks what implications it would really have on the Yilka claim if regard was had to elements of statements by Justice Lindgren in Wongatha and to research of Dr Sackett and other research, and if the applicant conducted a general review of that case. Indeed, the Yilka applicant argues that it would be remarkable if that course were not taken. I agree.
90 Further, the Yilka applicant rejects the State’s argument that there is nothing new in the Yilka claim as compared to the Cosmo claim. The Yilka applicant points to many facts which it contends were ignored by the State. The most important are summarised below:
(a) there is no evidence to suggest that any ‘instructions’ by the former Cosmo claimants were not overtaken by the authorisation and making of the Yilka claim, and by the development of the way that the Yilka claim was put;
(b) the State has failed to demonstrate what was wrong in engaging Dr Sackett, or in the question put to him in the memorandum of 7 April 2008, which was essentially whether or not the right people were claiming for the right area;
(c) to the extent people were not included, the Yilka applicant says their inclusion was considered in good faith and was not shown to have been treated otherwise; and
(d) the two claims are not the same. In particular, the bases for holding native title rights were not the same as between the Cosmo claim and the Yilka claim; and further, in regards to the State’s assertion that the native title rights claimed were identical between the two claims, the fact that exclusive possession is claimed in both claims belies the many differences between the Cosmo and Yilka claims in relation to the nature and extent of rights and interests.
91 In my view, the relevant place for consideration of these issues is in relation to the abuse of process argument.
92 The criteria for possessing rights and interests in relation to land and waters under WDCB traditional laws and customs and, therefore, for memberships of the Yilka claim group have already been set out from the Yilka POC [24] above at Pt 1.1.8.
93 The persons said to comprise the claim group are identified in the Yilka POC [83] as those persons listed in Order 2 of the proposed determination of native title sought by the Yilka applicant (Yilka Determination Sought), attached to these reasons as Annexure 2. The claim group is said to be derived from the application of the laws and customs identified in the Yilka POC [24], such that Yilka claim group and the native title holder are coextensive.
94 In relation to the identification of claim group members, insofar as the Yilka claim is concerned, more detailed consideration of the evidence appears below in relation to:
(a) the laws and customs basis for possession of rights by the persons identified (Pt 6.1);
(b) the people who possess the claimed native title rights and the putative native title holders (Pt 12); and
(c) issues raised in the document entitled ‘First Respondent’s Response to [Yilka POC] dated 9 August 2013’ (State YPOR) at [83] about the people who hold rights and about the characterisation of the rights (Pt 12).
95 Of course, the Yilka No 2 claim group comprises the same persons, as the same determination is sought in relation to both the Yilka No 1 and Yilka No 2 claims.
96 The State notes that the representation of persons by the Yilka applicant ‘is not intended as a statement that they constitute an enduring social entity constituted under laws and customs of the WDCB’ (Yilka POC [4(b)]). In addition, the State notes that the Yilka applicant asserts that references to a group ‘is not intended to convey, in relation to the exercise of rights by those persons, that the rights are not exercisable to an extent individually and to an extent communally with other holders of the rights’ (Yilka POC [4(d)]).
97 The State complains that the Yilka POC identifies what is not asserted but is less informative as to what is asserted. It is not clear, the State asserts, whether it is argued that the Yilka claim group is not an enduring social entity or whether it is asserted that the rights of individuals are exercisable to an extent individually and to an extent communally. If the group is not an enduring entity under traditional law and custom, then the basis on which it has been isolated or carved out of a larger population of the Western Desert (including members of the Sullivan claim and many others), and the basis of succession into and out of the claimant group, goes to the question of the legitimacy of inclusion and exclusion of particular individuals. The State argues that if rights are exercisable to any extent collectively, communally, collaboratively or otherwise in unison, then the applicant must provide an explanation as to how the organised exercise of rights is mediated, if not by a collective holding of group rights. No such explanation emerges on the evidence or on the Yilka POC or on the submissions, according to the State. By comparison the State notes that the Sullivan applicant, while adopting the same form of pleading as the Yilka applicant, in its submissions make it clear that it seeks recognition of the individual rights and interests of the members of the claim group in common with any other native title holders.
98 The topic of aggregation of individual claims has caused quite a bit of debate. The Yilka applicant asserts that the State’s criticisms are the result of its obfuscation about the way the case has been put by the Yilka applicant, and its general unwillingness to accept the fundamental distinctions between the existence and character of rights and the manner of their exercise on the one hand, and the laws and customs about the existence and exercise of rights on the other. There have been problems, the Yilka applicant says, about the existence of rights and laws and customs and about their exercise. The Yilka applicant also submits that the complaints by the State fail to acknowledge that there is, at least, a serious question in these proceedings regarding the meaning of the expression ‘individual, group or communal’ in s 223(1) NTA in the context those distinctions and their application to the laws and customs that are relied upon in this claim. The Yilka applicant says that it is has been clear enough throughout its case that rights arise out of a particular connection between individuals and country, but are exercisable in accordance with laws and customs, which attach particular requirements, expectations and constraints to the exercise of the rights. In relation to the State’s reference to allegedly unexplained concepts such as succession into and out of the claim group, and how the exercise of rights is mediated, the Yilka applicant maintains that these are governed by the laws and customs. In this sense, the allocation of rights between people in the claim group is no different than in any other ‘group’ or multi-individual context. The rights holders are simply those who at any given time satisfy the criteria for possessing rights and interests.
99 The State notes that the points of claim (POC) filed by each applicant, and the proposed form of the determination sought by each applicant identify descendants of certain named ancestors (different in each of the POCs) as unconditionally included in the claim group. Each POC also provides for an inclusion of other unnamed persons who claim rights through their own or an ancestor’s birth or on long association with the Claim Area or their own holding of senior ritual authority with respect to places in the Claim Area. Under the determination sought, it is the State’s understanding that persons in the first category of members are not, and their descendants will never be, subject to the additional requirement that each person’s claim to membership must be ‘recognised according to traditional law and custom’. On the other hand, persons belonging to the second category of group members are, and their descendants will in future always be, subject to the additional hurdle that their claim must be ‘recognised according to traditional law and custom’.
100 The State points to the issue of the Yilka applicant not recognising the claims of persons included unconditionally in the claim group identified in the Sullivan POC, namely, descendants of Mrs Sullivan or Mrs P Wingrove (deceased) (referred to as Mrs Wingrove). The effect of this is that the Yilka Determination Sought would exclude all present and future descendants of Mrs Sullivan and Mrs Wingrove unless and until the claim of each individual is recognised. On the other hand, descendants of the ancestors named in the Yilka Determination Sought would enjoy group membership upon and by virtue only of birth. Conversely, the Sullivan applicant makes clear that it does recognise the claims of persons included unconditionally in the claim group identified in the Yilka POC (that is, descendants of Marnupa and others). This concession may have something to do with the physical disassociation, at least in recent decades, of most members of the Sullivan claim group from the Claim Area. As the State points out, this would mean that the proposed determination of native title sought by the Sullivan applicant (Sullivan Determination Sought) would not be as magnanimous as first impressions suggest. The group would include present descendants of Marnupa and others, but future descendants of Marnupa and others would be excluded unless and until the claim of each individual was recognised. Descendants of the named Sullivan ancestors, Mrs Sullivan and Mrs Wingrove, would, however, enjoy group membership on and by virtue only of birth.
101 In response to this, the Yilka applicant asserts that the State is mistaken in concluding that persons identified in the Yilka Determination Sought as descendants of certain named ancestors ‘are not and their descendants never will be’ subject to the additional requirement of recognition. Rather, those people have already been the subject of the recognition requirement. The Yilka applicant emphasises that although the Sullivan claimants are not presently included in the Yilka claim, on the Yilka case it is always open that some or all of them might be included in the future.
102 Both of the applicants assert that holders of senior ritual authority are among the respective claimants represented in the proceedings. The parties have used the expression ‘ritual authority’ or ‘ritual knowledge’ to refer to the men described as wati. Only some wati are able to assert or do assert connections based on their own or on an ancestor’s birth or long association with the land and waters of the Claim Area. Further, the meaning of these expressions is blurred on occasion by the use of expressions such as ‘senior ritual authority’, ‘young watis’, ‘senior regional law men’, ‘senior watis’ and ‘less senior watis’, ‘regionally senior non-traditional owner wati’, ‘non-traditional owner senior wati’, ‘out-of-their country senior wati rights holders’ and ‘tjilpi (senior wati)’. The State claims that the distinctions made by the particular permutations are unclear and have not been fully explained.
103 The question of wati will be dealt with in more detail below, but shortly put it is argued for the Yilka applicant that there is no need for native title purposes to definitively distinguish these terms. The criteria for holding rights, as expressed by the Yilka applicant, is having ‘senior ritual authority’, which does not include all wati.
104 The State contends that the individuals represented in each of the Yilka and Sullivan claims are each groups, although not groups based on traditional law and custom. The groups, the State says, comprise an aggregation of individuals’ connections to a cluster of individual ‘my country’ areas or individual areas according to each person’s particular basis for possessing rights and interests. The State contends that a claim by such a ‘group’ is not permitted and cannot be sustained under the NTA. To this extent, it relies on the conclusions of Justice Lindgren in Wongatha, (particularly at [314], [1145], [1167] and [2893], as set out below Pt 3.3).
105 For the Yilka applicant it is submitted that there is no reason why the provisions of the NTA might not accommodate rights that arise from a particular kind or kinds of connection between a person or persons and country where more than one person holds rights in the same country (whether or not on different bases) and where those traditional laws and customs provide for the manner of exercise of the various rights where there is more than one rights holder. The Yilka applicant argues that this is no different from a situation of an ordinary ‘descent group’ based claim, where laws and customs apply to decision-making as between group members; for example, restricting decisions about men’s places to senior men and requiring, for example, consensus among group members for activities of a certain scale that might affect more than the individual who proposes to undertake that activity. The findings of Justice Lindgren in Wongatha, so the Yilka applicant contends, were based on his characterisation of the claims as involving ‘non-traditional’ groups. As mentioned above, I will not be automatically adopting Justice Lindgren’s findings in the present proceedings.
106 The Yilka claim area is located within the Shire of Laverton in Western Australia covering the four Aboriginal reserves for the use and benefit of inhabitants (Reserves 20396, 22032, 25050 and 25051) and the Yarmana Pastoral Lease, held by Gold Road Resources Ltd (formerly Eleckra Mines Ltd). The Cosmo Newberry Community is located in the north-west portion of the Claim Area. The majority of the Yilka claim area is overlapped by the (now amended) Sullivan claim area.
107 The State points out that the Yilka claim area corresponds ‘precisely’ with the former Cosmo claim area which, in turn, is a polygon based on the boundaries of reserves in about the 1930s. The State points out that it is not suggested by either applicant that the boundaries in any way reflect geographical features or political divisions made according to traditional laws and customs acknowledged and observed in the Western Desert. The Yilka applicant in response submits (and I agree) that not disclosing the specific spatial relationships of native title rights held within the boundaries, which indeed may not be possible to cartographically determine, is neither remarkable nor relevant, and does not represent a deficiency in the claim.
108 The evidence in the proceedings were heard (including a re-opening by the State) over more than three years with opening statements in Perth on 20 and 21 October 2011. There were then on country site visits between 31 October and 2 November 2011. There were restricted site visits occurring on the evening of 2 November and during the day of 3 November 2011. There was Aboriginal evidence, including restricted evidence, heard over six days at Cosmo Newberry Community within the Yilka claim area between 4 and 11 November 2011. The evidence of HM, the named Yilka applicant, was heard in Perth on 5 and 6 December 2011. Further evidence given by the witnesses for the Yilka applicant was over two days at Cosmo Newberry Community on 24 and 25 June 2013, and in Perth on 9 September 2013.
109 The restricted evidence was taken in a conventional manner for restricted evidence. The Court and counsel had access to the evidence. In light of its restricted nature, I will simply note that such evidence was given. I also specifically record that nothing in the content of the evidence would detract in any way from the outcome of the proceeding.
110 Expert evidence was heard over four days in Perth between 9 and 12 September 2013. Aboriginal evidence in relation to the Sullivan claim was heard over three days in Kalgoorlie, Western Australia between 10 and 12 December 2013. Expert evidence in relation to that claim was heard over two days in Kalgoorlie between 12 and 13 December 2013 and further expert evidence in relation to that claim was heard in Perth on 13 March 2014. Further non-expert evidence was also heard in Perth on 13 March 2014. There was then a limited re-opening by the State devoted to the issue of extinguishment in relation to roads. This was also quite an extensive debate.
111 The Yilka applicant has complained on a number of occasions about the fact that the time taken for the trial was extended considerably because of the late involvement of the Sullivan applicant and, in particular, the delays caused by the Sullivan claimants and the eventual making of the Sullivan application. There is certainly force in this submission, but the Sullivan applicant, in response, points to the fact that if the Sullivan applicant had been included in the Yilka claim, as it contends they should have been, those delays would not have arisen. This point is equally valid.
1.6 Structure of these reasons
112 I have approached the structure of these reasons on a very similar basis to the structure adopted by the parties in their written submissions and adopting very similar headings. While the amount of the material involved in the submissions and evidence is still extremely voluminous, the cooperation between the parties pursuant to procedural directions to agree to these headings has been greatly appreciated and should facilitate production of reasons and judgment with less delay than might otherwise have occurred. Although certain aspects of the case have been fiercely fought, the cooperation, courtesy and professionalism of all counsel has been of great assistance to the Court.
113 By way of general overview of the structure of this chapter, the Introduction (Pt 1) considers the main legal principles which guide this determination, as well as a brief factual background of the claims and hearing. Part 2 gives an overview of the matters in issue, and sets out the Yilka POC. Part 3 provides an account of the evidence brought in this case, including descriptions of the Aboriginal and expert witnesses. Parts 4-15 deal with the substantive elements of the existence of native title in relation to the Yilka claim.
114 Generally speaking, the State has put the Yilka applicant to proof, apart from some relatively speaking minor admissions (see Pt 2.1 ‘Pleadings’). As such, there is very little narrowing of issues on the pleadings (as distinct from the evidence on which there was more common ground).
115 Aside from this general position as disclosed in its pleadings, the State identifies ten categories of issues as foremost among its concerns arising from the evidence in relation to the two claims (leaving aside the new issues of extinguishment and abuse of process). In this regard, I note that as the original orders contemplated, the State has replied cumulatively, rather than separately, to each of the two claims While this does not present any difficulty, it does mean that these reasons will need to be read as a whole and that much of what the State would say in respect of the Sullivan claim repeats what it says in connection with the Yilka claim. I have certainly not repeated all the State’s submissions when dealing with the Sullivan claim.
116 The ten issues of concern to which the State directs attention based on the understanding of the claims, are these:
1. The assertion of continuous connection to the whole of the Claim Area by various individual claimants, or as groups drawn from the people of the Western Desert (as opposed to a whole of society or regional group) in circumstances where only some of the persons concerned have such a connection to particular places.
2. Inclusion of a grouping of persons as claimants where any connection under traditional laws and customs and any rights and interests any of them hold are held individually and arise from their own or an ancestor’s connection to particular places and the connection and rights are not common to other claimants.
3. The integration as claimants of non-wati and wati in circumstances where the rights of those in these respective categories are markedly different, the processes for attainment of the respective rights are entirely different and the populations of those who hold the respective categories of rights are not co-extensive, co-dependent or mutually sustaining unless the Western Desert society is examined as a whole.
4. The advancement of a claim by one individual on behalf of a grouping of other individuals where the various individuals assert rights to different sets of places based on different events and the grouping does not assert communal or group rights.
5. The advancement of a claim by a non-wati on behalf of a grouping of other individuals that includes wati where some of the various individuals assert rights that are based only on their status as a wati and the grouping does not assert communal or group rights.
6. The characterisation of laws and customs as traditional, normative and being acknowledged or observed by a group of individuals where there is little or no evidence from which to assess or draw inference as to attributes, traditions and norms of most of those individuals and where some evidence of acknowledgement or observance is not indicative of normative practice amongst all such individuals.
7. The provenance of laws and customs which purport to relate to ‘recognition’, ‘contestation’ and qualifications on access and use of resources.
8. The legitimacy of an assertion of exclusive possession based, apparently, on the compounding of the non-exclusive rights of a number of individuals.
9. The investing in the claimants (or any combination of them) of the function of conferring or denying recognition to others asserting that they hold rights where the claimants and the holding of such a function by the claimants has not been shown to be in accordance with a law or custom of Western Desert society.
10. The matters identified by Justice Lindgren as reasons for the failure of the Cosmo claim and the Wongatha claim as identified in Wongatha (at [2893]), namely:
2893. The Cosmo Claim fails because:
1. The Cosmo applicant was not authorised to make the Cosmo application, as required by s 61(1) of the NTA.
2. The evidence does not establish that the Cosmo Claim group is recognised by WDCB traditional laws and customs as a group capable of possessing rights and interests in land or waters.
3. The evidence does not establish that group rights and interests exist in the Cosmo Claim area.
4. The evidence does not establish that at sovereignty WDCB laws and customs provided for an ancestral group of the Cosmo Claim group to possess group rights and interests in the Cosmo Claim area, or for individuals to be able to form themselves into a group possessing such rights and interests.
5. The Cosmo Claim is an aggregation of claimed individual rights and interests, and the Cosmo Claim area is an aggregation of individual ‘my country’ areas, the subject of the claimed individual rights and interests, and the NTA does not provide for the making of a determination of native title consisting of group rights and interests in these circumstances.
6. The Cosmo Claim area is not an area that is ultimately, whether directly or indirectly, defined by reference to Tjukurr (Dreaming) sites or tracks.
7. While particular Cosmo claimants can point to earlier times when they or their ancestors lived, or had other connections with, particular places within the Cosmo Claim area, the present Cosmo Claim group has resided at the Cosmo Aboriginal Community only since 1989/1990, and as a group its connection to the Cosmo Claim area dates only from that time.
8. The evidence does not establish that the Cosmo claimants have a connection to the Cosmo Claim area by Western Desert traditional laws and customs, as required by s 223(1)(b) of the NTA.
(emphasis in original)
117 The Yilka applicant complains that the State has proceeded generally by non-admission without providing any real guidance as to its case until closing submissions, and certainly had not raised the ten matters listed above in its pleadings or opening submissions. In any event, it contends that the matters are largely technical and argumentative, rather than substantive, and that none of them challenges the evidence or the credit of any of the witnesses. Rather the State seems to be simply focussing on the similarities between the Cosmo and the Yilka claims, and some alleged difficulties relating to the accommodation of a Western Desert claim within the requirements of the NTA. The Yilka applicant therefore contends that the State must be taken as generally not challenging the Yilka claim on its evidence, but rather on these technical legal grounds. Further, the Yilka applicant argues that the State’s reliance on Wongatha is misplaced and should be given little, if any, weight, and that the State’s assertions misrepresent the Yilka claim and misunderstands the requirements of the NTA.
118 In addition, the Yilka applicant argues that by identification of the matters of foremost concern, it appears to leave the following matters as not being regarded by the State as being of foremost concern:
(a) society;
(b) ‘migration’ – as to whether supposed movements were ‘non-traditional’;
(c) acknowledgment and observance of laws and customs under which rights and interests are possessed;
(d) laws and customs as ‘traditional’;
(e) laws and customs as normative rules;
(f) the non-exclusive rights to access and use country and resources for any purpose and non-exclusive right to protect; and
(g) ‘connection’, except as to particular areas around the north-eastern, south-eastern and southern margins of the Claim Area.
119 The current pleading in the Yilka claim is the Yilka POC, filed by the Yilka applicant on 9 August 2013. The current pleading of the State is the States YPOR filed on 6 September 2013. The current pleading of the Sullivan applicant in response to the Yilka POC is ‘The Sullivan Applicant’s Response to the [Yilka POC] dated 9 August 2013’ (Sullivan POR), filed on 19 August 2013. The Yilka POC for convenient reference is attached to these reasons as Annexure 1.
120 The Yilka Determination Sought, which was filed on 10 June 2014 as an attachment to the document entitled ‘Yilka Applicant’s Response to the First Respondent’s Submissions on Extinguishment’ (Yilka Extinguishment Submissions) is attached to these reasons as Annexure 2. The ‘Determination Sought’ referred to in the Yilka POC is an earlier version of the Yilka Determination Sought.
121 The State in its YPOR has admitted, without qualification, a limited number of paragraphs in the Yilka POC namely:
(a) [5]-[7] concerning, respectively, the date of sovereignty in relation to the Claim Area, the date of significant European settlement of the region and that date the Yilka claim was made;
(b) [27] and [28] concerning reference to and the nature of areas of ngurra;
(c) see [31] and [32] concerning rules about access to certain places;
(d) [33A] concerning the ultimate authority of senior wati in relation to certain places;
(e) [46] concerning certain aspects of the section system;
(f) [50] concerning sanctions and passing on information during the occasions of initiation rituals;
(g) [53] concerning language association with country;
(h) [59] and [60] concerning the personal Dreamings; and
(i) [63] to [64] concerning rules about passing on knowledge and about restricted information.
122 The Sullivan POR supports the Yilka POC, generally admitting the pleaded facts and contentions but adding, in effect, that the Sullivan claimants should be included as possessors of traditional rights and interests in the Claim Area. Further, the Sullivan POC is very similar to the Yilka POC.
123 There were two other respondents who filed pleadings in response to the Yilka POC. Telstra Corporation Limited filed Points of Response to the Yilka POC on 28 March 2011, which makes no admissions in relation to the Yilka applicant’s pleadings on establishment, nature and extent of native title. It did make an admission in relation to the description of some of its interests within the Claim Area. Mr Ron Harrington-Smith filed Submission on Points of Claim on 1 April 2011, with the only plea being that any reference to Yilka, the Yilka claim group or Yilka people should include Mr Harrington-Smith. Neither of these respondents participated in the hearing. Given the lack of submissions and evidence in support of the claim of Mr Ron Harrington-Smith, or for that matter the other Aboriginal respondents, I would disregard any assertions of inclusion in the Yilka (or Sullivan) claim groups.
124 The conferencing and evidence given by the anthropological experts, in particular, has been, in my assessment, most helpful. I should note at once that all of the experts are highly respected and highly qualified, despite the usual submissions exchanged by the parties as to why their experts should be preferred.
125 There were two without prejudice conferences of anthropological experts held over three days. The first of those being on 22 July 2011 in Brisbane with Professor David Trigger (advising the State), Dr Sackett and Dr Cane (advising the Yilka applicant). The second set of conferences were on 24 July and 16 August 2012 in Brisbane with Professor Trigger, Dr Sackett, Dr Cane and Dr Daniel Vachon (advising the Sullivan applicant).
126 Of course, the Court was not privy to the matters discussed in these conferences. As a result, however, the experts have subsequently identified common ground agreed and identified that which is not agreed.
127 There were some matters agreed without any qualification by all anthropologists. These are discussed below in Pt 3.2.1.5 (see also Annexure 3 which notes each expert’s opinion on each proposition considered, written by Dr Cane in the first person). This is attached as a helpful summary and guide, but does not constitute part of my conclusions on the evidence.
128 The Yilka applicant points to the fact that the State in its pleadings did not admit to a number of matters which were the subject of agreement between the expert witnesses. In response to this, the State says that any agreement amongst experts to particular propositions is not necessarily inconsistent with non-admission by the State, and in particular emphasis that the opinions expressed by the expert anthropologists for the most part relate to the Western Desert people, which the State does not concede is proof that these propositions apply to all claimants.
3. THE EVIDENCE – PRINCIPLES AND OVERVIEW
129 The Yilka applicant, as with any other applicant, carries the onus of proving the native title rights as claimed. The Yilka applicant contends that neither the State nor the Sullivan respondent has put the credibility of any witness in issue or led evidence to rebut any of the Yilka applicant’s claim on any issue and, therefore, the Court is entitled to give full weight to and act upon the evidence as presented by the Yilka applicant. The position is not quite as simple as this. For example, the Sullivan applicant does challenge or dispute some of the evidence of the Yilka witnesses. On the part of the Sullivan applicant, it contends, and I accept, that:
(a) it put the credibility of the principal solicitor for the Yilka applicant Mr O’Dell, into issue;
(b) in its submissions, it examined the ‘animosity’ of one of the Yilka witnesses, Frances Murray (Mrs Murray), towards the Sullivan family; and the relevance of this to ‘recognition’ of the Sullivans for membership in the Yilka claim group;
(c) in its submissions, it also examined the ‘gatekeeping’ approach of Mrs Murray, HM and other members of the former Cosmo claim, and the relevance of this to ‘recognition’; and
(d) it led rebuttal evidence concerning recognition of the Sullivan claimants through claimant evidence, evidence of the Aboriginal witnesses Mr Glen Cooke and Doreen Harris and evidence of the anthropologist Dr Vachon.
This will be discussed in Chapter 2 below, as it relates to the Sullivan claim.
130 The State suggests that the nature of the proceedings and unique knowledge on many of the matters about which evidence was given, made it inappropriate for the State to actively contradict all evidence of the Aboriginal witnesses. The State also contends that the credit of each witness is a matter for the Court in circumstances where it may be apparent to the Court that the written evidence in affidavit form was not entirely the words of the witness. It points by way of example, to the cross-examination of Pirru Terrence (Jake) Westlake (Jake Westlake), where he said that he was unable to answer a question about whether a particular man was a traditional owner, whereas in his affidavit, he stated that he accepted this man as such.
131 The majority of the State’s submissions on this point relate to its contention that the affidavit material was crafted, taking into account the earlier judgment of Justice Lindgren in Wongatha. For example, the State points to the oral evidence of Harvey Murray Junior (HJ), where the witness suggested that the conformity of his affidavit with Justice Lindgren’s summary of the evidence he gave in Wongatha was a coincidence. (I point out, however, that ‘coincidence’ was the word used by counsel in cross-examination, rather than the witnesses’ own choice of language.) The State gives a number of other examples which it says show doubts in the authenticity of witnesses (all references in this paragraph to paragraphs in Wongatha are to Annexure F to that judgment):
(a) HM’s affidavit seems to be, at least in part, based on the summary of his evidence before Justice Lindgren:
[8] uses the precise language used by Justice Lindgren (Wongatha at [3717]), which paraphrases but differs from the actual evidence in T8094, T8096, T8205 and T12392;
[9] uses the precise language used by Justice Lindgren (Wongatha at [3718]), which paraphrases but differs from the evidence at T8168;
[10] uses the precise language used by Justice Lindgren (Wongatha at [3721), which paraphrases but differs from the evidence at T8097;
[67], [68] and [69] use the precise language used by Justice Lindgren (Wongatha at [3737]-[3739]), which paraphrases but differs from the evidence (including in response leading) at T8106-T8109 and at T12393;
[71] to [73] uses the precise language used by Justice Lindgren (Wongatha at [3740]-[3742]), which paraphrases but differs from the evidence at T8109-T8110 and T8112;
[85] and [87] use the precise language used by Justice Lindgren (Wongatha at [3809]-[3810]), which paraphrases but differs from the evidence at T8177-T8179;
[102] use the precise language used by Justice Lindgren (Wongatha at [3772]), which paraphrases but differs from the evidence at T8224;
(b) Mrs Murray’s affidavit seems to be, at least in part, based on the summary made by Justice Lindgren of her evidence:
[35] and [41]-[43] of her affidavit use the precise language used by Justice Lindgren (Wongatha at [3488]-[3491]), which paraphrases but differs from the evidence at T8256-T8257;
[61] of her affidavit uses the precise language used by Justice Lindgren (Wongatha at [3498]) ‘experience and knowledge’, rather than the actual words of the witness ‘history and knowledge’ at T8260;
[150] and [151] of her affidavit use the precise language used by Justice Lindgren (Wongatha at [3507]), which corresponds with the evidence at T8234;
[153] and [155] of her affidavit use the precise language used by Justice Lindgren (Wongatha at [3509]), which paraphrases but differs from the evidence T8235 and T8355-T8356;
[154] of her affidavit uses the precise language used by Justice Lindgren (Wongatha at [3510]), which paraphrases but differs from the evidence at T8235;
[169] and [170] of her affidavit use the precise language used by Justice Lindgren (Wongatha at [3512]), which paraphrases but differs from the evidence T8233-T8234;
[177] of her affidavit uses language used by Justice Lindgren (Wongatha at [3524]), which paraphrases but differs from the evidence at T8258 and T8380;
(c) Rhys Winter’s affidavit also seems to be, at least in part, based on Justice Lindgren’s summary of evidence:
[13] of his affidavit uses the precise language used by Justice Lindgren (Wongatha at [7230]), which paraphrases the evidence at T1319-T1320 and T1334;
[17] of his affidavit uses the language used by Justice Lindgren (Wongatha at [7231]), which paraphrases but differs from the evidence at T1330-T1335;
[19] of his affidavit uses language used by Justice Lindgren (Wongatha at [7225]), which paraphrases but differs from the evidence at T1272, T1274, T1328-T1329 and T1340;
[26]-[27] of his affidavit uses the words used by Justice Lindgren (Wongatha at [7222]), which paraphrases but differs from the evidence at T1272-T1273;
[29] of his affidavit uses the language of Justice Lindgren (Wongatha at [7223]), which paraphrases but differs from the evidence at T1312, T1335-T1336 and T1362-T1363;
[31] and [32] of his affidavit use the wording of Justice Lindgren (Wongatha at [7236]), which paraphrases but differs from the evidence at T1312-T1313, T1352 and T1354-T1355;
[37] and [38] of his affidavit adopt the language used by Justice Lindgren (Wongatha at [7224]), which paraphrases but differs from the evidence at T1277, T1313-T1325 and T1336;
[63] of his affidavit uses the words of Justice Lindgren (Wongatha at [7237]), which paraphrases but differs from the evidence at T3115-T1316;
[151] of his affidavit uses the language used by Justice Lindgren (Wongatha at [7240]), which paraphrases but differs from the evidence at T1277 and T1350;
[152] of his affidavit uses the precise language used by Justice Lindgren (Wongatha at [7241]), which paraphrases but differs from the evidence at T1277;
[153] of his affidavit uses the precise language used by Justice Lindgren (Wongatha at [7242]), which paraphrases but differs from the evidence at T1278 and T1350-T1351; and
[154] of his affidavit uses the precise language used by Justice Lindgren (Wongatha at [7243]), which paraphrases but differs from the evidence at T1279 and T1369-T1372.
132 The State submits that these examples are sufficient to indicate the prevalence of the practice of adopting and reasserting Justice Lindgren’s summary of evidence as if it were evidence in the present proceeding. Therefore, the State contends the spontaneity of evidence should not be assured.
133 I should observe that in my view, having compared the relevant affidavits with Justice Lindgren’s recounting of the evidence in Wongatha, the witnesses in these proceedings have not just copied those findings – while some of the sentences in their affidavits are identical to those in the summaries of evidence in Wongatha, the witnesses have often also added other information and elaborated on these points. I fully accept that the statements should not be seen as ‘spontaneous’ as submitted for the State. In fact, they were carefully drawn. This does not necessarily render them unreliable.
134 In addition, the State points to unexplained changes from evidence given in the previous hearing. As an example, in relation to the abandonment of the Cosmo Newberry Community in 1986, HM’s evidence was summarised by Justice Lindgren in Wongatha as being a product of cessation of funding. His current affidavit explains the abandonment in terms which incorporate a different cause, stating that the funding was cut off after people had left the Community due to a number of deaths. Similarly, Mrs Murray’s evidence as to Rhys Winter’s eligibility to hold rights has also changed substantially over time. Further, the State alleges that decisions to call or not call witnesses have been guided by their performance in the Wongatha proceedings.
135 The State argues more ambitiously that the fact that the applicants’ cases were in many respects ‘rehearsed’ before Justice Lindgren weighs negatively on the cogency of the evidence.
136 I do not consider it a matter of great moment that there is a correlation between the summaries of evidence provided by Justice Lindgren in Wongatha and the evidence given in witness statements in the present proceedings. Obviously, statements have been drawn by the solicitors with regard to the requirements of the NTA and, in particular, s 223 and s 225, and also with regard to observations by Justice Lindgren, but that does not mean that the content is untruthful. As the Yilka applicant submits, one might reasonably assume that Justice Lindgren’s summaries are at least generally a faithful recounting of the witnesses’ evidence. I accept that it reflects a degree of efficiency in the conduct of the case for the applicants.
137 All witnesses were called for cross-examination, but, with the exception of HJ, the reliance on summaries of Justice Lindgren was not put to any of the witnesses. There seems to be a suggestion in the State’s submissions that it would be inappropriate for the State to press credit issues in cross-examination, stating that it would be ‘inappropriate to actively seek to contradict all evidence given by indigenous witnesses’. However, that does not make it appropriate to make submissions that the witnesses were not telling the truth if they were not given a fair opportunity to respond to such an assertion. It would be open for it to be put in broader terms than a sentence by sentence comparison. I do not suggest that the cross-examination of the State was by any means inappropriate; to the contrary, the manner in which cross-examination was conducted was entirely appropriate. However, the fact that the suggested change in position, or alternatively, tailor made conformity, was created was something that would have to be put to witnesses in order to be relied upon in submissions to the effect that the witness’s account should not be accepted. The need to do that appeared to be recognised, at least in relation to HJ, and in my view, that was the appropriate approach. I am unaware of any reasons why the rule in Browne v Dunn (1893) 6 R 67 should not apply to all parties in this as in any other litigation. That most certainly does not mean slavish adherence to cross-examination on every sentence, but it does require giving the witness a fair opportunity to respond to the sort of submission now being made. That said, I would readily accept the State’s submission that the spontaneity of the affidavit evidence should not necessarily be assumed and there may be questions of weight involved.
138 I do not fully accept the Yilka applicant’s submission that these points suggest only that the State is bereft of any legitimate criticism of the evidence of the Aboriginal witnesses called on behalf of the Yilka applicant.
139 Shortly put, if the State had real doubts about the authenticity of parts of affidavits, it was at liberty to require and indeed, did require, evidence about such parts to be given orally, unled, in examination in chief and to open it to cross-examination. Further, the transcripts of evidence of witnesses in the Cosmo claim who gave evidence before Justice Lindgren have not been put in evidence in this case. The State did have access to those transcripts, on which it could have cross-examined, as it did in the case of HJ.
140 In addition, it is certainly not to be forgotten that of the 16 Aboriginal witnesses called by the Yilka applicant, only seven of them were witnesses in the Wongatha and related proceedings. To the extent that there are valid points made by the State, they would apply to less than half of the total number of the witnesses called in this claim. The evidence given by these witnesses in this claim was considerably more expansive than in the Cosmo claim, which was a substantially smaller claim and part of the larger Wongatha proceedings. In my view there is very little in this complaint made by the State.
141 The primary evidence was adduced by Aboriginal witnesses about their traditional laws and customs and their rights, interests and responsibilities with respect to land and waters. That evidence as the primary evidence is of the highest importance as noted in Sampi v Western Australia [2005] FCA 777 (at [48]) and De Rose v South Australia [2002] FCA 1342 (at [351]). I am bound by and respectfully agree with the observation of the Full Court (North and Mansfield JJ) in Sampi v Western Australia (2010) 266 ALR 537 (at [57]), that ‘Aboriginal testimony is of the highest importance in a determination of the evidence of native title.’
142 In this observation, the Full Court were approving the remarks made by French J at first instance in Sampi v Western Australia [2005] FCA 777 (at [48]) where his Honour said:
A number of Aboriginal witnesses gave evidence at the trial ... Their testimony about their traditional laws and customs and their rights and responsibilities with respect to land and waters, deriving from them, is of the highest importance. All else is second order evidence. It is necessary therefore to review the evidence of the Aboriginal witnesses in some detail.
143 As the Yilka applicant notes, the Court visited and heard evidence at a number of sites on the Claim Area during the first four days of evidence from 31 October 2011 to 3 November 2011, despite vehicles being bogged on a number of occasions and despite being prevented by wet track conditions from gaining access to the central soaks of the Wurnta area. The site visit evidence enabled visualisation of the landscape generally, together with various key sites. It also presented an understanding of the spatial dimensions of the claim and the relationships of the places visited and mentioned. The witnesses and many other claimants who attended were completely familiar and comfortable with those locations. I accept the Yilka applicant submission that their connection in the general sense with this area was obvious. I also accept the submission that the bush tucker session on day 5 demonstrated an easy relationship with the country and confident knowledge and use of its resources.
144 Evidence at the sites was given by seven witnesses (Ruth Murray, Sue Murray, Alisha Westlake (Enza Westlake), Kassey Murray, GM (deceased), Alan Bonney, and Samantha Murray) in addition to the witnesses who later provided affidavit and oral evidence. Numerous other claimants attended the site visit evidence. The identity of those in attendance was recorded, but does not require recitation at this stage.
145 Following the unrestricted site evidence, the Court camped overnight in the vicinity of a complex of particularly sacred sites and during the evening witnessed certain activities. On the following day, 3 November 2011, I heard evidence about and witnessed an impressive display of knowledge of and respect for the places and the Tjukurrpa associated with the places at which evidence was taken. Once again, there is a record of the names of the men in attendance and where they had come from (in some cases, hundreds of kilometres away) in order to attend.
146 The affidavit evidence and oral evidence, including examination-in-chief and cross-examination, of the 16 Aboriginal witnesses was taken in the Cosmo Newberry Hall, except for the evidence of HM and the evidence of Raymond Victor Fraser (Victor Fraser), which were taken on different dates in Perth. In accordance with programming orders, which the parties had agreed by consent, the evidence in chief of the Yilka applicant’s witnesses, and then subsequently, the Sullivan applicant’s witnesses, was reduced to writing. The respondents, predominantly the State, were then enabled to identify those passages which they required to be led orally. The passages identified were those which were regarded as being potentially contentious.
147 The evidence of ten of the witnesses called for the Yilka applicant included restricted affidavits and cross-examination in restricted sessions. All of these witnesses were initiated men (watis). Two of the men Robin Jeffrey Smythe (Mr Smythe) and Thomas Murray (Mr M) assert that they possess rights in parts of the Claim Area solely by virtue of acceptance of their holding positions of senior ritual authority. The other eight men are members of the claim group because of the acceptance that their ngurra overlaps with the Claim Area.
148 For the most part, the witnesses for the Yilka applicant were senior people, very familiar with the cultural concepts involved in their relationships to country, and able to compare what they could see in their own laws and customs with English language concepts of rights and interests in country.
149 By way of brief, and I think, uncontentious overview only, the following witnesses gave evidence for the Yilka applicant.
150 Mrs Murray was born around 1930 in the Claim Area, close to the Cosmo Newberry Community. Her mother was Marnupa (or Biddy), who was born near the Minnie Creek area, the most culturally significant place in the Claim Area. One of her brothers, Alan Bonney was also born in the Claim Area. Along with many members of her family, Mrs Murray has lived in the Cosmo Newberry Community on and off throughout her life, including for the first eight years of her life, for a decade during the 1960s, and from around 1992 onwards. As a child, she lived in the bush in the Claim Area with her family. During this time she learned about places in her ngurra and how to live on country. She has continued beyond childhood to learn about her country and also about the Tjukurrpa stories associated with the country. She has passed on stories to her own children, grandchildren and to other young people.
151 Mr Smith was not well at the time he gave evidence. He was a senior initiated man, born near the sacred area near Minnie Creek. He did not claim the entire Claim Area as his ngurra, but mainly the Minnie Creek area in which he also held rights as a man accepted as having senior ritual authority. He lived at the Cosmo Newberry Community for a brief time as a small child with his family. He learned about important places in the Claim Area while he was a child and living there. From his father and his mother and other elders he learned about the laws and customs. He has been responsible for passing on that knowledge to his own children.
152 Mr M is a senior wati. He was born in 1934. As a senior wati, he has had responsibilities for the secret areas around Minnie Creek. He went through the law as a young man in the Warburton Ranges. Since then, he has continued to learn about, and in his later years, to pass on his knowledge about the the country and law in the region of the Claim Area. Although he has not lived for any extended period in the Claim Area, he has consistently visited the Claim Area, in particular, Minnie Creek. He has a good knowledge of the sacred area and the stories associated with the site. The evidence was that traditional owners and younger wati look to Mr M for guidance in relation to Minnie Creek and the Tjukurrpa associated with it.
153 Mr Smythe is also a senior wati, who is well educated in his own language and culture and in English and non-indigenous culture. He lived briefly at Cosmo Newberry Community, both as a child and as an adult. When he was around the age of 17, he went through the law in Warburton and has been to many ceremonies since that time. He first visited Minnie Creek in the early 1990s, when he had been a wati for quite some time. He has a responsibility to help protect the Minnie Creek area. Mr Smythe has been the Chairman of both the Ngaanyatjarra Council and the Warburton Community. He was also on the Ngaanyatjarraku Shire Council for 13 years, serving as Vice-President for two of those years. He has travelled widely across the desert and has knowledge of the laws and customs in these places. He provides services as a Cultural and Strategic Advisor at CDNTS.
154 Rhys Winter is a wati. His father was born on the Claim Area. His knowledge as to the Claim Area and the laws and customs has been acquired both from his father and from other old people.
155 Rhys Winter learned about men’s business from Mr Bruce Smith. He continues to learn from the older wati. Rhys Winter lived in and around Laverton and the Mt Margaret mission for much of his younger life. He has also lived at and visited Cosmo Newberry Community and the Claim Area throughout his life, including his residence there since 1990. He went through the law in 1979 when he was about 21. He also holds Christian beliefs, but has continued to respect the law as an initiated man.
3.1.6 Mr Gerald Terrence West (Westside)
156 Westside is a substantially younger (29 years old at the time of the hearing) wati who has lived at Cosmo Newberry Community since around 1989. He has also regularly stayed with his paternal grandparents at Warburton. Westside mostly attended high school in Warburton, but since about the age of 18 he has been mostly at Cosmo Newberry Community, working on the Community Development Employment Project (CDEP), which sometimes involves travelling around the Claim Area looking after country. Westside’s mother is Ms Hayley Justine Westlake (Hayley Westlake). Ms Westlake and Westside’s grandmother, Ms Ross, were also witnesses in the proceedings. It was from those persons and other older members of his family that Westside learnt and continues to learn about his county and culture. He has started taking responsibility for teaching younger people about hunting and tracking animals. Westside went through the law as an 18 year old. He visited Minnie Creek as a wati for the first time as part of the hearing. He is still learning about the Minnie Creek area from the older wati. In his demeanour and in the course of the evidence he undoubtedly demonstrated a high level of deferral and respect to the older wati and to the ‘dangerous’ places and stories surrounding Minnie Creek. There was, of course, some difficulty in relation to watis, including Westside as a young wati, in relation to their abundantly apparent general anxiety about giving oral evidence on certain matters, particularly concerning discussion about Minnie Creek. (There were occasions when certain topics were discussed in the absence of women.)
157 Ms Ross was also unwell at the time of the trial. She passed away shortly after the first tranche of evidence in the hearing. Until that time she attended all the (non-restricted) site visits, and gave her main evidence at Cosmo Newberry Community. Until her death, she was one of the most senior women on the Yilka claim. She had been raised in the bush at Mulga Queen by her mother, Marnupa, who, as indicated above in relation to Mrs Murray, was born near Minnie Creek. Ms Ross regularly travelled to Cosmo Newberry Community as a child. As with other witnesses, at this time she learned from her family about surviving in the bush, where her ngurra was, and about her laws and customs. She has lived at the Cosmo Newberry Community since returning in 1990/1991. She has taught her children, nieces, nephews and grandchildren the lessons she learned during her childhood and also as an adult. He daughter Haley Westlake and her son Jake Westlake as well as her grandson, Westside, gave written and oral evidence during proceedings. They and others attributed much of their knowledge of the Claim Area and law and custom to her teaching.
158 Mr Jake Westlake is a wati. Although he defers to senior wati, he is knowledgeable about the Tjukurrpa. He has continued to learn about the secret men’s information since going through the law around the age of 20. He has lived in the Cosmo Newberry Community since 1989, and also lived there, and in the bush on the Claim Area, as a small child. He learnt about particular aspects of law and custom from his father, Ms Ross’ deceased husband, who was Ms Ross’ first husband; and his father’s sister, NW (deceased) (referred to as NW), who was a senior woman from the Claim Area. He acknowledges his responsibility for the sacred areas associated with the men’s Tjukurrpa and, like others, is responsible for passing on knowledge to children, grandchildren and other young people.
159 Hayley Westlake also gave written and oral evidence. She was heavily involved in collecting and preparing the bush tucker and, in particular, the damper on day 5. Her father is Ms Ross’ deceased husband who was born at the end of the Cosmo Newberry Community airstrip, which is nearby the Cosmo Newberry Community. She, her brothers and her children have mostly lived at Cosmo Newberry Community since 1990. She learned about her culture, Tjukurrpa, and her country, from a well-respected senior woman, NW, as well as from her parents. Like other witnesses, she displayed extensive knowledge of the resources of her country, obtained from her time spent hunting and travelling with the older people, including NW and her parents. She also spends time teaching the younger people how to find food on their country, laws and customs, and Tjukurrpa stories.
160 HM is the named applicant of the Yilka claim. He was, as I observed, present throughout the entirety of the evidence, argument and submissions. HM Chairs the Cosmo Newberry Aboriginal Corporation, where many of the Yilka claimants reside or have resided for some point in their lives, since its establishment on 31 January 1991. HM is well educated, not only in his own culture and language, but also in non-indigenous culture. He is actively involved in several committees and councils, which require a strong understanding of traditional and non-traditional law and issues. He has lived at the Cosmo Newberry Community at various stages in his life, commencing at the age of 4 months. Much of his childhood was spent living in Cosmo Newberry Community or visiting the Claim Area from Laverton, about an hour away, where he lived with his parents during his high school education. HM is not initiated, but, notwithstanding this, it appears that the wati have entrusted him with responsibility for ensuring that sacred sites are protected from outside interference and that the wati are informed of work to be undertaken near secret areas. HM has an obligation to ensure that other, non-sacred, sites are also protected. As with other witnesses, he shares his knowledge with his children, grandchildren and other young people. For example, he involves them in trips for hunting, camping, working and clearing surveys. He is responsible for ensuring the Aboriginal language is taught at the Cosmo Newberry School, and for substantial work since 1991 in ensuring that sites and Tjukurrpa in the Claim Area are protected from outside influences. It was clear from his evidence, and from his management of many of the logistics during the trial that he has an expansive knowledge of places in the Claim Area. He regularly visits remote sites and the Claim Area generally in the company of his family and other members of the claim group.
161 HJ is HM’s oldest son. He is the grandson of Mrs Murray. For most of his life he has lived in Cosmo Newberry Community since he moved there with his family at age 7, except for some time which he spent in Perth and Laverton studying and in Warburton training. He learnt from his father, grandfathers and grandmothers about his country, how to look after it and laws and customs. He also demonstrated, in the course of the hearing, detailed knowledge of locations on the Claim Area. He regularly visits those locations in the company of family and other members of the claim group.
162 Mr Simms is also a wati and the oldest son of Mr Paul Simms, who was born not far from Minnie Creek, and from whom he learned about his law and culture as well as his country. He lived on and off at Cosmo Newberry Community during his childhood and travelled around the Claim Area. His parents and other older people taught him about his laws and customs since he was a child. Since becoming a wati he has continued to learn.
3.1.13 Mr Matthew Frank Grey (Mathew Grey)
163 Mr Grey is the only living child of Mr Frank Grey, who passed away while Mathew was very young. Mr Grey recalls going to Cosmo Newberry Community as a child and learning a few sites and how to hunt during these trips. He has an understanding of his laws and customs and respects them in his daily life.
164 ME is a wati and the adopted son of NW, a senior woman who was responsible for passing on significant knowledge to him and many other claimants. He also learnt about the Claim Areas, law business, Tjukurrpa, hunting and looking after his country from his uncles, MW (deceased) (referred to as MW) and Ms Ross’ deceased husband and Mr Hudson Westlake, who are/were all senior wati. He went through the law as a young man and continues to participate in ceremonies across the desert. He continues to return to the Claim Area to look after it and to live at Cosmo Newberry Community.
165 Junior is also a wati and a CDEP Work Supervisor and Project Officer. He has attained year 10 at high school and also has trained at the Wongatha Training School in station work. He also is well educated in his traditional culture and non-indigenous culture. His learning about the culture and country he has derived from his father, Mr Harris, who was a senior wati, as well as other older people. He was taken to Cosmo Newberry Community the day he was born and grew up in the Claim Area, either living at Cosmo Newberry Community or Yamarna Station or visiting on weekends with his family. As a wati he has learnt more about his country and the stories associated with it since going through the law. He has participated in ceremonies across the desert.
166 Mr Fraser was born not far from Minnie Creek and was also in poor health at the time of giving evidence in Perth. He claims part of the Claim Area through his birth, but also claims his father’s country around Warburton and his mother’s country around Jamieson. He looks after his own country and his parents’ countries. Since going through the law at the age of 24 in Ernabella, he was taught by his father to protect Minnie Creek and other sacred areas on the Claim Area. He respects his laws and customs and was reluctant to speak publicly about sacred matters.
167 Although primacy is to be given to the factual evidence of Aboriginal witnesses, there is an important role to play for the expert witnesses who collect the facts in order to express an opinion. In Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539, Mansfield J said (at [89]):
Of course, what is central to the claim is the evidence of the Aboriginal witnesses. As has been expressed elsewhere, anthropological evidence may provide a framework for understanding the primary evidence of Aboriginal witnesses in respect of the acknowledgment and observance of traditional laws, customs and practices: per Lee J in Ward at first instance at 531. Not only may anthropological evidence observe and record matters relevant to informing the Court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.
168 Of course, beyond opinion evidence in native title litigation, anthropologists also fill the valuable function of pulling together the accounts of the society and laws and customs of the claimant community. They may also prove relevant facts by providing an account of things that they have seen, heard or observed; or prove relevant facts about reputation concerning the existence, nature or extent of traditional laws and customs, family history and family relationships and marriage.
169 There were seven expert witnesses who gave evidence in this proceeding. Four were anthropologists. Dr Sackett and Dr Cane gave evidence on behalf of the Yilka applicant, Professor Trigger gave evidence for the State and Dr Vachon was called to give evidence for the Sullivan applicant. Two linguists provided written reports, Dr Mark Clendon for the Yilka applicant and Dr John Henderson for the State. There was also one historian, Ms Vikki Plant, who provided a report on the relevant historical sources.
170 There were initially many objections to the evidence of the expert witnesses, filed by the State and the Yilka applicant.
1. The Yilka applicant's objections as to the final report of Professor Trigger, filed 10 May 2013;
2. The State's response to those objections, filed 30 August 2013;
3. The State's objections to the parts of the Yilka expert evidence, filed on 28 May 2013; and
4. The Yilka applicant's response to the State’s objections, filed 12 June 2013:
171 The majority of these objections fell away.
172 However, the State continues to reiterate that the Yilka applicant’s expert anthropological evidence was ‘second order’ because the pre-hearing reports and comments of Dr Sackett and Dr Cane were based on work undertaken in preparation for the Cosmo claim, evidence in the Wongatha proceedings and the Wongatha judgment itself. This criticism has been the subject of previous comment, but taken alone, tends to understate the full nature of the evidence given by Dr Sackett and Dr Cane. There was evidence that between the Wongatha and the Yilka hearings Dr Sackett provided a report to CDNTS about the makeup of the appropriate native title claim group pursuant to a brief delivered to him in May 2008. He visited the Claim Area from 29 to 31 March 2011, during which time he spoke to the Yilka claimants and others about claim issues, and he has completed ‘much more research in the Western Desert’ subsequent to the Cosmo claim. That is reflected from [31] of his report where he said:
As is evident from my account of my training and specialized knowledge, it is the case that I came to the claim research project with a considerable amount of research experience, both in the Western Desert and into Western Desert land tenure. In the wake of my initial field research on the Cosmo Newberry claim I have gone on to complete much more research in the Western Desert.
173 While he does not purport to have conducted substantial further field research on the Yilka claim, I accept his evidence that he did complete more research in the Western Desert generally. The State also maintains specific objections to five paragraphs in Dr Sackett’s report, which are discussed in detail below.
174 The Yilka applicant, for its part, does not maintain the specific objections to the expert evidence of Professor Triger, however, it contends that its concerns about his evidence (discussed below) should be taken into consideration as a matter of the weight given to his evidence.
175 There are no objections maintained in relation to the evidence of the linguists or the historian, Ms Plant.
176 Dr Sackett gave substantial evidence comprising:
(a) Exhibit A43, notionally a final report dated 19 December 2012 (the Yilka applicant filed a notice of response to objections to this report on 12 June 2013);
(b) Exhibit A83, a further report dated 27 November 2013;
(c) Exhibit A86, a further short report dated 11 March 2014;
(d) oral evidence given concurrently with Dr Cane and Professor Trigger on 9-11 September 2013 (at T1930-T2177);
(e) re-examination on 12 September 2013 (at T2181-T2185);
(f) oral evidence concurrently with Dr Vachon on 12 and 13 December 2013 (at T2601-T2730) in relation to the Sullivan claim; and
(g) Exhibit R54, various field notes which were tendered by the State (at T2186).
177 I found the expert evidence of Dr Sackett particularly helpful and was mindful of the fact that he has had a long involvement with Aboriginal people around the Wiluna area, which is relatively close to the Claim Area, and within the Western Desert. He is familiar with the geographical, social and cultural aspects of the Western Desert, having conducted research there over a period of some 20 years since before the commencement of NTA. He wrote his PhD thesis on kinship and marriage of Aboriginal people living relatively near by Wiluna in 1972-1973, and he has lectured on anthropology of Aboriginal Australia at Adelaide University for 20 years. He was also the manager of Land Tenure at the Central Land Council in Alice Springs for three years where he researched and reported on three Aboriginal land claims. Since 1998 Dr Sackett has worked as a consultant anthropologist specialising in research and report writing, and as an expert witness in native title claims. Those claims have been in the Pilbara, the Western Desert of Western Australia and South Australia, Central Australia, northwest Victoria, the Gulf country of the Northern Territory and Queensland, the Mt Isa region and south central Queensland. He has reviewed claim materials, not only for claimants and representative bodies, but also for the State of Western Australia, South Australia, Queensland and New South Wales. Not only was Dr Sackett in court through the hearing of most of the evidence of the witnesses in support of the Yilka claim, but, I note, was also present at the restricted site visit at Minnie Creek on 3 November 2011 and during other site visit evidence in the period from 31 October to 2 November 2011.
178 The ‘final’ report of Dr Sackett filed on 19 December 2012 for the Yilka applicant provides helpful anthropological consideration of the matters in issue. After the preparation of his initial report, and following the conference of experts, Dr Sackett’s report was updated to respond to queries raised by Professor Trigger and to other qualifications by experts.
179 The State is critical of Dr Sackett’s previous involvement in the Cosmo claim, and complains that Dr Sackett has not done any new work. At the same time it complains that the two claims, the Cosmo claim and the Yilka claim, are virtually identical. These two complaints cannot sit comfortably together. In preparation for Wongatha, Dr Sackett spent some 46 days interviewing claimants, visiting and recording sites and similar within the Claim Area, and attended the sessions of all of the evidence given by claimants in the Cosmo proceeding. The work he had done in relation to the Cosmo proceeding has since been updated. Although the State appears to paint Dr Sackett as being, effectively, too close to the claimant group, I cannot accept this submission. As with all the anthropologists, I consider that he took a professional approach and endeavoured to view the evidence and the claim as objectively and professionally as would be expected.
180 The State has since withdrawn most of its specific objections to Dr Sackett’s report dated 19 December 2012, but maintains the objections in relation to the following paragraphs:
[238] It is clear that some of those listed in the Yilka Form 1 were either themselves or had ancestors who were in or around the claim area, or in areas to the northeast of the claim area, before, in some cases well before, effective sovereignty. In my view, it can be inferred that the antecedents of those listed individuals occupied areas of the Western Desert prior to 1829.
[246] Taking the idea of differences in claim group membership first, as I see it, the apparent change is not one of a change in claim group membership but rather that people in the 2001 and 2011 groups were/are members of different claim groups. This is because the 2001 (Cosmo Newberry Native Title) claim and the 2011 (Yilka Native Title) claim are different claims.
[267] As I see it, the Cosmo Newberry claim and the Yilka claim are different claims. As part of this, while the two exhibit some common membership, the latter takes in and extends on the membership of the former.
[868] As those listed in the Yilka Form 1 and by extension in Determination Order 2 make claims to the claim area through Western Desert law and custom, it follows in my view that they have rights and interests in relation to the claim area.
[879] Professor Trigger also indicated that “Whether comments or category (b) landholders are consistent with or different to the previous claim group description in the Cosmo Newberry Claim requires clarification.” It is my understanding though, that the Cosmo Newberry and Yilka claims are different claims.
181 The objections to these respectively are as follows.
182 As to [238], there is an objection to the words ‘were in’ in the first sentence, as there is no evidence or basis provided for the inclusion of those words. The Yilka applicant contends that the basis is provided in, at least, [192]-[235] of the report, and that, to the extent the objection is valid, they say the Yilka applicant will cure it in evidence in chief. In my view, the evidentiary basis is identified as being the previous paragraphs in the report. If those paragraphs are not proven then the opinion could not be expressed. If those paragraphs are proven, the opinion would be admissible. I would therefore disallow the objection.
183 In relation to [246], the objection is as to the last sentence on the basis that it is not within the witness’ expertise, but is a matter for legal argument. The response to that objection is that it should be received as a submission. I would receive the opinion as a submission from counsel, not evidence.
184 In relation to [267], the objection is to the whole of the paragraph on the same basis that it is not within expertise and is a matter for legal argument. The response to this is that the identification of persons with qualities for membership of the native title claim group involves specialised knowledge as, at least, [192]-[266] demonstrates; or that alternatively, it should be received as a submission. In my view, these statements are within expertise, but I will, in any event, treat them as submissions.
185 In relation to [868], the objection is to the words ‘it follows in my view that they have rights and interests in relation to the Claim Area’ on the basis that, in so far as reference is to all the persons referred to in the Yilka Form 1, the reasoning, sources or facts relied upon are not exposed or identified with particularity. The response to that is that the basis for the opinion is provided in the first sentence and, at least, [866]-[867] and other paragraphs to which cross-reference is made in [867]. I consider the basis is identified and the statement is therefore admissible. I would, therefore, disallow the objection.
186 In relation to [879], there is an objection to the last sentence as to relevance. The response to that objection is that the sentence is relevant because the State has put in issue whether this proceeding and the earlier Cosmo claim are different claims. This statement is relevant and Dr Sackett has explained his reasons for making it in preceding paragraphs. I would disallow the objection.
187 Dr Cane also gave evidence in his own final report dated 19 December 2012. In addition, he gave oral evidence concurrently with Dr Sackett and Professor Trigger on 9-11 September 2013. I accept that Dr Cane is also a very experienced anthropologist with extensive native title experience. He has researched and written a number of connection reports that have resulted in consent determinations. He has appeared as an expert witness in native title related matters.
188 Unlike Dr Sackett, Dr Cane has not worked directly with the people of the Claim Area, but has worked extensively in areas and with people to the east of it and, in particular, senior regional law men, who have rights and interests in Minnie Creek. The brief to Dr Cane and, consequently, the focus of his report, was somewhat different from that of Dr Sackett. The task undertaken by Dr Cane included providing an opinion as to:
1. the geographic and cultural relationship of the Yilka claim to the WDCB;
2. the traditions that give rise to rights in country as evidenced in the Yilka claim, in the context of laws that give rise to rights in country in the WDCB; and
3. the nature of rights that claimants might activate in country as a consequence of the traditions of the WDCB,
with reference to evidence already provided by some Yilka claimants as summarised by Justice Lindgren in Annexure F to the Wongatha judgment and evidence presented in reports relating to the Yilka native title claim by Dr Sackett in 2001 and 2011.
189 In accordance with his instructions, Dr Cane relied heavily on the evidence of the Yilka claimants based on their evidence in Wongatha. For example, he linked knowledge of the Tjukurrpa with the activation of authority in country, and asserted the requirement for such knowledge as a credential to make effective decisions about country. The gaining of knowledge was linked closely with initiation and the role of the wati.
190 Dr Cane’s report was not subject to any objections.
191 Professor Trigger gave evidence by way of a report dated 26 February 2013, an affidavit dated 19 August 2013 and a supplementary report dated 28 February 2014. He gave expert evidence concurrently with Dr Sackett and Dr Cane in September 2013 and was recalled for further examination and cross-examination on 13 March 2014. The parties are at odds in relation to the role of this expert. The Yilka applicant stresses that Professor Trigger has not carried out any fieldwork of any length in the Western Desert, nor with the claimants, and that his opinions have generally been based on his own examination of the views of Dr Sackett and Dr Cane. Often he raised queries, rather than expressing his own positive views. Other criticisms are raised of Professor Trigger, which I think are overstated. The Yilka applicant had initially filed a series of objections to Professor Trigger’s evidence. It no longer seeks to maintain those objections, while reiterating its general concerns that he raised queries rather than providing opinions. The Yilka applicant contends that this should go to the weight given to Professor Trigger’s evidence.
192 Contrary to the Yilka applicant’s submission, I do not accept that Professor Trigger has raised unreasonable or unfounded queries. He has explained that he used his specialised knowledge to examine the expert reports in relation to the relevant academic literature. Professor Trigger raised legitimate and important questions in relation to ‘recognition’ and the role assumed by the former Cosmo claimants, to the exclusion of the Sullivan claimants, Mr Harrington-Smith, Mr Tucker and others. The State submits that those questions remain unexplained, other than as a product of incumbency under rights unrelated to native title. I agree with the State that these are important issues for determination. They have not been fully addressed, in my view, in the exchanges by the anthropologists. Some of them are not necessarily susceptible of such resolution. They do need to be addressed in the overall consideration of the matter. The exclusion of the Sullivan claimants from the Yilka claim is discussed in Chapter 2.
193 I will deal with Dr Vachon in more detail in relation to the Sullivan applicant by whom he was called to give evidence. I was impressed with the evidence of Dr Vachon and I accept the State’s submission that he approached the giving of evidence entirely properly. He was forthcoming in revealing areas of doubt, uncertainty or ambiguity. He did not seek to mask the complexity of issues and generally attempted to place before the Court the full range of matters for consideration.
194 The Yilka applicant cavils with Dr Vachon’s evidence. The Yilka applicant makes the point that the material relied upon by Dr Vachon was also old material, such as material based on field notes from 2000-2002, Wongatha transcripts, reports and such like. He conducted no further interviews or field work with the Sullivans. While the Yilka applicant complains that Dr Vachon has ignored the difficulty pointed out by Sackville J in Jango (at [322]), when anthropologists play ‘an active part in formulating and preparing the applicant’s case’, it is not explained how the approach taken by Dr Vachon materially differs from that taken by Dr Sackett. The Yilka applicant also complains of shifting alliances, suggesting that it simply suits the State at this point to support Dr Vachon because the Sullivans’ claim is at odds with the Yilka claim, whereas in Wongatha, strong attacks were made by the State on Dr Vachon. It has not been lost on the Court that the State would recognise that, as the applicants have been repeatedly warned, there is a risk of both claims failing if the Yilka applicant and the Sullivan applicant perpetuate a state of virtual hostility, despite the possibility of no material distinction being apparent in the substance of their claims.
3.2.1.5 Extent of agreement and difference between anthropological experts
195 My impression is that generally though the level of agreement between the anthropologists was high. Dr Sackett noted, it appears correctly, that there was no occasion of unqualified disagreement by any expert with any of the Propositions considered in the conference of experts on 24 July and 16 August 2012. That was true of the various reports of the experts and their oral evidence. Dr Sackett helpfully set out as an annexure to his December 2012 report a list of those Propositions discussed at the conference of experts. Those propositions are set out in full below:
Proposition 1 - Western Desert location
The area referred to by anthropologists as the "Western Desert" extends at least to the following places as shown on the Great Desert Tracks South West Sheet as well as to areas between those places and areas further to the east, north and northwest of those places:
Wiluna, Mungilli Outstation, Rawlinson Ranges, Docker River, Wingellina, llkurlkla Roadhouse, Tjuntjuntjarra, Cundeelee, Mt Margaret, Laverton, Erlistoun, and lake Darlot
Proposition 2 - Western Desert environment
The Western Desert is and since sovereignty has been an arid environment. The people of the Western Desert occupy and since sovereignty have occupied this arid environment. The practical requirements for survival in this environment significantly influence and since sovereignty always have influenced the daily lives and the way of life and beliefs of the people of the Western Desert; and affect the nature and extent of their laws and customs and the manner of their acknowledgement and observance.
Proposition 3 - movement and sedentarisation
The laws and customs of the Western Desert Cultural Bloc (WDCB) can, and at all times since sovereignty could, accommodate both the movement of persons in response to the presence, paucity or reliability, of resources and the sedentarisation of persons in the presence of a reliance supply of such resources.
Proposition 4 - movement and migration
Whether or not regarded as involving "succession" to or "taking over" country, the way WDCB laws and customs operates allows for persons acquiring rights and interests in and becoming landholders for a stretch of countryside in respect of which there are already landholders and notwithstanding that area is situated a long way from the country of the ancestors of such persons subject to the laws and customs of the WDCB.
Proposition 5 - mobility and flexibility
Matters that inform the laws and customs of the WDCB and the acknowledgement and observance of those laws and customs by the people of the Western Desert include the practical necessities of personal and social survival; in turn requiring the accommodation of high levels of mobility and flexibility in relation to access to land and resources over time.
Proposition 6 - small & groups
The people of the Western Desert were at sovereignty dispersed across the Western Desert in flexibly and variably constituted small land using groups.
Proposition 7 - Tjukurrpa
In the belief system of the people of the Western Desert, the concept of Tjukurrpa, or Dreaming:
(a) is a time when beings acted and interacted on the earth. These Beings (termed Tjukurrpa, like the Dreaming itself) often are personified as at one and the same time possessing human and plant, animal or natural object characteristics;
(b) explains the physical formation of the landscape. Tjukurrpa are evidenced by particular features in the landscape;
(c) informs and provides the basis for and source of WDCB laws and customs;
(d) is the object and subject matter of particular WDCB laws and customs;
(e) provides a normative element in the acknowledgement and observance of those laws and customs;
(f) is the source of a direct spiritual connection between people and country as well as a connection mediated through law and custom; and
(g) gives rise to social status and political power and so authority in relation to rights in land.
Proposition 8 - WDCB as society
The WDCB exists, and at all times since sovereignty has existed, as a society in the native title sense of a body of persons united in and by its acknowledgement and observance of a body or [sic] law and customs albeit including some diversity.
Proposition 9 - macro, meso and micro societies
Read for the purpose of understanding the relevance and significance of their views in relation to an inquiry about "society" in the native title sense, the views of earlier researchers such as Elkin, Berndt, and Tomkinson are not inconsistent with a view of the WDCB as a society in the native title sense; whether or not some such views might also support the existence of sub-regions at some less inclusive level.
Proposition 10 – claimants as society members
Each person referred to in paragraph 5(a) and (b) and 6(a) and (b) of this Report is part of the WDCB society and each has a forebear who, given the recorded genealogical details, can be inferred to have been a member of the WDCB society at sovereignty.
Proposition 11 - claim area and WDCB
The claims lie within the geographical limits of the WDCB, which exists across an area to which the laws and customs of the WDCB apply.
Proposition 12 - pathways and choice
It is an element in WDCB laws and customs that:
(a) people can and do claim enduring 'my country' relationships along multiple pathways, and may privilege some of these and not others;
(b) certain pathways like birthplace are far less subject to optation [sic] and choice than other pathways to a 'my country' relationship; and
(c) close relatives can and do choose to follow different pathways to a 'my country' relationship.
Proposition 13 - pathways and patrilines
The differences between the findings of earlier and more recent researchers among people of the WDCB are not the product or outcome of change - of a shift from country being inherited along patrilines to country being claimed among multiple pathways; rather the differences are the product or outcome of the earlier and more recent researchers looking at things differently .
Proposition 14 - descent and shared associations
In the Yilka and Sullivan claim area shared descent is not the only criterion for the constitution of 'my country' relationships and other rights and interests in the claim area. In different parts of the Western Desert, law and custom does not function identically in regard to the establishment of 'my country' relationship and other rights and interests and may well have undergone different forms of adaptation since sovereignty. Therefore in different parts of the WDCB landholders can be people with shared and not necessarily the same associations with and to the land rather than being constituted as a group through shared defined descent from prior land holders.
Proposition 15 - pathways
Under WDCB laws and customs, rights or interest [sic] in relation to land and waters in the claim area are possessed by a person:
(a) who has a connection to the land and waters, through:
(i) his or her own birth and/or long association or holding senior ritual authority; and/or
(ii) the birth and/or long association of one or more of his or her forebears,
by which the person claims to possess rights and interests in relation to the land and waters; and
(b) in respect of whom that claim is recognised under the WDCB laws and customs.
Proposition 15a
Under WDCB laws and customs, people who have 'my country' relationships can be persons who:
(a) have a connection to the land and waters, through:
(i) his or her own birth and/or long association; and/or
(ii) the birth and/or long association of one or more of his or her forebears,
by which the person claims to possess rights or interest in relation to the land and waters; and
(b) in respect of whom that claim is recognised under the WDCB laws and customs.
Proposition 16 - "long association"
Under WDCB law and custom (and for the purposes of the previous Proposition), "long association" as a basis for possessing rights to country is reckoned not merely by the duration of the association but also by knowledge of the physical and spiritual landscape and looking after country. The assertion of long association and its acceptance is subject to customary forms of recognition.
Proposition 17 - birthplace and cognatic descent
Movement away from a situation wherein birth was a key criterion for establishing a 'my country' relationship to one where descent from a forebear is a key criterion is an impact of the fact that birth nowadays usually takes place in hospitals located off the claim area. This is indicative of adaptation in WDCB laws and customs.
Proposition 18 - subject matter of rights and interests
The subject matter of the rights or interests that are possessed:
(a) where 'my country' via the place of birth of a person of [sic] forebear is relied on -is the area associated with that place of birth and with the person or forebear;
(b) where 'my country' via the long association of a person or forebear is relied on - is the area with which that person or the forebear was long associated; and
(c) where ritual authority is relied on - is the area with which that authority is associated and for which ritual knowledge is held.
In this proposition, "area" means a geographical extent of country and includes the land, waters and resources of that country, and its tjukurrpa.
Proposition 19 - control of access
It is, and since sovereignty has been, an element of WDCB laws and customs that persons who are locally considered to be "strangers" wishing to visit an area ideally must ask permission from a person who possesses or persons who possess 'my country' rights or interests and have knowledge of or authority in respect of the area.
Proposition 20 - authority among rights holders
Persons who possess rights or interests in an area do not have equal authority in relation to, and are not equally entitled to speak for or participate in decision making about, the area. Rather, such authority is conceded to one or more of them having regard to a range of factors, in particular:
(a) their 'my country' status, age, gender, social and/or ritual knowledge and seniority, knowledge of the country and its resources, residential location, the extent to which they actively participate or have actively participated in the care and use of the area; and
(b) the extent to which the person asserts such authority and in turn the extent to which the assertion of authority is accepted by others.
Proposition 21 - significant places
Under the WDCB laws and customs the Minnie Creek site, a place of exceptional significance, is:
(a) regarded as part of the country of the landholding people on which the place is situated;
(b) the responsibility of the landholding people to the extent at least that they must and in such respects are accountable to men of ritual authority in relation to such place - for example: observe traditional requirements regarding access to and speaking about the place; report suspected traditionally unlawful access to or behaviour in relation to the place to watis; and refuse access to anyone who is not traditionally entitled to have access;
(c) ultimately looked after and spoken for by, and the responsibility of, men whose profound knowledge of country, sites and Dreamings and their familiarity with the place leads to their having ritual authority for the place, whether or not such men from time to time include members of the landholding group on which the place is situated.
Proposition 22 - landholder rights
Subject to the previous Proposition, it is an element of the WDCB laws and customs that landholders who hold rights or interest [sic] in an area have responsibilities and, concomitantly, rights to 'speak for', 'look after', care for, protect and maintain the area including its sites and spiritual features. The extent of responsibility permitted and expected to be exercised by such persons is qualified on the basis of age, gender and ritual knowledge and authority.
Proposition 23 - social identity
It is necessary under WDCB laws and customs that people who hold rights and interests in a stretch of countryside share a social identity. At its broadest level that social identity is as a group of people who share the same laws and customs. In respect of this claim, the claimants say they follow the same law. WDCB laws and customs currently allow that people may make claims to a stretch of countryside because they have particular birth, long association, descent, or ritual authority links to it, whether or not they all identify with a single label (for instance, Wongatha, Wankayi, Mantjiltjara or Ngaanyatjara [sic]).
Proposition 24 - Language identity
(a) Wongatha, Wangkayi, Mantjiltjara and Ngaanyatjara [sic], are labels for ways of speaking, and in particular are Western Desert language ways of speaking.
(b) Such labels may also be used by people to identify themselves.
(c) It is not necessary under the WDCB laws and customs that people who hold rights and interests in a stretch of countryside share such a way of speaking or all identify themselves by use of the label for such a shared way of speaking.
Proposition 25 - dialect names
Dialect names at sovereignty and at all time [sic] since when applied to people:
(a) do not identify "societies" in the native title sense;
(b) have shifted or changed over time.
Such changes to dialect names reflect flexibility in the system of law and custom.
Proposition 26 - rules as normative
The tendency for Western Desert people including the claimants to conform to the requirements of WDCB laws and customs (in particular those relating to land and waters) is supported by:
(a) commitment and high value given to the Tjukurrpa;
(b) the customary prescription that requires respect for elders and those with ritual status or authority;
(c) fear of sanction for breach - including by peer pressure, disapproval of elders, social criticism, sometimes ostracism or sometimes physical punishment; and
(d) the practical requirement for survival.
Proposition 27 - rules as traditional
(a) As best as can be determined, the laws and customs (in particular those relating to possessing rights and interests in land and waters) of the claimants and their Western Desert fellows existed at sovereignty.
(b) Acknowledging change has occurred, those laws and customs have their origins in laws and customs that were acknowledged and observed in the Western Desert at sovereignty.
(c) There has been intergenerational transmission of knowledge of aspects of those laws and customs.
(d) This is not to suggest that all Western Desert laws and customs were observed by the people in the Yilka claim area at sovereignty.
Proposition 28 - WDCB society and continuity
The WDCB is an anthropological label for an indigenous system of normative laws and customs and this system, to varying extents, has had a continuous existence and vitality since sovereignty.
Proposition 29
It is appropriate to describe the rights and interests that other people with a 'my country' relationship may possess in a stretch of countryside under the WDCB laws and customs as the rights to:
(a) 'speak for' and 'look after' the area - including the rights to make decisions about the area and to control access to and use of the area by the strangers;
(b) access, remain on and use the area;
(c) take from an area anything deemed useful; and
(d) protect places of importance on the area.
Proposition 30
The relationship between the laws and customs acknowledged and observed by:
(a) persons who are members of the claim group by reason of their holding ritual knowledge;
(b) persons who are members of the claim group by reason of ancestry or connections other than their ritual knowledge; and
(c) persons with ancestral association to the claim area who do not presently exercise any rights to associate with the claim group or the claim area,
is that all three categories of people observe the same system of laws and customs and their rights and interests arise from those laws and customs.
In relation to (a) the laws and customs provide rights to certain sites by reason of holding ritual knowledge. A ritual status or ritual relation to a place is not, in itself, a pathway to a 'my country' (Ngurrarangka, landholder, or belonging to country) relationship. It is a pathway to rights in men's country or women's country. These rights are concerned with spiritual properties arising from the Tjukurrpa of the area more so than utilitarian aspects of land use and land holding. In the Yilka claim area these rights are held in respect of the Minnie Creek site and other areas where matters of ritual are involved. This category of person includes, but does not consists [sic] only of, those who were present during the Minnie Creek site visit during the Federal Court hearing of this Claim in November 2011.
In relation to (b) the laws and customs similarly connect people to country and the Tjukurrpa. The resulting rights concern utilitarian land use and management. These are people who by recognised pathways can claim a 'my country' relationship and such a relationship is not necessarily a ritual relationship.
In relation to (c) these are people who, should they choose to exercise generic WD rights, such as hunting, gathering and camping on the claim area, may do so. Should they assert a landholder status, they actualise this right by, for example residing in the claim area, carrying out activities on country, re-establishing social relationship [sic], participating in ritual activities, attending funerals and so on.
Proposition 31
This position described in proposition 30 has applied at all times since sovereignty.
Proposition 32
The relationship between rights and interest [sic] asserted by:
(a) persons who are members of the claim group by reason of their holding ritual knowledge;
(b) persons who are members of the claim group by reason of ancestry or connections other than their ritual knowledge; and
(c) persons with ancestral association to the claim area who do not presently exercise any rights to associate with the claim group or the claim area,
is dealt with above in proposition 30.
Proposition 33
The position described in Proposition 32 has applied at all times since sovereignty.
Proposition 34
Given the system of law and custom for determining rights and interest in land on the Yilka claim area, and given Dr Vachon's report and the discussion on this issue during the expert's conference (as opposed to transcript of [Mrs Sullivan’s] evidence from the Wongatha proceeding) it is difficult to see any reason why [Mrs Sullivan’s] and her descendants would not have rights in the claim area as landholders.
Proposition 35
The mechanism for decision making, and who makes decisions on questions relating to recognition of assertions of membership of the claim group by:
(a) persons claiming membership based on ritual knowledge; and
(b) persons claiming membership on other bases,
are:
In relation to (a), the decisions on persons' rights in respect of ritual matter or status through ritual knowledge are strongly conditioned by the ritual status, gender and age, not necessarily landholder status, of those making decisions. Consensus is valued and sought and disagreement is masked.
In relation to (b) decisions on landholder status are strongly conditioned by the age, landholder status and local knowledge of place and people of those making decisions. In the case of disagreement the senior respected people would be consulted and their views deferred to. In matters relating to genealogy and history it is particularly senior women who are likely to be influential.
Proposition 36
The position described in Proposition 35 has applied at all times since sovereignty.
Proposition 37
The rights and interests in relation to the whole of the application area are held by:
(a) persons claiming membership based on ritual knowledge; and
(b) persons claiming membership based on other bases.
In relation to:
(a) these persons have rights in respect of particular areas in the claim area (ritual rights); and
(b) these persons hold rights more generally across the claim areas as Ngurrangka [sic].
The members of the claim group as a whole holds rights across the claim area in its entirety. As Ngurrangka [sic] they can be part of the communal decision making and land using group for the claim area as a whole (subject to qualifications on the basis of age/gender etc).
Proposition 38
The position described in Proposition 37 has evolved since sovereignty.
Proposition 39
The expression 'born at' (e.g. irti ngarringu) a place, as it is used by many Western Desert people, contains the culturally-recognised inference of including a number of places variously regarded as propinquitous (ita, itilykira) to the named place of birth and such places are acknowledged as making up that person's country (ngurra) by birth.
Proposition 40
The expression 'grown up' (e.g. purlkarringu) in an area of named places, as it is used by many Western Desert people, is a culturally-recognised pathway to a person's identification with such places and claims to such places as 'my country'.
Proposition 41
The identification with a site or an area expressed as 'my country' (ngayuku ngurra, ngurra yungarra) according to WDCB law and custom is marked by cultural labels (ngurrara, ngurraritja, ngurrarangka) and attaches to rights such as speaking for and
looking after country, not otherwise held by those without such a 'my country' relationship. The enjoyment of such rights are conditioned by such factors as age, gender and appropriate ritual status.
Proposition 42
Further anthropological field research needs to be undertaken with the Sullivan and Edwards group.
196 The only Propositions from the foregoing with which any expert expressly disagreed were the following, each of which involved only the disagreement of Professor Trigger:
(a) a Proposition (being ‘Proposition 4’) about the characterisation as ‘succession’, being Professor Triggers’ word, of the situation where a person acquires traditional rights and interests in (by their birth on or long association with) country a ‘long way’ from the country of his or her ancestors. The Yilka applicant says the debate was academic given the acceptance generally by the experts of the claimed pathways to connection;
(b) a Proposition (being, ‘Proposition 13’) about differences in findings between earlier and more recent researchers about whether there had been any shift from country being inherited along patrilines to country being claimed along multiple pathways. Professor Trigger disagreed, taking the view that it was too difficult to conclude that earlier researchers were wrong, and maintaining it is feasible that in earlier times there was a greater degree of reliance on patriliny. Dr Sackett’s consideration of the earlier researchers formed the basis for his conclusion that the differences were the product of the earlier and more recent researchers looking at things differently. As the Yilka applicant says, this is not in issue on the pleadings. It appears to me that the little turns on it;
(c) a Proposition to the effect of Yilka POC [26] (being ‘Proposition 18’) about the area the subject of the rights and interests, which is discussed below at 6.4.1;
(d) ‘Proposition 24’ about language identity and shared ways of speaking. Professor Trigger alone disagreed with this Proposition in light of the qualifications he expressed. This Proposition does not involve a matter in ‘issue’ in the proceeding;
(e) ‘Proposition 31’, which followed on from consideration by the experts of ‘Proposition 30’ about the relationship between persons who are members of the claim group by virtue of ritual knowledge, those whose connection is other than by such knowledge and those who have ancestral connection but do not presently exercise any rights. Proposition 31 was that the identified situation applied at all times since sovereignty. Professor Trigger alone disagreed, in substance because it was not a Proposition upon which he could provide informed comment.
197 The Yilka applicant submits, and I accept, that the position amongst the experts was that there was:
(a) no relevant unqualified disagreement;
(b) little qualified disagreement and very little, if any, significant qualified disagreement;
(c) very little agreement with significant qualifications; and
(d) a preponderance of unqualified agreement or agreements with insignificant qualifications.
198 This rather complex summary might be reduced to a conclusion which I have reached that the anthropologists rarely disagreed with each other on any issues of significance. (The State disagrees with that position.)
199 Two linguists provided reports, Dr Clendon for the Yilka applicant and Dr Henderson for the State. Dr Clendon provided a report dated 22 August 2011, a supplementary report dated 16 December 2011 and a response to objections of the State dated 5 September 2013. Dr Henderson provided a linguistic report, filed on 16 September 2011, and a supplementary linguistic report on 5 March 2013. The exhibited reports were tendered on 9 September 2013 without objection and with neither linguist being required for cross-examination. The expertise of both linguists is undoubted and accepted. It is doubtful whether there is any significant disagreement between those experts, and no objections are maintained in relation to their reports. Further, the State says that little, if anything, turns on the evidence of the linguists in these claims, other than that some claimants speak a dialect of language associated with the Western Desert region. I agree with the State that the evidence provided by these experts has been of assistance, but not of itself determinative of any particular aspect of the claim. It was interesting, for example, that Dr Clendon visited the Yilka claim area and ‘got quite a few of us to talk to him in language’ as Mrs Murray put it.
200 Dr Clendon expressed the view that there is a single Western Desert language which is a set of dialects disposed as a spread, rather than as a chain, and which occupies a vast geographical area, very roughly a quarter of the size of Europe. He was of the opinion that its native speakers share a common culture in terms of kinship system, economics, religion and ideology.
201 He explained that linguistic labels do not necessarily correspond to significant categories in linguistic geography, nor are real linguistic divisions necessarily labelled. In practice, the labels denote groups of countrymen, usually by means of some real or purported distinguishing feature of their speech. The labels do not refer to ‘tribes’. It follows then that while ostensibly referring to linguistic differences, these labels are used primarily to identify family connections. This is no more evident than in the Lenora-Laverton-Warburton region. Indeed, Dr Henderson noted that there were probably eight distinct dialect labels which are or have been associated with the Yilka claim area. He concluded that the claimants’ speech is a south-western dialect of the Western Desert language with close affiliates to the Ngaanhatharra dialect. In his supplementary report, Dr Clendon accepted, based on the information in Dr Henderson’s report, that the Western Desert variety originally spoken by the inhabitants of the Yilka claim area was, or was similar to, a ‘variety of’ Wangkatha. Relevantly, Dr Clendon also mentioned that it is likely that, given the fluidity of Western Desert society and the mobility of its population, dialect convergence and shift has been an ongoing feature of the Western Desert language for thousands of years.
202 Dr Henderson made clear in his supplementary report, which was in response to Dr Clendon’s supplementary report, that he was in general agreement with Dr Clendon on what he believed were the key issues. He took a different position on some aspects of dialect attribution. The key issues for him were the place of the claimants’ language and of Thuradha’s language within the Western Desert dialect continuum, the historical continuity between them, and the processes of language change and shift in the Western Desert language. (‘Thuradha’s language’ is a reference to the language documented by historian, journalist and welfare worker, Ms Daisy Bates C.B.E. in the early 20th Century in the Yilka claim area.) He thought it was useful to compare Thuradha’s language with modern Wangkatha and modern Ngaanyatjarra. He noted that it is closely related to both, and expressed the view that the conclusion that Thuradha’s language is closer to modern Wangkatha than to modern Ngaanyatjarra falls within the range of reasonable interpretations of the patterns of lexical similarity. Although Thuradha’s language shares 89% of its lexicon with Wangkatha versus 80% with Ngaanyatjarra, Dr Henderson thought it was also possible to conclude that Thuradha’s language is roughly equally close to Wangkatha and Ngaanyatjarra, with some features not shared with either. This would further suggest that it was also intermediate to the range of contemporaneous varieties whose descendants now fall under the umbrella terms Wangkatha and Ngaanyatjarra. That alternative did not substantially alter the argument that the claimants’ language arises historically as a continuation of Partu Wangka, subject to a significant shift towards Ngaanyatjarra.
203 There was basic agreement between the two linguists on the general place of the claimants’ language within the dialect network of the Western Desert language, even if expressed in slightly different terms. Dr Henderson found that, while there are many linguistic elements that the claimants’ language shares with the varieties that fall under the umbrella terms of both Wangkatha and Ngaanyatjarra, there are also elements that it shares with one, but not the other. There also appears to be at least some elements shared with neither. Dr Henderson believed that an important factor was the variation within the claimant group, as evidenced from transcripts. He found that there is a variation, as noted by Dr Clendon, between speakers of different ages, and variation within the speech of at least one speaker. Generally the language of younger speakers contains fewer or no elements that were found in Wangkatha, but not in Ngaanyatjarra. Dr Henderson had described in his primary report the claimants’ language overall as being intermediate between Ngaanyatjarra and Wangkatha, at least as those dialects are described in the available sources, and as the claimants’ speech is represented in the transcripts.
204 The only historian involved in presentation of evidence in the proceeding was Ms Plant. She has worked with Aboriginal people on Ngaanyatjarra lands (which adjoins the Yilka claim in the Northwest) since 1994, as an employee of the Ngaanyatjarra Council and as a private consultant. She has extensive experience in archival and academic research in the Western Australian Battye Library and State Records office, in the United Aborigines’ Mission office in Melbourne and in the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) and the National Library of Australia in Canberra.
205 She prepared a report on historical sources filed on 23 August 2011, and gave oral evidence on 9 September 2013 by video-link. The historical material referred to in the report was tendered as two volumes of documentary evidence, Exh 42A and Exh 42B.
206 The chronology written by Ms Plant is sufficiently important to extract in some detail, as I do now. I have also added in parentheses some, as I perceive it, uncontentious chronological detail which put some of the anthropological and genealogical evidence in context.
207 In 1869, Mr John Forrest headed the first recorded European incursion into the region surrounding the Claim Area in search of land suitable for pastoral use. During this journey he named Mt Leonora, Mt Malcom and Mt Margaret. In 1886, the Aborigines Protection Act 1886 (United Kingdom) established the Aborigines Protection Board. Three years later, the Aborigines Act 1889 (WA) extended the powers of the Board such that it became responsible for the distribution of rations, blankets and medicines to aged and infirm Aboriginal people. [Note that it appears that these were both Western Australian Acts and that these powers of the Aborigines Protection Board were in fact conferred in the Aborigines Protection Act 1886 (WA), which commenced 1 January 1887.]
208 (Kurlu/Billy was born to the northeast of the Claim Area c1870. Winima was born c1872, according to Dr Sackett. Nuringka was likely born c1882 or earlier, according to Dr Sackett. Tjarltjanu was born c1885 or earlier to the northeast of the Claim Area, according to Dr Sackett. In 1890, Kintu/Sandy Grey was born in the Kanpa area, according to Dr Sackett.)
209 In 1892, Mr Lawrence Allen Wells, who had entered the South Australian Survey Department in 1878 at the age of 18, was the first European recorded as having set foot in the Claim Area. This occurred by way of a diversion due to drought conditions on a trip in which he intended to investigate the country between Warrina, South Australia and the Western Australian coast. Mr Wells noted old camps and native tracks. In the same year, gold was discovered in Coolgardie, followed by Kalgoorlie a year later, precipitating a massive rush to the region.
210 Ms Plant notes that in 1894, the prospectors Carnegie and Luck travelled from Coolgardie via Mt Quinn and Queen Victoria Springs to Mts Shenton, Venn and Grant in the Yilka claim area. They encountered six Aboriginal people holding spears and throwing sticks and wearing waist belts of plaited grass and pubic tassels. Luck noted the use of the term ‘kapi’. Another 12 Aboriginal people fled from their camp near Mt Shenton. In the same year, mining commenced at Mt Margaret, drawing miners from Coolgardie and Murchison. There were reports of Aboriginal people spearing horses and stealing provisions.
211 In the following year, Mr William Henry James Carr-Boyd, explorer, prospector and raconteur, led a prospecting trip from Kalgoorlie through Warburton to Warrina in South Australia. He is believed to have named Minnie Creek in the course of that trip. (Mulyita and Putjipa were also born c1895 or earlier, according to Dr Sackett.)
212 In the next year, 1896, a travelling inspector employed by the Aborigines’ Department was appointed to the Western Australian Goldfields. In 1897, the following year, the prospector Russell heard Aboriginal people calling to each other just south of the Cosmo Newberry Hills. He subsequently encountered Aboriginal people hunting near Point Virginia, a short distance to the north of Minnie Creek. Meanwhile the Aborigines Act 1897 (WA) abolished the Aborigines Protection Board and established the Aborigines Department under a Chief Protector of Aborigines. (Waltila/Snowy Westlake was born c1897.)
213 In 1899, a permanent police station was established at Laverton, where the European population had then reached 200. In 1901, a travelling inspector, Olivey, reported approximately 60 Aboriginal people at Laverton, 10 at Erlistoun and 20 at Darlot.
214 (Kipa/Skipper Elliot was born in the latter years of the 19th Century or early years of the 20th Century, according to Dr Sackett.)
215 In 1902, Mr Carr-Boyd discovered gold in the Cosmo Newberry Hills, leading to the establishment of a small temporary European settlement in the area, a few kilometres north-north-west of the current Community. European interest in the area petered out within the decade. In the same year Mr Rowe, a government mining surveyor noted the presence of Aboriginal people in the area, describing the country east of the Cosmo Newberry hills to Mt Shenton as being spinifex desert. The non-Aboriginal population of Laverton by this time had increased to approximately 5000 persons.
216 Between 1902 and 1908, explorer and prospector Mr Frank Hann made several trips through the general region of the Claim Area. He sighted and recorded numerous signs of occupation, and experienced both hostile and friendly encounters. He recognised a few Aboriginal people were from Laverton.
217 In 1903, the railway was extended through to Leonora and Laverton and in 1905, the Aborigines Act 1905 (WA) was introduced, giving the Chief Protector extensive powers over Aboriginal people, half-castes’ and their children. From 1907, Protectors of Aborigines (who were usually police constables stationed in remote locations) were instructed to undertake the systematic removal of children of mixed descent from their families.
218 Between 1905 and 1910, a series of inter-Aboriginal tribal conflicts occurred in the Laverton region. During this time, in 1908, there was a rapid decline in the European population of Laverton and relations between Aboriginal people and the Europeans seemed to deteriorate. There was also a general movement of Aboriginal people from the eastern spinifex areas to the settled areas around this time. (Pinkarri/Tommy Williams was born c1910, according to Dr Sackett.)
219 Shortly after, in 1911–1912, Ms Daisy Bates conducted a series of interviews with Tjurata, an Aboriginal man affiliated with country on the Claim Area. The interviews took place on Rottnest Island, where he was imprisoned. In the meantime, prompted in part by drought conditions, large numbers of Aboriginal people from the east continued to arrive in the Laverton district. In 1913, travelling inspector Olivey examined 29 Aboriginal people at Laverton, eight at Salt Soak Station, 86 at Burtville and 21 at Duketon. He noted that the populations were fluctuating considerably.
220 In the following year, 1914, the value of gold dropped significantly and many of the mining leases were sold or surrendered. The European population in the Laverton district decreased both as a result of reduced mining activity and the advent of the First World War.
221 (Nanuma was born c1915, according to Dr Sackett. Marnupa/Biddy Ross was born c1915 near Minnie Creek, according to Dr Sackett.)
222 The Burtville Police Station and ration depot closed in 1916, with the local policeman claiming that elderly Aboriginal people from Burtville would not travel to Laverton for rations. In the following year, Police Inspector Lappin estimated there were 450 Aboriginal people in the Laverton and Erlistoun districts, a number which was on the increase due to drought conditions further east.
223 Although it was never developed by him, in October 1920, Mr James Keys selected Yamarna Station. (Louie Williams, brother of Marnupa was born near Minnie Creek, c1920, according to Dr Sackett.)
224 In the following year, 1921, the Laverton-based prospector, JE Tregurtha, encountered several Aboriginal people at Dungey Table Hill in the Claim Area. In the same year, the Mt Margaret Mission was founded by Rev Rodolphe Schenk, a missionary from the evangelical Melbourne based United Aborigines’ Mission.
225 In 1923, under the Soldier Resettlement Scheme, two Europeans by the names of Mr Willie Ross and Mr Harry Axford took up 300,000 acres under pastoral lease, which they named Cosmo Newberry, named possibly after one (Sir Cosmo Newberry). While the lease overlapped the Claim Area, one of the reasons the lease was eventually forfeited was the failure to establish infrastructure. In 1925, a bounty was introduced on dingo, fox and eagle.
226 (In 1926, Tom Murray (Mrs Murray’s deceased husband) was born (evidence of HM).)
227 In 1927, Rev Schenk was made a local Protector for the Mt Margaret-Laverton district and police brought children of mixed descent to the Mission. They had previously been sent to Moore River or Carrolup. Parental consent was sought in neither case and a deal of evidence was given on this topic.
228 In 1928, the track between Laverton and Cosmo Newberry was surveyed and graded by the Mt Margaret Roads Board. Hazlett pioneered a road to Minnie Creek and Thatchers Soak around this time. Mt Margaret became the central rationing station for the district.
229 (On 3 September 1930, Mrs Murray was born on the Claim Area, according to the birth date she was given by the missionaries at Mt Margaret.)
230 In 1930, the Cosmo Newberry pastoral lease was forfeited due to non-payment of rent and lack of improvements. Anthropologist Mr AP Elkin visited the Mt Margaret Mission and criticised the fundamentalist theological position and negative attitude held by Mt Margaret staff towards Aboriginal culture. He was accused by the missionaries in turn of reviving ‘sorcery practices’.
231 (In the early 1930s, Punki/Charlie Winter was born in the area of Minnie Creek, according to Dr Sackett.)
232 The surveyor, Mr HL Paine, in 1931, travelled through Cosmo Newberry and noted Aboriginal tracks near Minnie Creek. He later came across a large gathering for ‘mourning ceremonies’ in the direction of Warburton. The pastoral lease at Yamarna was then cancelled due to lack of improvements to the property, while the Mt Shenton area continued to be exploited for sandalwood. Also in 1931, a reserve of 500,000 acres was declared near Point Salvation, approximately 100 miles east of Laverton, and the Laverton Relief Station was closed. This reserve overlapped the Yilka claim area.
233 In 1934, the Warburton Rangers Mission was established by Mr Will Wade, another member of the United Aborigines’ Mission. Unlike Mt Margaret, this Mission received no support from the Western Australian government.
234 (In 1934, Mr M was born, according to the witness statement of Mr M.)
235 In the following year, 1935, the north eastern Goldfields area suffered a severe drought which continued for seven years. Anthropologist, Ms Phyllis Kaberry, was denied permission to conduct research at Mt Margaret Station due to the perceived detrimental influence of AP Elkin five years earlier. In the same year, an outbreak of typhoid occurred at the Mt Margaret Mission and police tracker, George, was murdered at Tjintjiya, near Claypan Well within the Claim Area. (NW was born near Warburton c1935, according to Dr Sackett.) The following year, 1936, the Aborigines Act Amendment Act 1936 (also known as the Native Administration Act 1936 (WA) strengthened the restrictive measures introduced by the Aborigines Act of 1905.
236 (In 1937, Mr Harris was born, according to Dr Sackett. The late Mr Bonney was born near Cox Find c1938, according to Dr Sackett.)
237 In 1939, under the Native Administration Act 1936 (WA), the Commissioner for Native Affairs, Mr AO Neville, officially gazetted the area around the former Cosmo Newberry homestead encompassing 339,645 acres as a reserve ‘for the use and benefit of Aborigines’. It did not include the Claypan Well Reserve, a public well available to all. In May, the Harvard-Adelaide University expedition, consisting of Messrs NB Tindale, JB Birdsell and their wives visited Mt Margaret Mission where they conducted research on biological and sociological aspects of ‘the half-caste problem’. In August of 1939, Rev Schenk advised the Commissioner for Native Affairs that he was rationing 30 additional Aboriginal people due to a series of corroborees and tribal initiation ceremonies in the local area.
238 The following year, 1940, Mr Albert Donegan was appointed Superintendent of the newly established feeding depot at Cosmo Newberry. A number of Aboriginal people from Laverton and other areas were subsequently relocated there. (Alan Bonney was born at Mitika c1940 and Ms Ross’ deceased husband was born near Cosmo Newbery, also c1940.)
239 In 1941, the Native Administration Amendment Act 1941 further restricted the free movement of Aboriginal people in order to prevent the spread of leprosy. A list of people receiving rations at Cosmo Newberry included NW, Windy (Waltila/Snowie) Westlake, Ms Ross’ deceased husband, Sandy (Kintu) Grey, Gilbert, Kipi (Gibbie) and Pintji (Bingie) Nelson and Jack (Yalapa) Williams. Mr Will Wade noted the tracks of Aboriginal people near Lake Throssell. The Commissioner for Native Affairs proposed to send six ‘half-caste’ children from Cosmo Newberry to Mt Margaret. He agreed to delay their removal for a short time so as to minimise disquiet at Cosmo Newberry. One such child belonged to Marnupa (Biddy Ross).
240 (In 1942, Mr Watson was born at Palku, according to Dr Sackett and, in the following year, on 15 March 1943, Ms Ross was born at Mulga Queen.)
241 In 1944, there were 180 Aboriginal people recorded as living at Cosmo Newberry. (Pumurt/Hudson Westlake was born in 1946 near Cosmo Newberry, according to Dr Sackett.)
242 In 1947, the Inspector of Natives became involved in preventing the initiation of young Aboriginal males by older men who are said to have come to the Laverton and Cosmo Newberry areas via the Trans Line.
243 In 1948, the policy of containment of Aboriginal people at Cosmo Newberry changed to one that involved training of inmates in station work. To that end, 775,790 acres of additional grazing country was acquired around the 1939 reserve. (In that same year MW was born near Cosmo Newberry, according to Dr Sackett.)
244 In the same year, 1948, Perth Magistrate, Mr F Bateman, produced a report criticising, amongst other things, the concept of police as ‘protectors’ and the payment of pastoral workers in kind. He recommended the establishment of an independent departmental field organisation and higher subsidies for missions. According to Ms Plant, the Native Citizenship Act 1948 was introduced under which any Aboriginal person who wished to live in a town was required to obtain an Exemption Certificate with onerous conditions of association. This reference may be to the Natives (Citizenship Rights) Act 1944 (023 of 1944 (8 & 9 Geo. VI No. 23)) the preamble to which described it as ‘An Act to provide for the acquisition of full rights of citizenship for aborigine natives’.
245 In 1949, Cosmo Newberry became a penal settlement for Aboriginal people from the south of Western Australia and in 1951, Donegan resigned and was succeeded by a succession of four superintendents. A District Officer noted an increase in tribal ceremonies.
246 In 1952, a cycle of special corroborees began which accelerated Aboriginal movement throughout the region. In 1953, the United Aborigines’ Mission took over responsibility for Cosmo Newberry.
247 (On 30 June 1953, Jayden Smith was born near Minnie Creek.)
248 In 1954, the Native Welfare Act 1954 (WA) renamed the Department of Native Affairs to the Department of Native Welfare. The Commissioner for Native Welfare became the legal guardian of all native children, except Wards of the State. Meanwhile, Rev Schenk retired as the Superintendent of the Mt Margaret Mission and vernacular language programs for both children and adults were established by younger missionaries.
249 In 1955, the Mission applied for an additional area of 307.5 acres, which became special lease 946, forfeited six years later.
250 In 1956, Warburton Mission staff put through a new road to the north of Minnie Creek where it intersected the Cosmo Newberry-Thatchers Soak road. (In the same year, 1956, Mr Smythe was born.)
251 In 1957, 250 Aboriginal people gathered near Mulga Queen for a reburial ceremony and the Western Australian government reversed the 1925 decision to allow Aboriginal people free travel on the Laverton-Kalgoorlie rail services. The Department of Native Welfare established an office at Laverton and in May 1957, the Department of Native Welfare relocated 51 Aboriginal people by rail from Kalgoorlie back to Laverton. The people were said to have originally come from Mt Margaret, Cosmo Newberry and Mulga Queen. (On 27 November 1957, Rhys Winter was born.)
252 In 1958, a new reserve with ablution facilities was opened at Laverton attracting Aboriginal people who had previously been living in less sanitary conditions closer to town.
253 In the following year, 1959, the acting District Officer for the Eastern Goldfields reported that approximately 400 Aboriginal people had gathered on the Laverton reserve for ‘man-making’ activities.
254 In 1961, the abolition of the Exemption Certificates gave Aboriginal people greater autonomy of movement. (HM was born this year on 12 September 1961, and in the following year ME, was born, on 3 September 1962.)
255 In 1963, the Native Administration Act 1905-1954 (WA) and the Native Welfare Act 1954 (WA) were replaced by the Native Welfare Act 1963 (WA) which removed the universal guardianship of native children and regulation of movements of Aboriginal people which had previously existed.
256 In 1965, Mr Kevin Ewings, a missionary at Cosmo Newberry, was granted the Yamarna lease. In the meantime, Mr H Lovick became a joint tenant with Mr G Canning of pastoral lease no 395/1031, which comprised 300,000 acres of land known as Minnie Creek Station.
257 A Native Trading Fund (NTF) was established in 1965 with the intent of creating employment in artefact production in the Laverton, Cundeelee and Warburton ranges area. In Laverton, Aboriginal people were also engaged in mining and sandalwood pulling.
258 (On 10 January 1965, Jake Westlake was born and on 24 October 1966, Hayley Westlake was born.)
259 In 1967, a teacher and classroom was provided to Cosmo Newberry, which then comprised a community of 21 adults and 19 children.
260 In September 1969, a posse of police and local European residents entered the Laverton reserve to question young Aboriginal men about the theft of a car. Indigenous stockman, whom I will not name, but the brother of a claimant Mr Watson, was shot dead, two policemen were injured, and the reserve population relocated to Mt Margaret.
261 In 1970, Cosmo Newberry came under the jurisdiction of the Aboriginal Affairs Planning Authority. The population fluctuated for the next two decades until funding was withdrawn by the Department of Aboriginal Affairs in the late 1980s. A social anthropologist was appointed to the Department of Native Welfare.
262 In 1972, the Native Welfare Act 1963 was repealed and replaced with the Community Welfare Act 1972 (WA) and the Aboriginal Affairs Planning Authority Act 1972 (WA). The latter was enacted ‘to promote the economical, social and cultural advancement of the persons of Aboriginal descent’. The Cosmo Newberry reserves created in 1939 passed from the control of the United Aborigines’ Mission to the Aboriginal Affairs Planning Authority.
263 Two years later, in 1974, a new Christian group called the Aboriginal Movement for Outback Survival (AMOS) was constituted and incorporated at Mt Margaret.
264 In 1976, the Cosmo Newberry Community was incorporated under the name of Wangkatja Tjiwataarnmartatji Inc. It was assisted by a series of European advisors. The Mission withdrew completely three year later.
265 In 1984, Mrs Murray gave evidence at a hearing of the Seaman Inquiry, an official enquiry conducted by Paul Seaman QC (as his Honour then was) into Aboriginal land rights in Western Australia (Aboriginal Land Inquiry Report 1984), commissioned by the Minister with Special Responsibility for Aboriginal Affairs. It was held at the Cosmo Newberry Community.
266 (On 8 December 1984, Westside was born.)
267 In 1985, after repeated requests and despite the objections of the Mines Department, AMOS was finally granted the lease of land adjacent to the Mt Margaret Aboriginal Lands Trust Reserve (this was an old grazing lease of the United Aborigines’ Mission).
268 Between 1985 and 1987, there was a series of deaths affecting the Cosmo Newberry Community families, which led to the temporary abandonment of the community. Due to the absence of people, funding was subsequently withdrawn by the Department of Aboriginal Affairs.
269 Shortly after, in 1989, the claimants returned to the Cosmo Newberry Community and established a viable community.
270 In 1990, Wangkatja Tjiwataarnmartatji Inc was deregistered and replaced by the Cosmo Newberry Aboriginal Corporation, and the Western Australian government approved a 99 year lease application.
271 After much agitation, in 1993, the Cosmo Newberry Community was moved from the jurisdiction of the Wongi Regional Council to the Warburton Regional Council, both to gain access to the CDEP and to reflect social and cultural ties with the north-east.
272 (On 21 February 1996, the Cosmo claim was lodged with the National Native Title Tribunal (NNTT). It was accepted by the NNTT Registrar on 10 May 1996 and filed with the Federal Court of Australia on 23 September 1998. On 6 January 1999, the combined Wongatha claim was filed with orders made that month for the 20 antecedent claims made between August 1994 and September 1997 to be combined into a single Wongatha claim, which was accepted for final registration on 10 January 2000.)
273 (On 19 February 2002, the hearing of the Wongatha claims and seven other claims which overlapped it, including the Cosmo claim, (these eight claims comprise the Wongatha case), commenced. On 5 February 2007, judgment was delivered and orders made dismissing the Wongatha claim and the seven overlapping claims. A notice of appeal against the dismissal of the Cosmo claim was filed on 5 April 2007, with a supplementary notice filed on 19 July 2010 and in the meantime, on 15 December 2008, the Yilka applicant filed his claim in the present proceeding. That was accepted for registration by the NNTT on 6 August 2009. On 24 January 2011, points of claim were filed by the Yilka applicant. On 2 March 2011, points of response were filed by the State and subsequently by other parties. Numerous lay and expert statements were then filed and in anticipation of the commencement of the claim in accordance with programming orders.)
274 It should be emphasised that the chronology outlined above is a small portion of the detailed evidence and materials marshalled by Ms Plant. Of course, that chronology reflects European records as distinct from the oral histories passed down from generation to generation by Aboriginal people. It gives a depiction of the Aboriginal peoples’ presence in the Yilka claim area since the late 1800s and the ongoing practise of traditional laws and customs from that time until the late-twentieth century. Ms Plant notes that many of the European records demonstrated a lack of understanding of Aboriginal culture, and a higher level of hostility towards Aboriginal people and their customs compared with standards which might be adopted by government agencies and others in modern times. Even the documents recording the mission histories revealed that many of the Aboriginal practices were regarded as being evil, superstitious and ‘the way of fear and death’.
275 The Yilka applicant notes that a number of places mentioned in Ms Plant’s chronology are places on the Claim Area capable of being located on the site map tendered by the Yilka applicant as Exh A1A (Yilka site map), which is attached to these reasons as Annexure 4. For example:
(a) in 1894, there is a reference to Mt Shenton, Mt Venn and Mt Grant, located on the Yilka site map at G4, H5 and G5 respectively. Named sites in that vicinity included site 5.15, Tarlala and site 5.24, Wartu (both being sites at which the Court heard evidence) and site 5.9, Palkapiti and site 5.7, Narrutji;
(b) in 1897 and 1902, there are references to the Cosmo Newberry Hills, located on the Yilka site map at 4E and in the vicinity of site 4.1, Yilka, where the Court heard evidence and site 5.14, Putarratjrara;
(c) in 1897, there is reference to Point Virginia, located near site 6.7, Tjinytjara, located at H4 on the Yilka site map;
(d) in 1902 to 1908, there are references to Mr Frank Hann making several trips through the general region of the Claim Area. At site 3.3, Tatjan, Yilka site map reference G5, which the Court visited, the name F Hann is scratched on a rock. ;
(e) in 1921, reference to Dungey Table Hill, located on the Yilka site map at 5I to the east of the notation ‘Yamarna Station’ (located on the map at 5H).
(f) In 1928, reference to a road to Minnie Creek, which is in the vicinity of site 6.9, Yilka site map reference H4; and Thatchers Soak, site 5.7 Ngarrutji at H5;
(g) in 1931, there is a reference to Point Salvation, which is near site 5.3, Mantjal at H5 on the Yilka site map;
(h) in 1935, there is reference to Tjintjiya near Claypan Well. Tjintjiya is also a place where evidence was taken, being at site 5.17 at E5 of the Yilka site map. Claypan Well is site 5.8, Ngatjun at D5 on the Yilka site map; and
(i) in 1941, there is reference to Lake Throssell, being partly within and partly outside of the Claim Area in the northeast.
276 Some other places are mentioned elsewhere in the report, such as Pilki Soak (site 8.10 at D5 on the Yilka site map) which is referred to as a ‘native well at Bilgee’.
277 There is also mention in the report of various people identified in the genealogies as having been referred to in various source documents. The Yilka applicant argues this is consistent with the connection asserted for those people or a relevant ancestor in the Yilka POC.
278 The State, on the other hand, argues that there are various features of Ms Plant’s report which make it clear that the conditions in the Claim Area were not such as to support an inference of continuity for the purposes of the NTA. In particular:
(a) in 1905, legislation permitted ‘half-caste’ Aboriginal children to be taken from their Aboriginal families;
(b) in 1908, there is evidence of migration of Aboriginal people from the eastern ‘spinifex’ areas, namely, Warburton, to the settled areas. This evidence of Aboriginal people moving from east to west is also consistent with a finding of migration by Justice Lindgren in Wongatha (at [704]);
(c) in 1921, the Mt Margaret Mission was founded. Mixed descent children were taken from the Mt Margaret Mission;
(d) in 1923, a pastoral lease was granted over the Cosmo Newberry area;
(e) in 1928, Mt Margaret became a central rationing station for the district;
(f) in 1939, a reserve for the benefit of Aboriginal people was created around the former Cosmo Newberry homestead;
(g) in 1940, a feeding depot was established at Cosmo Newberry, with a number of Aboriginal people from Laverton and other areas being relocated to Cosmo Newberry;
(h) in 1941, rations were provided at Cosmo Newberry for Aboriginal people. A list of people receiving rations included NW, Windy (Waltila/Snowie) Westlake and Sandy (Kintu) Grey;
(i) in 1949, Cosmo Newberry became a penal settlement for Aboriginal people; and
(j) in 1985-1987, a series of deaths affecting Cosmo Newberry families, led to the temporary abandonment of the community. This abandonment of two to four years was said by the State to be not only relevant to the issue of continuity, but, more importantly, significant to the Yilka applicant’s assertion in relation to the qualification of access. The State notes that, although HM says that during this time when the Cosmo Newberry Community was abandoned, he would still check up on the country, Mr Smythe, in contrast, said that there was nobody around. I accept HM’s evidence on this point.
279 In relation to this issue of migration and continuity, and I accept the Yilka applicant’s submission that these are limited historical events having regard to the extent of time involved, with little or no discussion of their relevant consequences. For example, the Yilka applicant points out that it may readily be accepted that in 1905, legislation which presumably applied throughout Western Australia permitted the removal of ‘half-caste’ Aboriginal children from their families. However, the timing and scale of the impact of this legislation on the people of the Claim Area is another matter. Although the effects of this litigation were being felt in the Claim Area by at least the mid to late-1930s (see, for example, the evidence of Mrs Murray in relation to being sought by the police), this legislation and the minimal evidence in relation to its consequences is not a powerful factor in relation to continuity.
280 Specifically, commenting on the evidence to which the State refers, the Yilka applicant points out the following matters:
(a) between 1902 and 1908 Mr Frank Hann was conducting exploration only trips through the general region of the Claim Area.
(b) based on Mrs Murray’s year of birth, Marnupa (her mother), is most unlikely to have been born any later than, say, 1910 (Although note that Dr Sackett States she was born c1915). On any view the impact of white settlement in Western Australia on the people of the Claim Area is likely to have been minimal at the time of Marnupa’s birth.
(c) Charlie Winter was born a few days after Mungulu Harris died and was buried at Minnie Creek. This occurred in about 1924 when Mrs Sullivan was only about two years old, according to her evidence in Wongatha. (Although note that Dr Sackett states that Charlie Winter was born in the early 1930s). Rhys Winter, who was born in 1957, was told by his father that he, Charlie was born at that Palkapiti (Site 5.9);
(d) while the State mentions the grant of the pastoral lease over the Cosmo Newberry area in 1923, there is no reference to its forfeiture in 1930 due to non-payment of rent and lack of improvements;
(e) the track between Laverton and Cosmo Newberry was not surveyed and graded by the Mt Margaret Roads Board until 1928 (years after Marnupa’s birth and only two years before Mrs Murray’s birth);
(f) Mrs Murray was born in 1930 (according to the missionaries who gave her that date of birth) under an ilkuwarra tree, close to where the Cosmo Newberry Community is today;
(g) the Warburton Ranges Mission was not established until 1934;
(h) NW was born in about 1935 at Old Well, near Warburton. She came to Cosmo Newberry when she a baby, before she could walk, and her family stayed there;
(i) the next of the Westlake siblings was NW’s brother, Ms Ross’ deceased husband, who is older than Hudson Westlake. He was born between about 1935 (when NW was born) and 1941 (when records show him being fed at the ration depot) on Cosmo country, on the granite to the north of Cosmo Newberry;
(j) in 1939, an area of approximately 340,000 acres around the former Cosmo Newberry homestead was set aside as a reserve ‘for the use and benefit of Aborigines’. It may be inferred that this change in status of the land resulted in a lessening of what might otherwise have been the impact of white settlement on the people who were living there;
(k) in 1940, a feeding depot was established at Cosmo Newberry and records from the following year suggest that NW, Windy (Waltila/Snowie) Westlake, Ms Ross’ deceased husband and Sandy (Kintu) Grey were all receiving rations there;
(l) other known births in the Claim Area at, or shortly after this time, were:
(i) Mr Alan Bonney, born at Mitika in about 1940;
(ii) Mr Watson, born at Palku (Tjiwartan) in 1942;
(iii) Mr Hudson Westlake, born not far from where the Cosmo airstrip now is in 1946;
(iv) MW, the youngest of the Westlake siblings, who was born at Purnukulayin (Point Pater Waterhole) presumably shortly after 1946 (note that Dr Sackett states he was born in 1948);
281 The Yilka applicant points out that additional persons whose names appear in the ‘Birth Links’ section of the O’Connor and Christensen report discussed below, but whose years of birth are not disclosed by the evidence are Ms Daisy (Talki) [Dulkie] Rundle and her deceased sister.
282 The matters outlined above, the Yilka applicant argues, are consistent with Mrs Murray’s statements that in the first years of her life (1930-1938), there were hardly any roads in the area, there was no ration depot and there were very few white people.
283 In relation to the abandonment of the Cosmo Newberry Community for two to four years in the late 1980s, the State has asserted that this is relevant to the issue of continuity, but has not identified how it is relevant, nor identified its consequences. The State has not made the submission that the ‘abandonment’ constitutes a relevant break in continuity. Having regard to the brevity of the ‘abandonment’, prima facie this would not be a submission of broken continuity, if continuity were previously established.
284 While it is essential to establish that the acknowledgment and observance of traditional laws and customs have continued ‘substantially uninterrupted’ since sovereignty (Yorta Yorta at [87]), and the connection itself must have been ‘substantially maintained’ since that time (Bodney (at [168], Ward FC at [241]), the Yilka applicant contends, and I accept, that physical occupation of the land is not a necessary requirement for continuing connection, as connection may be maintained at a spiritual, cultural or even social level: Bodney (at [172]), De Rose (at [316]); Ward FC per Beaumont and von Doussa JJ (at [244]-[245]), and per North J (at [682]); and Yanner v Eaton (1999) 201 CLR 351 per Gleeson CJ, Gaudron, Kirby and Hayne JJ (at [38]). While physical presence is likely to be good evidence of ongoing connection, it is possible for connection to be established in the absence of any recent or significant physical presence. For example, in De Rose, the requirement of ongoing connection was ultimately found to be open on the evidence, notwithstanding the witness’ absence from the claim area of approximately 20 years, save for occasional hunting trips (at [77], [90], [139], [144], [317] and [331]). It should be noted that in De Rose the Court found there were other deficiencies which made it unable to apply s 223 NTA (at [330]-[331]):
330 While there are obvious virtues in this Court making its own evaluation of the evidence relevant to the question of “connection”, there is a difficulty in adopting this course. We were not taken to any evidence bearing on the significance, under the traditional laws and customs of the Western Desert Bloc, of a failure by persons who, under these laws, are Nguraritja for land, to discharge their responsibilities in relation to that land. If the evidence does address that question, we are not in a position to evaluate it at least without the benefit of detailed additional submissions. At this stage of the litigation, at least without the benefit of further submissions, we therefore cannot determine the questions that we think are critical to the application of s 223(1)(b) of the NTA.
331 Of course, if the evidence was such that on no view could any of the appellants satisfy s 223(1)(b) of the NTA, the ultimate findings of the primary judge could be upheld notwithstanding the flaw we have identified in his Honour's reasoning. We have referred earlier to the evidence relating to Peter De Rose's connections with the claim area. Depending on the content of the traditional laws and customs of the Western Desert Bloc, the evidence may well be sufficient for a court to conclude that Peter De Rose has satisfied s 223(1)(b) of the NTA. While we cannot say that that result is assured, we equally cannot say that his claim is bound to fail. The other appellants may or may not be in the same position, but there is little point in analysing their individual circumstances in depth if further consideration has to be given to Peter De Rose's claim.
(emphasis added)
285 The evidence of HM, as to checking up on the country generally, was supported by Rhys Winter, who said that in the period where nobody was living at Cosmo in the late 1980s, he and his cousin Mervyn Sullivan and their children used to come out at weekends to clean up one of the houses and camp in it. He used to go bush then go back to Laverton. Further, taken in context, I do not think the evidence of HM and Mr Smythe are necessarily inconsistent. Mr Smythe’s statement that there was nobody around meant that there was no one living there, but it does not rule out the possibility of HM checking up on the country. There is no suggestion that Mr Smythe was monitoring all of the country all of the time during those years. As mentioned, physical occupation is not necessary to prove ongoing connection. Ms Ross said that she never forgot about her ngurra. She said:
I was here most of the time when I was small; I visited on holidays when I was at the Mission and when I was an adult working in other places; and after I separated from my late husband, I decided I would come back and live here all the time. All my life I have had my connection with my ngurra, my wuyurr for my ngurra, and have kept coming back. All my life I have been living here, or visiting here and coming here. Even when I was away the places I talk about as my ngurra, always my ngurra.
286 In similar vein, there was no evidence that traditional law and custom in relation to the control of access to and use of country in the Claim Area lapsed by reason of any form of absence.
3.3 Documentary evidence and s 86 evidence
287 In relation to the Yilka claim, the documentary evidence comprises Exh 42A and Exh 42B, which is primarily made up of the source material identified in Ms Plant’s Report on Historical Sources (discussed above). The Yilka applicant and the State also seek to rely on ‘s 86 evidence’, a collection of extracts of transcript evidence and findings in the Wongatha proceedings. Section 86 NTA provides that:
86 Evidence and findings in other proceedings
(1) Subject to subsection 82(1), the Federal Court may:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the Court; or
(ii) another court; or
(iii) the NNTT; or
(iv) a recognised State/Territory body; or
(v) any other person or body;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and
(c) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).
(2) Subject to subsection 82(1), the Federal Court:
(a) must consider whether to receive into evidence the transcript of evidence from a native title application inquiry; and
(b) may draw any conclusions of fact from that transcript that it thinks proper; and
(c) may adopt any recommendation, finding, decision or determination of the NNTT in relation to the inquiry.
288 Subsection 82(1) provides that the Federal Court is bound by the rules of evidence except to the extent that the Court otherwise orders. The s 86 evidence in relation to the Yilka claim is found in Exh A37, on which the Yilka applicant and the State seek to rely pursuant to programming orders. It includes the transcript evidence of witnesses who are now deceased or incapacitated and exhibits in the Wongatha proceedings (which are relied upon by the applicant), as well as findings of Justice Lindgren, which are variously relied on by the applicant and the State. Exhibit S60 contains both s 86 evidence and other documentary evidence in relation to the Sullivan claim. The State seeks to rely on the transcript of oral evidence of Dr Pannell, Dr Vachon and Dr Sackett in the Wongatha proceedings, as well as a number of findings of Justice Lindgren, in relation to the Sullivan claim. Exhibit S60 also includes oral evidence of two other witnesses, exhibits from the previous proceedings, and other documents upon which the Yilka applicant and the Sullivan applicant variously seek to rely.
289 The material in Exh A37 falls into a number of categories for the purpose of s 86 NTA and the Evidence Act 1995 (Cth). The first category is a transcript of evidence of persons who are deceased. That material is admissible under the exceptions to the hearsay rule, in favour of a person who is not available to give evidence. In this category, the material comprises evidence of persons about whom the Court in the Yilka proceeding has heard considerable evidence, namely, the evidence in the Cosmo claim of:
(a) Mr Harris (deceased);
(b) Hudson Westlake (in aged care);
(c) NW (deceased);
(d) Ms Ross’ deceased son; and
(e) Mr Watson.
290 The Sullivan applicant points out that there is also submitted as s 86 evidence, contained in Exh S60, the evidence of the following now deceased persons:
(a) Mr G Sullivan (deceased); and
(b) Mrs Sullivan.
291 There appears to be no reason why that evidence should not also be treated in the same way.
292 The second category is exhibits received in evidence in the Wongatha proceedings, including a report of archaeologist Professor Peter Veth. The Yilka applicant does not advance submissions in respect of this evidence; hence it is unnecessary to decide its admissibility.
293 The third category is the findings of Justice Lindgren in Wongatha. There is a significant issue in relation to the weight, if any, to be given to these findings. The State contends that it is permissible to rely upon the findings of Justice Lindgren in the Wongatha proceedings, in view of the fact that the nature of the claims and the substance of the evidence in the Wongatha (and/or Cosmo) claim and Sullivan claim are the same. The State makes the same submission in relation to the Cosmo and Yilka claims. The findings relied upon relate, it is said, to the same issues. The State contends that failure to consider and/or adopt the findings relied upon in the Wongatha proceedings has the potential to result in conflicting findings or judgment as between the current proceedings and the earlier findings of Justice Lindgren in the Wongatha claim and the Cosmo claim.
294 The State also submits that, to the extent that the findings might not be received as evidence under s 86 NTA, the State relies on the findings of Justice Lindgren as its submissions.
295 There are, with respect, difficulties with the State’s submission in my view. The first is a formal one, in that Justice Lindgren held that he did not have jurisdiction to hear and determine either the Wongatha claim or the Cosmo claim due to lack of authorisation. As indicated earlier in these reasons, his Honour did go on, lest that conclusion be incorrect, to consider the evidence that was before him and made various findings, if he were found to have jurisdiction. As things presently stand, the findings being clearly obiter may not satisfy s 86(1)(a) NTA.
296 If this is wrong and s 86(1)(a) NTA may be used, but as his Honour went to some trouble and care to identify the problems with the claim as it was before him, it strikes me as being unrealistic not to give some weight to the process of reasoning leading to those findings.
297 The threshold difficulty is that I do not have the great bulk of the evidence on which the findings were made. I am certainly not in a position to assess the credibility of the evidence given by witnesses in relation to those matters. It would be unorthodox to adopt another judge’s findings in lieu of reaching one’s own findings where to do so is possible. Of course, this leaves the abuse of process argument open and it, at one level, enhances it. In my view, the weight to be accorded to the careful findings of Justice Lindgren is to have regard to the process of careful reasoning that his Honour reached over a long period of time. But I have different evidence before me in relation to different persons in a different claim area. The evidence is considerably more extensive. There were a number of persons who did not give evidence in the Cosmo proceedings and, in some cases, were not even claimants in the Wongatha or related proceedings. There was gender restricted evidence, including evidence from senior law men. There were views of Minnie Creek and numerous other sites on the Claim Area. There were demonstrations of butchering and cooking kangaroos and the display of other items of bush tucker. In short, there were numerous aspects of this case which were not before Justice Lindgren.
298 I do not intend, therefore, to adopt any findings made by Justice Lindgren, but will reach my own conclusions. I will, without hesitation, give weight and respect to the reasoning process adopted by Justice Lindgren in the Wongatha and Cosmo claims to the extent that it may guide an approach to be taken in resolution of contested issues in this case.
299 While it is true that the Yilka applicant identified various transcripts, exhibits and findings in the Yilka applicant’s s 86 index dated 9 September 2013 on which it ‘seeks or may seek to rely’, that is quite different from requiring the Court to accept findings of another judge. The statements of the various witnesses, together with their transcripts in instances where those witnesses are deceased, is in a different category by virtue of s 63 of the Evidence Act. Those witnesses are not available to give evidence within the meaning of cl 4 of Pt 2 of the Dictionary to the Evidence Act. (Nothing in certain procedural Order 11 of the Orders of Deputy Registrar Irving of 15 January 2013 changes the statutory position, nor does it change the substance of the earlier orders of 25 February 2011.) I accept the Yilka applicant submission that the objective of the initial programming orders was to inform the parties generally about the intention of other parties in relation to, in the case of the State, and perhaps in the case of the Yilka applicant, asking the Court to adopt findings made by Justice Lindgren in the Wongatha proceeding. The parties have taken that course, but I do not intend to adopt those findings for reasons stated above.
300 In relation to those paragraphs of the reasons of Justice Lindgren which the Yilka applicant seeks to include (namely, [2920], [3009]-[3010], [3104], [3112], [3154], [3155], [3157], [3177], [3178], [3239]-[3240], [3245], [3293], [3296], [3303], [3326], [3328] and [3347]), I intend to adopt the same approach in relation to those findings as I have to the findings on which the State seeks to rely.
301 Those paragraphs from Wongatha, for convenience, are now set out below but as previously indicated, while I will take into account the process of reasoning adopted by Justice Lindgren, I do not intend to simply adopt his findings, albeit that some may coincide with my own.
2920 Perhaps predictably, this concession led to Mr Murray’s being cross-examined by counsel for the Wongatha applicants about particular non-Cosmo claimants, who, it was suggested, would satisfy these two conditions. One of these was Phyllis Thomas, who was born in Laverton, lives in Mulga Queen (both outside the Cosmo Claim area) and is an MN claimant. At first, Mr Murray was a little unsure about Phyllis Thomas’s connections to the Cosmo Claim area, saying ‘she might have some connections to this country’. However, he conceded that he would accept Phyllis Thomas (an MN claimant), her children and [Mr] Watson as traditional owners and as part of the Cosmo Claim group, if they wished. ([Mr] Watson was born in the Cosmo Claim area and lives at Tjirrkarli, outside the Cosmo and Wongatha Claim areas, is the applicant on the Tjirrkarli-Kanpa Native Title claim, which is to the north-east of the Cosmo Claim, and is Chairman of the Tjirrkarli Aboriginal Community.) Mr Murray’s mother, [Mrs] Murray, said that Phyllis Thomas is her kaparli’s sister’s daughter, and Phyllis Thomas herself said that she spent a little bit of time at Cosmo as a child.
3009 Bella Barnes is also an ancestor of other Wongatha claimants. Examples are Cyril Barnes and Marjorie Bonney. However, [Mr] Harris would appear to have the strongest claim to the Cosmo Claim area of all of them, because he has lived there and knows the country, whereas they have not and do not.
3010 Prima facie, [Mr] Harris and his children satisfy those criteria for holding rights and interests in the Cosmo Claim area that have been applied to Cosmo claimants themselves, or, at least, satisfy them as well as those Cosmo claimants have satisfied them.
3104 The Cosmo applicant submits that the Dreaming beliefs refer both to a past time of creation and to the time of present experience, in which ancestral or mythical beings were, and remain today, ‘powerfully present in the landscape’. He submits, and of course I accept, that it is in the nature of Dreaming beliefs that they are not of recent origin, but have been handed down over many generations. The submissions continue:
‘This belief system validates the presence of and structures the use of country by Cosmo Newberry claimants in the Cosmo Newberry claim area and surrounding areas.’
3112 With some doubt, I think there is enough evidence to support at least a finding that the Tjukurr remains of religious importance to the Cosmo Claim group.
3154 While the number of Dr Sackett’s informants is relatively small (5-9) compared to the total number of Cosmo claimants, I accept that there is a fair degree of familiarity with sites within the Cosmo Claim area on the part of the fifteen Cosmo witnesses. However, they all live in the Community. None of the Cosmo claimants who reside elsewhere were called. I do not know the extent of their familiarity with sites.
3155 I also accept that there is respect for the well-known men’s site at Pirlpirr (Minnie Creek). I accept that this site is well known to members of the Cosmo Claim group and that non-wati members of that Claim group do not visit that site or seek to enquire or learn about it (the same observation can be made concerning this site, mutatis mutandis, in relation to all the Claim groups).
3157 For the reasons given above, I am not satisfied that the practice of wartulku or that of male initiation is generally followed today within the Cosmo Claim group on a fair overall view of the group. I accept that the Cosmo witnesses demonstrate a fair degree of familiarity with sites within the Cosmo Claim area, that they know and (unless watis) would avoid the men’s site at Pirlpirr (Minnie Creek), and that they observe the ‘ritual’ of warning the warnampi of an approach. In relation to knowledge of sites (not a matter of ‘ritual’) no Cosmo claimant who does not reside in the Community was called. Although a substantial number of Cosmo claimants reside in that Community, the proportion is still only about one third of all Cosmo claimants. It is not possible for me to gauge the knowledge of sites possessed by the non-resident Cosmo claimants, although I am favourably impressed by the familiarity with sites demonstrated by the witnesses who were called.
3177 Third, I accept that a pre-sovereignty law or custom against saying the name of a deceased person, whatever may be the precise parameters and the exceptions to it, is widespread throughout Aboriginal Australia, and is acknowledged and observed by the Cosmo Claim group. I note that the Cosmo applicant submits that the practice is followed, not only in the Western Desert, but also in ‘Aboriginal Australia generally’.
3178 Fourth, I referred to the practice of removing oneself from the place where the deceased lived at 3.6(c)(2) [824] ff. In so far as it so submits, I reject the State’s submission that no traditional law or custom is proved to have existed in this respect. I also accept that there is acknowledgement and observance among at least some of the Cosmo claimants of this Western Desert norm to the effect that the right thing to do is to move away for a time from the place where the deceased was living at the time of death.
3239 The evidence given by the witnesses as recounted above on the subject of skins is impressive. Each knows his or her skin, the skins of family members, and which skin is permitted to him or her in marriage.
3240 I have no hesitation in accepting that the Cosmo claimants who live at the Community acknowledge and observe the skin system. As ever, there is the question of the two thirds of the Cosmo claimants who live elsewhere. They are related to those who live in the Community. Because this particular law or custom concerns family relationships, I infer that the outside residents also acknowledge and observe the skin system.
3245 I will not address all of this evidence. I have no doubt that the Cosmo claimants, like the members of the other Claim groups, have a bond with the land that is not known to non-Aboriginal people. Moreover, many of them have an affiliation of various kinds and strengths with places that either lie within the Cosmo Claim area or include some land that lies within that area. This arises from circumstances peculiar to the individual’s life.
3293 As with certain other indigenous witnesses, one could not fail to be impressed by the Cosmo witnesses’ familiarity with the land. A video was screened showing Cosmo claimants at various sites within the Cosmo Claim area. Although it can be said that this was artificial in the sense that the site visits and filming were carried out for the purpose of the hearing, I accept, as the Cosmo applicant submits, that the video showed indigenous people who appeared to me to be ‘comfortable’ at, and familiar with, the places in question. I appreciate that I am recounting my subjective impression, but as I watched the children playing at some of the sites, the adults moving about at them, and children cleaning out a rockhole and a soak, I did not think that they were doing these things for the first time. There were photographs and a video film of numerous Cosmo claimants at the following sites:
Kungkarrungkarru (site 1.1)
Ngiyari (site 2.1)
Tatjan (site 3.3)
Yilka (site 4.1)
Yilurn (site 4.2)
Tjintjiya (site 5.17)
Tulypurr (site 5.18)
Wartamaru (site 5.23)
Wartu (site 5.24)
Wurnta (site 5.25)
3296 I am satisfied that the Cosmo witnesses and other members of the Cosmo Claim group have a tie to or bond with the sites and areas shown. I do not think that this suggests a norm or standard, but it does mark a connection.
3303 I infer from the practice of cleaning out rockholes, pools and soaks, burning off, and checking that unauthorised exploitation of resources is not taking place, that the Cosmo witnesses have a close association with the land, appreciate its importance in the ecological system, accept responsibility for preserving and maintaining it as a resource and seek to inculcate similar sentiments in the younger generation.
3326 I accept the evidence led as to the practices associated with butchering, cooking and sharing kangaroo, which can be shown to have been followed over many decades. However, this does not establish a traditional law or custom in the sense of a norm or standard that is recognised as something that must be adhered to. Virtually all of the practices of which evidence was given in the present respect by the Cosmo claimants were explicable by the practical necessities of nomadic survival.
3328 [HJ] gave detailed evidence concerning the best time of the year and of the day in which to hunt kangaroo, emu and goannas. He said that his father [HM], [HM’s] father ([Mrs Murray’s deceased husband]) who passed away, and his own uncle [GM], taught him how to hunt. I have no doubt that there is a wealth of detailed knowledge among Cosmo claimants as to the best times of the year and of the day, climatic conditions, locations and methods, relating to hunting kangaroos, emus and goannas, and cooking of them. Knowledge and practical skills of these kinds are highly specialised. On the evidence led by the Cosmo claimants, however, they do not point to any particular law or custom.
3347 I accept that there is a continuing respect (in fact, among all Claim groups) for sacred sites and stories, and a rule against naming or speaking about them. The sanction for contravention is social disapprobation, no doubt of varying degrees of strength, depending on the infraction. I have no doubt that if, for example, an Aboriginal person were to speak freely about Minnie Creek, that conduct would attract universal and strong disapproval from all of the Cosmo claimants.
(emphasis is original)
302 The greater detail upon which the State seeks to rely from the findings of Justice Lindgren in relation to the Yilka claimants, finds as a starting point his Honour’s reasoning at [2893], which summarised his Honour’s reasons for the failure of the Cosmo claim. It reads as follows:
2893 The Cosmo Claim fails because:
1. The Cosmo applicant was not authorised to make the Cosmo application, as required by s 61(1) of the NTA.
2. The evidence does not establish that the Cosmo Claim group is recognised by WDCB traditional laws and customs as a group capable of possessing rights and interests in land or waters.
3. The evidence does not establish that group rights and interests exist in the Cosmo Claim area.
4. The evidence does not establish that at sovereignty WDCB laws and customs provided for an ancestral group of the Cosmo Claim group to possess group rights and interests in the Cosmo Claim area, or for individuals to be able to form themselves into a group possessing such rights and interests.
5. The Cosmo Claim is an aggregation of claimed individual rights and interests, and the Cosmo Claim area is an aggregation of individual ‘my country’ areas, the subject of the claimed individual rights and interests, and the NTA does not provide for the making of a determination of native title consisting of group rights and interests in these circumstances.
6. The Cosmo Claim area is not an area that is ultimately, whether directly or indirectly, defined by reference to Tjukurr (Dreaming) sites or tracks.
7. While particular Cosmo claimants can point to earlier times when they or their ancestors lived, or had other connections with, particular places within the Cosmo Claim area, the present Cosmo Claim group has resided at the Cosmo Aboriginal Community only since 1989/1990, and as a group its connection to the Cosmo Claim area dates only from that time.
8. The evidence does not establish that the Cosmo claimants have a connection to the Cosmo Claim area by Western Desert traditional laws and customs, as required by s 223(1)(b) of the NTA.
(emphasis in original)
303 The detailed findings on which the State seeks to rely (and which I decline to adopt without reaching my independent conclusions) are as follows in the remainder of this Part:
304 In the Wongatha judgment (at [3296]), his Honour found that the Cosmo claimants had a connection or bond with the sites, but did not think that this suggested a norm or standard. At [2893.8], his Honour found that the Cosmo claimants did not establish a connection to the land and waters of the Claim Area through traditional laws and customs. His Honour made a similar finding in relation to the Wongatha claim (at [1167]), where his Honour said that the evidence did not establish that the claimants constituting the Wongatha claim group had a connection by Western Desert traditional laws and customs as required by s 223(1)(b) NTA.
305 The State argues that these findings were significant in that they relate to the ‘claimants’ themselves. It says that this impacts on the proceedings regardless of what the nature of the Yilka claim and Sullivan claim may be, whether they are individual, group or communal. This is because his Honour had already made adverse findings in relation to those individuals who are now included in the Yilka claim, regardless of whether the claimants were part of the Wongatha or Cosmo claims.
306 In relation to the groups’ connection, the State refers to Justice Lindgren’s findings at [3354] where his Honour stressed that the connection referred to in s 223(1)(B) NTA must be by traditional pre-sovereignty laws and customs. The evidence did not establish that the Cosmo claim group by WDCB laws and customs had a connection with the Cosmo claim area for the purpose of the NTA.
307 The State expressly submits that the Court should adopt the findings of Justice Lindgren at [2893.8] set out above.
3.3.2 The nature of the claim group
308 The State relies on the findings of Justice Lindgren (at [2893.2]-[2893.4] and [2934]), to the effect the Yilka claim group is not recognised by WDCB traditional laws and customs as a group capable of possessing rights and interests in the Claim Area. In particular, points 2, 3 and 4 of [2893] above are contrary to the Yilka applicant’s argument, the State says. This is on the assumption that the Yilka applicant asserts that the Yilka claim is a group constituted only by an aggregation of individual ‘my country’ areas and not as a ‘communal’ claimant or a coalition of ‘individual claimants’. The State argues that, as was found to be the case in the Cosmo claim, to the extent that the Yilka claim might purport to be a ‘group’ claim, the relevant ‘group’ is not based on WDCB traditional laws and customs. It is argued that the Court should adopt the findings of Justice Lindgren on this issue.
3.3.3 Aggregation of individual ‘my country’ areas
309 Several findings were made as to the nature of the Cosmo claim, which Justice Lindgren found to be an aggregation of individual ‘my country’ areas (at [881], [1142], [2893.5], [3025] and [3056]). His Honour found (at [3079]-[3080], [3087] and [3242]) that this was not permissible under Western Desert traditional laws and customs. The State points to the fact that the Yilka applicant appears to accept that the Yilka claim is an aggregation of individual ‘my country’ areas in the ‘Yilka applicant’s final submissions on connection’ filed 5 May 2014 (Yilka Connection Submissions). In this respect, the Yilka claim is no different, it is argued, from the Cosmo claim.
310 At [704] of the Wongatha judgment, Justice Lindgren said, to the extent that the migration was intra-Western Desert, his Honour was not satisfied that under traditional laws and customs those from the Western Desert acquired rights and interests in the new locales. The reason given by his Honour was that whatever traditional laws and customs may have provided in relation to the acquisition of rights and interests by migration in the area to which intra-Western Desert migration occurred, the choice of the fringes of European settlement was not traditional. This is consistent with Justice Lindgren’s findings at [302]-[303].
311 A traditional basis for claimed native title rights and interests, so the State contends, requires that the movement of people be pursuant to rights and in accordance with tradition. The State argues that, as in the Cosmo claim, gravitation of people to places of European inspired population concentration is not immediately or necessarily attributable to such a tradition. The State asserts that the Yilka applicant and the Sullivan applicant have not shown why movement of individuals to the Claim Area should be taken to be traditional.
312 The State relies upon the Wongatha judgment (at [3130]) where his Honour found that having a personal dreaming was no longer a characteristic of the Cosmo claim group on a fair overall view. At [3157], his Honour was not satisfied that the practices of the Wartulku and male initiation were generally followed. Those were practices that the Yilka applicant asserts are laws and customs of the claimants. This is, the State says, in circumstances where only 16 witnesses out of a possible ‘thousand or more’ claimants gave evidence, only some touching on these matters. Again, the Yilka applicant is seeking a finding contrary to that reached by Justice Lindgren.
313 His Honour was also not satisfied (at [3176]) of any Western Desert traditional laws and customs in relation to the place of burial. (This finding was only limited to ‘place’ of burial and needs to be read in conjunction with other findings by his Honour.) His Honour found that the evidence did not identify adoption as a pre-sovereignty Western Desert law or custom or show sufficient instances of adoption to establish that adoption has resulted from the norm in question (see at [3203]-[3207]). While his Honour found that there were instances of adoption taking place among the Cosmo claimants, the prevalence of adoption in many societies meant that this evidence was insufficient to establish that adoption was a traditional law or custom. This is inconsistent, the State argues, with what the Yilka applicant seeks the Court to find in the Yilka claim.
314 His Honour’s findings (at [1431] and [3316]) relate to the right to access and the law and custom of asking permission for access. A contrary finding is sought by the applicants to the finding by his Honour (at [1431]) which was as follows:
In my opinion, it is not proved that there is acknowledged and observed a law or custom relating to a right to be asked for access, that has a reference either to the Wongatha Claim area or to any of the other Claim areas before the Court, or to individual ‘my country’ areas within it or any of them.
315 In relation to the practices of butchering, cooking and sharing kangaroo, the Yilka applicant seeks the Court to make a contrary finding to the finding of his Honour (at [3326]):
I accept the evidence led as to the practices associated with butchering, cooking and sharing kangaroo, which can be shown to have been followed over many decades. However, this does not establish a traditional law or custom in the sense of a norm or standard that is recognised as something that must be adhered to. Virtually all of the practices of which evidence was given in the present respect by the Cosmo claimants were explicable by the practical necessities of nomadic survival.
316 His Honour (at [3336]) made similar findings in relation to language saying, that the speaking of such a language, where it does occur, does not point to a norm. Again, this is contrary to the finding that the Yilka applicant seeks the Court to make.
3.3.6 Yilka applicant’s submissions regarding these findings in Wongatha
317 The argument in favour of relying upon findings is not enhanced by examining what those findings were, although, according to the Yilka applicant, a brief examination reveals why some should not simply be adopted in these proceedings.
318 For example, on the substantive point above in relation to rights and interests, dealing with the gravitation of people to places of European inspired population concentration as being not ‘immediately or necessarily attributable to such a tradition’, the submission for the Yilka applicant is, in substance, as follows:
(a) the State has not pointed to any law or custom that constrains the general mobility of people. This is because there is no such law or custom, that is, there is no known rule identified by the evidence suggesting that movement motivated by survival, ceremony or free choice was prohibited;
(b) the State does not explain what it means to say that movement must be in accordance with tradition, nor does it explain the distinction between moving through one’s country and travelling through the country of another with permission. Nor does it consider how its proposition sits with the fact that people did and do travel to and through and live in country that is not their ngurra from time to time, if not for much of the time. If the State is suggesting that this is not ‘in accordance with tradition’, this suggestion is untenable;
(c) the State does not explain why movement in response to news of a gold rush or supply of blankets, food or safety is not ‘traditional’. To do so, it would need to establish that the right to travel under traditional laws and customs is constrained, that is, that it is only able to be exercised for particular purposes. No such constraint is demonstrated by the evidence. Thus, such movement of the kind described cannot be regarded as not ‘traditional’;
(d) given that people regard themselves under their traditional laws and customs as ‘owner’ of their ngurra areas and as entitled to control and permit such temporary or permanent access by others as they see fit, subject to the expectation that it be exercised generously towards travellers and other relatives and persons of the Western Desert, it could not be regarded as illegitimate that, for example, Marnupa’s parents were rightfully on the Claim Area (though not on their country) when she was born. There is no suggestion that they were trespassing or otherwise in breach of traditional laws and customs. Marnupa is unlikely to have been born much later than 1915 (according to Dr Sackett), a time at which the impact of white settlement and the people of the Claim Area was likely to have been minimal;
(e) movement for a ‘traditional purpose’ is a meaningless concept unless traditional law or custom precluded travel or other movement, for example, as may result in permanent residential location. It also entails an impermissible ‘frozen-in-time approach’ to traditional laws and customs and their exercise. No evidence suggests any such constraint;
(f) no principle of native title jurisprudence identifies what ‘movement in accordance with tradition’ might mean. To have any significance, it must be referable to traditional laws and customs. Even if Marnupa’s parents were trespassers or otherwise present on the country in breach of traditional laws and customs, and there is no evidence to this effect, it should not be assumed that Marnupa’s birth would not have triggered the traditional law and custom about possessing rights and interests in the country associated with one’s birth. The evidence discloses a number of examples of people who were born outside the countries of their parents;
(g) even assuming that people moved from the inner desert to the outer desert to get work, earn money and participate in a non-subsistence economy, there is no non-discriminatory basis for suggesting that such movement is not in accordance with traditional laws and customs, any more than it could be suggested that it would not be in accordance with traditional laws and customs if they drove there in motor vehicles and used a gun to shoot a kangaroo along the way; and
(h) no purposive limitation on movement has been shown to be a feature of traditional laws and customs. Once that is accepted, then if birth and long association with country happen along the way or at the end of any particular movement of persons, then rights are acquired in the ordinary way in accordance with traditional laws and customs.
319 While this is not the location in my reasons to expressly accept whether or not I accept those submissions, I can say that stating them illustrates that there is a real difficulty in simply adopting the obiter findings made by Justice Lindgren or any other judge in any other similar case without taking into account the benefit of receiving the particular evidence in this particular case. As I have indicated, and at the risk of further repetition, as a matter of principle and as a matter of substantive law, I do not intend to take the discretionary course of adopting the ‘findings’ reached by Justice Lindgren. In doing so, I have made it plain that I will give great weight and respect to his Honour’s process of reasoning, but I should decide this case on the evidence that has been adduced in these proceedings. That conclusion does not deprive the State of the detailed arguments it advances and I consider in Chapter 4.
320 The requirements under the NTA have been discussed in Pt 1.1.5 above.
321 The Yilka applicant states that Pt 5.2 ‘Context and Informing Principles’ is also relevant in establishing the existence and continuity of the society.
4.1 The Yilka claim area as within the ‘Western Desert’
322 Both the Yilka and Sullivan applicants agree that the Claim Area is within the Western Desert (see Yilka POC [21]) and that the society under whose laws and customs the native title rights and interests are possessed in the Claim Area is the WDCB (Yilka POC [183]). The State admits that the Claim Areas’ physical location falls within the Western Desert, but does not admit that the Claim Area is an area to which the laws and customs of the Western Desert apply.
323 The Yilka applicant has stated that the point of this non-admission is elusive, given that the Western Desert is not, and is not pleaded as, a geographical construct that has meaning apart from the application of laws and customs. If the laws and customs cease to apply in an area, it would no longer be part of the Western Desert. All of the experts have accepted, consistently with the evidence of the Aboriginal witnesses, that the claims lie within the geographical limits of the WDCB, to which the laws and customs of the WDCB apply. The State has acknowledged that, to the extent that traditional laws and customs have been, or are acknowledged and observed in the Claim Area, the laws and customs have been, or are those of the WDCB.
324 It is not the Yilka applicant’s claim that there are special laws and customs applying to the Claim Area, but simply that other places, also within the Western Desert, such as Warburton, Blackstone, Tjirrkarli, Wiluna and Tjuntjuntjara have the same laws and customs.
325 The Yilka applicant contends that, following the principles of Yorta Yorta, it is clear on the evidence that within the Western Desert, or at least within a vast region in which the Claim Area is located, there is a continuing ‘vital normative system of ancient origin’, characterised by a common body of laws and customs which focus on Tjukurrpa and kinship, and that the acknowledgment and observance of these laws and customs is a glue that binds together all those who share the laws and customs.
326 It appears that there is some confusion between the parties on this aspect of the case. However, to me it seems clear that the pleadings and evidence have been directed to the Western Desert people, places, laws and customs. That is, that the Claim Area is both within the Western Desert and subject to laws and customs that apply in the Western Desert.
4.2 The Yilka claimants as members of the society
327 The Yilka applicant also claims (and it is agreed by the Sullivan applicant) that each person on whose behalf the Yilka claim is brought is part of the WDCB society and each has an ancestor who was a member of the WDCB society at sovereignty (see Yilka POC [20]). The State does not admit this contention.
328 As to the claimants’ ancestral connections to the relevant society, it is contended for the Yilka applicant that those connections are clear, or at least readily inferred, from their deep enculturation to the unquestionably ancient beliefs, laws and customs and as well from their genealogies. Evidence was given by each claimant witness about their Western Desert ancestry, which evidence is generally collected in the witness affidavits under the heading ‘Some of my family’ or ‘My close relations’ or similar. Evidence regarding the ancestors is also referred below in Pt 12.
329 As noted in footnote 1 of the POC, it is not part of the Yilka applicant’s case that it is a requirement under the WDCB law and custom that rights cannot be possessed in an area by a person who does not have an ancestor who possessed rights in that area. So much is clear from the very ‘pathways to connection’ which are central to the relationship of people and country – birth, long association and the holding of ritual status. None of those pathways contemplate necessary continuity such as might exist between a local descent group and a particular area or ‘estate’. Rather, inherently, those pathways contemplate tenurial adjustments in response to long term movements of people. The pathway of descent, on the other hand, contemplates continuity over generations. The combination of pathways is clearly suited to the rigors of a sparse population inhabiting a harsh environment.
330 In his report Dr Clendon expressed the opinion, which was not objected to, that:
Because the Western Desert language was recorded from the Yilka claim area at the turn of the twentieth century…, I consider it improbable that this area has been colonized by Western-Desert language speakers after contract.
331 Dr Henderson responded in his report:
The earliest significant documentation is Bates’ Thuradha materials (Bates n.d.a.b), apparently recorded at the Rottnest Native Prison in 1911 (Bates 1938). This is clearly a variety of the Western Desert Language. Since the Yilka ear is well within the Western Desert area, and the WDL is therefore less likely to be a recent arrival, this conclusion is reasonable in my opinion.
332 The State seeks to rely upon the following observations and findings of Justice Lindgren in the Wongatha judgment concerning traditional groupings within the WDCB and the holding of rights and interests under the traditions of that society (at [1292] and [879]):
1292 Accordingly, I find that there was in 1829 a WDCB society that had a body of laws and customs that provided for multiple pathways of connection, through which an individual might hold rights and interests, and that the Wongatha Claim area, but no further west than the Menzies-Lake Darlot line, was subject to that body of laws and customs. This says nothing, however, as to the subject matter of the rights and interests, that is, the identification of the land the subject of them (see 3.6(3)[828] ff).
(original emphasis)
879 I draw the following conclusions on the basis of the evidence surveyed above:
1. Exploitation, such as by camping, hunting and foraging over an ‘orbit of occupation’ or ‘range’ or ‘run’ did not give rights and interests in the area exploited.
2. Under traditional Western Desert laws and customs, any recognition of rights and interests in land was based on the Tjukurr (Dreaming) and the subject matter of ‘ownership’ was defined by reference to a Tjukurr site or constellation of Tjukurr sites or tracks.
3. This ‘estate’ as it has been called, was not limited to the actual site or sites or track, but extended to related or nearby topographical features, and apparently its size could vary greatly.
4. Ownership was at the level of the individual.
5. The individuals who owned the same estate could, however, be seen as constituting, in a loose sense, a landowning ‘group’.
6. The individual’s place of birth was the primary form of connection to the estate, but there were others, leading to the anthropological acceptance of the notion of ‘pathways of connection’.
I cannot recall any claimant who claimed a ‘my country’ area defined by reference to Dreaming, sites or tracks. Certainly, generally speaking, the ‘my country’ areas claimed were described by reference to names and places that featured in the pathways of connection relied upon, such as, place of claimant’s birth, parents’ country, place where parents or grandparents ‘came from’, place of long term residence, country known to claimant. What appears to have happened in the present case is as follows: sedentarisation and urbanisation have placed distance between the claimants and Dreaming sites and tracks; the concept of multiple pathways of connection, while it can apply to an area defined by reference to such sites or tracks, is not of itself inherently limited by reference to such subject matter; the claimants have invoked the multiple pathways concept to define the subject matter of their claims, that is to say, their ‘my country’ areas. I do not see this abandonment of the Tjukurr basis of the subject matter of ownership as a permissible adaptation. The above is a generalisation, and it may be that some exceptions can be found in the case of the ‘my country’ claims of some individuals.
333 The State relies upon these findings as submissions in these proceedings and contends that, in essence, the existence of a society of which certain and possibly all wati may be part, does not establish individual membership on the part of all the various individuals that collectively comprise the claimants.
334 The State’s submissions on this topic (while, at least accepting for the purposes of the submissions that the WDCB existed at sovereignty), appear simply to adopt, once again, the findings in Wongatha of Justice Lindgren, without regard to the evidence in this trial. It is not open to me to make findings of fact simply by adopting statements made by Justice Lindgren in response to evidence of fact before him in another case. The attempt to embrace those findings even as submissions would only be of assistance if it were established that precisely the same evidence was before me as before Justice Lindgren.
335 I do not propose to adopt his Honour’s findings, as previously stated.
336 In the present case, I consider that the weight of expert evidence that I have discussed clearly favours the finding advanced by both claimants that they are and have been, members of the WDCB society.
4.3 The situation at and since ‘sovereignty’
337 It is common ground between the Yilka applicant and the Sullivan applicant that the WDCB existed at sovereignty and at all times. The Yilka applicant notes that this is beyond dispute on the evidence, given that all experts agreed to the relevant proposition (‘Proposition 28’) without qualification, and that this was supported by evidence given by a number of indigenous witnesses. The State accepts this proposition for the purposes of these submissions.
338 This has been discussed above in Pt 1.1.
5.2 Context and informing principles
339 At first instance in Akiba, Justice Finn discussed the ‘informing principle’ (at [185] and following, [293], [461]) and other ‘informing’ ideas and dimensions (at [76] and [172]), in discussion of questions about society and the commonality of laws and customs:
185 I will consider reciprocity and exchange, first, as an informing principle and then in its manifestations in various laws and customs.
293 “Livelihood”, thus reflects a particular conception of place and being – or, to put it crudely and inexactly, a particular Islander psyche. It is an informing or animating principle for what may on fuller analysis be seen to be laws and customs for [NTA] purposes. But it is not itself a law or custom. Still less is it a right possessed under laws and customs. In saying this, I do not question that it may properly and appropriately be characterised as a “custom” in the discipline of anthropology.
461 … As to the laws and customs relating to marriage and affinal relations, I have found that, notwithstanding both differences in details and in understandings of particular laws and variations in their practice and force, these are sufficiently coherent in their essentials and they are applied across Torres Strait. Further, they do reflect the same informing principle of reciprocity and exchange, though this of itself would not warrant attributing a commonality to them were there apparently operative distinctions in other laws and customs as between local communities or cluster groups.
76 What is clear from the evidence is that there are some differences in the laws and customs acknowledged and observed across the Strait, as also there are differences in the native title rights and interests possessed under those laws and customs. In part, the respondents’ objection to the language in which the applicant’s case is cast is that, to use my own words, it contrives the “society” issue by diminishing if not concealing differences and alternative explanations. The applicant’s approach in contrast, again to use my own words, is that to show differences as such is not necessarily to distinguish, hence the significance of generality and of informing ideas. As will be seen in the event, I do not consider that either approach is sufficient to resolve the issues raised in the native title case.
172 The question whether much of what has been advanced by the applicant as laws and customs amounts at best to no more than “observable patterns of behaviour”, has been put in issue primarily by the State. A factor of which account needs to be taken in considering this is the distinctive context in which this issue arises. Unlike mainland Aboriginal cases, there is little in the laws and customs relied upon that has any informing spiritual dimension at all: cf Ward FC at [242]. Much appears simply utilitarian; much seems prosaic. As Mr Hiley QC put it, “the absence of the spiritual element … is almost probably unique to this case”. Yet, it needs to be recognised that normative beliefs can be held about ordinary behaviour, as the fierce dispute over how properly to open soft boiled eggs in Swift’s Gulliver’s Travels suggests.
(emphasis added)
340 His Honour in Akiba (at [30] and [240]) noted what he referred to as ‘themes’ in that claim:
30 The narrative which now follows is presented for background and contextual purposes. Its predominantly maritime emphasis reflects not only Islander life, but also themes in the present claim. …
240 What is notable about the Islanders' affidavits is their address, though not uniformly, of many of the major themes in the evidence on laws and customs and particularly those informed by the reciprocity Principle. The major emphases are upon (a) the ethic of sharing; (b) the requirement of showing respect to others (particularly to elders) and of respecting others' property; and (c) the need to obtain permission when taking resources from, or using another's land and waters. The lesser emphases are upon (d) the practice of conservation of resources; (e) making connections with people from other islands to make them feel welcome; and (f) to keep one's house and yard clean for visitors.
(emphasis added)
341 The Yilka applicant suggests that the maritime context that reflected the life of the claimants in that case might be compared with the harsh environment applicable to the Yilka applicant (requiring, as it does, a high level opportunism and mobility), the Tjukurrpa, and the mutual intelligibility of language and kinship. These factors, it is suggested by the Yilka applicant, can be regarded as ‘themes’ in the claim.
342 The State, however, contends that the extent to which the Tjukurrpa is for many of the non-wati claimants an informing principle is not established.
343 It will be necessary now to turn to the evidence to consider these ‘informing principles’.
5.2.1 Harsh environment and practical necessities of survival
344 This topic has been ever present throughout the proceedings. The Yilka applicant submits, and it must be accepted, that the Western Desert has always been a harsh environment and that the people of the Western Desert share and, at all times, have shared that environment. The practical requirements for survival significantly influence and have always influenced the daily lives and the way of life and beliefs of those people. These requirements also affect the nature and extent of laws and customs and the manner of their acknowledgement and observance. For example, the nature and distribution, both geographically and seasonally, of water affects both the utilitarian and the cultural significance of water holes and soaks (kapi). The requirement to look after water sources, to keep soaks and rock holes clean, is an example of a law or custom that is informed by the environment.
345 The Sullivan applicant agrees with this, but clarifies that the arid environment of the Western Desert is not a key determinant of the effect on laws and customs for the contemporary Yilka claimants and the environment has had these effects in the context of people’s lives in the bush. In response, the Yilka applicant further clarifies that environmental factors are not determinative of acknowledgement of laws and customs, but rather corroborate, inform, and are consistent with the laws and customs asserted by the Yilka applicant.
346 The only point made by the State on this topic is that the influence exerted by the environment, and the practical necessities of personal survival, upon acknowledgment and observance of laws and customs and, indeed, on patterns of behaviour, living conditions, movement and affiliations has undergone considerable change and have been ameliorated by non-Aboriginal influences.
347 In my view, assuming the State’s point to be correct, it does not follow that the laws and customs have changed. Change to the manner of observance of laws and customs does not necessarily entail change to observance of the laws and customs. Amelioration of conditions under which a normative system has developed does not entail regression of laws and customs, but even if it did, those laws and customs would still have their origin in the laws and customs from which the regression occurred.
348 In my view, the applicants have established that the laws and customs are still observed, even if not universally practised without exception. I accept that the nature of the environment of the Claim Area is relevant in this regard.
5.2.2 Shared similar technology and dispersed population
349 The Yilka applicant, in its POC at [11] and [13], makes assertions about technology and the disposal of the population of the Western Desert as context for determining questions about WDCB as a single society, and as the relevant society in this claim.
350 Dr Sackett’s findings support the Yilka POC at [11], and all of the experts have essentially agreed with the proposition at [13]. Simply put, it is not in question that the relevant society in this proceeding is the WDCB society. In my view those paragraphs are proven.
351 The Yilka applicant says that the concept of Tjukurrpa or Dreaming is and, at all material times was, an important element of a belief system of the people of the Western Desert. That is not in issue. All experts agreed without any qualification to that contention.
352 As to the nature and extent of the importance of Tjukurrpa, the Yilka applicant contends (as stated in is POC at [15a]-[15f] that the concept of Tjukurrpa:
(a) Is, at one level, a time outside the memories of living actors when magical beings acted and interacted on the earth. These Beings, (termed Tjukurrpa like the Dreaming itself) often are personified as possessing human, plant animal or natural object characteristics;
(b) explains the physical formation of the landscape. Tjukurrpa are evidenced by particular features in the landscape;
(c) informs and provides a basis for and source of WDCB laws and customs;
(d) is the object and subject matter of particular WDCB laws and customs;
(e) provides a normative element in the acknowledgement and observance of those laws and customs; and
(f) is the source of a direct spiritual connection between people and country as well as a connection mediated through law and custom.
353 The State says more in relation to Tjukurrpa in Pt 7.1 below, but its position may be summarised for the time being by saying that it does not admit that the Tjukurrpa is fully or accurately described in, or that it is amendable to dissection into the elements of the kind set out in points (a) to (b) above. However, all experts agreed with a proposition, which was essentially that set out in (a) to (f), without qualification. The position expanded upon by the State later in its submission and reflected in these reasons, goes more to a question of degree and extent of evidence, and whether that evidence is sufficient to prove the continued existence of a normative system.
354 Examples of Tjukurrpa as a source and/or object of law or custom are:
(a) the requirement to ‘look after’ and protect the places and areas as associated with particular Tjukurrpa; and
(b) a requirement to prevent the disclosure of particular beliefs and practices which relate to particular places and areas associated with particular Tjukurrpa.
355 The evidence from the Yilka claimant was contained in each of their affidavits under the heading ‘Tjukurrpa’. Generally speaking, that evidence was not required to be led orally, with the exception only of limited passages in the evidence of Ms Ross, the late Jayden Smith and Rhys Winter. I do not intend to repeat all the evidence on the topic, especially in light of that fact that it is relatively uncontroversial. However, a look at some excerpts from the evidence shows useful examples of points (a) to (f) set out above.
356 The late Ms Ross made clear in her affidavit that:
Tjukurrpa is very important and we must have it in our mind; remember. It’s the Aboriginal way in the part of the desert where my country is and where I live. We must carry on our laws and customs. Tjukurr is there to remember things that happen on this land; to keep in mind and carry on to the next generation. It’s really important. The stories are important. You have to remember to tell the next generation stories because they are on this land.
357 Warwick Simms stated that he had learnt to believe that the Tjukurrpa made the country and that they gave the people the laws and the ceremonies, and further stated:
I learned to believe that tjukurrpa are real and are still in the country today and that’s why I have a responsibility to look after my country and do the right thing. I have learned to believe that they gave us the skin system and that tjukurrpa taught us the way to introduce ourselves to strangers through finding out what skin they are.
358 HM stated, as an example relevant to point (a), that Ngiyarri (Site 2.1) is the mountain devil Tjukurrpa:
It is pregnant with eggs and she came in from the south-east digging all the way looking for a place to lay the eggs. You see all the little hollows where she’s been digging. She came past the main road but couldn’t find a suitable place to lay the eggs so turned around went back south-east … all the way to Tjuntjuntjara. From a plane you see all the pockets of limestone country where she was digging all the way, trying to find soft ground to bury eggs so they can hatch … The old people told me she looked like a mountain devil being huge without a human form.
359 An example of evidence going to point (b) above, is the statement by the late Jayden Smith that:
Tjukurrpa makes the hill and the trees, the soaks and the rockholes. It’s our creation story. When they are in the country or travelling, they are creating, forming things; rock holes and all that.
360 Mr M said ‘Tjukurrpa is very important in our culture. It is the law and culture, the man’s law.’ This statement is evidence of point (c). Similarly, Ms Hayley Westlake said that some laws come from the Dreamtime stories:
Like the tjukurrpa stories for Minnie Creek can only be known by the watis. Only the watis can go to the places in that area. Women and other people who aren’t watis must respect the watis. This is our law.
361 Westside stated that Tjukurrpa means Dreamtime:
[T]he dreamtime stories help you to know the place, to know the country. Listen to what they are saying and you’ll be alright. If you don’t, you’ll get in trouble. The stories tell you where to go and where not to go.
362 The statement goes to points (b), (c) and (e). In relation to point (d), Jake Westlake said ‘[y]ou have to be a wati, a man, to even listen to the secret stories about sites at the Minnie Creek sacred area. That’s because of the tjukurrpa there.’
363 Junior explained that ‘[p]eople can get sick if they don’t do the right thing by the tjukurrpa’, which is evidence of the normative element as set out in point (e).
364 HM also said that when people are born on country, they associate the birth with where the person was born, and the birth gives the person a connection to the place. If they are born on a Dreaming track, they have a connection to that Dreaming and to that place. If it was a place without a Dreaming, they have a connection to the place. This is relevant to point (f).
365 Dr Cane explained that Tjukurrpa literally means ‘to dream’ and was described informally by people he had spoken to over the years as ‘story’, ‘history’ and primarily, ‘law’ that is drawn from the supernatural and expressed intellectually and physically in the social and natural world.
366 I accept the importance of Tjukurrpa to the claimants and its relevance as an informing principle in the acknowledgment and observance of traditional laws and customs.
6. LAWS AND CUSTOMS RELATING TO THE POSSESSION OF RIGHTS
367 The laws and customs under which the claimants purport to possess rights and interests are principally those of the WDCB, as they apply to the land and waters of the Claim Area. The State does accept the Yilka applicant’s propositions as to the relevance of laws and customs relating to the possession of rights and interests, and other laws and customs which the Yilka applicant contends provides context to those giving rise to rights and interests. However, the State does not admit that the claimed rights and interests are possessed in the Claim Area under the laws and customs of the WDCB.
6.1 Bases for possessing rights
368 The applicants argue that under WDCB laws and customs, rights and interests in relation to land and waters are possessed by a person who has a connection to the land and waters through his or her birth and/or long association or holding senior ritual authority, or the birth and/or long association of one or more of his or her ancestors, by which the person claims to possess rights and interests in relation to land and waters and in respect of whom that claim is recognised under the WDCB laws and customs (see Yilka POC [24]). In relation to recognition, the applicants assert that the only discretion in recognising a claim is as to whether or not a criterion for holding rights has been met by the person claiming to possess the rights or interests. Recognition is not necessarily a matter of discretion for living persons. It may be determined by reference to the remembered views and actions of ‘old people’.
369 The State admits only that certain members of the WDCB who hold senior ritual authority (wati) may have a connection to particular places or sites, including the area around Minnie Creek, capable of providing a basis for the possession of rights or interests in relation to the particular places or sites.
370 All experts agreed on the bases for possessing rights set out above, subject to a qualification about the notion of ‘long association’ and the relationship between the rights possessed by virtue of ritual knowledge and those possessed through birth, long association or descent.
371 All of the experts agreed with Proposition 30 discussed in the conference of experts, although Professor Trigger expressed some concern about its lack of specificity. (For convenience), Proposition 30 was in the following terms:
The relationship between the laws and customs acknowledged and observed by:
(a) persons who are members of the claim group by reason of their holding ritual knowledge;
(b) persons who are members of the claim group by reason of ancestry or connection other than their ritual knowledge; and
(c) persons with ancestral association to the claim area who do not presently exercise any rights to associate with the claim group or the claim area,
is that all three categories of people observe the same system of laws and customs and their rights and interests arise from those laws and customs.
In relation to (a), the laws and customs provide rights to certain sites by reason of holding ritual knowledge. A ritual status or a ritual relationship to a place is not, in itself, a pathway to a ‘my country’ (Ngurrarangka, landholder, or belonging to country) relationship. It is a pathway to rights in men’s country or women’s country. These rights are concerned with spiritual properties arising from the Tjukurrpa of the area more so than utilitarian aspects of land use and land holding. In the Yilka claim area, these rights are held in respect of the Minnie Creek site and other areas where matters of ritual are involved. This category of person includes, but does not consist only of, those who were present during the Minnie Creek site visit during the Federal Court hearing of this Claim in November 2011.
In relation to (b) the laws and customs similarly connect people to country and the Tjukurrpa. The resulting rights concern utilitarian land use and management. These are people who by recognised pathways can claim a ‘my country’ relationship and such a relationship is not necessarily a ritual relationship.
In relation to (c) these are people who, should they choose, to exercise generic WD rights, such as hunting, gathering and camping on the claim area, may do so. Should they assert a land holder status, they actualise this right by, for example, residing in the claim area, carrying out activities on country, re-establishing social relationships, participating in ritual activities, attending funerals and so on.
372 I am satisfied that Proposition 30 also is clearly supported by the evidence given by witnesses for the Yilka applicant about the rights of ‘traditional owners’ and senior wati. The late Jayden Smith said in his affidavit:
When I talk about “claim”, I’m talking about the traditional way of owning country; they [sic] way I have seen it happening all my life and the way I was taught by my parents and other old people. You can claim country if you are born there in the bush. If you are born in a hospital and went back to country when young and grow up there you can claim that place. You can claim through mother and father and grandparents.
373 Hayley Westlake in her affidavit stated:
If a person’s father or kaparli are born in a place, it’s the proper way in our culture for that person to follow their father or their kaparli for country. In my case, both my father, … and my kaparli (Marnupa) were born in the Cosmo area. This gives me a very strong connection to that area.
374 The State deals with this topic in the way it has dealt with many topics, by emphasising that the applicants address the issue by considering the attributes required of individuals if they are to be eligible to hold rights in the Claim Area. The State points out that neither applicant approaches the topic by reference to the attributes of a group, community or collection of people assessed as such, but rather the focus is on the attributes of individuals. That is the case, not only in the submissions of the applicants, the State points out, but also in the Yilka POC and the Sullivan POC.
375 The State asserts that the criteria for possession of rights (and group membership) for both claims are nuanced by the following ‘important and additional albeit overlapping six considerations’:
(1) The ‘long association’ controversy
The identity of persons attaining rights by a ‘long association’ (of their own or of an ancestor) is particularly prone to controversy, having been in contention as between the Cosmo claimants and certain Wongatha claimants along substantially the same lines as now divide the claims of the Yilka claimants and the Sullivan claimants (and possibly others) (see the Wongatha judgment (at [2875]-[2882] and note the evidence of [Mrs] Murray and HM in the present proceeding). In Wongatha, Justice Lindgren recorded the controversy as follows (at [2875]-[2882]):
2875 The explanation of the Cosmo Claim group’s existence, and, in particular, its insistence on its exclusive adjudicative role as to who can assert membership of the group, is to be found in recent unfortunate events. In the late 1980s, two members of the Murray family were employed at the Wongatha Wonganarra Aboriginal organisation in Laverton, and two at the Mount Margaret Aboriginal Community. In 1989, there was friction between them and members of the Sullivan family. Various members of the Murray family decided to leave the Mount Margaret/Laverton area and relocate to Cosmo, where they had spent various periods in earlier stages of their lives, with a view to re-establishing a community there.
2876 On 3 December 1989, Sue Murray and her sister (who later passed away) moved to Cosmo and began to reside there. Their brother, [HM], transported them. Later, they were joined, in stages, by other members of their family and, yet later, by members of the Westlake family and by others. [HM] said he relocated to Cosmo on the last Friday of 1989. There is evidence that the Community became fully operational in 1991. The siblings’ mother, [Mrs] Murray, and her late husband came out to Cosmo for visits, then they moved there in about 1992, at first living in a caravan. Hudson Westlake and his children moved to Cosmo from Tjirrkali in about 1995.
2877 The previous community at Cosmo had fallen away in 1985/1986. The last chairperson was Doreen Harris, the wife of [Mr] Harris, both of whom lived there. The buildings had been left unoccupied and had fallen into disrepair. Vandalism and theft had taken their toll. When the Murrays returned, only the shell of the former community remained. A substantial commitment to rebuilding was called for.
2878 The Murrays were leaders in the enterprise. No doubt, hard work and a degree of organisational ability were required to rebuild the Community. It seems that under the leadership of the Murrays, particularly that of [HM], the Cosmo Aboriginal Community, which is the kernel of the Cosmo Claim group, is a ‘harmonious and functioning collective’, as the State acknowledges. Since 1989/1990 preceded the enactment of the NTA, it can be seen that there already existed a Cosmo ‘group’, in the sense of a community, that was not formed for the purposes of the NTA.
2879 As noted at 2.5 [200]-[201], the Cosmo Claim was made in response to three claims, that were later (in January 1999) to be combined into the present Wongatha Claim. The dates and other details are informative:
• On 27 July 1995, Quinton Paul Tucker lodged application WC 95/32 on behalf of the “Ngurludharra and Waljan [sic] Clans’;
• On 25 September 1995, ‘[Mrs Sullivan]’ lodged application WC 95/57 on behalf of the ‘Tjinintjarra Family Group’, including the Sullivan family and other families;
• On 15 January 1996, Sadie Miriam Canning lodged application WC 96/4 on behalf of ‘Thithee Birni Bunna Wiya’.
In the light of the events outlined above, the making of the second of these claims in particular must have rankled with the Murrays. It was on 21 February 1996, only a little over a month after the lodgement of the last of these three claims, that 48 persons as applicants lodged the original Cosmo application WC 96/17 (see [202]).
2880 In view of the strife between the Murray and Sullivan families, and the circumstances in which the Murrays had left Laverton and Mount Margaret to establish a community at Cosmo in 1989/1990, it was natural that they would respond to the three claims by lodging their own.
2881 The Cosmo Claim group is defensive in relation to the Cosmo Claim area. It claims to be the only body entitled to decide whether individuals have rights and interests in the Cosmo Claim area. The group’s defensiveness has demonstrated itself in various ways. In the report of Mr Murray, as Chairman of the Cosmo Community, of 30 June 1996, he stated:
‘We must continue to stick together and support one another on issues concerning our community and don’t let other people come into our community and destroy our hard work and achievements in Cosmo Newberry.’
2882 Resentment felt by the Murrays over their treatment by the Sullivans is still a factor in the Murrays’ response to the Wongatha Claim, in so far as it relates to the Cosmo Claim area, that cannot be overlooked. For example, there was the following exchange in the cross-examination of [Mrs] Murray:
‘[MRS] MURRAY: They only trying to find a place to try and kick us out from this place. Right? They’ve done that in Laverton, they’ve done that in Mount Margaret, and now they trying to do it again.
MR WALKER: I see.
[MRS] MURRAY: We had enough of them.
MR WALKER: I see. So you blame them for kicking you out of Laverton and Mount Margaret; is that right?
[MRS] MURRAY: My family. From Laverton. And my daughter will tell you that [a reference to Sue Murray].’
376 The exclusion of the Sullivan and Edwards family members from the Yilka claim is discussed extensively in Chapter 2.
(2) The ‘recognition’ rider
A claim to hold rights must be ‘recognised’. This reiterates a rider to the possession of rights and the proper inclusion in the Yilka and Sullivan claim groups, as was asserted by the Cosmo claimant. However, this was not accepted by Justice Lindgren in Wongatha as being traditional, is not required by s 223(1)(a) NTA and has not been a feature of any other native title claim. The recognition rider is a focus of considerable contention in this case.
(3) ‘Contestation’
Both the Yilka applicant and the Sullivan applicant also refer in their POC, albeit in footnotes, to the possibility of contestation of a claimed connection based on birth or long association. Neither applicant has identified evidence of the application or mechanics of this process, nor is the process of contestation integrated with or differentiated from the requirement of recognition. The State says that these could be taken to be simply alternative descriptions of the same element, but against that analysis it is noted that ‘recognition’ is said to be required in relation to assertions of rights as wati, whereas contestation is not referred to in relation to that class of claimants. One basis of contestation identified is in the case of a birth where the parents or mother were ‘just passing through’. How or when such a ground might be raised or sustained is unclear. The State says it is apparent, however, that such an assertion could, but for the absence of any requirement for recognition in relation to descendants of named ancestors in the form of a determination sought, be made in respect of many of the named apical ancestors.
(4) Migration – traditional and non-traditional
Although holders of rights must be part of the Western Desert society and have an ancestor who was a member of Western Desert society at sovereignty, it is said by both applicants that it is not their case that ‘rights cannot be possessed in an area by a person who does not have an ancestor who possessed rights in that area’: POC for both applicants [20] and footnote 1. The precise scope of this disclaimer is unclear, the State says. It does not appear to be directed only to the rights of wati. It does not go so far as to assert that rights in an area can be possessed by a person who does not have an ancestor who possessed rights in the area, although it seems that that is the case. According to the State, this gives rise to difficulty in the context of establishment of European concentrations of population, in identifying movements that are in accordance with tradition.
(5) Permission
The State further submits that the acquisition by such persons of rights is conditioned not only on recognition and the absence or resolution of any contestation, but also on a requirement that the person, if a ‘stranger’ to the Claim Area, which is itself an ill-defined classification, has to obtain permission from the incumbent holders of rights or authority in respect of the area. This particular requirement, the State says, seems to be different from the requirement of recognition or the absence of contestation. Whereas the identity of the entity granting or withholding recognition or resolving contestation remains unclear, it is plain enough that the asserted right of ‘permission’ purports to invest incumbents with this exclusionary function (at least in relation to areas other than those associated with wati).
(6) Ultimate authority of wati in relation to men’s places
The State emphasises that the Yilka applicant, in particular, asserts that sites having particular significance in the regional ritual context are subject to the ultimate authority of regional senior wati.
377 Based on the State’s understanding of the Yilka applicant’s case, the requirements for the possession of rights means that persons who are members of the Western Desert society could potentially acquire or transmit rights in an area of the Western Desert with which that person has no prior connection, familiarity or direct association. The State maintains that there is a persisting level of ambiguity as to who the asserted rights are held by and who confers or adjudicates recognition, contestation or permission. This is compounded, the State says, by vacillation in the case advanced by the Yilka applicant between assertions on behalf of individuals and groups, which presents a difficulty in answering the threshold question of who must fulfil the criteria for holding rights and who discharges the various functions. The bases for possessing rights, it is said, are not materially different to those identified in the Cosmo claim, with Justice Lindgren noting that the criterion for membership, summarily described as ‘personal connection’ was expressed in and inclusive and open ended terms. The State asserts that the same open-ended pathway to inclusion in the claim group was adopted on commencement of the Yilka claim, with the criteria of ‘recognition’ acting as a sleeping but albeit effective right of veto on the part of incumbents.
378 The Yilka applicant does not respond at great length to these points at this stage, although it does pick up the thread of the arguments in other areas of the submissions, particularly in regard to the recognition element, which the Yilka applicant contends is put in this case differently from the way it was put in the Cosmo claim. In relation to recognition, the Yilka applicant also emphasises that the requirement as put in the Yilka case is for recognition of a relevant connection event. As such, all persons are subject to the recognition requirement in order to possess rights, including present claim group members; and to read the recognition requirement as an effective right of veto is to misunderstand this requirement.
379 As to contestation, the Yilka applicant argues that it is not a requirement of the NTA or of traditional law and custom that possession of rights and interests in land is to be incontestable in all respects and circumstances. I take this submission to mean that there may always be scope for debate surrounding possession of rights and interests. If that is what it means, I accept it.
380 The migration issue is also dealt with elsewhere (for example, Pt 3.3.6 above), but the Yilka applicant does make it clear that it is part of its case that rights as wati and rights in ngurra can be possessed by a person who does not have an ancestor who possessed those rights in the same area.
381 As to ‘permission’, the Yilka applicant states that the permission requirement is merely the consequence of the content of the applicable laws and customs, and is therefore acceptable. It is not remarkable that owners have the ability to control access to their land, nor that the acquisition of rights as owners may be subject to broader regulation. It is what the laws and customs say it is.
382 In relation to the assertion of ambiguity, there are no difficulties with the case being put this way, the Yilka applicant argues. The NTA does not withhold native title recognition merely because there might be some ambiguities or an absence of independent and impartial institution for dispute resolution within the system of laws and customs in question. As to the State’s point that it is unclear who adjudicates the recognition requirement, the Yilka applicant states that there ‘would be nothing untoward about the recognition requirement vesting in the owners if that is what traditional law and custom provided.’ (This contention, however, does not explicitly state that this is the means by which recognition is adjudicated.)
383 In short then, it seems that each party recognises that there are those riders in relation to the entitlements to claim. The question is what, if any, difficulty that may pose for the Yilka applicant.
6.1.1 Birth and descent from a person born in the Yilka applicant claim area
384 It was clear from the oral evidence that the witnesses for the Yilka applicant and the experts clearly understand that birth on country and descent from a person born on country each provide a proper basis in the laws and customs of the WDCB for asserting a ‘my ngurra’ or ‘my country’ relationship to the area associated with the birth. General acceptance amongst those whose opinions are important as to the place of birth results in acceptance of that relationship to the area of that place and the possession of rights. Similarly, acceptance of the fact of descent from a person who was accepted as being born in that area results in recognition of the relationship of the descendent to that area. Proposition 15 and Proposition 15a considered in the conference of experts (see Annexure 3) gave rise to unanimous unqualified agreement in relation to the birth and descent pathway and there are numerous instances of this acceptance being adopted by witnesses.
385 The States argues that while it is not controversial that in Western Desert society the birth of a person or an ancestor of a person at a place is a basis upon which an individual may assert connection to that place, this will be subject to ‘recognition’ and the absence or resolution of any ‘contestation’ under WDCB laws and customs.
386 It is not entirely clear to me exactly where the parties perceive they are drawing the battlelines on this issue. The State appears to treat the applicants’ case as being that, subject to recognition and the absence or resolution of contestation under the pre-sovereignty laws and customs of Western Desert society, a connection by this means gives rise to individual right which:
1. are unique to places associated with the individual asserting the rights or, in the case of individuals asserting connection only on the basis of the connection of a common ancestor through whom the rights are claimed, to that class of individuals;
2. exist in relation to a place or tract to which other members of Western Desert society (including those who are not claimants in the present proceedings) might also have attained, or might later attain, a comparable connection with comparable rights;
3. are not, under any traditional law or custom that has been identified or explained in evidence, capable of being aggregated with rights of one or more other individuals to the same or other places or tracts to produce collectively held or exercisable rights to an area larger than the area that is the subject of an individual’s rights;
4. differ in nature to and are not amenable individually or in aggregate to being further aggregated with rights held by wati;
5. do not individually, and could not in aggregate amount to a right to exclusive possession; and
6. being personal to and derived from the history of the individual (or in instances based on common ancestry, of those individuals asserting connection only on the basis of the connection established by that ancestry), are amenable to proof only by proof of a connection of the individual (or set of descendants).
387 Most members of the Cosmo Newberry Community claim on this basis, although a few have long associations and a few are wati. This however, accounts, it is said by the State, for only a small proportion of the ‘one thousand odd persons’ who are said to comprise the Yilka claim group.
388 In relation to points 3-4 above, the Yilka applicant accepts that some claims, for example, the claim of the late Jayden Smith, does not extend to the whole of the Claim Area. However it argues and I accept that:
1. Mr Smith’s inclusion in the claim does not suggest the area he claimed is in any way aggregated with the claims of others presented in the Yilka application so as to involve Mr Smith’s claim/ngurra being extended to a larger area. It is simply that, insofar as the claim is brought on his behalf, it is a claim to the area he claims.
2. similarly, insofar as the claim is brought on behalf of other senior watis who do not claim the area or any part of it as their ngurra, the claim is to the rights they claim over the area they claim. This is analogous to, though not necessarily the same as, the situation in any representative proceeding where a number of individuals join forces to efficiently seek individual remedies and redress for the infringement of their respective rights and interests. It is analogous also, though again not necessarily the same as, the situation of a claim by a community of rights holders or multiple communities of rights holders. In those circumstances, it is understood that the determination of native title does not need to extend to the identification of the intramural allocations of the rights. Thus, in Akiba, the members of the various community islands joined forces as part of a society to claim what was eventually determined to be their respective group areas. The State does not and cannot point to any provision or object of the NTA which discloses any intent on the part of Parliament to deny recognition to the traditional rights and interests possessed by inhabitants of the Western Desert under WDCB laws and customs simply because of particular features of those laws and customs and the concomitant rights, or because of a supposed particular categorisation of those rights.
3. this claim does not involve the ‘aggregation’ of rights, but rather, as a representative claim would be, is made on behalf of all claimants for the respective rights and interests as possessed under traditional laws and customs.
389 In relation to point 5 made by the State, the Yilka applicant points out, and I also accept, that no evidence is provided to support this statement, and indeed it is contrary to evidence that rights to control access to a place are held by those whose ngurra it is, which rights are exercised individually or in some way collectively with others. In response to point 6, the Yilka applicant states that there is no basis for any suggestion of the need prove the ngurra and the rights of every individual within the Claim Area.
390 I accept the submissions of the Yilka applicant.
6.1.2 Long association and descent from a person with long association
391 There appears also to be acceptance on the part of the experts that recognition of long association with country and descent from a person recognised as having such association, each provides a proper basis in the laws and customs of the WDCB for asserting a ‘my ngurra’ or ‘my country’ relationship to the area of that long association. As in the birth pathway, acceptance of the asserted fact of long association among those whose opinion matters, carries acceptance of that relationship to that area and the possession of rights there as does acceptance of the fact of descent from such a person. The Aboriginal evidence supported the long association requirement as a basis through which rights could be possessed. For example, Junior stated that he learnt growing up that ‘people can claim it’s their country … if they have a very close connection to the land, like if they lived here and knew the sites.’ Claims to the possession of ‘my country rights’ through long association include those of Mr Harris and NW, the elder sister of the three Westlake brothers who were born on country.
392 Significantly, and as with a number of difficulties in this claim (for example, in relation to the question of recognition, who recognises it and how they recognise it) the position taken by the Yilka applicant is that the traditional law and custom ‘is what it is’ on the evidence the level of uncertainty itself is a feature of the law and custom.
393 Proposition 16 was also agreed by all experts, except for Professor Trigger’s suggestion that there was a need to establish a mechanism for resolving who has long association, and Dr Vachon’s statement that long association did not necessarily mean long physical association. Proposition 16 was that ‘under WDCB law and custom’ (and for the purposes of the previous Proposition):
“long association” as a basis for possessing rights to country is reckoned not merely by the duration of the association but also by knowledge of the physical and spiritual landscape and looking after country. The assertion of long association and its acceptance is subject to customary forms of recognition.
394 Dr Sackett responded to the concerns about a lack of precision expressed by Professor Trigger by saying that in his view, ‘in the same way that adjectives such as long, short etc always are going to be relative, the ‘mechanism for resolving who has long association’ is not straightforwardly diagrammed’. He noted that the mechanism for sorting things out is characterised by its flexibility: it tolerates agreement and disagreement, and decisive and indeterminate outcomes. Dr Sackett expressed the view that things in the Western Desert are not as easily specified as Professor Trigger might like them to be. To push a claim to country is more than an exercise in ticking boxes. Dr Sackett quoted Myers’ remarks saying that land ownership in the Western Desert at its heart ‘is not a given, but an accomplishment’.
395 As to Dr Vachon’s qualification that long association may not necessarily mean long physical association, Dr Sackett said that, in his experience, for the most part it is through ‘long physical association’ that people come to be taught and learn about country. As well, it is through long physical association that people become identified with country: in their own eyes, in the eyes of kinspeople, and in the eyes members of the wider jural public. Dr Vachon supported this view, saying that long association counts for much in the WDCB.
396 Coming back to the issue of recognition, the Yilka applicant says that Professor Trigger’s concern as to the absence of a mechanism for resolving who has long association ignores that the law and custom identified in the Yilka POC [24(b)] and in Proposition 15 and Proposition 15a of the conference of experts already includes such a mechanism, that mechanism being ‘recognition’ under WDCB laws and customs. The mechanism may not be as determinative as Professor Trigger might like, but ‘it is what it is’. Dr Sackett’s point is that under laws and customs, recognition of long association is clearly an achievement, rather than a given. It is understandable that regional and local politics may come to bear on such questions where it is borderline or controversial, but it is unremarkable that an assertion of long association that has not been recognised one day, may achieve recognition at a later time in a later generation or following further effort in support of the assertion by the person or persons making it. It is not subject to once and only application resulting in recognition or rejection. This is, of course, very pertinent to the Sullivan claim where the Yilka applicant does not presently recognise the entitlement of the Sullivans, but accepts that things may change.
397 In this regard, the Sullivan applicant’s position is that whilst it may be understandable that regional and local politics may come to bear on such questions, that does not mean that such matters are a legitimate basis for contesting assertions of rights and interests under the WDCB connection pathways. On the contrary, care has to be taken to ensure that consideration of claims is based upon an informed application of the criteria for possessing rights and not on personal or political factors. In this regard, the Sullivan applicant has submitted that the contestation of its claim by some Yilka claimants has been influenced by irrelevant personal factors and gatekeeping tendencies. As will be seen, I accept this view.
398 Although the Yilka applicant relies upon and quotes the evidence of Junior in relation to the ‘long association’ pathway, Junior also gave evidence that, for his part, he recognised the Sullivan claimants’ assertion of traditional rights and interests in the Claim Area. The Yilka applicant also relies on quotes from Junior regarding the traditional nature of the laws and customs, ‘ownership’, and the right to speak for country and access to country. The Yilka applicant refers to his status and knowledge as a wati and his knowledge of the culture and country learned since he was a child from his father (a senior wati), as well as other old people. Given that the Yilka applicant regards Junior’s views in such matters as cogent and authoritative, it is inconsistent, the Sullivan applicant would argue, for the Yilka applicant to ignore evidence by Junior of his recognition of the Sullivan claimants’ rights and interests in the Claim Area. Given the heavy reliance upon his evidence, it makes his evidence on that topic all the more significant and persuasive. In my view, there is much to be said for this submission.
399 From the State’s perspective, it emphasises what it refers to as the ‘ill-defined and seemingly subjective nature’ of what might constitute a long association and by whom recognition of long association might be achieved. This, it says, makes the recognition of this mode of connection particularly susceptible to contestation or, if it is different, denial of recognition. According to the State, the deficiency in the applicants’ case is not simply disagreement as to whether, in particular instances, long association exists, but rather, a lack of agreement or guidance as to the measure by which, how and by whom an assertion of long association would be ‘adjudged’. The State also observes that the evidence seems, at times, to conflate long association, growing up on country and knowledge of country. The State points out that these three potential credentials are not necessarily the same, but how they interrelate is not explained with any precision, potentially, at least, adding to the possibility of controversy as to recognition and contestation.
400 I prefer the Yilka applicant’s position on this issue, as qualified by the Sullivan applicant’s argument. To the extent the evidence mentions long association, growing up on country and knowledge of country, in the context of this criteria for possession of rights, I would regard the evidence as indicating that those things are all factors to take into account in the consideration of whether the criteria is satisfied. The concept of ‘long association’ is consistent with this, and the experts generally did not have difficulty with it. The argument advanced by the Sullivan applicant is different from the State argument. As will be seen, I consider that there is much to be said for the Sullivan argument. It may well be that the system ‘is what it is’, but that does not warrant extraneous personal considerations being determinative factors in recognition.
401 This topic has also been the source of some confusion. The Yilka applicant stresses that the case is not put on the basis that senior wati (traditional owner and non-traditional owner senior wati) claim rights in the secret sacred areas, such as the places in the Minnie Creek complex, and the traditional owner claimants (wati and non-wati) claim rights in the balance of their ngurra in the Claim Area. The evidence of the witnesses would not support that case. The Yilka applicant says the evidence is, and the experts agree, that the holding of senior ritual authority is a proper basis in the laws and customs of the WDCB for asserting rights in relation to areas of secret sacred significance.
402 The Yilka applicant asserts that such persons and persons who hold ‘my country’ rights in the areas where secret sacred sites are located are not mutually exclusive categories. Among the possessors of rights in ngurra that include Minnie Creek are Hudson Westlake, the late Jayden Smith and Victor Fraser. Other wati whose ngurra includes the sacred places around Minnie Creek and who help look after them include ME, Akon Westlake, Jake Westlake, Lyall Westlake and Rhys Winter.
403 The Yilka applicant explains that men in this category possess rights under two pathways to connection. In this context, their rights arising from their ritual status may be seen as an overlay or enhancement in relation to the sacred areas of their authority in relation to their ‘my country’ rights over the same areas. It enables them to access and make decisions about, or participate in making decisions about, secret sacred places in their ngurra, while the exercise of rights by others whose ngurra it is, is more constrained. The Yilka applicant suggests that even the task of looking after the secret sacred places is not reserved entirely to the tjilpi (senior wati) only. Rather, traditional owner (wati and non-wati) rights holders also have responsibilities, which involves them ‘working together and sorting it out’ as Warwick Simms described it. In the case of senior wati who do not have ‘my country’ rights in those areas, the Yilka applicant explains that they are to be regarded as having ‘out-of-their-country’ rights. These rights do not entail any sense of ‘ownership’ but rather a sense of supervisory access and authority, under which ‘out-of-their-country’ senior wati rights holders are enabled to fulfil their obligations for protection of the law and the dreaming that depend on the continuing integrity of those places.
404 There was also evidence that, in the same way traditional owner rights holders defer to the authority of the senior wati rights holders where they apply on their country, the senior wati rights holders respect the rights of the traditional owner rights holders. The two sets of rights work together in conditions of mutual respect. This is supported by the evidence of Mr Smith, Mr Smythe and Mr M, the latter of whom explained:
I don’t claim to be a traditional owner of any country around the Cosmo, Minnie Creek area. I wasn’t born there and don’t have a parent who was born there; but as a senior wati I have responsibilities for the secret areas around Minnie Creek looking after the important tjukurrpa that comes into there.
Evidence supporting senior ritual authority as a basis for holding rights generally was also given by Jayden Smith, Mr M, Rhys Winter, Junior and Victor Fraser.
405 There is no dispute that under the laws and customs of the Western Desert society the attainment of the status of senior wati gives rise to a connection to places of significance to senior wati including Minnie Creek.
406 I have found the Yilka applicant’s case on this point somewhat confusing. Nevertheless, the Yilka applicant accepts the State’s summary of its case (with the modifications incorporated below) that under the pre-sovereignty laws and customs of Western Desert society a connection by this means gives rise to rights which are:
1. held collectively by all senior wati/persons of senior ritual authority and exercisable under the convention or arrangements observed among senior wati/persons of senior ritual authority which form part of the body of law and custom of the Western Desert society;
2. potentially held and enjoyed by all senior wati/persons of senior ritual authority under the laws and customs of the Western Desert society, whether or not those persons have any other connection to the relevant place or area around it;
3. by convention or arrangements or law and custom with force amongst wati, and in accordance with the laws and customs of the Western Desert society, more actively exercised by the senior wati/persons of senior ritual authority who had other connections with the relevant place or an area near or around it;
4. chiefly directed to the specific places of significance to wati, but included non-exclusive rights of passages over and to utilise associated areas, whether or not those areas were the subject of other connections based on birth or long association; and
5. independent of and different in nature to rights held by persons based on their own or an ancestor’s birth on or long association with places.
6.1.4 Recognition under WDCB laws and customs
407 This is an important issue. ‘Recognition’ of the fact asserted or ‘claimed’ as the basis for possessing rights – birth, long association, descent and holding senior ritual authority - is agreed to be an element of WDCB law and custom for possessing rights and interests in relation to an area (see Yilka POC [24(b)]). The assertion or claim alone of such factors is insufficient. The rights are accorded not in a vacuum, but in a social context; thus there must be both the claim and the acceptance of it. Recognition is not, however, the subject of a formal or independent impartial mechanism, nor of defined practices and procedures.
408 There was assistance from the experts on this topic. In assessing the requirement Dr Sackett noted, during the concurrent evidence in the context of a discussion of long association, that recognition is not a specifically defined mechanism, but something that happens or evolves. It is not something that people take a vote on, nor is there necessarily a discussion. There might be assertions made. The closest to a debate that Dr Sackett was aware of was in the context when a person is born at a specific place, especially when the family are just travelling through. In such cases, these matters are always up for negotiation and discussion. Dr Sackett admitted that some voices can be louder than others due to force of personality when determining whether a certain person is recognised as having connections to country, but that this does not go against law and custom.
409 The Yilka applicant says the requirement may be characterised as a rule of dispute resolution in the case of there being doubt about the factual basis upon which a claim to be a rights holder is made. It would be mischievous to suggest that traditional law and custom intended to give to particular people the power exercisable capriciously to deny the possession of rights and interests by persons generally regarded as having established a pathway to connection. It is argued that the system may not be perfect, ‘but it is what it is (and it works)’. It is of no concern that the level of certainty may not be comparable to standards in a different normative system.
410 The State has difficulty with this issue, and it is clear that there is disagreement between the Yilka applicant and the Sullivan applicant. Before coming to the State’s position it is to be noted that the Sullivan applicant stresses that recognition (or the absence thereof) must be linked to an informed application of the connection pathways and not be capricious or based on irrelevant factors. The geographical extent of ngurra are also highly relevant to the issue of recognition, because consideration of this question supports the need for a consistent and informed application of the WDCB connection pathways to the possession and geographical extent of rights to ngurra in relation to both the Yilka and the Sullivan claimants. The Sullivan applicant contends that the consistent application of the Yilka applicant’s submissions in relation to the geographical extent of ngurra should lead to a recognition of the Sullivan claimants’ ngurra rights in the Claim Area.
411 The State asserts that both applicants refer to a requirement of recognition as applying and operating under Western Desert laws and customs to only those claimants who are not descendants of the persons named in the draft determinations as ancestors. This exemption from the requirement of ‘recognition’ applies only to descendants of named ancestors. The State argues that it is a feature of the Yilka and Sullivan claims comparable to the asserted exclusion of core members of the Cosmo claimant group from such a requirement in the Cosmo claim. The Yilka applicant disagrees with this characterisation, saying that the descendants of those named ancestors have already satisfied the requirements for recognition of a relevant connection event (see above, Pt 1.3).
412 The State argues that the deficiencies in relation to both claimant groups are threefold. First, the identity of the decision-maker, if there is one, is an issue which remains clouded with uncertainty. Secondly, the matters falling for consideration in the making of a decision are unclear to the point where it is not apparent that rules apply at all. Thirdly, the members of Yilka and Sullivan claim groups do not collectively or individually or by any identifiable process appear capable of providing from within their own populations an explanation as to how the first two deficiencies can be overcome. The last deficiency points to a likelihood that on any proper analysis the necessary foundational right which comprises the right to recognise holders of individual rights must exist, if at all, in a polity constituted other than by the applicants.
413 The State stresses that in the absence of these important details as to what is meant by ‘recognition’ it cannot be said that the requirement is one that is free from the vagaries of personal whim or influence, and not idiosyncratic, personally motivated or capriciously granted or withheld. Nor can it be said that recognition takes place as part of a ‘government of laws and not of men’, or that the qualifications for membership of the Yilka claim group are any less ‘uncertain, unpredictable and arbitrary’ than Justice Lindgren found those qualifications for membership of the Cosmo claimant group to be in Wongatha (at [214]). The State expressly adopts the approach taken by Justice Lindgren on this issue of recognition.
414 Much of the State’s submission in relation to this topic rests on the assumption that recognition is a matter for the already recognised members of the Yilka claim group, as was the case in the Cosmo claim. The reference by the State to the passage in Wongatha at [214] has no application to the way the Yilka claim is put. Justice Lindgren was dealing with a broader notion of ‘recognition’, being one which included withdrawing recognition of ancestors presently recognised and one in which the recognisers were limited to the already recognised.
415 The following four subheadings deal with the three so-called ‘deficiencies’ raised by the State, as well as with issues the State raises regarding recognition of the rights of wati.
6.1.4.1 Identity of the adjudicator of recognition
416 The State repeatedly complains that it has not been explained in the lay or expert evidence by whom recognition is conferred or withheld. According to the State, any difference between the Yilka (and the Sullivan) applicants’ cases and the Cosmo applicant’s case is semantic. The Yilka and Sullivan POCs go no further than to assert that recognition must occur under WDCB laws and customs. Attempts to ascertain from lay witnesses and experts how those laws and customs yield a decision-maker or a process for decision-making have been unsuccessful. The State contends that the Yilka applicant’s submissions on this point have been very vague, such as the fact that the recognition is required ‘among people whose opinion matters’ and the mechanism ‘is what it is’ and ‘to the extent that it lacks certainty, it lacks certainty’. While Dr Sackett has said that the mechanism for resolving who has long association ‘is not straightforwardly diagrammed’, it has not in fact been diagrammed at all, the State complains. Dr Vachon sees the process as being one undertaken by the ‘wider jural public’, however the identification of the wider jural public begs the further more direct question of who the wider jural public is.
417 The State, by raising these issues in this way, contends that the same faults and shortcomings exist in the recognition system asserted for the applicants in this case as there were Cosmo. Again, the State seeks the support of the decision process of Justice Lindgren, who found that it was not traditional that the Cosmo claim group accorded or withheld recognition (at [2932]-[2934], [3036] and [3044]-[3045]).
418 The State suggests that the only two possibilities as to the identity of the adjudicator of recognition are that the adjudicator is part of the Yilka or Sullivan claim group (which is analogous to the scheme in the Cosmo claim) or that the adjudicator comprises or includes person outside of these claimant groups. In the latter possibility, these persons would be exercising a right to recognise or allot rights, and therefore the relevant claim group could not be said to include all holders of rights.
419 The reality is, the State says, that the function of adjudication of recognition is, as a matter of fact, played by the core members of the Cosmo Newberry Community, namely, the members of the Murray family, in a non-traditional and in self-serving way. It argues that the best evidence of what in fact occurs is the evidence concerning meetings which took place on 27 November 2007, 23-24 April 2008 and 8 October 2008, from which the minutes establish that:
1. each meeting was constituted by a majority comprising persons who were members of the Murray family, along with a lesser number of members of the Westlake family, the late Mr Bonney Junior and Ms Ross, all of whom were former Cosmo claimants;
2. those present at each of the meetings considered that they were able to make decisions as to who (among both living persons and ancestors) was, and who was not, to be accorded recognition by reason of their personal connection to the Cosmo area; and
3. no one in attendance expressed any reservations as to the perceived authority of those present to transact the business for which the meetings were held, for example, in the case of the meeting of 8 October 2008, ‘to discuss the upcoming authorisation meeting and to ratify the claim group’.
In the oral evidence of HM, he identified his mother and no one else as the kind of person who would make such a decision.
420 The State submits, with reasonable justification, that there is a strong suggestion that the unhappy history between the Murray and the Sullivan families, as distinct from law and custom, was the driver for decision-making in the Yilka claim group. The State adopts as a submission the observation of Justice Lindgren (at [3045]) that:
it is difficult to avoid the impression that any personal or family link to the Cosmo Claim area will be treated as sufficient if the Cosmo claimants desire that the person be a member, and that none will suffice if they do not. In substance, though not in theory, the Cosmo Claim group’s role is not just one of determining doubtful cases, but a gatekeeper role.
421 The State also argues that, regardless of the observations of Justice Lindgren, guidance as to who acts as an adjudicator of recognition is not found by considering evidence of how the screening process operated when Marnupa, Billy Kurlu and other individuals named as ancestors in the Yilka claim and the Sullivan claim first entered upon the Claim Area and initiated the connections which are now relied upon by their descendants. Nor, the State complains, is guidance to be found in considering the position immediately before the existing community was established at Cosmo Newberry in the late 1980s. There is no evidence that such a screening process occurred or that there was any group which might have scrutinised, tested or verified the claims of those entering onto the area and acquiring or asserting rights based on birth or other association or taking up residence. Rather, the evidence suggests that, if there had ever been a process of recognition by incumbents, it had fallen away by this time. The State argues that this is supported by the oral evidence of Mr Smythe and Mervyn Sullivan. Accordingly, it seems that now, but not in the late 1980s or before, the entitlement of those present in the claimant group area to control membership of their group is not merely a theoretical limit on membership. Rather, it has become and is actively utilised as a means by which unwanted candidates for membership of the group are rejected. In this way, the composition of the group at any given time will now be a major determinative of the composition of the group thereafter.
422 In the context of the present proceedings, the State says the absence of an authoritative adjudicator is clear from the evidence of the controversy that exists between members of the Yilka claim group and members of the Sullivan claim group (which existed at the time of the Wongatha proceedings) in relation to the assertion and recognition of the entitlement in particular cases of particular individuals to be included in a group which is said to comprise holders of native title. Those were the submissions, in essence, made by the State in relation to the Cosmo claim and accepted by Justice Lindgren his Honour’s judgment.
423 In my view, there is much force in the State’s submission on this point. The problems between the Murrays and the Sullivans create difficulties in the Yilka claim, the seriousness of which the Yilka applicant seems to be determined to ignore.
424 Accepting that the approach taken by the State may be too redolent of viewing native title traditional law and custom through the eyes of the European legal system, the adjudication of recognition must nevertheless be done on some basis for there to be any recognition at all. Putting that aside, I do accept the response from the Yilka applicant that the Yilka applicant should have its claim heard and determined in this Court on the evidence and arguments it advances, not on the submissions of the State made in the Cosmo claim. In relation to the ‘unhappy history’, the Yilka applicant says that while there might be difficult cases for law and custom to eventually deal with and there might be some suggestive factors at play, this is unremarkable. Further, the Yilka applicant denies, based on the available evidence, that recognition is controlled by ‘incumbents’.
425 I have some difficulties in accepting that the Yilka applicant’s response on this topic is adequate to address the Sullivan difficulties which, in my view, have been staring it in the face in this litigation. But the difficulty is not so much the identity of the adjudicator, but whether the process of recognition has been applied legitimately in the case of the Sullivans. The Sullivans aside, there is no difficulty in accepting, as I do, the claim of both the Yilka and the Sullivan applicants, that recognition is a requirement for being a rights holder.
6.1.4.2 Criteria for the adjudication of recognition
426 The State complains that even if it were possible to identify, within or outside the Yilka or Sullivan claimant populations, a polity or party vested under tradition with an adjudicative function, the evidence stops short of disclosing that laws and customs provide a basis upon which that function is discharged. The minutes of meetings referred to above point to a process that is still driven by the ambitions and interests of the former Cosmo claimants, according to the State.
427 I prefer the Yilka applicant’s response to this observation, which is that the State’s argument assumes that the relevant normative system must have thrown up a ‘polity or party vested under tradition with an adjudicative function’. But as the Yilka applicant submits, why that should be so is not explained. In fact that it is not so and, as the experts’ evidence makes clear, it is a matter of tipping the balance of the views or beliefs of the relevant members of the public who care. The concepts discussed in this and the previous paragraph merge with each other. The problem is not so much in precisely who adjudicates and why, but whether or not it is the case that the manner for exclusion or rejection is not traditional but rather based on external influences which colour personal preferences, in turn leading to gate-keeping. There is not, I find, a general problem in the characterisation of the recognition requirement. The only evidence of such difficulties is with the rejection of the Sullivans. I am not satisfied this rejection is bona fide or genuinely based on traditional grounds. But for the exclusion of the Sullivans, I do not consider that there is any overall flaw in the recognition system. There is either recognition or there is not, on which evidence can be and has been given. There is no requirement for detailed reasons behind recognition, so long as it is bona fide and directed to the matters raised in Pt 6.1.4 (at [407]).
6.1.4.3 Absence of any intramural mechanism
428 Again, the State complains that for it to be possible to say that all rights and interests are held by the Yilka or Sullivan claimants it would be necessary for those groups to be capable of providing, from within, an adjudicator and/or a mechanism for adjudication of which assertions of connections are to be accorded recognition. The State argues that the inability of the Yilka and/or Sullivan claimants to do so, and the suggestion, left open by the general assertion that recognition must be in accordance with traditional law and custom, that a jural polity external to the applicant groups may exercise those functions, even if true, can only mean that the present claimant groups are a subset of the holder of rights. In my view, the State is again, searching for conventional European style mechanisms to identify the recognition process. In my opinion, the totality of the effect and substance of the evidence of the claimants and the anthropologists (perhaps with the exception of Professor Trigger) is that there is a process which produces results and is relied upon, but it is not particularly amendable to being more precisely defined in a non-customary context. That is not to say there is no process or mechanism. It may not be one that the State readily recognises, but is exists and it functions.
6.1.4.4 Recognition of the rights of the wati
429 The State points to ‘the inexact contention’ that the rights asserted by wati must also secure recognition according to traditional laws and customs, which it describes as a further ‘jarring feature’ of the requirement of recognition asserted in the Yilka and Sullivan proceedings. It is acknowledged that the adjudicator and/or process by which the rights of persons claiming through descent or long association are recognised may be different to the requirements relating to recognition of rights of wati, but that is not apparent in the Forms 1, POCs or determinations sought, and it is not the case put in the Yilka or Sullivan applicant’ submissions. The State complains that the Yilka applicant ambitiously suggests that ‘generous access to country’ is conceded by the traditional owners to regionally senior non-traditional owner wati, that the rights of the wati ‘exist without mediation by the traditional owners of the places over which the rights are held’ and that ‘[t]he two sets of rights are simply conditioned by the requirement to respect the other’.
430 As to this, the State complains that whilst it may be accepted that a person must be accepted or recognised as a wati by other wati in order to have that status and to, thus, enjoy the rights that are enjoyed by wati and that there are degrees of seniority amongst wati, the evidence does not suggest that wati are ‘conceded’ access or submit to any further or other process of recognition. In particular, there is nothing in the evidence to support the further compartmentalisation of rights of wati that the Yilka applicant submissions assert, through the introduction of concepts such as ‘out-of-their-country’ rights, ‘out-of-their-country senior wati rights holders’, and ‘regionally senior non-traditional owner wati’.
431 The Yilka applicant emphasises, in my view correctly, that the State is preoccupied with a person’s rights, whereas the question of recognition is not of a person or a person’s rights, but of the connection event claimed to give rise to the rights. Thus, the Yilka applicant says, in the context of senior wati, what is to be recognised is their ritual status, which gives rise to the deference of local rights holders in relation to decisions about particular men’s sites. There was no evidence in the proceedings of any contestation about such recognition of senior wati. Why it would be necessary for native title claimants in the Form 1, Points of Claim or determination sought to make apparent what is not a feature of their laws and customs is unexplained by the State. It may be accepted, but not for the reasons the State argues, that rights of senior wati in country not their own is not mediated by any other rights; rather, it is mediated by social acceptance of their status. Contrary to the State’s assertion of a lack of evidence of adjudication of recognition of wati status, there was certainly restricted evidence on the topic of relative seniority of wati and about the deference of wati who are not senior to those who are. There seemed to be universal acceptance as to who was a senior wati and who was not.
432 I am inclined to accept the Yilka applicant’s submissions that ‘adjudication’, as the State likes to call it, is not a formal affair as that term suggests, but simply evolves in the ordinary course of events by people knowing and respecting their place in the scheme of things under their laws and customs. That ought not be a matter of criticism or a deficiency. It is the way things are done and have been done in that society.
6.2 Content of the rights and responsibilities
433 This topic is also visited under Pt 11 ‘Rights and interests possessed under laws and customs’.
434 Both of the applicants agree that persons who hold rights and interests in an area have responsibilities and rights to ‘look after’, care for, protect and maintain that area, including its important sites and spiritual features (see Yilka POC at [34] attached as Annexure 1 – the Sullivan POC at [34] is in identical terms).
435 The Yilka applicant submits that existence of a responsibility assumes that there is a right of sufficient scope to undertake the activities required to fulfil the responsibility. As such, some responsibilities - such as the ‘responsibility to protect sacred areas from desecration’ - are indicative of the presence of a right of control. Further, where the focus of an inquiry is on rights (as in the present proceeding), it is appropriate to view a responsibility as a rule or requirement to exercise rights inter alia in a particular way or to achieve a particular outcome. It is not necessary to view a responsibility as a qualification on the right itself; rather, it is merely a rule about the exercise of that right. Relevant to NTA questions, compliance with the rule demonstrates acknowledgment and observance of the particular rule and also the acknowledgement and observance of the law or custom under which the right is possessed and defined.
436 Activities that may be undertaken in exercise of a right of 'ownership' according to the Yilka applicant include activities directed at protection and maintenance of country, its resources and its important places and objects. However, those are activities that not only may be undertaken but must be undertaken. Other activities are not compulsory as a matter of law and custom; they are merely permitted, and may be exercised for any reason or no reason. Of course, some such activities may be subject to practical incentives, or even be necessary for survival, such as obtaining food, water and shelter. Yet other activities may be undertaken (as of right) entirely as a matter of choice - such as whether or not (in relation to non-sacred areas) to refuse permission to a person seeking access or to exclude a person who has entered without such permission. To not exercise such a right is not to deny the right; nor is it a breach of or failure to observe the law or custom under which the right is possessed, according to the Yilka applicant.
437 The claimant evidence is replete with examples that demonstrate that there are (and the content of) rules directing the exercise of rights towards the fulfilment of the responsibilities. Examples include the cleaning and maintenance of water sources and the avoidance of sacred places by women, children and non-wati men. The proposition in Yilka POC [34] is made good on such evidence including, for example, that of HM, who stated:
I have the knowledge of this country, where everything is and how it needs to be looked after, to be able to look after it in the time I'm on this earth for the future generations of our children and grandchildren. This gives me the confidence to speak for it. The people who are traditional owners and people who live here expect me to do that now. With that comes obligation. So I teach them the same thing about where everything is; sites, where they can hunt, where they can't go. It is a big responsibility culturally and sometimes I don't really like it, but it's gotta be done.
438 The Yilka applicant asserts and the Sullivan applicant admits that the extent of responsibility permitted and expected to be exercised by a person is qualified on the basis of age, gender and ritual knowledge and authority: Yilka POC [35] and Sullivan POR [35]. The State admits only that persons with ritual authority, wati, have responsibilities in respect of particular places or sites with which they are, by reason of their ritual authority, associated and that amongst such persons responsibilities may vary: State YPOR [35].
439 The Yilka applicant refers to evidence of the claimants in support of the pleaded proposition. It is the same for the wati right holders as for the 'my country' rights holders (apart from gender considerations), as the following example of evidence from Rhys Winter indicates:
MR BLOWES: So, what's the job of the senior watis when it comes to those places?
RHYS WINTER: They'll probably know more so they'll - they'll be talking more and more about if they know that country and the Tjukurr stories from there like.
MR BLOWES: And local watis, traditional owners who are watis like yourself, and Jake and Lyle and others, have you got any job to do for all those - for those places? All the local watis.
RHYS WINTER: Yes, we can - if there's like tracks going out there or hearing things of anybody going across or anybody going through there, well, they can call the other men, the older wati to go out and have a look and make sure nobody desecrating the area.
MR BLOWES: Yes. And what about other traditional owners, have they got any job to do like looking out for tracks or anything like that?
RHYS WINTER: They can - they can look - they can see if any tracks going in and they can report it to here, the Chairman or - - -
MR BLOWES: Report to here. Yes.
RHYS WINTER: - - - here or the Chairman or the wati or perhaps tell the Chairman and the Chairman will tell the like wati and he'll probably ring up to the other watis to come and have a look down from Warburton.
440 Again, viewing responsibilities as assuming the presence of at least concomitant rights and as a limitation on the exercise of a right by particular persons in particular circumstances, this rule merely allocates particular responsibilities to particular rights holders and thus merely conditions the exercise of the right involved, the Yilka applicant submits. Its significance for NTA purposes is as a normative rule that is acknowledged and observed and to which the exercise of the right is subject. Responsibilities may qualify the exercise of the rights but not the rights themselves.
441 The State admits only that persons with ritual authority, namely, wati have responsibilities in respect of particular places or sites with which they are, by reason of their ritual authority, associated.
442 It is important to distinguish between the existence of a right and the manner in which it is exercised. For example, the Yilka applicant would argue that to decide not to exercise the right to refuse permission to a person seeking access to an area of land is not to deny the existence of the right, nor is it a breach of or failure to observe the law or custom under which the right is possessed. The applicants say that the extent of responsibility permitted and expected to be exercised by a person is qualified on the basis of age, gender and ritual knowledge and authority (see Yilka POC (at [35]), and corresponding paragraph in Sullivan POC), which was agreed to by all experts in ‘Proposition 22’.
443 This proposition, to which all of the experts agreed without qualification, also states that that it is an element of WDCB laws and customs that landholders who hold rights and interests in an area have responsibilities and concomitantly rights to ‘speak for’, ‘look after’, care for, protect and maintain the area, including its sites and spiritual features. All of the experts also agreed to Proposition 21, that the Minnie Creek site was place of exceptional significance, and is:
(a) regarded as part of the country of the landholding people on which the place is situated;
(b) the responsibility of land holding people to the extent, at least, that they must – and in such respects are accountable to men of ritual authority in relation to such place – for example:
(i) observe traditional requirements regarding access to and speaking about the place;
(ii) report suspected traditionally unlawful access to or behaviour in relation to the place to watis; and
(iii) refuse access to anyone who is not traditionally entitled to have access;
(c) ultimately looked after and spoken for by, and the responsibility of, men whose profound knowledge of country, sites and Dreamings and their familiarity with the place leads to their having ritual authority for the place, whether or not such men from time to time include members of the landholding group on which the place is situated.
444 The State accepts that it is apparent that the content of any rights based on the birth or long association of a person, or a person’s ancestor, differs from the content of the rights of wati. However, the State asserts that it is not apparent how rights which accommodate the devolution of similar or other rights to persons who are not presently holders of rights can be aggregated and put forward as amounting to a claim to exclusive possession.
445 The Yilka applicant responds that the State is still relying on a self-serving assumption that what is put forward by the Yilka applicant is an ‘aggregation’ of rights with all the negative attributes the State associates with that word, rather than understanding the Yilka case unremarkably and simply relies on the several rights being considered in the one representative proceeding. Each rights holder might hold the right of exclusive possession in the area the subject of the right; and that where there is more than one such rights holder for any given area, the existence of rules as to the manner of exercise of the right ought not be considered remarkable, illogical or contrary to any principle of jurisprudence. For reasons developed in the course of this judgment on the aggregation issue generally I accept the Yilka applicant’s submission.
446 The State makes a number of submissions concerning the rights of wati and non-wati rights holders over sacred and non-sacred areas, which are each discussed below.
6.2.1 Rights based on birth or long association in relation to sacred places
447 Rights based on birth or long association, the State says, are, in the case of areas which are also of special importance to wati, at best, non-exclusive and, on the evidence, subordinate. It may equally be said they are non-existent. The State goes on to say that the relevant rights, if any, are in the nature of the responsibilities of watchmen. The rights of non-wati to these areas do not include a right of access. As the wati use these areas at will and expect them to be left unvisited and untouched when they are not used, any rights of non-wati clearly cannot include a right to make decisions, control, use or to grant or withhold access. The Yilka applicant argues that there is nothing unusual about the fact that the exercise of rights of one rights holder might be subordinated to the exercise of the right of another, as the relationship of landlord and tenant demonstrates.
448 The fact that non-wati may not exercise the right to exclude others from the men’s sites is irrelevant. That objective is achieved by the exercise of a right to exclude from the country that surrounds and includes the men’s sites. As the Yilka applicant submits, that they may not be able to exercise that right as against wati illustrates nothing other than the existence of a particular rule governing the exercise of the right. The existence of those rules does not deny the existence of the right of non-wati to exclude.
6.2.2 Rights based on birth or long association in relation to non-sacred places
449 In relation to other areas, those places that are not also of special significance to wati, the State says any rights based on birth or long association must also necessarily be of a character which accommodates comparable rights of other non-wati individuals as well as the more utilitarian and ancillary access, use and needs of the wati. No evidence was referred to in support of the State’s submission.
450 It is not apparent what difficulty might be entailed by two individuals holding rights of exclusive possession in the same area. Tenants in common and joint tenants are an analogous example from Western property law systems. I accept the Yilka applicant’s submission that the fact that rights of non-wati are ‘conditioned’ by a requirement to respect the rights of wati does not reflect on the existence or quality of a right to exclude. It merely acknowledges the existence of a rule about the manner of exercise of the right. This issue is not so much about the existence of rights, but how the nature of the rights dictates multiple rights holders work with one another.
6.2.3 Rights of wati in relation to sacred places
451 The State argues that the evidence demonstrates that the rights of wati are primarily, but not exclusively, focused on places associated with Tjukurrpa, in particular in the case of the Cosmo Newberry area, the Tjukurrpa path shown in red on a map used by Dr Cane, in relation to which Minnie Creek is of utmost importance.
452 I agree with the Yilka applicant’s response that the coexistence of the rights of wati and rights in ngurra is unproblematic, given that there are rules governing the exercise of the rights. The burden of the evidence shows that, in relation to men’s sacred areas, the rights of senior wati prevail and in other areas, the rights of the people whose ngurra it is are not prevailed over by any rights of wati.
6.2.4 Rights of wati in relation to non-sacred places
453 As the State submits, the rights of wati are not confined to sacred places. There is a consistent theme in the evidence of respect, reverence and awe shown by non-wati to wati and the recognition of rights of wati to enter upon, pass through and use areas not directly associated with Tjukurrpa. This is a corollary to the limit on rights based on descent or long association, discussed at Pt 6.2.2.
454 The State submits that from a whole-of-society viewpoint it might be possible to think of both sets of rights as part of the rights held by the society, which are allocated intramurally. The State argues that in steadfastly resisting this outcome, the Yilka applicant has rejected the notion of rights held or exercisable by any person or polity in which they are bound. The State maintains that the way the Yilka applicant’s case is put does not allow individual rights from those two sets of rights to be aggregated. Once again, the Yilka applicant complains that the State has treated the Yilka case as being one of aggregation of two sets of rights in a negative sense. That understanding of the Yilka case rests on the assumption that native title rights of different kinds cannot coexist. As noted in Ward HC (at [95]), what is concerned in native title is a ‘bundle of rights’, which draws attention, firstly, to the fact that there may be more than one right or interest, and secondly, to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. The State, by reference to the aggregation argument, appears to submit that the coexistence of rights of wati and non-wati in the same area is impossible. However, I do not accept the State’s suggestion that the two sets of rights are inconsistent in the sense that one could not be exercised without abrogation of the other and, therefore, cannot coexist.
6.3 Classification of the rights
455 This is another central point of disagreement between the parties. It, together with the recognition point, has been flagged as a fundamental problem by the State from the commencement of the case. By that I do not mean to suggest that the State’s submissions on this point are correct, but that the parties have clearly understood that battle lines were drawn on this issue. It prompts two separate but related discussions: first, whether the rights are held communally, by a group or by individuals (to use the language of s 223 NTA), and, secondly, the contents of the rights – whether they should be categorised collectively as a unitary right or as separate bundles of more specific rights.
456 In Wongatha (at [536]) Justice Lindgren acknowledged that the rights and interests of members of a group ‘will not, however, necessarily be identical’, which must, with respect, be correct. It is apparent that his Honour was there referring to the variations in the manner and extent to which rights may be exercised by members of a group, rather than to their having differently defined rights. His Honour also expressed the view that the individual member’s rights and interests will always arise from his or her membership of the group. That is, they will not arise directly and without group mediation from the laws and customs of the society. However, that is not the way the Yilka claim is put and there is no reason why it should be so. The evidence shows that in the case of the Yilka claimants, rights are not attributed to membership of a preordained group but to the WDCB laws and customs that establish the pathways to connection to an area of country or to particular places on it.
457 Accepting for present purposes that the phrase ‘communal, group or individual’ in s 223(1) NTA introduces a taxonomy of three distinct kinds of rights, the Yilka applicant argues that the traditional rights may be regarded as individual because their acquisition depends directly upon recognition of the particular circumstances of an individual (place of birth or long association and the holding of particular status in ritual). On the other hand, they might also be regarded as being ‘common or group’ rights in the sense that a common set of rules governs their exercise. The rights of each holder of ‘my country’ rights are common also in the sense that they are all the same rights, although the rules about the manner of their exercise distinguishes between the holders on the basis of age, gender, knowledge and so on. Similarly, ritual authority rights are all the same, although notions of seniority also govern the extent to which a person may exercise those rights. Having said that, under the relevant laws and customs it is not membership of the group that gives rise to the possession of rights, but rather it is having a recognised pathway to connection. In this sense, the Yilka claimants are an ‘aggregation’ of persons who have a pathway to connection over the Claim Area.
458 The State makes the point that neither applicant differentiates in identifying rights, between those held by persons claiming based on their own or on an ancestor’s descent and those claimed by wati, yet the rights clearly relate to different places or clusters of places and are exercisable by different individuals or clusters of individuals. It is the State’s case, consistent with Justice Lindgren’s findings in Wongatha, that aggregation by the holders of rights, falling into similar or different classes and held by different persons, cannot yield a group right as a composite grouping which covers the field and holds rights amounting to something akin to exclusive possession. The State suggests that the evidence shows that non-wati rights holders are likely to be unaware of the nature, manner of exercise, the purposes of exercise or implications associated with the rights of wati. While both sets of rights might be described as having their origin under the laws and customs of the Western Desert and all holders of rights may be members of Western Desert society, it is of ‘critical importance’ that the claims do not purport to have been made, and are not in any sense made, by and on behalf of Western Desert society.
459 The State argues that it is not an answer to the assertion that the division of rights is opaque, for the applicants to say that the division of rights is an intramural matter. The ‘critical deficiency’ in the two applications is said by the State to be that the ‘mural’ is an entirely artificial construct and is itself a subset of the larger population that would be the relevant body for consideration if internal arrangements were to be ignored. The claimant groups are not formulated along traditional divisions and the applicants do not suggest that it is the case. To invest the claimants or any combination of them with a function of determining eligibility to hold or exercise individual rights within their group would be to deny Western Desert society of its relevance and its role and to accord that relevance and role to a self-styled subgroup.
460 The State argues that, in the context of claims under s 61 NTA (which sets out the native title and compensation applications that may be made to the Federal Court), this section directs attention to ‘the particular native title claimed’ by the applicants, both for the purpose of considering compliance with the NTA, and more importantly for the purpose of considering whether the rights claimed are rights which can properly be determined to be particular rights held by the Yilka and/or Sullivan claim groups or the individuals (some wati and some non-wati) in those groups. It is common ground that the proceedings do not involve, either in respect of rights based on birth or long association or the rights of wati, any assertion of rights on behalf of a community comprising the Western Desert society. The Yilka POC and the Sullivan POC (at [4]) both state that references to a group are ‘not intended as a statement that [the group members] constitute an enduring social entirely constituted under the laws and customs of the WDCB’ and (at [25]), it is pleaded that rights are possessed by ‘an individual, whether or not with other individuals’ in the case of persons claiming through their own birth, long association or ritual authority and by ‘an individual or by sets or groups of persons namely the descendants (on a bilateral basis) of that ancestor’ in the case of persons claiming by reason of the birth or long association of an ancestor.
461 The State contends that it is very difficult to construe the applicants’ claims as described above in a way that is capable of suggesting that the rights asserted are put forward as anything other than individual rights. The Yilka applicant does so expressly, it is argued, in certain places, and makes reference to the Yilka POC (at [4]) where the notion of any ‘group’ is qualified, if not rejected, other than as a formality. The Sullivan applicant seeks recognition of individual rights and interests in common with other native title holders in its connection submissions, ‘Submissions of the Sullivan Edwards applicant on the Existence of Native Title’ filed 7 May 2014 (Sullivan Connection Submissions).
462 The State accepts that it was not argued before Justice Lindgren that the phrase ‘communal, group or individual’ was a composite expression and not a taxonomy. The State does not accept that the latter construction was ‘assumed’ on the part of the Cosmo claimants, as opposed to being the subject of a deliberate and informed election to commend that construction to Justice Lindgren and to rely on the weight of authority. The word ‘or’ is a barrier in any event to construing the phrase as a hendiadys, which seems to be what the Yilka applicant tentatively suggests, as is the complete redundancy of the phrase if it were to be construed as simply being a reference to rights of any kind, which also seems to be a tentative suggestion of the Yilka applicant.
463 The significance that the Yilka applicant attributes to the question of whether the expression should be treated as a taxonomy offering three distinct possibilities or as a composite expression is not fully explained or otherwise made clear. The categories of rights identified in s 223(1) NTA are relevant not simply because of their statutory significance or due to their origin in Mabo (at 57). where they are clearly used as a taxonomy to identify alternatives, and the likelihood of rights being held communally is referred to (at 92, 109-110 and 178-179). But the three categories of rights are also important, so the State submits, because of the need to identify and differentiate the proper holders of common or group rights on the one hand, and of individual rights on the other. The State complains that the Yilka applicant’s submissions avoid, conflate and shift between these differing interests.
464 Justice Brennan in Mabo (at 50), in referring to Amodu Tijani v Southern Nigeria Secretary [1921] 2 AC 399 (at 403-404) said (footnotes omitted):
In Amodu Tijani, the Privy Council admitted the possibility of recognition not only of usufructuary rights but also of interests in land vested not in an individual or a number of identified individuals but in a community. Viscount Haldane observed:
"The title, such as it is, may not be that of the individual, as in this country it nearly always is in some form, but may be that of a community. Such a community may have the possessory title to the common enjoyment of a usufruct, with customs under which its individual members are admitted to enjoyment, and even to a right of transmitting the individual enjoyment as members by assignment inter vivos or by succession. To ascertain how far this latter development of right has progressed involves the study of the history of the particular community and its usages in each case. Abstract principles fashioned a priori are of but little assistance, and are as often as not misleading."
465 In Mabo, Brennan J also made clear the relationship between communal rights and individual rights, saying (at 51):
Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor.
(emphasis added)
466 His Honour also said (at 61):
[S]o long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs …
(emphasis added)
467 The State argues that, consistent with the above passages, the rights or interests of a subgroup or individual are said to be carved out of and dependent upon the communal native title (Mabo at 62). This clearly envisages that, in a given case, there may be communal rights as well as coexisting individual rights. It points to the existence of the kind of arrangement which incorporates both a community, which at one level of abstraction, holds all rights and bestows those rights on smaller groups and individuals, as well as those logically subordinate rights. The State accepts that it is possible to conceive of rights as ‘nested’ in the sense that individuals may hold rights within and by virtue of the holding of overarching rights by a group or community. This is the enjoyment of rights to which the above passage from Mabo refers (at 61). This is consistent with, and is illustrated imperfectly by, the English common law concept of the Crown at the pinnacle of a hierarchy of lesser interests: freehold, lessee, sublessee, licensee, invitee, trespasser etc. The tiering of nested rights is not necessarily the only basis on which coexisting rights might exist and is less probable and less obviously compatible with an allodial title than with feudal title, ‘which by its nature comprises rights held by virtue of an overlord’.
468 The State says that it is possible to construe the evidence of Dr Cane in relation to micro-societies, meso-societies and macro-societies as being a reference to the nesting of rights in this manner. However, the State argues that on closer examination it is apparent that Dr Cane does not situate each level of these societies wholly within the next tier, rather, the expressions seem to be indicators of scale and not indicators of a hierarchy. The present proceedings might be seen as relating to an area that is the subject of a scheme in which two or more sets of rights of differing character are not tiered but are conferred separately by a society and held by different persons or subgroups within the society, in some cases for different purposes and in some cases over overlapping but not always coextensive areas, in circumstances where the holders of rights accommodate the rights of others. In this context, the rights of individuals must allow for the existence of other rights, and the rights of the society should not be viewed as an aggregation of individual rights, but rather as the corpus of rights out of which all individual or group rights are ‘carved’. Aggregation of these rights of groups and individuals to form intermediate groupings would thus only be possible if the laws and customs of the society allowed for such aggregation. The State argues that the rights of wati, on the one hand, and the rights of persons asserting connection based on their own or an ancestor’s birth or long association, on the other, are not amenable to conceptualisation as hierarchical interests, except to the extent that both categories of rights might be treated as contained within the communal rights of a Western Desert society or a regional society. They can only be coexisting but differing rights.
469 The State says that, consistent with this, on the analysis by Justice Lindgren in the Wongatha judgment (at [1135]), later approved by the Full Court in Bodney (at [144] and [146]), the ‘community’ is to be equated with the ‘society’ and, thus, the present Yilka claim does not fall under the ‘communal’ category. In the present instance, the question of whether or not the rights of the society approach ‘ownership’ as known to the common law does not arise because the Yilka and Sullivan claims do not purport to have been made on behalf of the relevant society, but rather, made on behalf of individuals or subsets comprising some of the members of a society. The Yilka and Sullivan applicants are each representatives of subsets of that society. As to whether the two claims can properly be categorised as ‘group’ claims as opposed to ‘individual’ claims requires consideration of the NTA in its entirety and, in particular, consideration of what group claims are permitted.
470 The State argues that, contrary to the implicit assumption in the Yilka Connection Submissions, it is apparent that the NTA envisages that group claims cannot be made on behalf of any or all possible aggregations of people. Rather, s 61 NTA permits and, indeed, requires the making only of a claimant application authorised by ‘all the persons … who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed’: see also the definition of ‘native title claim group’ in s 253 NTA. It is not necessary for s 61 that all persons comprising the society must participate in the claim, but it does incorporate the following requirements, according to the State:
1. the persons included in the group must be ascertained according to their traditional laws and customs,
2. the group must comprise all of the holders of the particular native title claimed; and
3. ‘the particular native title claimed’ must be comprised of ‘common or group rights’.
471 As to the first requirement the applicants plead that the claim groups are not enduring social entities constituted under the laws and customs of the WDCB. The persons in the group cannot, therefore, be said to be ascertained according to the traditional laws and customs, according to the State.
472 Contrary to the second of the requirements, the State says that the claimants, whether they are viewed as individuals or groups, do not hold the particular native title claimed. They may be members of a society that holds the native title, but they do not comprise all members of such a society. They may even exercise more rights than most other members of a society, but the holding and exercise of some rights, such as rights of entry and transit and the right of transmission of rights, is not confined to the claimants.
473 Contrary to the third of the requirements, the State says, the rights of the claimants are not the common or group rights.
474 As I understand the Yilka applicant’s argument, which is effectively adopted by the Sullivan applicant, the claim is to individually held rights brought on a collective basis, but not as an aggregated entity or a consolidated group, by persons claiming for their respective rights and interests as held by them variously in the whole or parts of the Claim Area under traditional law and custom. The Yilka claim group does not claim to be a society or claim communal rights. It does not follow from the existence of rights held by multiple individuals in overlapping areas that there can be nothing akin to an intramural allocation of rights within a Claim Area. The ‘mural’ in that context is not the whole body of persons of the WDCB society, but the body of laws and customs of the society in its application to the Claim Area.
475 The State and the Yilka applicant agree that there can be coordinated rights, the exercise of which does not swell the rights of any particular individual beyond the scope of the rights taken in isolation. This would extend to the rights of senior wati, which are simply different rights to the rights possessed by those whose rights are based on their own or an ancestor’s birth or long association, arising on a different basis and having, as the Yilka applicant would put it, a different geospatial footprint.
476 The Yilka applicant argues, and I accept, that the State’s construction of s 61 NTA is strained and inconsistent with the object and intent of the NTA. The Yilka applicant contends that s 61 does not preclude the bringing of a representative claim by individuals for their rights in individual areas within an artificially bound claim area. Section 61 does not impose a taxonomical requirement for either ‘group’ or ‘common’ rights, as the contradistinction with ‘individual, group or communal’ rights in s 223(1) NTA makes clear. It is argued, and I accept, that if the State’s construction of s 61 is correct, then the NTA precludes the bringing of a native title claim under s 61 which, if brought, could be successful under s 223(1) NTA. If the State is correct, determinations such as Neowarra v Western Australia [2003] FCA 1402 or Sampi v Western Australia (2010) 266 ALR 537, cases which, on the evidence, were ‘communal’ though clearly neither ‘common’ nor ‘group’, could not have been made. Nor could many determinations in the Western Desert, to which the State has consented or not taken the point it takes here. It would be contrary to the objects of the NTA if a claim in the form of the way the Yilka claim is put could be successful but not brought. If the State suggests an insoluble problem with authorisation, it is clearly something to be taken into account in considering the application of s 84D NTA.
477 The Yilka applicant says that the points made by the State on this topic are merely a restatement of its argumentative case that:
(a) the claimed rights are acquired by persons as individuals therefore they are ‘individual’ rights;
(b) there are different rights acquired on different bases, therefore they cannot be claimed together;
(c) because there are different individual rights and different kinds of individual rights there cannot be a unitary right of exclusive possession but only separate bundles of more specific rights.
478 Each premise and each conclusion necessary for the State’s case as so put is unsound, the Yilka applicant says for the reasons generally advanced by the Yilka applicant that are discussed at Pt 6.2.
479 It is readily accepted by the Yilka applicant that the Yilka claim is not made on behalf of all members of the Western Desert; but it is not accepted that any difficulty for the claim flows from that. It is not necessary for native title purposes, contrary to the State’s suggestion to fully define the differentiation of the various rights or kinds of rights or the areas in which particular rights are held or the working relationships between rights holders as they implement their laws and customs.
480 Ward HC makes clear that a native title claim may be made for various rights and various kinds of rights. The relationships of those rights may remain a matter for the implementation of the laws and customs and not necessarily made the subject of provisions of a determination. The artificiality of the Claim Area (it being defined by cadastral boundaries) has no implication of artificiality of anything else about the claim.
481 It is not correct, the Yilka applicant says, to assert that the claim group is not formulated by reference to traditional laws and customs. It is not the claimants' case that they alone hold the function of determining who holds rights in the claim area. Thus, a case based on the proposition that they do alone hold that function, cannot be put against them.
6.3.1 Communal group or individual rights based on descent or long association
482 In both the Yilka and the Sullivan claims, the ‘particular native title claimed’ (in the case of each individual claiming through their own birth or long association or the birth or long association of ancestor, leaving aside the rights of persons relying on identical lines of descent) is unique to the individual. The State accepts that on the evidence it is clear that individuals may, through these avenues, have connections to a constellation of places and tracts, to which other individuals have similarly based connections. That there may be some classes of people who assert rights which are wholly or partly coextensive in their physical coverage or content based on shared history, such as those claiming only through descent from Marnupa, does not, in my view, detract from the essentially individually-focused inquiry necessary for the identification of individual rights.
483 In short, the State contends that the making of a native title claim by one individual, for example, HM, or a few individuals, for example, the Sullivan applicant, purportedly on behalf of all other persons who are said to enjoy rights by reason of their respective individual circumstances or qualifications, presents difficulties at two levels. First, from a practical perspective, if the named applicant is not a holder of rights to particular places or of a particular character, he would be asserting rights that he is unable to hold or exercise. For example, HM is unable to hold or exercise the rights of the kind a wati enjoys and is unable to hold or exercise rights over an area to which a descendant of the late Mr Harris might enjoy rights. Secondly, the requirement of s 61 NTA that the applicant be ‘included in the native title claim group’, which means the applicant must be one of the persons who, according to their traditional laws and customs, holds the common or group rights comprising the particular native title claimed, will not be met where the applicant holds rights to only some of the places included in the claim, or where the applicant does not have the attributes, for example, ritual knowledge, or a connection by birth or long association to all places necessary to hold rights of a particular kind or in respect of particular places.
484 On this point generally, the Yilka applicant submits that the alternative means by which this claim could be brought, which the State’s submission seemingly would support, is that each individual person or ancestor should bring their own claim on behalf of themselves and/or their descendants. This would, of course, be highly impractical. The Yilka applicant rejects the argument in relation to HM, firstly, because his claim (and those who claim through the same birth events) extends to the whole of the area and, secondly, on the basis that the evidence supports the view that the men’s places are within the ngurra of HM and others and that he (and others) exercise rights in relation to (though at the appropriate distance from) those places, with the assistance, if and when required, of wati or senior wati, as the case requires. In my view, this short response (as an example) is correct on the pleadings and the evidence and does not present, as I perceive it, any of the difficulties with the NTA which concern the State.
6.3.2 Communal, group or individual rights of wati
485 The State points to the fact that at least some wati who do not assert connection to the Claim Area by reason of their own or an ancestor’s birth or long association are intended to be included in both the Yilka and Sullivan claim groups. What is not clear, however, so the State contends, is whether the applicants assert or accept that all members of Western Desert society who are wati, as opposed to only some, have rights and interests in the Claim Area. If it is only some, it is unclear as to who is excluded and why. Further, according to the State, the Yilka applicant suggests that different rights are held by different categories of (non-traditional owner) wati.
486 The Yilka applicant also submits, and the State accepts, that the rights of the wati exist without mediation by the traditional owners. The State also accepts that the holding of the status of a wati and asserting connection based on one’s own or an ancestor’s birth or long association are not mutually exclusive, and that there are individuals who meet both requirements. Descent plays no part in the identification of wati except to the extent that a wati must be descended from a member of the Western Desert society.
487 The elements of assertion of connections to places by reason of holding the status of wati (see [406] above]) raise the possibility (if not the likelihood) that the rights of wati, apart from being a component of communal rights, be group rights and not individual rights, according to the State. Further factors weighing in favour of this characterisation are said to be that:
1. the status of a wati is incapable of being achieved without the acquiescence of other wati;
2. the status is indicated by a title which indicates membership of a particular sub-group of the society;
3. the rights of all individual wati in relation to particular places of significance depend on nothing other than that person having the status of a wati;
4. the essence of the exercise and transmission of rights of wati and their sustenance is participation in rituals involving a group;
5. the conferral of the rights of wati (the making of new wati) is controlled entirely by wati (according to laws and customs) not by individuals, and the population of wati cannot be regenerated without participation of other wati; and
6. it is not relevant that another species of rights arising under the same body of law and custom (rights arising from birth or long association) may be individual rights, it is completely conceivable that the same body of law and custom might yield distinct sets of rights vested in one instance individuals and in another particular group.
488 The State concedes that it may ultimately be of little importance whether the rights of wati asserted by the Yilka and Sullivan applicants are ‘group’ or ‘individual’ rights. What is relevant, the State says, is that they devolve from the Western Desert society and devolve and are held and exercisable independently of rights based on birth or long association and independently of the persons who are holders rights based on birth or long association.
489 The State argues that, on any view, the ‘particular native title claimed’ (or capable of being claimed) by wati is not the same as the ‘particular native title claimed’ (or capable of being claimed) by persons asserting connection through their own or an ancestor’s birth or long association. Neither of these classes of persons are a subset of the other, nor are the rights of one of these groups a subset of the rights of the other or held under the gift of the other. Both sets of rights are directly derived from the laws and customs of the Western Desert society.
490 The State, once again, points out that HM is not a wati and does not purport to be a holder of the kind of native title rights that can be held by wati. The State understanding of this claim is that it is brought by a coalition of at least two subsets of the Western Desert society; and that one of those subsets, those who assert connection by their own or an ancestor’s birth or long association, is not a group with any basis in tradition, but is more appropriately characterised as an array of subsets each comprising individuals or small groups of related individuals claiming through a common ancestor.
491 Again, in my view correctly on this point, the Yilka applicant says there is no question about excluding any particular wati from the claim, as the State suggests. The fact is that not all wati of the Western Desert claim rights and interests in the Claim Area and, further, not all wati are senior. Otherwise the Yilka applicant has already responded to the issues supposedly arising out of s 61 NTA (see Pt 6.3).
492 The proposition for the Yilka applicant (identified in the Yilka POC at [26]) is that the subject matter of the rights or interests that are possessed:
(a) where the place of birth of a person or ancestor is relied on – is the area associated with that place of birth and with the person or ancestor;
(b) where the long association of a person or ancestor is relied on – is the area with which that person or the ancestor was long associated; and
(c) where ritual authority are relied upon – is the areas with which that authority is associated.
This is not in issue between the Yilka applicant and the Sullivan applicant.
493 The State’s position on this topic is that whilst birth or long association or descent from an ancestor connected to the Claim Area by birth or long association is a requirement for membership of the Yilka and Sullivan groups, the ‘runs’ of the particular ancestors of members of the Yilka claim group are not the basis on which the individuals claim country. Rather, rights are claimed in the whole Claim Area by members of the group. The State says this arrangement could be sustainable if the claim was a claim to group rights by an overarching group which made internal arrangements as to where and how and by whom within the group rights might be exercised. But the viability of such an analysis depends on there being some collective holding of rights and some machinery for allocation of rights. The applicants have disavowed any such approach. The Sullivan applicant has reduced the area claimed in order to reflect the absence of evidence of connection by persons asserting connection through their own or an ancestor’s long association, or by wati, to some parts of the original Sullivan claim area. The State does not accept that a connection with the remaining area has been established. At best, in the case of the Sullivan claim, it says Mrs Sullivan knew of places in the remaining area and visited some.
494 The Yilka applicant makes it clear that its claim was not put on the basis of connection by way of a ‘run’ where people ‘walked up and down’ (as lead counsel for the State, Mr Waters put it), nor is it the case that rights are claimed in the whole Claim Area by all members of the group. Some claim the whole area as their ngurra, others, only part of it. The rights of senior watis focus on particularly significant men’s places within the Claim Area. The members of the claim group in these two categories bring the representative proceeding for their respective rights and interests in the Claim Area.
495 This representative proceeding for non-identical claims, that nonetheless still have much in common, is the way in which the case has been put by both applicants. For reasons already discussed, I consider that the NTA permits such claims to be recognised.
6.4.1 Areas associated with birth and long association – ngurra
496 Each of the applicants and the State accept [27] in the Yilka POC, which states that each area of the kind referred to in POC [26(a)] and POC [26(b)] (set out at 6.4 above) is referred to by a Western Desert person as ‘my country’ or ‘ngurra’. In any event, that proposition is borne out by much evidence on the topic which does not require analysis at any depth.
497 There are a few brief examples highlighted by the Yilka applicant, such as the evidence of HJ to the effect that ngurra means ‘house’ or ‘camp’; means the place where you are living, which for him was Cosmo. He said that ngurrara means a person’s ‘country’, where a person really belongs, and includes all the rock holes and everything on the country. He explained that:
Under our laws and customs, we get our ngurrara or country from being born on that country. We can also have country handed down from our ancestors, from our fathers, mothers, grandfathers or grandmothers.
498 This was echoed by Westside, who explained that ngurra means ‘your proper home, Aboriginal way. It’s not just where you are living at any time - you might be just a visitor there. Ngurra also means your country or your homeland’.
499 It is common ground that ‘my country’ areas or ngurra (Yilka POC [28]):
(a) are not precisely or finely delineated but rather are loosely identified by reference to places and areas with which the place of birth relied on is associated; and/or to which the long association relied on extends;
(b) are not defined or delimited by encircling boundaries but rather are loosely bounded; and may be composed of clusters or aggregates of sites (including kapi places (soaks and rockholes) and sites with which Tjukurrpa are associated) and interstitial and surrounding stretches of terrain; and
(c) may overlap wholly or in part, and/or be overlapped wholly or in part by, the ‘my country’ area or ngurra of one or more others.
500 It is obvious that, unsurprisingly, the WDCB normative system does not produce neatly defined ‘estates’. The evidence makes clear that the system is characterised by the necessary flexibility for survival in the arid environment. Proposition 18, to the same effect as Yilka POC [26], was one considered at the second conference of experts. It was agreed to by all the experts, with the exception of Professor Trigger, who regarded the expression of the traditional law and custom as insufficiently certain in its identification of ngurra and areas the subject of ritual authority (his word was ‘meaningless’).
501 There is a recurring response of the Yilka applicant in this regard, that the laws and customs entail a degree of indeterminacy. The Yilka applicant makes the point that it would be just as ‘meaningless’ to ignore such indeterminacy and nominate some kind of arbitrary specification that does not exist in law and custom. In other words, once again, the Yilka applicant would say that Proposition 18 is just as it is on the evidence, ‘it is what it is’. There should not be superimposed over that some artificial parameter which does not exist in law and custom. Dr Sackett’s view on this topic, which I am inclined to prefer (with no disrespect intended to Professor Trigger) in light of his very extensive experience in the Western Desert, was that the evidence showed clear application of laws and customs to the Claim Area, notwithstanding that there were huge variations in the size of ‘my country’ areas. Dr Cane also noted that it was the very characteristic of land tenure within the WDCB that the mechanisms defining it are composite and the areas defined by it are variable. The tradition is complex, the land rights are complicated and the area of land so encompassed it is difficult to define in terms that are easily understood by Europeans. The complexity and variability is known, understood and applied by adherents to the Western Desert tradition. It is certainly not meaningless to them, although its inherent complexity might give that impression to those unfamiliar with its culture of application. Regarded in aggregate, the geographical extent of country that witnesses regarded as their ngurra approximates and is inclusive of the Claim Area. There were certainly witnesses who claimed an area less than the Claim Area, for example, Victor Fraser and the late Jayden Smith. That, however, may not mean that others would not concede to them rights in a larger area if they asserted them. On the other hand, in the same way that no evidence suggests that a person must claim as their ngurra all different countries to which they could properly lay claim, there is no evidence to suggest that every person must claim the same area as one ngurra or the whole of any area to which they can properly lay claim: see the evidence of Jayden Smith who explained if somebody was born at Cosmo and they were a traditional owner of Cosmo, they could just be a traditional owner of Cosmo and not Minnie Creek; but if they wanted to claim it, they could claim it.
502 There was discussion amongst a number of witnesses about the important characteristic of ngurra as generally not being described by reference to fixed boundaries, but rather by reference to sites and water sources, hunting areas, areas known and inhabited by the ancestor whose birth or long association is relied upon; areas associated with wuyurr – a feeling of being at home. For example, Mr Smythe talked about the importance of having a big ngurra, in the context of scarcity of resources, so that people had sufficient area to hunt, and to travel between rockholes as they dried up.
6.4.2 Areas associated with ritual authority
503 Generally, the evidence was that those areas subject to the ultimate authority of regionally senior wati were limited to sites having particular significance in the regional ritual context, including the secret sacred complex in the Minnie Creek area and places like Yinti (Site 6.4). As with the types of areas discussed above, the evidence was that the system does not work according to a fixed degree of specificity. The requirements of the area may also vary according to the nature of a particular activity, for example, whether it is simply to obtain a drink of water or to conduct mining operations. Notwithstanding such indeterminancy, it is clear that both wati and traditional owner rights holders have no difficulty with identifying the areas sufficiently for the purposes of understanding their respective rights and responsibilities and compliance with WDCB rules about the exercise of rights in relation to those areas. It is not necessary for native title purposes to intrude further into the workings of secret sacred matters of law and custom. As an example of the relationship between the different types of rights holders, HM explained in evidence that there were:
exclusion zones put in so that can protect everybody because we’ve had a lot of pressure from mining companies wanting to explore in them areas, and to stop all that happening and protect them forever we got them older senior men to block it all so what they blocked is what we can follow and make sure that nobody goes there. So, when company get exploration lease we tell them no, you can’t, that’s blocked off.
6.5 Authority and the exercise of rights
504 There are crucial distinctions between the manner of exercise of a right on the one hand and the nature and extent of a right itself on the other. This distinction was discussed by the High Court in Western Australia v Brown (2014) 253 CLR 507 (Brown HC) in the context of extinguishment questions. Similarly, there are distinctions between laws and customs and under which a right is possessed and laws and customs rules that regulate the exercise of a right. The Yilka applicant argues that the requirements of s 223(1) and s 225 NTA extend only to a translation of the traditional rights themselves, not the particulars of the manner of their exercise per se or as between rights holders. Such matters, it contends, are properly regarded for NTA purposes as ‘internal’ and ‘intramural’ rules. These remain matters for the native title holders and their traditional society. Rules about such things are laws and customs about the manner of exercise of the rights, rather than laws and customs under which rights are possessed. This is also reflected and recognised in what the Yilka applicant describes as a standard provision in a determination which requires that ‘the native title rights are exercisable subject to and in accordance with the traditional laws and customs of the native title holders’. That is set out in regards to this claim in [6(a)] of the Yilka Determination Sought, attached to these reasons as Annexure 2.
505 An example of ‘intramural’ determination of the manner of exercise of rights is that key decisions are made by people who know what they are talking about and properly able to give an opinion, typically those who are older and more senior and experienced. People who know little are expected to sit quietly and will be ‘growled at’ if they talk when they do not know what they are talking about: see Yilka POC [33] which is as follows:
Persons who possess rights or interests in an area do not have equal authority in relation to, and are not equally entitled to speak for or participate in decision making about, the areas. Rather, such authority is conceded to one or more of them having regard to a range of factors, in particular:
(a) their age, gender, social and/or ritual knowledge and seniority, knowledge of the country and its resources, residential location, the extent to which they actively participate or have actively participated in the care and use of the area; and
(b) the extent to which the person asserts such authority and in turn the extent to which the assertion of authority is accepted by others.
506 I accept that Yilka POC [33] is made good on the evidence of any number of Aboriginal witnesses on this point. A typical example is Victor Fraser who was asked whether young traditional owners have as much say as the older people. His response was ‘[n]o, they – they have big shame, you know they can’t talk. They listen to the older people.’
507 Similarly, [33A] of the Yilka POC, which is in these terms: ‘[u]ltimate authority in respect of places that may only be visited by watis, initiated men; rests with watis of senior ritual authority relevant to such places’, deals with authority in the context of matters requiring consideration of secret sacred knowledge. That is common ground between all active parties.
508 As the Yilka applicant says, the system is clearly working. It does expect cooperation and respect between the two different types of rights and their respective holders. People understand that deference is given to more senior wati. Having said that, outside senior wati clearly rely on traditional owner wati and non-wati to assist them with their responsibilities towards the sacred sites, as the evidence of HM discussed at Pt 6.4.2 above demonstrates. This supports the statement in Yilka POC [33B], that authority in respect of places that may only be visited by wati may be exercised, and is in fact at times exercised, subject to traditional laws and customs, by members of the Yilka claim group who are less senior wati or who are not wati. The evidence also shows that numerous witnesses have learned and have taught others about the rules regarding access to and avoidance of the sacred areas. There is no suggestion that this information comes only from the older men. To the contrary, all ‘traditional owner’ rights holders may, and indeed must, teach and instruct their children to avoid such places. This involves the exercise of authority.
509 The State has nothing to add on this topic aside from that discussed at Pts 6.2 to 6.4 above.
6.6 Qualifications on access – owners, visitors and strangers
510 Once again, the Yilka applicant stresses that in relation to this topic, there is a necessary distinction between rules governing the exercise of the rights in relation to land and the existence and definition of the rights themselves. The task of identifying the nature and extent of traditional rights in relation to land and waters and recognising those rights is distinct from identifying how the native title holder might either choose or be required under traditional laws and customs to exercise a recognised right. Yilka POC [29] is as follows:
Strangers [maliki] can be refused access or have conditions imposed on access to sites in an area or be accompanied by persons recognised as possessing rights or interests in and knowledge of, or authority in respect of, the area.
The footnote to this paragraph explains that whether or not someone is a ‘stranger’ involves taking account of social, cultural, and geographic closeness and distance. In particular, it includes a person who is not a Western Desert person.
511 The State POR [29] admits only that restrictions upon access in the Yilka claim area arise from the acknowledgement or observance of traditional law and custom insofar as such restrictions relate to access to particular places or sites with which persons with ritual authority, wati, are associated.
512 The non-admission is overwhelmed, so the Yilka applicant says, by evidence that traditional law and custom confers on the traditional rights holders of an area a comprehensive right of ownership that encompasses a right to exclude others: see Pt 11 below. Under their laws and customs, strangers wanting to access their country require permission. As Rhys Winter put it in his oral evidence, they ‘[s]hould come - should come and ask - ask the traditional owners’. He went on to say ‘[t]hey'll probably go with them. ... Because - so they can show them - show them the country and stories ...’.
513 Westside gave the following evidence in his affidavit, which was not required to be led orally:
1 remember one time when I went looking for wood around Katarnurn (Site 5.1). I found some tourists there with a big bus and they had a camp there. I got a bit of a shock. They must have come in from the Lake Wells Road, not through the community. These people did not ask us to camp there or to use the area. I came back to the community and told the Chairman [HM] and HJ. A group of us went back to Katarnurn. HM told them they had done the wrong thing. They left and went back the same way to the Lake Wells Road.
514 I agree with the Yilka applicant’s assertion that it is not necessary to systematically administer or enforce the right in order to maintain it. An underlying law and custom under which a right exists that may be exercised, for example, by refusing or granting or waiving a requirement for permission, is just as much acknowledged and observed by the waiver of permission or non-enforcement of the requirement, as by the grant or refusal of permission.
515 The proposition in Yilka POC [29A] - that visitors who are not strangers would not ordinarily be refused access or expressly have conditions imposed on access but would be expected to know or ask about the locations of, and any rules relating to access to sites; or may be accompanied by a person possessing rights or interests in and knowledge of, or authority in respect of, the area - is admitted by the Sullivan POR [29A].
516 The State admits only that expectations as to the conduct of visitors arise from the acknowledgement or observance of traditional law and custom insofar as such expectations relate to the avoidance by persons without ritual authority of particular places or sites with which persons with ritual authority, namely, wati, are associated.
517 In my view, it is clear on the evidence that the right to exclude is not confined to sacred areas. I emphasise once again the ‘right’ as distinct from the exercise of the right. Further, ownership and control extends to the entirety of a person’s ‘my country’ area, though it may be exercised differently in different circumstances. Jake Westlake gave the following evidence when asked about a hypothetical visitor from Warburton wanting to go hunting:
[I]f he doesn’t know that country and if I - if I have a car and if he says to me, “I want a – I’ll have to get myself a kuka, marlu,” I say, “Well I’ll take you - take you out to the bush, get yourself some meat.” Then he can – then he can take – because he – he doesn’t know the country, like you said. And I’ll show him where to go and come back and get meat for himself.
518 HJ explained that:
If I don’t know the country, I would ask for one of the traditional owners to come with me or they might just get someone to go with me anyway. The last thing that I want is to be out bush on somebody else’s country without the traditional owners knowing about it. People can be punished for this
519 The suggestion in Yilka POC [30] that strangers wishing to visit an area ideally must ask permission from a person or persons who possess rights and interests in, and have knowledge of or authority in respect of, the area was, I think, more equivocal and inconsistent in terms of the practice of the rule, but there was certainly evidence that the rule existed, even if it was only observed from a practical or courtesy perspective in some instances.
520 Typical exchanges on this topic included the following excerpt from the oral evidence of the late Ms Ross:
MR BLOWES: […] still talking about your wuyurr, Aboriginal way, what about strangers, white people,
tourists coming into your country. Are there any rules, Aboriginal way about
how strangers should behave if they want to come to your country?
20
[MS] ROSS: There are rules, there are rules.
MR BLOWES: What should a stranger do if they want to come to your
country?
25
[MS] ROSS: They’ve got to ask.
MR BLOWES: How come?
30 [MS] ROSS: Ask first, go to office or ask the chairperson.
MR BLOWES: And why have they got to ask?
[MS] ROSS: Because it's not their land.
35
MR BLOWES: And suppose somebody just went out there, around the back
and was doing something without any permission. Would something happen
about that?
40 [MS] ROSS: They’re gonna be punished through the law.
521 Similarly, Rhys Winter said:
RHYS WINTER: Yes. If I go to somebody else country, I – I just can’t go
there and go wherever I want to, and burn country wherever I want to. I’ve got
25 to ask the permission from the traditional owners. Otherwise I’ll burn
something that sacred and I’ll be in – in trouble.
522 The Yilka POC states at [30A] that ‘[p]ermission is implied for related or known person from within the WDCB, when travelling through an area, to take ‘meat’ and water and camp on the area for the purpose of their journey’. Once again, this is admitted by the Sullivan applicant, but not by the State. The Yilka applicant once again submits that this does not deny existence of the right; but that it is within the exercise of a right to exclude to waive permission requirements. This proposition is supported by the following evidence of the late Ms Ross:
MR BLOWES: […] what about those people now, they’re not maliki, they’re
20 coming from Laverton or Warburton passing through, going for a funeral or
ceremony or something?
[MS] ROSS: No they’re not maliki.
25 MR BLOWES: They’re not maliki, so what can they do if they’re passing
through? Anything they can do on your country? Or anything they should do
before they come through or are they alright?
[MS] ROSS: They just – they can do whatever they want to do.
30
MR BLOWES: Are you alright?
[MS] ROSS: I’m - - -
35 MR BLOWES: Do you need a break?
[MS] ROSS: No – they can come.
MR BLOWES: They can come – okay. And what about if they want to get
40 some kuka or guppy on the way?
[MS] ROSS: They have to come and ask us if they want kuka.
MR BLOWES: Yeah. People from Warburton or Laverton – do they have to
45 ask before they can do that or is it alright if they’re passing through?
[MS] ROSS: If they’re just passing through that’s fine.
MR BLOWES: Alright. What about people living in the community like
Haley’s man or Rhys’ wife or Gwen? Do they have to get permission every
time before they go out on the country?
05
[MS] ROSS: No they live with traditional owners.
523 Allied to this are the propositions in Yilka POC at [31] and [32], which are admitted by both the Sullivan applicant and the State:
31. Access to some places, sites and areas is restricted on the basis of age, gender and ritual knowledge and authority.
32. Access to places having certain qualities is subject to behavioral (sic) requirements such as providing warning of approach to, or cleaning or clearing around, a place.
524 There was ample evidential support for both these propositions. In relation to Yilka POC [31], HM gave evidence that:
[T]here are some places on my country where only initiated men can go; places where there’s men’s secret law. The rule in our culture is that everyone else must keep away from those places. In my culture, you have to tell your children about no-go zones so they don’t get in trouble for mucking around where they’re not supposed to be.
525 In relation to Proposition 32, Kassey Murray in the course of the site visits gave evidence about Site 4.2, Yilka, in relation to warnings or cleaning, or clearing around a place:
[I]f there’s water laying there we - they got to come and they got to wash their hands and wash their face. That’s like respecting it – respecting the soak. And then we’ll, like, say this is like strangers coming. Like, we’ll sort of like, talk to the soak, you know, and tell them that there’s a strangers here and all. Yes.
526 The State’s submissions relating to restrictions on access will be discussed in Pt 11.2 below.
527 This is quite an extensive topic. The significance of this topic goes to the continuing existence of a normative system and its capacity to sustain the laws and customs under which rights and interests are possessed. The laws and customs discussed here also indicate a social and customary context in which the rights and interests are exercised. They are otherwise secondary in importance to the laws and customs under which the claimed rights and interests are possessed. Once again, the State says there is no difference between the evidence advanced in this claim and the evidence advanced in the Wongatha decision, and ‘relies on various findings of Justice Lindgren’. As I have previously indicated, I do not consider that it is appropriate that I simply adopt these findings and, in any event, would not simply replicate the findings made by another judge on hearing different evidence, however similar some parts of that evidence might be to that in the present proceedings.
528 The Yilka applicant submits that the State’s response in relation to this part relies on the case that the claimants are ‘individuals’ in the particular sense that they exist almost in complete isolation from each other and their social context. On this point the Yilka applicant argues that the State’s approach is artificial in the extreme and ignores the basic notions of the claimants as members of the body of persons united in and by their observance of the laws and customs of their society. Conversely, the approach relies upon the claimants not being a ‘group’ in the sterile sense used in the State’s argument. The approach would make it extremely difficult for any meaningful recognition of native title in the circumstances of the Western Desert.
529 Throughout its reasoning in this Part, the State relies on the underlying assertion that, because the nature of this claim is on an individual rather than a communal basis, there must be evidence that each individual acknowledges and observes the traditional laws and customs; and that given the size of the group (which it erroneously asserts comprises over 1000 members) there is no ‘obvious reason’ for inferring that what is true of one individual is true of any other individual. I am not aware of any authority that suggests that, for the purposes of establishing the existence of a relevant society, each and every member of the society (that is to say, all members of any claim group comprising members of the society) must individually acknowledge and observe each law and custom. Nor is it necessary for the existence of acknowledgment and observance of a particular custom, for every member of the society to even have knowledge of it, let alone acknowledge and observe it. A suitable example is that members of the Western Desert society would clearly acknowledge and observe the laws and customs of the very highest level of ritual even if only very few may ever attain that level. Women and children could acknowledge and observe even those laws and customs by obeying rules restricting access to places, events, and information associated with those things. It is not necessary that there be perfect conformity to (that is, an absence of any breach of) a practice, standard or requirement of a law or custom for it to be relevantly acknowledged and observed. Additionally, the fact that rights in land possessed under the traditional laws and customs arise from a connection event which is personal to a claimant, does not mean that evidence of ‘other’ laws and customs, which go to the existence of a society, and provide a context in which those rights and interests exist and are exercised, must be proven on an individual basis.
530 The area of the Western Desert society is inherently different from, in that it is much larger than, the Claim Area; but that does not mean that claimants from the Claim Area should be deprived of a beneficial construction of the NTA.
531 These ‘other laws and customs’ discussed below are derived from the Yilka POC at [36]-[65]. While this discussion is focused on the Yilka claimants, the Sullivan POC is also pleaded in the same terms (Sullivan POC [36]-[65]). None of the matters discussed below are in dispute as between these two parties.
532 There was ample evidence as to the concept of Tjukurrpa being a source of as well as informing laws and customs acknowledged and observed by the Yilka claimants. In the Yilka POC [37], the Yilka applicant contends that beliefs held by people of the Western Desert include beliefs about Tjukurrpa, including that Tjukurrpa are responsible for the existence and form of the landscape, and continue to be a presence or influence in the landscape. While both applicants advance this position, the State admits only that some members of the Yilka claim group hold beliefs about Tjukurrpa, including that Tjukurrpa are responsible for the existence and form of the landscape and continue to be a presence or influence in the landscape – and I agree.
533 The Yilka applicant stresses that it is not necessary to establish that every member of the Yilka claim group has general or any particular beliefs about Tjukurrpa; rather, it is necessary to establish that there is a continuing normative system under which laws and customs are acknowledged and observed which gives rise to the possession of rights, interests and connection to country. This submission is correct.
534 On the evidence as a whole, it is clear that behaviour guided by a belief in Tjukurrpa remains dominant in the Western Desert. Although there may be some who do not hold such beliefs, that would not deny the existence of a society sufficient to sustain the claimed rights and interests. No witnesses gave any indication that there were members of the claimant group who did not hold beliefs about Tjukurrpa.
535 The State appears to possibly advance the suggestion that the holding of Christian beliefs would be inconsistent with a belief in Tjukurrpa and, therefore, it could not be established that Tjukurrpa was part of the culture. However, Mrs Murray explained in her evidence ‘[y]ou still follow your culture and still be a Christian’. Similarly, Rhys Winter professed Christian beliefs but still respected the law and maintained a belief in Tjukurrpa as indicated, amongst other things, by his account of the demise of the missionary lady at Minnie Creek. No evidence was advanced that Christianity had supplanted the acknowledgement of traditional laws and customs. The State in it response clarifies that it does not seek to make any point that the holding of Christian beliefs is inconsistent with beliefs in Tjukurrpa.
536 There is evidence to support the proposition in Yilka POC [38]. Paragraph 38 is in these terms:
Tjukurrpa believed to be associated with the claim area include [this list does not include reference to Tjukurrpa about which knowledge is gender restricted]:
Tjukurrpa | Translation |
Kungkarrungkarru | Seven Sisters, the Pleiades |
Ngiyari | Mountain (or Thorny) Devil |
Parnparnparlarla | Crested Bell Bird |
Warnampi | Water Serpent |
537 The State has made only a limited admission in relation to that contention. It admits only that stories or parts of stories which form part of the Tjukurrpa identified in Yilka POC [38] are associated by some people of the Western Desert with areas which include parts of the Claim Area. Essentially, the State’s point is that it cannot be inferred that all claimants hold beliefs in Tjukurrpa, given that the Yilka claimants are not a ‘group’ in any traditional sense. Further, the State does not accept that this evidence establishes the continuing existence of a normative system.
538 There was also evidence to support Yilka POC [39] to the effect that knowledge of Tjukurrpa provides a framework for country through constellations of sites associated with particular Tjukurrpa; and that these places serve, amongst other things, as landmarks for navigation and use of country. The State makes a limited admission to this contention along the same lines as its partial admission to the proposition in the Yilka POC at [38].
539 There was certainly further evidence of Tjukurrpa mentioned in the restricted evidence and my impression was that there was a powerful adherence to beliefs pertaining to Tjukurrpa in this context.
540 At Yilka POC [40], the Yilka applicant advances a contention that a person is enabled to relate to all persons in his or her social universe through a relatively limited number of kin terms, each of which applies to a relatively large number of persons who are deemed to be ‘alike’. This is defined as the ‘kinship system’. The State admits only that some people of the Western Desert, including some members of the Yilka claim group, use and have knowledge of kin terms.
541 Again, the Yilka applicant emphasises that it would not defeat the Yilka claim even if it were shown that some members of the claim group did not use or have knowledge of kin terms. The evidence, however, appears to be to the contrary. Although the State’s admission on this proposition was quite limited, none of the evidence on this topic in witness statements was required to be led orally and it was not the subject of significant cross-examination. On one occasion, lead counsel for the State asked Ms Ross whether young people still used kinship words today, to which she responded ‘[y]es, they know’. She was also asked about whether the same set of words was used in Wiluna, Jigalong, Cundeelee and Tjuntjuntjara. To the extent she knew, she identified the kinship words in those places to be different, which was not necessarily to say that the system was different or not intelligible to the Yilka claimants. She did explain that the same kin terms were used at Warburton and Laverton and that the people at Warburton, Tjirrkarli and Jamieson had the same rules. Rhys Winter also gave evidence that ‘[w]e have a lot of other words for different relations. Sometimes those words refer to flesh and blood relations as well as relations by skin. So the skin system is part of the way we look at relationships’.
542 Related to the proposition at [40] was Yilka POC [41] that a person should behave towards all persons to whom a particular kin term applies in the same manner. The State did not admit this assertion. There was evidence given in support of it, including from Mathew Grey, who said:
My culture is different from white fella culture when it comes to relations, how you work out who you are related to, how you should behave with them. We have a lot of language words for different relations. Sometimes we go through blood relations and sometimes through skin, or both. We can use the words even if we are not related white fella way because we can work it out through skin. Everyone in our culture has skin.
543 Also in dispute is Yilka POC [42]: that the forms of behaviour to which the kinship system applies include:
(a) responsibilities of in-laws for arranging funerals;
(b) deference to older kin;
(c) marriage;
(d) avoidance of certain contact with certain kin and of use of the name of a deceased person; and
(e) distribution of kangaroo meat.
544 The State admits only that certain members of the Western Desert, including some members of the Yilka claim group:
(a) have reference to kin relationships and the assignment of responsibilities for arranging funerals;
(b) show deference to older persons, including kin; and
(c) have reference to kin relationships in relation to marriage.
545 All witness affidavits testified to knowledge of the skin system and its application to marriage. Although there are instances of ‘wrong’ marriages, that only leads to reinforcement of the normative quality of the rule: as explained by Ms Ross, ‘if people don’t marry right way skin I growl at them’. There is also evidence of the form of behaviour in Yilka POC [42(d)], namely the avoidance of contact with certain kinds of kin and use of names of deceased persons.
546 The evidence about distribution of kangaroo meat was not as widespread. There were rules which focussed mainly on distribution which reflected the division of labour between the gun owner, the shooter, the butcher, the cook etc. The evidence indicated rules about that meat being shared by those people with their kin. I did not form the impression that this was significant or important or widespread as a practice.
547 The State did not admit Yilka POC [43], but there was evidence to support this proposition, namely that other features of the kinship system include that:
(a) it does not favour one kind of lineality or descent reckoning over another;
(b) it recognises notions of ‘closeness’ and ‘distance’.
548 There was some evidence in support of this, for example, Mrs Murray saying that ‘my sister [Ms Ross] married too close and everyone was growling at her and her husband …’ Additionally, the Ms Ross gave evidence that:
Some people, my uncles, growled at my late husband and me for getting married. They said we were close cousins. They said my mother was cousin to my husband’s father, old Waltila. My family didn’t agree; they thought we were far off… My parents were OK to marry because they were far off.
549 Dr Sacket also expressed the view that the kinship system does recognise and distinguish between certain close and other more distant kin. The Sullivan applicant admitted [40]-[43] of the Yilka POC, and indeed its own POC is phrased identically on these matters. Again, the State sought to adopt the findings of Justice Lindgren in Wongatha on the basis that the evidence was the same. I have dealt with this submission several times already. To varying degrees, these points in the Yilka POC were established.
7.3 Sections, alternate generation levels and marriage rules
550 By Yilka POC [44], the Yilka applicant asserts that people of the Claim Area and in the region of it and nearby members of their society and are divided into named categories. This is defined as the ‘section system’. The State, however, admits only that amongst some people of the Western Desert persons are or were divided into named categories or sections and that some members of the Yilka claim group have knowledge of a section system.
551 Evidence was given by a number of witnesses, for example, Mr Smythe who explained that there were six skins, Karimarra, Purrungu, Milangka, Panaka, Tjarruru and Iparrka. The first three of those skins were on the Ngumparlurru or shade side. Ngumparlurru means ‘shade’ or ‘shadow’. The last three of the skins were Tjirntulukutul or the sun side. In giving evidence on this topic, Westside added that ‘[t]he men and women know about the two sides. It’s not just for the men’s ceremonies.’
552 By Yilka POC [45], the Yilka applicant asserts that marriages ideally occur between people of certain sections provided they are not close relations. Again, the State admits only that amongst some people of the Western Desert, marriages ideally occur between people of certain sections. Evidence of marriage rules are discussed above at Pt 7.2, in relation to Yilka POC [42]. There was further confirmatory evidence from Rhys Winter who said that ‘[i]f there is any wrong married in the families around Cosmo and Warburton these days it creates a fight between the families and they will try to sort it out … They usually marry right. They know their skin group’. Warwick Simms also explained that:
You have to follow the same rules, the skin rules to get married. By tribal law, if you marry you have to get married to the right woman, rights skin. Right skin for me is Purrungu because I am Karimarra. My wife is Purrungu skin. Our son is Panaka skin. If you marry a person with the wrong skin there is big trouble. In the past you might get speared, now they get growled at, big trouble. If an uncle get married to a niece, or someone married to a daughter by skin, he will get in big trouble.
553 By Yilka POC [46], the Yilka applicant asserts that the section system maintains a distinction between alternate generation levels and also between siblings and parallel cousins on the one hand, and cross-cousins on the other. That is not in dispute by the active parties. It was also supported by the evidence.
554 Once again, the State relies on Justice Lindgren’s findings in Wongatha, and consistently with its general approach it takes the view that, while there is sufficient knowledge of the skin system among the claimants who live at Cosmo Newberry, it could not be inferred that all members of the claim group acknowledge this traditional law and custom.
555 This point was established for the Yilka applicant.
556 In Yilka POC [47], the Yilka applicant asserts that male initiation rituals are performed. Consistently with its primary position, the State only admits that amongst some people of the Western Desert male initiation rituals are or were performed and amongst some of the members of the Yilka claim group male initiation rituals are performed.
557 The State relies extensively on what was found by Justice Lindgren in Wongatha. I do not propose to rely upon that material. The State repeats the point that it remains unclear which wati are accorded group membership as does the basis on which HM is able to represent wati. As previously noted, it is clear on the evidence that the men’s places are within the ngurra of HM and that he exercises rights in relation to, albeit at an appropriate distance from, those places.
558 As the Yilka applicant notes, ten of the 13 adult men who gave affidavit evidence are wati. All of the men who attended the restricted site visit evidence were wati. There is no doubt, on the evidence, that ‘law’ ritual practice remains a vital aspect of life in the WDCB, including among the claimants, and that it is an important part of life in relation to the Claim Area. Some adult male members of the Yilka claim group have not been through any stage of ‘the law’. Of course, they may yet do so, but, in any event, those who have not been initiated (including women and children) still have great respect for the law, for the status of wati and for the rules about the areas closely associated with the secret aspects of the law. They clearly acknowledge and observe relevant laws and customs to the extent that their status requires and permits them to do so.
559 There are no indications that there has been any change since sovereignty in the extent to which the practice of the law amongst men was compulsory. Although there may not be the same degree of compulsion, there is no doubt that the law still exists. It could not be suggested that the rules governing the rituals and knowledge of the law do not have their origins in rules which existed at the time of sovereignty. Therefore, under the principles in Yorta Yorta, any non-admission by the State in this regard should not be upheld.
560 Not only was the continuation of male ritual made clear in repeated evidence from witnesses in open sessions, but the restricted evidence also added weight to this point. It was also made clear (in Yilka POC [48]) that gender restricted rules require the male initiation rituals to be performed in a certain manner and impose conditions of secrecy in relation to the restricted information that is passed on during the rituals. (The State only admits this proposition as amongst some people of the Western Desert, including the present members of the Yilka claim group, but not including their recent forebears.) I accept the submission of the Yilka applicant that there was consistent general evidence on the unrestricted affidavits to indicate that there are rules about the manner of performance of the initiation rituals. Much evidence was given about the commencement of the rituals by the ‘grabbing’ of initiates, the sending of the ‘special boy’ and so on. There is no doubt as to the secrecy surrounding these rituals. A number of witnesses gave evidence to the same effect as Westside who said that:
Most of what happens in going through the law can’t be talked about in front of women, children or men who are not watis. This rule has been handed down by the old people. I would not break this rule. Anyone who did break this rule would get into big trouble.
561 That this was strictly observed was entirely evident during the course of the hearing. The witnesses had grave difficulty in talking about such matters at all.
562 Similarly established on the evidence was the proposition from Yilka POC [49] that being put through an initiation ritual has the effect of conferring an enhanced social status on a person, including in relation to matters of secret and sacred knowledge and access to and responsibility for places and areas associated with particular Tjukurrpa. This is evidenced in the respect shown to wati by non-wati adult male claimants in relation to law business and secret places and information.
563 Finally, it is not in issue, and in any case is established on the evidence, that (Yilka POC [50]) when performed, male initiation rituals provide an occasion for:
(a) information to be passed from initiated men to initiates, including information about laws and customs. In particular it is an occasion on which secret/sacred male gender restricted information is passed on;
(b) sanctions for transgression of laws and customs and other unacceptable behaviour to be administered.
564 At Yilka POC [51], the Yilka applicant contends that persons who are actual or, in kinship terms, ‘in-laws’ for the deceased have particular responsibilities in relation to announcements and arrangements concerning the funeral of the deceased. Once again, the State’s admission of this is limited to some people amongst the Western Desert, including some members of the Yilka claim group.
565 Much the same response is appropriate, even assuming the evidence did not support one hundred percent conformity to this rule across the Western Desert or Yilka claim group. There is no doubt on the evidence that the rule exists.
566 Moreover, most of the Yilka applicant’s witnesses gave evidence of the acknowledgement and observance of this rule to the present day. Evidence of Mathew Grey was:
If my wife’s brother passed away, I’d probably organise the funeral. It would be my job in our culture because he’s the brother-in-law. You have to arrange the funeral to help the wife. I’d have to do the arrangements. I would get my cousin-brothers to help. That’s a rule in our culture.
567 In addition, the evidence establishes the proposition at Yilka POC [52] that, on the death of a person:
(a) the use of the name of the person is prohibited for some time;
(b) his or her possessions are destroyed, removed or have their appearance changed;
(c) his or her place of residence is vacated for a time by the persons who shared the residence;
(d) a ‘second funeral’ is held some time after the burial of the deceased;
(e) ideally the deceased is buried on his or her country.
568 On the evidence, the rule was not one of universal observance (in particular, in relation to (e), which appears to be more of a preference than a normative rule), but there is no doubt on the evidence that these practices were observed.
569 In relation to Yilka POC [52], the States admits this only as among some people of the Western Desert, including some members of the Yilka claim group, and that some of the practices at [52(a)-(c)] are observed in some instances. Generally, the State contends that I should reach the same conclusions as reached by Justice Lindgren in the Wongatha judgment (at [3158]-[3178] and at [1853]-[1868]). But, for example, (and this is a good example of the problem with that submission) in that case, only one witness (ME) gave evidence of the practice of destroying or changing the appearance of the deceased’s possessions. The evidence before his Honour was significantly more limited. In the present case, evidence was given about this practice by 13 witnesses, and evidence on the topic generally was given by 16 witnesses.
570 The State also submits, but I do not accept, that the behaviours are in a sense customary, but they are not so firmly entrenched or associated with death as to be considered obligations, or norms associated with a death. It seems to me that the State’s submission is really looking for something that is obligatory in every instance, but, in my view, that is not necessary in order to prove the existence of a law and custom, although, of course, evidence of only an occasional convenient practice with nothing more, would fall short of doing so. Yilka POC [52] is established.
571 It is common ground between all active parties that language is loosely linked to and associated with tracts of country and that the language that is linked to and identified and associated with the Claim Area is the Western Desert language. The evidence of the experts supports this proposition, pleaded at Yilka POC [53]. In particular, Dr Clendon said that the current extent of the Western Desert language occupies the most arid inland area of Western Australia as well as the south-west quarter of the Northern Territory and large part of north-western South Australia. The Yilka claim area is well within that zone, being surrounded by varieties of the Western Desert language. Dr Henderson agreed with this proposition, noting that this was clear from comparison of linguistic elements in the transcripts of the claimants’ speech and the available descriptions of Western Desert dialects.
572 Once again though, the State sought to adopt the findings made by Justice Lindgren in Wongatha (at [3329]-[3336] and [1742]-[1753]), to the effect the Cosmo claim group is not distinguished from other claim groups by reference to speaking a particular Aboriginal language (at [3336]); and that what little knowledge and use of Aboriginal language as remains among the claimants is not pervasive (at [1753]). The State, also again, makes the point that as there were only 16 Aboriginal witnesses who gave evidence in the Yilka claim, of an estimated ‘well over 1000 people in the claim group’, there is no proper basis for concluding that there is a high level of Aboriginal language used amongst the claimants.
573 I have previously commented and generally rejected the broad State submission that not enough witnesses gave evidence to prove practices in the broader (overstated) claim group. Indeed, with the proper evidence, the point could be proven by considerably fewer witnesses knowledgeable about practices in the Clams Area.
574 In my view, the Yilka applicant has made good this aspect of its case.
575 In Yilka POC [54], the applicant asserts that the practice of wartulku, when performed, involves massaging and pressing a baby in a certain manner in order to have the effect that the baby will grow up to be ‘like’ the person who performed the practice. This is admitted by the Sullivan applicant, but the State has adopted its usual position in relation to this contention. The Yilka applicant says that it does not suggest that the practice of wartulku is compulsory, but merely that when it is performed, it has a normative rational process.
576 Evidence was given by a number of witnesses to support the existence of the practice. The evidence which was contained in witness statements was not required to be led orally and was rarely the subject of cross-examination. One of the examples of the evidence was that of Mr Smythe who stated:
Someone will ask the baby’s parents if its ok and if it is, they will press their hands on the baby’s body and say something like: ‘You will be a good hunter’ or ‘You will be a good fighter’ like me. It’s a way of passing on a person’s good qualities … This custom has been going all through my life and comes from our ancestors.
577 The State does not accept that the practice, to the extent that it may performed evidences the continuing existence of a normative system. The State submits I should reach the same findings as those made by Justice Lindgren in Wongatha (at [3131]-[3157] in relation to the Cosmo claim and at [1793]-[1801] in relation to the Wongatha claim). In relation to the Cosmo claim, his Honour found that the limited evidence of this practice occurring was inadequate to establish a generally observed current practice within the Cosmo claim group (at [3138]). As to the Wongatha claim, his Honour was for the most part considering a different practice, that of passing on the name of a grandparent (also described as wartulku), when his Honour found that the practice is not shown generally to be practiced today within the Wongatha claim group (at [1801]). This, again, reveals the danger of adopting the same findings as in Wongatha.
578 Nonetheless, I would agree with the State’s submission on this point, given that the evidence was so sparse that it certainly did not describe a practice which was widely practiced. In my view, it did not meet the requisite standard to be considered a law and custom capable of proving the continued existence of a normative system.
7.8 Dealing with kangaroo meat
579 This topic was dealt with in Yilka POC [55] and [56]. There is little doubt on the evidence that there are normative rules about butchering, cooking and distributing kangaroo meat. These rules derive from sacred beliefs about Tjukurrpa. Broadly speaking, they involve the requirement of preparing and cooking kangaroo on country in a certain manner, including cleaning out the guts, sewing up the stomach, breaking the hind legs and cooking it in ashes in the ground. Butchering a kangaroo is required to be done in a certain manner, including cutting off the legs and hips, then the back.
580 The State has pleaded the usual response. Additionally, once again the State contends that I should make the same findings as those made by Justice Lindgren in Wongatha (at [3317]-[3328] and [1813]-[1852]).
581 There was an actual demonstration of the butchering and cooking of kangaroo in accordance with these rules at the Yilurn ‘bush tucker site’ on day 5 of the hearing. This was performed by Akon Westlake, and a commentary on the process was given for the purposes of the transcript by HM.
582 In addition, by Yilka POC [57], it is asserted that the butchered kangaroo is required to be shared with others. Once again, there is little controversy about this on the evidence. By Yilka POC [58], it is said that knowledge of the requirements of preparing, cooking, butchering and sharing kangaroo and other game is required to passed on generally by word of mouth and common practice from generation to generation. The State does not admit [57] or [58]. However, evidence from Rhys Winter given during the bush tucker demonstration supported the practice about the requirements for dealing with kangaroo meat, including the sharing process, the normative quality of these rules, and the fact that this practice has been passed down for many generations since before sovereignty. Other witnesses also gave evidence about the requirement for dealing with kangaroo meat in particular, and also for other meat. There was very little challenge, if any, to this evidence during the proceedings.
583 The submission for the State is that to conclude that kangaroo ‘must’ be cooked in a certain way, or that it is law that it be cooked and shared in a certain way, would go beyond the findings made by Justice Lindgren in the Cosmo claim in Wongatha and are not warranted by the evidence.
584 Those findings of Justice Lindgren, on which the State relies, are that the practices were explicable by the practical necessities of nomadic survival; and that some, if not all, of these behaviours seem to have been inevitable. While the knowledge and practical skills of the claimants were highly specialised, his Honour did not find that they pointed to particular law or custom.
585 I make no comment about the conclusions reached by Justice Lindgren on the evidence that was before his Honour in the Cosmo claim in the Wongatha proceedings. On the evidence in this proceeding, I am satisfied that these paragraphs of the Yilka POC have been established.
586 I do not consider the State’s submissions are made good, but even if they were, they would not detract from the evidence given in these proceedings that observance of the practices was widespread, expected and more than simply a coincidental, practical measure. The fact that elements of this practice may have been informed by ‘practical necessity’ does not prevent it from being normative: see Akiba (at [172]), where Finn J stated that normative beliefs can be held about ordinary behaviour (set out in Pt 1.1.4 and Pt 5.2). The evidence of a sense of rightness or wrongness associated with particular ways of dealing with kangaroo meat, and the clear prescriptions about the manner of cooking, demonstrates the normative qualities of these rules.
587 The propositions in Yilka POC [59] and [60] are advanced by the Yilka applicant in the following terms:
59. Where a person has a ‘personal dreaming’ or conception totem it is ‘discovered’ by a senior person or persons in consequence of an association being made between the circumstances or place of conception or birth of the person and a Tjukurrpa or species of bird or animal, and sometimes including by a reference to a birth mark.
60. The effect of having a personal dreaming or conception totem is the recognition of a special relationship between the person, the Tjukurrpa or species and any place concerned.
588 Law and custom does not make it compulsory that a person has a personal dreaming; rather it arises or is ‘discovered’ in the particular circumstances of the conception or birth of some people. Once again, little oral evidence was required by the State and few questions were raised.
589 Ms Ross gave evidence of examples of personal dreamings. She noted that her sister Frances has one, being the mountain devil or ngiyarri. (A mountain devil (lizard) was produced temporarily, at the hearing site.) It predicted that Frances was going to be born. Ms Ross gave evidence that Frances ‘doesn’t like children playing with ngiyarri. She sings out at them, “leave that mountain devil, that’s my tjukurrpa”’. Also her brother, Alan Bonney, has a Gold Tjukurr. When her mother found a big piece of gold somewhere around Cosmo, it was predicting his birth. Alan has a gold birthmark behind his head. Finally, she referred to her oldest son, Westside, as being Wiilyka, pussycat; her second son, Jake, as Bardi, witchetty grub; Hayley as Yirliltu, honey ant; and Lyall as Yirlpa, goanna.
590 The State seeks to adopt the findings of Justice Lindgren in Wongatha that having a personal dreaming was no longer a characteristic of the Cosmo claim group (at [3130]); and that similarly, the instances relied on by the Wongatha applicants were so few and so long ago that he was not satisfied on the evidence that dream or conception totems could be fairly regarded as a feature of that claim group (at [1765]).
591 In any event, the State says that such a practice would not be indicative of a practice that would assist the Court in its consideration of the existence of a normative system that it has a continued existence and vitality since sovereignty; and that whether or not a person has a personal dreaming is not significant and not a characteristic of the Yilka claim group on an overall view.
592 I conclude that this practice is sufficiently widespread, in light of the fact that ten of the witnesses for the Yilka applicant said that they have their own personal dreaming and another four mentioned specific personal dreamings of family members, and has sufficient normative content to go to the existence of the society of which the Yilka claimants says they are part.
593 Paragraph 61 of the Yilka POC pleads that where a traditional name is conferred on a person it is conferred by a living ancestor or other senior person closely associated with the recipient of the name, and the name so conferred is ideally the name of an ancestor or other deceased person closely associated with an ancestor of the recipient.
594 The Yilka applicant submits that, while the law and custom does not require every person to be named in that way, it is clear that the reason for naming in a particular way and the process of doing it has a normative quality – there is a sense of correctness involved. Hayley Westlake gave evidence that:
Under our customs, we pass on the names of old people to keep them going and so that the old people will be remembered. It’s a way of showing respect for them. People say something like: “This little girl, she’s got her nanna’s name”.
595 Again, the State seeks to adopt the findings of Justice Lindgren in Wongatha (at [3179]-[3188]) where his Honour concluded in relation to the Cosmo claimants that, at most, there was an optional practice of pursuing this course.
596 I do not consider the evidence in this case rises higher than that level. In any event, I do not think it adds much to the claim. As such, I will not take this purported law and custom into consideration.
597 Paragraph 62 of the Yilka POC states that where an adoption occurs, it occurs between close relations and its effect is that adopted children and biological children of an adoptive parent or adoptive parents are to be treated in the same way, including in relation to the allocation of ‘skin’, the application of kinship and marriage rules, and the application of laws and customs relating to the possession of rights or interests in relation to land and waters.
598 There was not much evidence on this topic. Evidence was given by Ms Ross that as a baby she was adopted, and that she was able to claim country through them, if she chose to. ME’s claim is also pressed through his adoptive mother, NW. The State does not dispute that children who are adopted purport to claim rights and interests in country through those who raise them; although it does not accept that the practice of adoption is widespread or indicative of a normative practice.
599 I do not think that anything of significance can be made of this practice.
7.12 Restricting and transmitting knowledge
600 Paragraph 63 of the Yilka POC was to the effect that cultural, spiritual and practical knowledge is to be passed on from generation to generation, generally by word of mouth, demonstration and common practice. This was a matter of common ground between all active parties.
601 Paragraph 64 of the Yilka POC pleaded that access to and disclosure of knowledge of the spiritual significance of sites and ritual associated with some places was restricted on the basis of gender, age and ritual knowledge. This was also common ground and I accept that the evidence was replete with statements and examples of the application, acknowledgement of and observance of the matters pleaded in these points.
7.13 Respect for senior people
602 Paragraph 65 of the Yilka POC was to the effect that younger people should respect senior people and that respect was to be shown generally and not in particular by:
(a) younger people listening to, learning from and following the ways of senior people and thereby over time coming to properly relate to the land and to other people; and
(b) in relation to matters regarded as concerning secret or sacred knowledge of ritual objects or places – young wati not speaking authoritatively or at all about such matters in the presence of more knowledgeable senior wati.
603 Again, the State admitted only that this was a practice of some people in the Western Desert and some members of the Yilka claim group, and did not admit subpara (b) in relation to wati.
604 For my part, I consider the proposition is well-established by the evidence of a number of witnesses, including Junior, who explained that:
You get to be an elder in the community through age and knowledge; and in the case of watis, through ceremonies as well. The elders are teachers and guardians. Young people have to listen to the elders in the community. They can’t get information off them until they think they are ready. Young people have to learn to listen and not rush in. If I get asked information but there are other senior people around I’ll get others to talk. I have learned from watching and being taught that that’s the proper way.
605 There was confirmatory evidence from Mr Smythe, Rhys Winter and Westside, about the respect and deference that should be given to older people by younger people and to older wati by younger wati.
606 The State accepts the proposition as it related to the Aboriginal witnesses in the proceedings, but says it was not evident to what extent and what inference, if any, could be made about other members of the respective claims. (The State made the same point in relation to [63]-[64] of the Yilka POC). On each custom, I disagree with the State. I was satisfied on the evidence given that the observation of the rule concerning respect for senior people was widespread and of general applicability and not confined to the witnesses who gave evidence. Departure from it was viewed with disapproval.
607 The points were established.
7.14 Laws and customs generally
608 By way of conclusion, I find that, on the whole, the laws and customs discussed in this Part, which I consider to be established on the evidence, go to proving the continuing existence of a normative system under which rights and interests relation to lad are possessed.
8. THE LAWS AND CUSTOMS AS NORMATIVE RULES
609 The ‘normative’ requirement that distinguishes an ‘observable pattern of behaviour’ from a ‘law or custom’ was discussed by Finn J in Akiba at first instance (at [171]-[173]) set out above in Pt 1.1.4 and Pt 5.2.
610 At [174], his Honour also noted that:
[W]hile a person may have a choice as to whether or not to engage in a particular activity (hence is not bound by a custom to do so), he or she may still be bound by customs if the choice is made to engage in that activity. I would instance as an example of this the long-standing practice of adoption of Islander children in the Strait …
611 I accept the Yilka applicant’s submission that the more recent development of the law since Wongatha would appear to support the Yilka applicant’s contention (in Yilka POC [81(a)] and [81(b)]) that when considering questions about the acknowledgment and observance of laws and customs, it is necessary to distinguish between:
(a) a law or custom of general application;
(b) a law or custom that is triggered by the taking of an action that is not mandated by law or custom (such as adoption).
As such, there can be normative elements to discretionary behaviour, that is to say, there can be laws and customs which govern the manner in which a thing must be done even if there is no law or custom requiring it to be done.
612 The State rejects the contention (at Yilka POC [66]) that the laws and customs are given normative force by evidence of:
(a) widespread commitment to the Tjukurrpa and the high value of the sacred among the people of the Western Desert;
(b) a fear of being ostracised or otherwise punished for breach of the laws and customs; and
(c) the requirement of respect for elders and others with ritual status or authority.
613 The State also does not admit Yilka POC [67] where it is pleaded that breach of the laws and customs referred to above is attended by sanctions, including peer pressure, disapproval of elders, social criticisms, sometimes ostracism and sometimes physical punishment; and sanctions are sometimes administered during initiation rituals.
614 The State says that the proper approach to be taken by the Court is to examine the body of evidence of law and custom in order to determine:
1. whether the laws and customs are collectively normative rules;
2. whether the laws and customs are ‘traditional’;
3. whether the claimants are a body of persons united in and by their observance of a body of law and custom (that is, whether they comprise a ‘society’: see Yorta Yorta (at [49]));
4. whether the rights and interests are possessed under traditional laws and customs; and
5. whether the normative system has had a continuous existence and vitality since sovereignty: see Yorta Yorta (at [47]).
615 These considerations are generally derived from s 223(1) NTA and Yorta Yorta. The State draws particular attention to Yorta Yorta at [46]-[47] where the majority said:
46 That being so, the references, in pars (a) and (b) of the definition of native title, to "traditional" law or custom must be understood in the light of the considerations that have been mentioned. As the claimants submitted, "traditional" is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the [NTA], "traditional" carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are "traditional" laws and customs.
47 Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.
(emphasis in original)
616 The State’s point here does not add much, as all of these matters have been the subject of submissions of the Yilka applicant and are discussed in these reasons. Point 1 is dealt with in this Part, point 2 is addressed in Pt 9, and Point 5 in Pt 9. Other discussion throughout Pts 4-13 also goes to these considerations, given that they are inter-connected.
617 The State does not take issue with any submissions about the laws and customs of the WDCB as a society since sovereignty, but does take issue with the evidence of the laws and customs which are asserted to be followed by the claimants to the extent that the evidence purportedly discloses the continuing existence of a normative system, or that the claimants are all part of a society that follows such laws and customs. The State rejects the contention for the Yilka applicant that there is a normative quality embedded in the notion of recognition. Given that the mechanism for recognition has not been identified with any precision in the proceedings, it is impossible to say, the State would contend, that there was any normative quality embedded in it. The Yilka applicant, on the other hand, asserts that the ‘pathways to connection’ are rules which have normative content, and that access to rights in country depends ultimately on the acceptance by one’s peers of the factual basis for possessing rights.
618 There is a deal of evidence in support of both Yilka POC [66] and Yilka POC [67], much of which is contained in witness affidavits under the heading ‘Breaking rules’ or ‘Reasons for not breaking rules’. As an example in support of Yilka POC [66(a)], Westside gave evidence that ‘the Tjukurrpa can be dangerous’. As an example of commitment to the Tjukurrpa, and also of social sanctions, Warwick Simms gave evidence that:
I have grown up with my people knowing I will get into trouble if I don’t do the right thing; if I don’t follow the rules. People keep on following rules because there will be trouble if they don’t, and because they believe in tjukurrpa. We believe in tjukurrpa and have to keep it strong.
619 There is ample evidence in support of the respect for authority for elders, including senior wati. As to sanctions generally, ME gave evidence that:
When someone does the wrong thing, other things can happen to (sic). It’s not just physical punishment. A parent or another older person might talk to that person quietly. Or they might growl at that person in front of others, which would make the person feel ashamed.
620 The Yilka applicant maintains that all the matters put forward in the Yilka POC as laws and customs have normative content, and that none of them involve only bare observable patterns of behaviour. The Yilka applicant asserts that if these rules had no normative content, there could be no social or territorial organisation such is evident in the Western Desert, including the Yilka claimants in relation to the Claim Area.
621 In my view, each of POC [66] and POC [67] is established for the Yilka applicant despite the fact that not every law and custom as contended for has been made out (see Pt 7).
622 I also consider that recognition has a normative quality, subject to the qualification I have expressed and which I will further address concerning recognition of the Sullivans.
9. THE LAWS AND CUSTOMS AS ‘TRADITIONAL’
623 To some extent this topic has been covered, but the focus below is more specific to the question of whether laws and customs are traditional. The legal principles are discussed at 1.1.4 above. The question of continuity is also relevant to these considerations: see Pt 1.1.6. See also the discussion about drawing inferences at Pt 1.1.2 above, in particular Yorta Yorta (at [80]) and Ngarla (at [106]-[108]).
9.1 Evidence – today and since ‘sovereignty’
624 This section deals with the propositions advanced in the Yilka POC at [69]-[73] which are as follows:
69. Knowledge of and the requirement for the acknowledgement and observance of the laws and customs referred to in [23] and [36] above has been; and thereby those laws and customs, have been passed from generation to generation of the people of the Western Desert, in particular to the claim area and in particular by ancestors of and persons in the Yilka claim group, usually by word of mouth and common practice since sovereignty to today.
70. Acknowledgment and observance of the laws and customs referred to in [23] and [36] above by the people of the Western Desert, in particular in relation to the claim area and in particular by ancestors of and persons in the Yilka Claim group, has continued substantially uninterrupted since sovereignty to today though with change and adaptation as referred to in [76]-[79] below.
71. The laws and customs referred to in [70] above are, and without substantial interruption since sovereignty have been, given normative force by continuation of the factors referred to in[66]-[67] above.
72. The origins of the laws and customs referred to in [70] above today are to be found in the normative rules of the WDCB that existed at sovereignty.
73. The WDCB today is a normative system that has had a continuous existence and vitality since sovereignty.
625 The Yilka applicant contends that the inference is available from the evidence considered, thus far, and the nature and complexity of the laws and customs, demonstrated by that evidence that those laws and customs emanate from laws and customs of ancient origin. It is not possible to ‘imagine’ that such beliefs, or the social and territorial organisation shown in the evidence, have been invented or created since sovereignty. The evidence is that knowledge and practice of the laws and customs held by the Yilka claimants today was learned by word of mouth from and common practice with earlier generations. There is no suggestion in the evidence of substantial interruption in the acknowledgment and observance of the laws and customs or of any substantial interruption of the normative factors. No evidence points to any laws or customs being of recent origin - rather, the Aboriginal witnesses assert that their system of laws and customs originates in the dreaming, before living memory (as noted by Dr Sackett).
626 There is much anecdotal support for these contentions. For example, there is evidence of Mr Jayden Smith (deceased) who was asked whether the right way to claim country etc was just a recent thing, or whether it was from early time. His answer was ‘No, early. Been going on for years. Thousands of years’. Junior said that:
[B]efore Mr Cook and the Dutch people came to the coast and everybody else came in, prior to settlement, we Aboriginal people had our own governance. At that time, we had all the rights in our country, and under our law, it is still the same today.
Similar evidence was given by Mrs Murray, Mr Smythe, Westside, Ms Ross and Jake Westlake. These contentions are further supported by the anthropological witnesses, given their unanimous agreement with Proposition 28 considered in the conference of experts (see Pt 4.3 above).
627 The State takes issue with the lack of substantial interruption submission. In particular, it does not accept that it can be demonstrated or can be inferred that there has been no interruption since sovereignty in relation to all of the claimants in the proceedings. It says that where the claimant group is constituted by less than the society, that is, the WDCB, it is the continuity of laws and customs of the individuals or, if relevant, the group that is ultimately required. In light of the history of establishment of settlements in the Claim Area, the State does not accept the assertion of continuity in relation to the acknowledgment and observance of all identified laws and customs by all individuals as they relate to rights and interests in the Claim Area. The State, once again, adopts the findings of Justice Lindgren in Wongatha (at [879]) as submissions.
628 In response, the Yilka applicant says that the State’s heavy reliance on the artifice of the Yilka claim as being a claim by individuals collapses on itself. The State having accepted continuity of the WDCB society and therefore having to accept the necessary continuity of its laws and customs, again, relies on its ‘individual, group, communal’ argument. In this instance, the State uses that argument to suggest that in the individual claim, continuity of laws and customs must be established at a level of ‘all claimants’.
629 In response, the Yilka applicant says that it is unclear how the continuity of laws and customs of individuals since 1829 is to be established. It contends that this argument for the State confuses continuity of occupation, or of possession or exercise of rights, with the fundamentally different notions of continuity of society and laws and customs. The continuity of society and of the relevant laws and customs since sovereignty, which I agree is the relevant consideration here, is discussed further below.
9.2 Evidence – at ‘sovereignty’
630 There is no direct evidence of the relevant situation at sovereignty, however, there is ample evidence, so the Yilka applicant argues, enabling the Court to infer the existence of laws and customs at sovereignty which were much the same as those seen in the Western Desert today, including as acknowledged and observed by the Yilka claimants. It is sufficient that the laws and customs relied on have their origins in a pre-sovereignty normative system and that they are capable of sustaining the same rights as were possessed at sovereignty. The Yilka applicant submits, and I accept, that all Aboriginal witnesses are confident in the belief that the laws and customs they acknowledge and observe today have been handed down to them, not merely from the arbitrary date of British sovereignty, but from time before time – ‘from the Dreaming’.
631 The State stresses that, insofar as the evidence discloses conditions before European contact, the conditions have since changed considerably under the influence of developments that have made an itinerant and isolated existence less possible. Permissible adaptations and change are discussed under the following subheading.
9.3 Relevant continuity – adaptations and change
632 So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional (Bodney at [74]). Change that may be antithetical to the existence of native title is change to the content of the laws and customs that give rise to rights and interests in land, such that the content does not have its origins in pre-sovereignty laws and customs: see discussion at Pt 1.1.6 above.
633 At Yilka POC [74] and Yilka POC [75], the following contentions are made:
74. It is contended that when considering the continuity of acknowledgement and observance of laws and customs, it is necessary to distinguish between:
(a) change and adaptation of the laws and customs of the WDCB themselves;
(b) changes in the circumstances in which those laws and customs were acknowledged and observed;
(c) the social and demographic outcomes that may result from the acknowledgement and observance of unchanged laws and customs in different circumstances;
(d) where participation in a practice is not mandatory – the laws and customs that apply when the choice is made to engage in the practice and the numbers or proportions of persons who engage in the practice in a given generation;
(e) ‘regional variation’ in the laws and customs that are acknowledged and observed and regional variability in the numbers who participate in non-mandatory practices governed by laws and customs;
(f) ‘expectations’ that many or most will engage in or be the subject of a practice, a law or custom that represents an ‘ideal’ but is not mandatory and a law and custom that includes mandatory participation in a practice; and
(g) where participation in a practice is mandatory – practices that all must engage in, practices that a particular segment of the population must engage in, practices in relation to which mandatory participation is subject to exceptions, and practices in relation to which the circumstances under which participation is required occurs once in a lifetime, rarely, or as an everyday aspect of life.
75. It is contended that no change or adaptation of the WDCB laws or customs necessarily is involved where:
(a) the descendants of a person who held rights or interests through a particular pathway to connection in one area move (or the person in his or her own lifetime moves) to and acquires rights or interests on the basis of another pathway to connection in another area within the broader area of the WDCB. Such is ordinarily merely an instance of the application of the laws and customs;
(b) a person who has a recognised connection to and rights or interests in a particular area successfully asserts rights or interests in adjoining or other places through another pathway to connection such that his or her ‘my country’ area is geographically extended over those adjoining places or to those other places. Such is ordinarily merely an instance of the application of the laws and customs;
(c) a number of persons who each have a pathway to connection to the area settle relatively permanently in and become recognised as possessing rights in the area where a reliable supply of resources is available. Such ordinarily merely involves instances of the application of the laws and customs to the changed circumstances relating to the availability and reliability of resources; notwithstanding that over generations it may lead to a greater number of instances than in the past of recognition of rights or interests being possessed on the basis of a descent-based pathway to connection;
(d) at sovereignty there was a higher participation rate in a particular practice and a lower participation rate today where the laws and customs that apply to the conduct of the practice continue to be acknowledged and continue to be observed by those who participate in the practice.
634 These contentions go to distinctions that it is necessary to make when considering relevant continuity for the purposes of resolving questions about whether laws and customs are traditional. Generally, it is not significant that there may have been change per se, even vast change, since sovereignty. It is necessary to identify what it is that has changed, and whether it is the circumstances in which the acknowledgment and observance of laws and customs have changed or whether it is the content of the laws and customs themselves. The proper characterisation of the change is significant.
635 An example which arose in the evidence quite frequently was that the use of motor vehicles to travel for law business perhaps over generally greater distances than were traversed at sovereignty, is irrelevant. Similarly, the advent of requirements that birth take place in hospitals now is irrelevant. This affects only the proportion of people who claim connection to country through the traditional descent pathway, and the corresponding proportion to whom the birth on country ‘pathway to connection’ will apply. There may have been a dramatic shift in those proportions - but that is not significant because it does not reflect any change to the laws and customs. Changes in the level of engagement with a particular aspect of law and custom due to the competing demands of the non-indigenous normative system: such as requirements for hospital births, cemetery burials, education in English and such like, are not significant as long as the acknowledgment and observance of laws and customs sustains a normative system and gives rise to the claimed rights.
636 There was no suggestion on the evidence of change of the kind which could lead to the conclusion that there is no longer a functioning normative system or that it does not give rise to the possession of the kinds of rights claimed. The Yilka POC at [76]-[78], does describe some changes or adaptations to particular laws and customs since sovereignty. Yilka POC [76] states that particular kin terms used in the region of the Claim Area today, including by members of the Yilka claim group, are similar to, but may not be precisely the same as, those used at sovereignty. Yilka POC [77] provides that the section system has been adapted to accommodate the present of non-Aboriginal parents, and Yilka POC [78] adds that some other modifications have been made to the section system since sovereignty, though the existence of the system and its principles remain the same. This evidence is largely unchallenged. The Yilka applicant further contends that none of the changes explained at POC [76]-[78] have adverse significance for the Yilka claim.
637 As a final point on this topic, Yilka POC [79] asserts that the Western Desert language, and in particular, the dialects Wangkatha and Ngaanyatjarra, remain the language associated with the region of the Claim Area. This proposition, supported by the linguists and Aboriginal witnesses, goes to the longevity of the Claim Area as part of the Western Desert and the people as part of the WDCB.
638 In my view, for the reasons advanced by the Yilka applicant, the relevant necessary continuity has been established. Specifically, I agree with the Yilka applicant that a degree of change and adaptation since sovereignty is permissible and that, on the whole, the evidence shows that the laws and customs practised by the claimants today derive from and are substantially the same as those practised in the region of the Claim Area since the time of sovereignty at the very least. It is abundantly clear that such a complex normative system, shaped as it is by the practical necessities of survival in a harsh desert environment were not merely created in the last 200 years.
10. ACKNOWLEDGMENT AND OBSERVANCE OF THE LAWS AND CUSTOMS
639 Section 223(1) NTA requires that the traditional laws and customs under which rights and interests are possessed are ‘acknowledged and observed’ by ‘the Aboriginal peoples or Torres Straight Islanders’. This section provides a general definition of native title; it is not claim specific in the way that s 61 and s 225 NTA are.
640 The Yilka applicant contends that following Yorta Yorta, any claim by a subset of members of a society for an area less than the area to which the laws and customs of the society apply must be considered against the requirements of s 223(1) NTA, not in isolation from, but in the context of the society and the laws and customs of the society: Yorta Yorta (at [49]-[57]). The State repeats its submission that only 16 people gave evidence out of the 400-1,000 claimants. Each individual may have their own constellation of sites with their own connection to country through traditional laws and customs. If the Yilka claim is not a group claim, then the State says it is not open to the Court to draw inferences about the other hundreds of claimants because they are necessarily independent in their acknowledgement and observance of traditional laws and customs or, at the very least, have not been put forward as or shown to be a group within which inferences can be made. The State argues that acknowledgement and/or observance or not by one individual is not relevantly capable of leading to inferences in relation to other claimants where they are, on the applicants’ cases, not a group.
641 There is no doubt that the Yilka applicant has established a broad level of acknowledgement and observance of the pleaded laws and customs among the persons on whose behalf the claim is made. There was no evidence on the part of any witness that he or she or others did not observe the laws and customs on which they had given evidence. As the Yilka applicant submits, the relevant laws and customs are those of the society. The fact that in the Western Desert rights arise from a connection event that is personal to the individual, does not mean that questions regarding acknowledgement and observance of laws and customs must be proven on an individual basis. It would be an error to regard the ‘acknowledgment and observance’ requirement as involving consideration of the actions, beliefs and motivations of each individual in the claim group, which is a subset of the Western Desert society. It is clear that the relevant acknowledgment and observance of the laws and customs of the WDCB is adequate to sustain the possession of rights by the claimants in the Claim Area under those laws and customs. Thus, the contentions at Yilka POC [80] and [81] are established, which are as follows:
80. The laws and customs referred to in [23] and [36] above are acknowledged and observed by the persons on whose behalf the Yilka claim is made.
81. It is contended that when considering questions about the acknowledgement and observance of laws and customs, it is necessary to distinguish between:
(a) a law or custom of general application;
(b) a law or custom that is triggered by the taking of an action that is not mandated by a law or custom (such as adoption);
(c) a level of disobedience to a law or custom and the acknowledgement of that law or custom;
(d) a level of disobedience to a law or custom and the observance of that law or custom;
(e) a level of non-acknowledgment or non-observance and the absence of acknowledgement and observance;
(f) the proportion of the relevant population or numbers of people at sovereignty and today that participates in a particular practice and the acknowledgment and observance of laws and customs that are associated with that particular practice.
642 In my view, the Yilka applicant succeeds on this part of his claim.
11. RIGHTS AND INTERESTS POSSESSED UNDER THE LAWS AND CUSTOMS
643 It is necessary at this stage to identify the rights that may or may not later be translated into native title rights for recognition in a determination. The Yilka applicant notes that the way that laws and customs and the traditional rights have been put here is more akin to the way those matters were put and considered in Akiba, than the way they have often been put and considered in other contested native title cases preceding Akiba. In particular, in Akiba, the pleaded laws and customs under which traditional rights and interests were possessed and the traditional rights and interests themselves were few in number and broadly stated, as they are in this case.
644 The rights and interests are pleaded here as having three essential elements, each unqualified or unconstrained:
(a) use of the land;
(b) use of resources; and
(c) control of access.
645 Thus POC [82] is in these terms:
The rights and interests possessed under the traditional laws and customs and customs referred to in [23] and [36] are the rights to:
(a) ‘speak for’ and ‘look after’ an area – including the rights to make decisions about an area and to control the access to and use by others of the area;
(b) access, remain on and use an area for any purpose;
(c) take from an area anything that is useful and to use it for any purpose;
(d) protect places of importance.
646 A proposition consistent with POC [82] was agreed to without qualification by all experts. Professor Trigger stated that, in his opinion, the rights and interests listed in POC [82] are the usual ones asserted as flowing from traditional Aboriginal law and custom.
11.1 Ownership – the right to speak for country
647 The Yilka applicant contends that the persons mentioned in POC [27], being Western Desert persons and the holders of ‘my country’ or ‘traditional owner’ rights, are entitled to regard the Claim Area and its resources as their ‘own’. The right in POC [82(a)] to ‘speak for’ and ‘look after’ an area includes the rights to make decisions about an area and to control the access to and use by others of the area.
648 The Sullivan applicant contends that this is subject to the inclusion of the Sullivan claimants’ rights and interests in respect to the Claim Area. The Sullivan applicant makes, in general terms, supportive submissions of the Yilka applicant’s claim, but for the fact that it should include the Sullivan applicant.
649 Witnesses often spoke of country being their ‘own’ or about being a ‘traditional owner’ of ‘my country’ or ‘their country’, the country ‘belonging’ to them or them belonging to the country. Sometimes a witness was asked to explain the meaning of such words, and dispelled any assumption that those words do not carry their ordinary English meaning. Mrs Murray, for example, attributed her right to be involved in decision-making about country to it being ‘our ngurra’. When asked what she meant by the term traditional owner, she said ‘[t]raditional, me mean that I belong to the place’. Ms Ross, when asked what it means if she says, ‘I am the ngurranrangka’, she said ‘I am owner land here. It’s my ngurra’. Rhys Winter, when asked what he means when he says that somebody is a traditional owner said ‘well in our language before the ngurarra arrive – ngurarra, ngurarrangka, they belong to that land’.
650 Junior’s affidavit evidence said that:
In country that is my ngurra, I can pretty much do what I want. I can go anywhere I want in my Cosmo, Minnie Creek country, but I can only go to restricted areas when older people are with me. That’s what I saw and learned all the time I was growing up.
651 He went on to say that:
Thousands of years ago our people used their country however they could, for however they wanted, or however they needed to survive. They had ochre there at the big ochre pits over at Cue. People went over there and brought it back here and used it for their benefit. We can do things that benefit everyone from the area, - the whole tribe. Together we can do anything but we also have our responsibilities to protect our sacred sites and look after our country, and be individuals.
652 Jake Westlake gave evidence referring to ‘the owners’ and identifying the need for visitors to seek permission, saying in the hypothetical context of a bus load of tourists or anyone wanting to come into the land, ‘[w]ell, first, they need to - to start with the owners of this place, come ask us, if they want to come through here’.
653 Similarly, in Warwick Simms’ affidavit in a passage not required to be led orally, Mr Simms said:
Old people before just walked by foot. They didn’t know anything about hotels or art galleries or anything like that but they could do anything they wanted to do on their country. They could get together and make decisions about who could come there and who couldn’t come there. They can make their own decisions. So, it’s the same today. If all the owners agree to something they can do it. It’s the same idea like when a white man says he’s the owner of a block. He can do whatever he wants there and can make the decisions about it. It’s the same for us. The traditional owners can use the area and have the final say about what happens there.
654 He gave similar evidence in relation to resources on the area:
The owners can decide which they can drill in and which areas have to be kept free. If they want to sell a lot of things from the area, like sandalwood, or gravel or something like that, they can do it if they agree. Old tjilpi will be asked if it has something to do with the men’s main area.
655 As to what is included in the notion of ownership, HM gave evidence that it covers everything, including trees, plants, animals and water. He also said that the traditional owners must look after the Tjukurrpa stories, despite the traditional owners who are not also wati not having access to the stories or the law.
656 The State says that it is not clear what the Yilka applicant means by ‘my country’ rights holders. It says the expression appears to exclude wati who are not also connected through their own or an ancestor’s birth or long association; and seems to be capable of including persons with birth or descent based credentials who have no association or no recent association with the Claim Area. The State’s understanding of the Yilka applicant’s case is that a right to speak for country is not a right that all claimants hold, but rather, is a right that accrues from other attributes, including age, knowledge about country and association with country. The State also mentions that many ‘my country’ holders are away from the Claim Area.
657 However, the Yilka applicant says that the State’s initial definition of ‘my country’ rights holders is adequate, and, further, clarifies that the case and the evidence is not that only some of the ‘my country’ rights holders have the right to speak for country. They all possess that right. They all possess, in relation to their ngurra, the full suite of rights pleaded in POC [82] and claimed as native title rights in the Yilka Determination Sought in proposed Order 3 and Order 4 (see Annexure 2). The Yilka applicant complains that the State has ignored the fundamental distinction in native title jurisprudence and relied on in this case, between the exercise of a right (and the manner of exercise) and the right itself. The attributes of age, knowledge about and association with country are relevant to the role a person may hold in relation to the exercise of a right, but not the existence of the right. There is no requirement under traditional laws and customs that a person live on their country. If they do not, it may have some bearing on the exercise of their right to speak for country, but not the existence of holding of the right.
11.2 Control of access and use by others
658 The evidence going to ownership and the right to speak for country also goes to questions about the existence and content of the right to control access. That evidence is relied upon to support that element of the plea in POC [82(a)]. See also the evidence and discussion in Pt 6.6 on qualifications on access. On balance I consider that that evidence, along with the evidence discussed below demonstrates that there is acknowledgment and observance of a right to control access and the presence of certain rules under the laws and customs governing its exercise, which rules are shared by the people of the Western Desert.
659 Despite the Yilka applicant’s brief submission, the State says quite a lot in relation to this issue. The State says that the term ‘strangers’ has not been explained with precision and appears to be open to conjecture when considering the use of restriction on access to and use of the Claim Area. Who each witness might have perceived as a stranger must be viewed in the context of a particular question and answer. As a general proposition, the State does not dispute that, in the context of protocols and practices relating to access to places, a ‘stranger’ would include a person who was not a Western Desert person. With respect to non-Aboriginal people, or other non-Western Desert people, the State accepts that there has been evidence adduced as to the law and custom on the qualification of access to the Claim Area. However, the State does not accept that this had been the subject of a continuous practice since sovereignty or that all visitors, specifically those who are Western Desert persons, are required to seek permission for access to all parts of the Claim Area. It does not accept that the evidence relied upon is sufficient to demonstrate this aspect of the applicants’ contentions.
660 I readily accept the State’s submission that there are more subtle nuances concerning this rule than might be anticipated from the pleaded case. However, the totality of the evidence, in my view, supports a conclusion that total strangers to the area would be expected to consult to seek access to the area so as to avoid not doing the wrong thing and also for their own benefit, preservation etc. This is not a rule which would apply to people casually passing through, especially Aboriginal people passing through, but would be applicable more to real strangers intending to have access to the area concerned for more than transient purposes.
661 GM (who gave evidence on the site visits) explained that if, for example, people wanted to run a rally through Cosmo, such as the Australian Safari, under their set of rules, those people must write a letter to the Cosmo Newberry Community and to HM, and the Community would discuss it to decide whether or not it is acceptable and to make sure it is well away from sacred areas. Similarly, if tourists wanted to camp for a week or so, on the Claim Area, then they should go through the same process.
662 He went on to say that if people came onto the Claim Area and did the wrong thing, for example, in terms of the rock holes, generally made a mess, or cut down lots of trees, he would regard himself as having a right to move them on. Outsiders would be expected to respect GM’s country just as he would respect the owners of the Ngaanyatjarra lands, if he went there.
663 The State points to evidence that this consultation and approval process would not apply to known people or over a limited geographical area, such as on a road, or for a limited duration or a necessary or routine activity. There was evidence that people behaving in the proper way could go through along the travel routes, and stop to take and eat a kangaroo as they go through without permission. However, this merely suggests that the right of control of access to and use of a person’s ngurra is to be exercised with restraint in relation to other known Western Desert people, and in a manner that involved generosity, particularly towards such people who are travelling. Additionally, there is ample evidence which does support the pleaded rule more generally.
664 Mrs Murray spoke about the fact that people travelling through from Warburton towards Laverton, or vice versa, should not be ‘burning the country’, and that tourists going through are not allowed to light fires. Similarly, she said that she would not want to be burning country around Warburton, and that if someone did burn country at Warburton, the traditional owners would get ‘wild’ and ‘angry’. If people travelling through the Claim Area hunt kangaroo but also make a big mess, for example, chop down trees or burn country, they would get told off if the traditional owners find out.
665 Specifically, in relation to maliki, strangers, Mrs Murray said that if they were prospecting, the process was that they should come and seek approval to do so from the people who own the country.
666 Mrs Murray said in her affidavit evidence that people who are strangers (maliki or ngatjarri), should come and introduce themselves, depending on where they want to go, and how well known they are. If someone has permission to go hunting, they may only need to ask once.
667 Jayden Smith gave evidence that if a local person wanted to camp along the road for a few days, they would have to let the native title holders know. Tourists from elsewhere, such as Sydney, would have to have permission to go through the lands. In the past, smoke signals were used to let traditional owners know that you were coming onto their land.
668 Mr M was expansive about who could have access to bardi, honey ant, and so on, but his evidence, as I construe it, related to persons other than complete strangers. Of course, it was focussed upon fairly minimalist activity.
669 Senior wati, such as Jayden Smith, do not need permission to go to the special places. However, Robyne Smythe explained that, even as a wati, he could not just charge into any sacred place in the whole region. He would have to go and see the traditional owners and if he had a good reason, they would not deny him access.
670 Additionally, Mr Smythe gave extensive evidence on the topic of strangers passing through or using other people’s land generally. For example, Mr Smythe said if an Aboriginal man from Warburton was driving to Docker River and going through his country, and came across a kangaroo on the road or near the road, it would be okay for him to shoot it. Mr Smythe said that the Aboriginal man would not have to come and see the Community; if he did, the kangaroo would be gone. If he wanted to cook the kangaroo by the road or use some wood that was lying there to make the fire that would be okay too. If the Aboriginal man came from Warburton, Mr Smythe said he would know him and may even be related to him. He said that he knows all the families at Warburton. He said that neighbours quite often go hunting in each other’s country. They know the people and the country, and they do not have to ask each time. Although it probably would not happen, if that neighbour did something really wrong on the country, the owner could kick him out or tell him not to come back again. Mr Smythe said that if a person wanted to do something big on his neighbour’s land, like building a camping ground for tourists, he would not think of doing it without getting permission from the owners. However, this probably would not even happen because if someone wanted to build a camping ground for tourists, they would probably do it on their own country. He said it was the same for him, that if he was travelling from his country to Laverton and he came across a kangaroo at Cosmo, he would not have to ask anyone if he could shoot it. All the Cosmo people know him and he knows some of the country there. He thought he was known by the families living in the communities between Docker River and Laverton and even further than that. He explained that if an Aboriginal man from South Australia came over their way and did not know the country, he would not just go off by himself hunting. He would know that this is the wrong thing to do, as he is a maliki (stranger). If he did go off hunting by himself, he might enter a place that he should not go or he might get lost. Mr Smythe said that: ‘We would feel sad if someone got lost or hurt on our country, and we would really be upset if a stranger went into any of the sacred places without us’. The proper thing for that man would be to wait until one of the ‘bosses’ says that it is okay. If he does not know the country, ‘we could get someone to go out with him’. If he has relations over here, they would show him around. Mr Smythe said it would be the same for him if he was in South Australia and did not know the country. He would find out who the bosses were and talk to them if he wanted to go out.
671 He said that if someone wanted to do something at Cosmo, they should go into the Community and talk to HM or one of the Westlakes or one of the other bosses about it. Mr Smythe explained that all Aboriginal people he knows do not like it if someone sneaks around on their country without talking to the bosses. It is the wrong thing. He said that it has always been like this. If someone did do that, it would disrespectful to the owners of that place. He said that it is like this at Cosmo and all other communities that he knows.
672 I do not propose summarising all of the evidence, but the passages above summarised from Mr Smythe, in my view, are a fair summary of the totality of the evidence on this topic. I accept the State’s submission that the control over access is limited in the way that Mr Smythe discusses, but equally, the evidence of Mr Smythe, supported by a deal of additional evidence, shows that there are expectations and rules which will be observed even now. Without descending to the detail at this point, it is relevant to note that there was evidence on this topic given by Rhys Winter, Westside, Ms Ross, Jake Westlake, Hayley Westlake, HM, HJ, Warwick Simms (a wati), Mathew Grey, ME, Junior (a wati), and Victor Fraser, as well as by witnesses for the Sullivan applicant, namely, Mervyn Sullivan, Patrick Edwards, Glen Cooke, Celia Sullivan, Doreen Harris, and Irwin Sullivan. There was also evidence given by the expert witnesses. My impression was that the anthropologists endeavoured to grapple with the balance, just as I have done above, between the flexibility for permitting access to known people or brief activities on the one hand, and unknown strangers and/or more substantial activities on the other. For example, Dr Sackett spoke of the expectation by people on country that others will ask permission before or during arriving, or phone ahead if they were going to another community. He said that there is an expectation that you ask, but there is also the expectation that you will be welcomed and the expectation that you will be shown around, where to go, what to do and perhaps be fed. He said there is a notion of control, but there is also one of embracing visitors coming in from outside.
673 As Dr Cane said, if people travel over long distances, for example, to visit relations in a country that is not their country, and they want to access resources of that country, they must go through the protocols the first time. Once you have established that you are allowed, you do not have to do that every time you visit.
674 Professor Trigger was less persuaded that there was any observance of such a rule due to evidence of permanent migration subsequent to European ‘intrusion’.
675 On an indirectly related point, Dr Vachon spoke of the view expressed by Professor Berndt in his 1959 article in ‘Oceania’ and said that his, Dr Vachon’s view, was that Professor Berndt’s 1959 view that people had the right to hunt and gather throughout the entire Western Desert was more expansive than he thought it to be. Dr Sacket said that there were minor differences in law and custom, so that in some areas of the Western Desert birth is more important than in other areas. If a person went from the top of the desert to the bottom, they would have to make some adjustments, but they would make them fairly quickly because they would be speaking the same language. Dr Sackett said that they would very quickly make friends and relations because of the kinship system and so forth. They would be taught the country and it is quite conceivable that some of the stories that they already know would link up with the stories that they are learning now.
676 These observations were not entirely on point in relation to access, but they do underscore the obvious highly itinerant nature over a very long period of time of Western Desert inhabitants. None of this would be to detract from the existence and observation of the rule in the modified and conditional way, perhaps best described by Mr Smythe.
11.2.1 Control of access and use by other members of Western Desert
677 The State submits that the evidence in this proceeding supports the proposition that persons from the Western Desert, including those who are not ‘traditional owners’ or native title claimants in the present proceeding, have at least a right of access to the Claim Area that is not subject to any requirement or law and custom to obtain permission. In particular, the State points to evidence of other Western Desert people ‘travelling through’ the Claim Area without permission (including those claimants who were born on the Claim Area but whose parents were from elsewhere). For example, the State points to the evidence of Ms Ross, who says that people from Warburton or Laverton may pass through her country without permission. The State suggests that the evidence on this topic, set out here and at 6.6 above, only shows that visitors from the Western Desert who are unfamiliar with the area should ask where to get meat (and possibly whether they can get meat), and inquire about which areas should be avoided (that is, which areas are the secret ‘men’s places’ or ‘wati’ places). The State also does not accept that there is any limitation on access of a group of men and initiates in transit for law business or any other person holding ritual authority, or those travelling with such people.
678 Once again, this reasoning confuses the non-exercise of a right with its non-existence. Despite a lack of precision as to who does or does not constitute a stranger, the situation in which some people (such as senior wati and other Western Desert people) may access and use the land without express permission from the traditional owners is best understood as a limitation on this right.
11.2.2 Control and access and continuity
679 The State argues that the right to control access said to arise under traditional laws and customs has been compromised by the history of the area where the Claim Area has been the subject of non-traditional laws and interests, including missions, pastoral interests, Aboriginal reserves and communities controlled by Aboriginal corporations. It is far from clear that the law and custom to exclude access has its origin in tradition or has remained continuous since pre-sovereignty, let alone practised today. The State says that the ‘desire to exclude’ has only been considered important from the time the Cosmo community was ‘re-established’ at the end of the 1980s and that no one exercised a right to exclude at that time. This right and interest also needs to be considered with the evidence of migration patterns of other Aboriginal people who came to the area from other parts of the Western Desert and stayed at missions and attended ration stations. This movement cannot be explained by traditional law and custom, according to the State.
680 The State says there is no evidence to suggest that the ancestors of the claimants obtained permission, or were required to obtain permission, to access, remain on and give birth to the current claimants on the Claim Area. On the contrary, the evidence suggests travel to the Claim Area was open to all persons of the Western Desert in circumstances where the pre-sovereignty land holding group or tribe moved in or died out.
681 I think, once again, this argument equates the existence of a right with its exercise. The non-exercise of a right is quite different from its non-existence.
682 The State’s criticism about the lack of precision of aspects, if not the entirety, of the claim is often repeated. There are certainly aspects of the claim, and this may be one of them, that do not have the degree of precision which might be expected of some claims, but that is part of the way in which the society operates. It is part of the way in which the laws and customs of the society operate. It does not necessarily mean that because of the lack of precision, which might be expected in other forms of litigation, that these laws and customs concerning, in this case, control of access, do not exist.
683 The existence of a right of access by the traditional owners, which is unconstrained except by certain rules about particular places, is not in dispute. For example, Jake Westlake said that he does not need to ask anybody to access various places on the Claim Area, but ‘can just go anytime’ because ‘that’s ngurra for me […]’.
684 Junior said:
Apart from places like that [referring to places like any of the men’s secret business places, such as those around Minnie Creek], out on the country away from places like that, generally, I can go where I want and when I want and no one can tell me I can’t. I don’t need permission from anyone.
685 This, along with other evidence, demonstrates that intrinsic to a relationship to a ‘my country’ area is the entitlement to access it without permission. This right extends to use of the country as the rights holder sees fit. That the exercise of the right of access to particular places may be circumscribed by reference to the status of the person is another example of a rule governing the exercise of the right, but does not deny its existence. The State has not generally disputed that traditional law and custom afforded a right of access to some places to some claimants and also to persons who are not claimants based on their own personal history or, in the case of wati, their status. The State, however, does not accept that the evidence establishes that the right is held or exercisable by either or all of the Yilka claimants and/or the Sullivan claimants.
686 I consider that this aspect of the Yilka applicant’s case was established.
687 The general thrust of the evidence on resources was that resources of the country are regarded as being part of the country and, thus, as belonging to its owners to take and use as they see fit, but within certain constraints. The constraints extend to the practice of not taking more than is necessary from, and preserving, those resources. There are other limitations on the exercise of this right in relation to the protection of particular sacred places. Mr Victor Fraser said:
In the Minnie Creek area, or in my father’s country around Warburton or my mother’s country around Jamieson, I have full rights to take and to use the different things that are in the country. I have full rights because I am a traditional owner of these areas.
688 ME gave evidence as follows:
From what I have been told by old people, our ancestors had the right to use anything at all from the country, so long as it wasn’t against our law to do that …
It’s the same today. We still have the right under our law to use anything at all on our country so long as it isn’t against our law to do that. We get this right from our ancestors. We are still using many of the things on the country. As far as I know, there has never been any law against selling things from our country or making things from the resources and selling them.
689 The qualification as to preservation is not material, in my view, to the existence of the right. Although the exercise of the right might be regulated, the right still exists, as Mr Victor Fraser explained:
Even though these are my countries, I still have to follow our laws and customs when I am taking and using things from there. For example, we do not shoot things for sport or for fun. That would be really wrong. We don’t waste things; we eat the animals that we hunt for food. If we take too much of something, one day we might not have enough of that thing later on.
Also I am not allowed to do big things on the country or let other people do big things on the country without the other traditional owners agreeing. For example, if someone wanted to drill for minerals on the country, that would be a big thing. Or, if I wanted to cut down a lot of trees on the country and to sell the timer to somebody that would be a big thing. If these things went ahead, they would make the country look different, and it would be wrong for me to do them or to allow somebody else to do them without the other traditional owners agreeing. Other traditional owners would be upset with me, if I did this without talking to them and getting agreement.
690 Again, without descending to specifics, the State takes a position that it does not accept that the evidence establishes that the right is held or exercisable by either or all of the Yilka claimants and/or all of the Sullivan claimants. I take this general response, which applies to a number of these issues, to be an extension of the State submission that because of the way the case is framed, every member of the claim group would have to show evidence as to his or her practice. I firmly consider that it is reasonable to infer from the evidence of a number of witnesses on this point that the resources contention, as qualified, is established. This aspect of the Yilka applicant’s claim is established.
691 The position in relation to protection is very similar. The right to protect country, including its significant places and other belongings, insofar as it involves protection from other persons, is a feature of and within the nature and extent of the right of ownership, to speak for and to control country. Insofar as it involves preservation, maintenance or protection from natural degradation, it falls within the nature and extent of an unconstrained right of access. Many witnesses spoke of the right and obligation to protect sites of significance and of doing things, as of right, to protect or encourage the marlu (kangaroo) population and other bush food resources: for example, by maintaining windmills and burning country. The State’s position is the same as it takes in relation to access and resources. This aspect of the claim was clearly established.
692 This section discusses the ‘translation’ of traditional rights into legal terms (see Pt 1.1.3 above). The Yilka applicant suggests that two questions arise in the context of this claim. First, what is a proper translation of the overall nature and effect of the traditional rights where recognition is not constrained by any extinguishment? Secondly, what is the proper translation of the nature and extent of the traditional rights that remain unextinguished when there is any extinguishment? That second question will be dealt with in full below in relation to extinguishment (Chapter 3). Where there is no question of any extinguishment and the full extent of the traditional rights can be recognised, the claimed native title is set out in proposed Order 3 of the Yilka Determination Sought, namely, the right commonly referred to as ‘exclusive possession’:
[T]he right of possession, occupation, use and enjoyment of that part as against the whole world.
693 The Yilka applicant says this description is clearly appropriate and accurate as a ‘translation’ of the asserted traditional rights, including within their scope full rights of access and use of the land and resources as well as the right to control access to it by others.
694 In relation to the appropriate translation of traditional rights in areas where there has been extinguishment, assuming that extinguishment extends to the right to control access and use by others; that is reflected in Order 4 of the Yilka Determination Sought. That Order was phrased in the initial determination sought by the Yilka applicant, which was attached to the Yilka POC, as follows:
4. Subject to Orders 5 to 7, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 [being land and waters where there has been partial extinguishment other than where such extinguishment must be disregarded] are the following rights or interests:
(a) the rights to access, to remain in and to use that part for any purpose;
(b) the rights to access resources and to take for any purpose resources in that part;
(c) the right to engage in spiritual and cultural activities on that part;
(d) the right to maintain and protect places and objects of significance in or on that part; and
(e) the right to protect resources and the habitat of living resources in that part.
695 The Yilka applicant is now contending that the form the Order 4 should take is as follows (these amendments are explained in Chapter 3):
(a) the right to access, to remain in and to use that part for any purpose;
(b) the right to access resources and to take for any purpose resources in that part; and
(c) the right to maintain and protect places and objects of significance in or on that part.
696 I should add that Orders 5 to 7 (inclusive) of the Yilka Determination Sought are as follows:
5. The native title rights and interests referred to in Order 4 do not confer possession, occupation, use and enjoyment of the native title areas or any parts thereof on the native title holders to the exclusion of all others.
6. The native title rights and interests are exercisable in accordance with and subject to the:
(a) traditional laws and customs of the native title holders; and
(b) laws of the State and the Commonwealth, including the common law.
7. Notwithstanding anything in this determination, there are no native title rights and interests in the native title areas in or in relation to:
(a) such minerals as are wholly owned by the Crown; or
(b) such petroleum as is wholly owned by the Crown.
697 The Yilka applicant submits, and I accept, that the fact that the exercise ultimately of the full extent of the rights might in some situations require collective (including in some situations reference also to non-traditional owner senior wati rights holders) rather than individual action or decision, and that there may be rules to be observed in the manner of exercise of the rights, makes no difference. In relation to the non-traditional owner senior wati rights – if it were necessary to regard, translate, or recognise them separately – the overall effect of those rights in relation to the particular places to which they extend, might be understood or translated as rights of access to and to protect those places. However, they are not to (or alternatively need not) be considered separately because the areas of the right are not separable from the ‘my country’ areas and the rights may be co-held by the same person. There is no inconsistency between the two kinds of rights. It is not akin to a situation where there is competition between rights that arise from different sources of law. The two kinds of rights here may affect each other only in the manner of their exercise but not in a way that calls the existence of either into question.
698 The State repeats its argument that it is extremely difficult to reconcile such a claim made on behalf of a cluster of individuals or the grouping they comprise with the potential for legitimate entry onto the Claim Area, use of the Claim Area and ascension to rights in the Claim Area by non-wati and wati who are not part of the claim group. This is also not consistent, the State submits, with other evidence suggesting that other persons from the Western Desert have rights and interests in the Claim Area.
699 Given my previous responses declining to accept this submission from the State, the only remaining difficulty in exclusive possession is the conflict and competition between the Yilka and Sullivan claims. Although there are problems with the competing Yilka and Sullivan claims, it is not apparent that the presence of that unresolved conflict proves non-existence of a right of exclusive possession.
12. PEOPLE WHO POSSESS THOSE RIGHTS AND INTERESTS
700 The Yilka POC [83] states that the persons who, under the traditional laws and customs referred to in [24], [26]-[35] above, possess rights and interests in relation to the Claim Area, are the persons referred to in Order 2 of the Yilka Determination Sought. The persons who claim to possess rights are therefore those who satisfy the criteria of Yilka POC [24]. The effect of Yilka POC [26] is that possession of rights in country devolves in two situations involving two categories of rights holders, namely, ‘my country’ rights holders and senior ritual status rights holders, who have complementary roles, as defined by laws and customs, in the totality of rights exercisable under the relevant laws and customs.
701 Again, on this topic, the main focus of the State’s argument is that the respective claims are not pursued by a ‘group’ based on traditional law and custom, nor are all the persons who hold native title rights and interests, on the evidence of the claimants, included in the claim group description.
702 The Yilka applicant says that the job of the maker of a determination under s 225(a) and s 225(b) NTA does not include specification of whether rights are ‘individual’ or ‘group’ rights, whatever those terms might mean in the present context. The word ‘individual’ does not appear in those provisions. The description of the rights holders in Yilka POC [83] readily meets the s 225(a) NTA requirement of identifying ‘who the persons, or each group of persons, holding the common or group rights comprising the native title are’. Together, they are the persons who hold the common or group rights comprising the native title. The Yilka applicant says descriptions of right holders and rights often identify people who, under the microscope of traditional law and custom, hold a disparate array of rights in a disparate array of areas and combinations of areas. As to identifying the extent of the rights and interests in relation to the determination area (to use the terminology of s 225 NTA) this is not a requirement to codify the way in which the rights and interests are to be exercised within the determination area as between the rights holders or to map the areas of the respective rights. Those are matters about the manner of exercise of the rights, not their nature and extent. They are matters comfortably and routinely covered in determinations by a provision in the form of Order 6(a) of the Yilka Determination Sought, which provides:
6. The native title rights and interests are exercisable in accordance with and subject to the:
(a) traditional laws and customs of the native title holders; …
12.1 Rights in ngurra (my country) areas
703 Paragraph 83 of the Yilka POC is admitted in the Sullivan POR except as to the requirement to include the Sullivan claimants. Paragraph 83, by cross-reference to Order 2 of the Yilka Determination Sought, indicates that the possessors of rights in ’my country’ are:
(a) the descendants of Marnupa, Waltila and Nanuma, Billy Kurlu, Sandy Grey, Skipper Elliott, Charlie Winter, [Mr] Harris, [Jayden] Smith, Paul Simms and [Mr] Watson; and
(b) Victor Fraser and his descendants; and
(c) any other person who has a connection to the [Yilka claim area] by which that person claims country through one or more of:
(i) their own or an ancestor’s birth on the [Yilka claim area];
(ii) their own or an ancestor’s long association with the [Yilka claim area]; or
(iii) …
and in respect of whom that claim is recognised according to traditional laws and customs.
704 Those referred to in subpara (a) and subpara (b) are those said to be already known to meet the criteria in Yilka POC [24]. It is necessary to include the general description in (c), which contemplates non-automatic additions to the rights holding groups, the Yilka applicant says, because it is required in order to reflect the traditional law and custom under which rights are possessed. It is necessary, not only to include persons having senior ritual authority (who cannot be identified by reference to descent), but also to reflect the traditional law and custom which, in the present, as was the case in the past, allows that persons without ancestral connection to the Claim Area might acquire rights in the Claim Area (and be able to transmit those rights to their descendants) through their own birth or long association. The Yilka applicant would say, in response to the Sullivan applicant’s contentions that, to the extent that the Sullivan claim is shown to, in fact, rely on the same criteria and to the extent that the Sullivan applicant asserts a claim to an ancestor or a living person having been born on the relevant country or having long association with it, that the Yilka applicant does not accept that it has been shown that there is recognition under WDCB laws and customs of the asserted facts. The Sullivan applicant makes the point that the Yilka applicant has misstated the birth pathway. There is no need to deal with this aspect at present because I will address it in the Sullivan applicant’s submissions. The Sullivan applicant also makes the point, which is presently relevant and, I think, correct, that those Sullivan claimants who are watis are holders of rights in areas of sacred and ritual significance and, in any event, come within the description of such rights holders given by the Yilka applicant.
705 Parts 12.1.1-12.1.11 below detail the evidence in relation to those listed in subpara (a) and subpara (b). See also the insertions in the chronology set out above at Pt 3.2.3.1 in relation to the historian’s evidence, which notes relevant births based on the evidence of Dr Sackett or the claimants themselves.
12.1.1 Marnupa and descendants
706 The evidence that the Yilka applicant relies upon is that Marnupa possessed and her descendants possess rights and interests in the Claim Areas as a consequence of recognition that it was within her ngurra because she was born on the area. She was the mother of two senior claimants, Mrs Murray and Ms Ross. There was a great deal of evidence about Marnupa, sourced from Mrs Murray, Jayden Smith (deceased), Mr Smythe, Ms Ross, HM, HJ, Warwick Simms, Junior, Hayley Westlake, the content of the genealogies and Dr Sackett. In the statement of Hayley Westlake, the granddaughter of Marnupa, she made clear that she understood that Marnupa was born at Yamarna. Ms Ross said that Marnupa was ‘born out round Yarmana, MC [Minnie Creek] way.’
12.1.2 Waltila and Nanuma and descendants
707 There was less evidence on the topic of Waltila and Nanuma’s association with the area, as I perceived it. Nevertheless, there was more evidence confirming the fact that their eldest daughter, NW, was a child when she came to the Claim Area and that they had and raised three brothers of NW on the Claim Area: Ms Ross’ deceased husband, Hudson Westlake and MW. It is therefore established that those men were born on country; and their descendants claim through them. NW is recognised as having a connection to the Claim Area through her long association with the country there. There is evidence that ME, her adopted son, claims through her. Jayden Smith gave evidence that his father used to live with the Westlakes (Waltila and Nanuma). They used to look after his father when he was young in the bush; he was like a traditional son of theirs.
708 Rhys Winter also gave evidence that he saw Waltila around Laverton, and that he used to live with Nanuma. They were the parents of NW and her brothers who were born on the land, Ms Ross’ deceased husband and Hudson Westlake and the deceased brother, MW. There was evidence on this topic given by a number of other witnesses. Additionally, the historical sources show that NW, Windy (Waltila/Snowy) Westlake and Ms Ross’ deceased husband received rations in 1941.
12.1.3 Billy Kurlu and descendants
709 Billy Kurlu is recognised as having an association with the area. He was the person whom Mrs Murray regarded as her father, although he was not her biological father. He travelled with Marnupa, the mother of Mrs Murray and Ms Ross. Marnupa, Mrs Murray herself and her brother, Alan Bonney, were born at places on the Claim Area. Many of his descendants can thus claim through the birth on the area of Marnupa, Mrs Murray and Alan Bonney. Evidence concerning Billy Kurlu came predominantly from Mrs Murray, Ms Ross, the genealogies and Dr Sackett.
12.1.4 Sandy Grey and descendants
710 Sandy Grey, youngest brother of Billy Kurlu, is recognised as having an association with the area. His son, Frank Grey, was born around Cosmo and his descendants can claim through him. Mathew Grey’s son, Mathew Grey, stated:
I don’t remember him telling me himself that he was born somewhere around the Cosmo area, I was too young. My mother told me later that he was born around Cosmo but not exactly where. Old people from Warburton also told me that; and my aunty [Ms Ross], who is now deceased, told me when she was still alive that my father was born at Cosmo. My father told me Cosmo was his home. It was important to him.
12.1.5 Skipper Elliot and descendants
711 Skipper Elliot is recognised as having rights through long association with the area. His daughter, Ivy, who claims through him, used to call Mrs Murray ‘sister’ and claimed Mrs Murray as family on her (Mrs Murray’s) father’s side. The evidence about Skipper Elliot was given by Mrs Murray, Jayden Smith (deceased), the genealogies and Dr Sackett.
12.1.6 Charlie Winter and descendants
712 Charlie Winter possessed and his descendants possess rights and interests in the Claim Area as a consequence of recognition that it was within his ngurra, as he was born on the area. There was ample evidence on this topic, none of which appears to be challenged. For example, Rhys Winter, Charlie Winter’s son, said that Charlie told him that he was born at Palkapiti (Site 5.9).
12.1.7 Mr Harris and descendants
713 Mr Harris possessed and his descendants possess rights and interests in the Claim Area as a consequence of recognition it was within his ngurra because of his long association with the area. Evidence on that came from HM, HJ, Warwick Simms, ME, Junior, Victor Fraser, Dr Sackett and Mr Harris (the latter in the form of transcript evidence from Wongatha). Mr Harris’ son, Junior, gave evidence of a family history of an ancestral birth connection, but acknowledged that it might not be well known or accepted.
12.1.8 Jayden Smith and descendants
714 The late Jayden Smith possessed and his descendants possess rights and interests in the part of the Claim Area he claimed as a consequence of recognition that it included his ngurra because he was born near the sacred area near Minnie Creek. There was ample evidence in support of that fact and, again, it appears to be relatively uncontentious. The factual foundation appears to be unchallenged. Certainly, evidence in support came from HM, Rhys Winter, Warwick Simms, Jayden Smith (deceased) himself, Mr Smythe, HJ, ME, Junior, Victor Fraser and the genealogies.
12.1.9 Paul Simms and descendants
715 Paul Simms was also born on the Claim Area. Evidence in support of this came from Jayden Smith (deceased), HM, HJ, Warwick Simms, ME, Junior and Victor Fraser.
12.1.10 Mr Watson and descendants
716 Mr Watson’s rights accrue from his birth near Cosmo, as supported in evidence given by Jayden Smith (deceased), Mr Smythe, Rhys Winter, Jake Westlake, Hayley Westlake, HM, HJ, ME, Junior, the genealogies and Dr Sackett.
12.1.11 Victor Fraser and descendants
717 Victor Fraser was born on the Claim Area. There was ample evidence supporting that fact from Jayden Smith (deceased), Mr Smythe, HM, HJ, Warwick Simms, ME, Junior and Raymond and Victor Fraser himself.
12.2 Rights in areas of sacred and ritual significance
718 In written submissions, the Yilka applicant points out that the proposition in POC [83], so far as it relates to the possessors of rights in areas with which their spiritual authority is associated, is admitted in Sullivan POR [83] (except as to the inclusion of the Sullivan claimants – which will be considered in Chapter 2) and not admitted by the State – is that they are:
(c) any … person who has a connection to the [Yilka claim area] by which that person claims country through one or more of:
…
(iii) their own holding of senior ritual authority with respect to places on the [Yilka claim area],
and in respect of whom that claim is recognised according to traditional laws and customs.
719 Such persons may or may not also possess ‘my country’ rights in the Claim Area.
720 They are included in subpara (c) of the description of rights holders because they possess the right as a consequence of recognition of a particular status albeit that the actual persons who hold such rights is a matter of constant change through the death of the older wati and development of the status of younger wati. Thus identification of each individual at any given time is not practicable. In any event, because the rights are entirely dependent on the status of an individual, even if it was possible to identify them all now, it would still be appropriate only to recognise them in a determination of native title by their class – as the Yilka Determination Sought proposes.
721 The Yilka applicant says that because of the restricted nature of information about these matters, it would not be practical to access and deal with all relevant information as might be necessary to determine whether such recognition had been accorded or conceded to particular wati or for the outcome of any inquiry about such matters to be made public.
722 An example from the public evidence going to the identification of possessors of rights (as a class or as individuals) in areas of sacred and ritual significance was given by Mr M, who said:
I have a right as a senior wati under the laws of my culture to have a say when it comes to looking after and making decisions about the sacred areas around Minnie Creek and where the main tjukurrpa travelled. I have a lot of knowledge of that area and the traditional owners and younger watis from around there will call me if something has to be sorted out about that area.
723 The State maintains that the Yilka applicant has not made a clear distinction as to why the case was put in relation to only senior wati. I accept that the substance of the evidence, if not from all witnesses who are prepared to answer questions on the topic, is that all wati have rights in relation to places of ritual significance within the Claim Area, if not throughout all of the Claim Area.
13. CONNECTION TO THE CLAIM AREA BY THE LAWS AND CUSTOMS
724 Paragraph 84 in the Yilka POC sets out the connection propositions, which are not accepted by the State. Paragraph 84 is in these terms:
84. Connection to the claim area by the WDCB laws and customs by the persons on whose behalf the Yilka Claim is brought includes connection:
(a) of persons to their respective ngurra within the claim area by the law or custom by which rights or interests are possessed as a result of the birth or long association of the person themselves or the person through whom they claim to possess rights or interests;
(b) to places and areas on the claim area that are associated with Tjukurrpa by the law or custom that requires such places to be ‘looked after’, cared for or protected;
(c) by the requirement of persons who hold rights or interests in relation to an area to ‘look after’, care for, protect and maintain the area including its spiritual features;
(d) by continuing belief in the Tjukurrpa, in particular the Tjukurrpa referred to at [38] above, their responsibility for the existence and form of, and continued presence or influence, in the landscape, in particular the landscape of the claim area;
(e) continued use and occupation of, and the assertion of traditional relationships with, the claim area under the laws and customs which relate to holding or rights and interests in country;
(f) of persons who have ‘personal dreamings’ or ‘conception totems’ to places and areas associated with the Tjukurrpa or species concerned, by the laws or customs which give rise to the special relationship between a person, a Tjukurrpa or species and a place;
(g) of persons who have participated in male secret ritual, to places associated with the ritual, by the laws or customs that give such persons the status of being permitted access to secret and sacred knowledge of those places and access to and responsibility for those places and require them to maintain the secrecy of that knowledge;
(h) of persons who have senior ritual authority, to places associated with that authority, by the laws or customs by which rights or interests are possessed as a result of that authority;
(i) of persons who have particular authority to speak for or participate in decision making about an area, by the laws or customs by which such authority is conceded to certain persons;
(j) by the requirement that access to places having certain qualities is subject to behavioural requirements such as providing warning of approach;
(k) by the association between the language with which people identify and the claim area, namely the Wangkatha and Ngaanyatjarra speech varieties of the Western Desert language; and
(l) by the death and burial of ancestors and kin on the claim area.
725 In support of relevant connection to the entirety of the Claim Area, the Yilka applicant draws on the evidence of the occupation and use of the Cosmo Newberry Community by many Yilka claimants and of their frequent dispersals over and use of wide areas of the Claim Area as they see fit in the exercise of their traditional rights. It also relies on the particular evidence of visitation and use of particular places in parts of the Claim Area mentioned in the evidence concerning the laws and customs; for example, evidence concerning:
(a) POC [27]-[32] – areas comprising a person’s ngurra and instances of controlling access of others (see Pt 6.4 ‘Areas and rights’);
(b) POC [34]-[35] – places that are looked after and protected, including places associated with Tjukurrpa (see Pt 6.2 ‘Content of the rights and responsibilities’);
(c) POC [37]-[39] – continuing belief in the Tjukurrpa (see Pt 7.1 ‘Tjukurrpa’);
(d) continued use and occupation of country;
(e) POC [59]-[60] – places associated with personal dreamings (see Pt 7.9 ‘Personal dreamings’);
(f) POC [47]-[49] and [64] – places associated with secret ritual;
(g) POC [26] – places associated with ritual authority held by senior wati, as to which there was much evidence of avoidance of men’s secret places by non-wati, and of activity around those places by wati and also by non-wati by way of checking up for signs of intrusion and such like (see, for example, Pt 6.4.2 ‘Areas associated with ritual authority’, and Pt 6.5 ‘Authority and the exercise of rights’);
(h) POC [33] – areas over which people have and exercise particular authority (see Pt 6.5 ‘Authority and exercise of rights’);
(i) POC [32] – places where access is subject to certain behavioural requirement (see Pt 6.6 ‘Qualifications on access’); and
(j) POC [52] – places of the death and burial of ancestors and kin on the Claim Area and where activities associated with mourning practices takes place (see Pt 7.5 ‘Death and funerary rites’).
726 In relation to the extent of connection, the Yilka applicant suggests, and I accept, that Jake Westlake’s evidence was typical of the claimants when he said:
I have hunted and camped with my family at a lot of the places, as I have mentioned. When I go out on my country away from the community, I help keep the rock holes clean. I have taught my children what I know about my country and that it is their country and that they have to look after it. I have been through the law and learned about the special tjukurrpa that comes into my country around Minnie Creek. As a wati and because of what I learned in the law, I have responsibilities for the men’s sacred places and I tell my kids and others who are not allowed to go there, that they can’t go there. I have cooked kangaroo in the ground on my country, following all the rules about doing it the proper way. I go out on site survey work with other traditional owners to make sure that mining companies do not damage the country and don’t work in the wrong areas. I go to meetings when decisions are being made about my country.
727 The State focusses on two particular areas where it says the Yilka claimants have not shown the necessary connection. Those areas are also roughly the areas that have been removed from the Sullivan claim area. They might generally be described as the areas to the northeast, the south and the southeast of the Claim Area.
728 The Yilka applicant gives a very detailed response to this which I will set out in full.
374. In State Response [400] the State identifies particular areas in respect of which it says the Yilka claimants have not shown the necessary connection. These areas are at the north-eastern, south-eastern and southern margins of the claim area, all being within the areas of the Aboriginal reserves and none being within Yamarna pastoral lease.
375. The whole of the claim area at least, is within the description by HM of his ngurra: Exh A20, such of paragraphs [318]-[364] as are unhighlighted or dehighlighted.
376. Relative to the north-east margins, at [347] (dehighlighted) HM mentions two places by the name of Yinti which he describes as men’s places but which he looks after by making sure no one goes near there. In his oral evidence at T1342, he identified the photographs of Mapa (Site 7.1) (Exh 22A) and Yinti (Site 6.4) (Exh A21B). At Exh A20 [389] he mentions the area west of Lake Throssell as “good country and there is good hunting but there have been no roads there” and the plans to put roads into that area.
377. At T1343, HM recounted information passed to him by his mother and aunty NW and old people like Pitawara Mitchell and Johnson Winning and old Mr Westlake about their travelling through that area on foot. And at T1348-1349 he again mentions that area as his country. He was cross-examined about the north-east area at T1491-1494 and at T1492 agreed there was not much use of that area in recent times but mentioned his “mother mob” and NW having talked about walking through that country. At T1493 he went on to mention use of that area in the last 12 months and a track from Mt Gill (Site 6.4) through to Mt Throssell. Mr Waters returned to questions about the north-east area at T1495 and HM agreed there were no windmills in the area but indicated checking of soaks in the area.
378. It is noticeable that there is a line of places code named Ngurlu No 1, Ngurlu No 2 and so on, marked on the [the Yilka site map] extending to the east then south-east and swinging around towards the Minnie Creek area. See, for example, Ngurlu No 1 (Site 6.2), Ngurlu No 2 (Site 6.3, Tjunmu (Site 6.11) and Tjita (Site 6.1). All of those places are relatively close to the edge of the north-eastern portion of the claim area referred to in State Response [400]. Some are referred to in the restricted evidence, for example Exh A9 refers to Lake Yeo, Sites 6.1, 6.2, 6.2 [sic], 6.4, 6.7, 6.8, 6.9, 6.12 and 7.1, indicating the mythological and ritual significance not only of the places but also the area in and around and between them as linked by various stories.
379. Rhys Winter, in Exh A13 [232] refers to having followed an old foot pad and sandalwood road through east from Mapa to near the edge of Lake Throssell – which would be right through the north-east area referred to by the State. Rhys also recounts at Exh A13 [238] having camped at Point Sunday overnight in 2008 when on the way to a funeral in Tjuntjuntjara.
380. A place not far beyond the eastern boundary of the claim area in the north is Beegul (Site 8.1), often mentioned in the evidence of claimants as close to the edge of their country and from where they feel like they are returning home when travelling from Warburton. This place would fall within any easterly extension of the State’s north-eastern area of concern about connection.
381. [Junior] recounted a story told to him by his father of a place on the “other side of the lake” (Lake Throssell) from Beegul, perhaps involving an area in or just to the east of the claim boundary in the area of concern: T1782. When cross-examined at T1800 he recounted hunting “To Lake Wells right up to in the middle, come back down to Lake Throssells [sic] and …”.
382. At Exh A20 [357], HM refers to Point Sunday, out towards Lake Yeo and mentions having taken quite a few trips out that way and hunted and camped on the way back from Lake Yeo Homestead. At T1346 he described going out that way a lot when he was a child.
383. At T1347-1348, HM talks about the country heading south from Mr [sic] Sefton (in the western part of the southern portion referred to by the State) and Mantjal (Site 5.3) towards and to Mt Fleming (just to the north of the southern portion, well south of Mantjal). He indicated familiarity with the geography of that area:
40 [HM]: It’s still – still belong to us because you can – you can – they live in that country when that’s – after rain and stuff like that. There’s kangaroo kuka you get there because they – they don’t need water; they get the water from plants, and there’s animals there that don’t need to have water. They get it from plants.
384. See also evidence of HM concerning the Mt Fleming and Lake McInnes areas at T291-292. He was asked about the areas again at 1486ff. He told Mr Waters he had been to Lake McInnes “a couple of years ago” (T1487.36) and also that he had done clearance work with Hudson Westlake and other old people down in the “bottom right hand corner” (an area Mr Water [sic] suggested “shouldn’t really be claimed”). At T1489, HM’s evidence to Mr Waters was that sites were identified in that area. He indicated at T1491 that there was not much use of the area south from Mt Fleming and west towards “White Cliff side” in recent years. Mr Waters returned to questioning HM about kapi places in the Lake McInnes area at T1495; HM was not aware of any. At T1496, by reference to the map Exhibit 2B to the Exh A20 asked about the east, south east and north east areas, which are not marked as “Good Hunting” on the map but HM said he had hunted in those areas in recent times – mentioning north east of Mt McGill at T1497 and a track and a creek and a lot of animals.
385. In his oral evidence at T1551-1554, HJ gave evidence clearly indicating a working knowledge of the southern and south-eastern areas of concern. He talks about pushing a track through from Mt Sefton back into Hunter’s Waterhole. He identified the benefits of having done that (apart from receipt of payment from the company it was done for) as “It’s got a lot of benefits to the community because that’s a lot of good hunting country through there”: T1552.14. At T1552.36-1553.27 he mentioned the having [sic] made a road goes [sic] from the Mt Fleming area back up across Wildnight Hill back to the Yamarna-White Cliff road – again for a mining company, and again having benefits for hunt and hunting emu eggs. HJ has been to Mt Fleming a number of times “just for hunting, just to check up on the roads and for mining company work as well; and that’s survey work” and it being in his country: T1553.39-41. He said at T1554.10-20 that down in that area:
10 [HJ]: You can get kangaroos down there, you can get emus, turkeys down there, you can get your dingoes down there.
MR KEELY: So what – just describe the country there; what is it about it that makes it good for – or reasonably good for hunting?
15
[HJ]: Well you got your salt bush plains which is good for kangaroo hunting, your spinifex country which is good for emu eggs layings and your burnt country which is good for turkey hunting, then you’ve got your sand dunes which is good for sand goannas or tinka.
386. At Exh A36 [7], [12], [14] and [17], HM gave evidence relevant to questions about the western end of the southern portion of concern to the State regarding connection, directed particularly to the area around Mt Sefton and Swincer Creek but also extending through to Yamarna. He said, at [24]
When this claim was made in early August, I was still doing on-road and off-road kangaroo hunting all along the road past Mt Sefton, to Yamarna, because it is something I do regularly even though not as often as I hunt in some other areas.
And at [24]:
We try to check most of the country on a monthly basis to check for strangers or maliki. We’ve never seen anyone out near Hunter’s Waterfall, Mt Sefton or Swincer Creek when they’re not supposed to be there, but to just be careful, we’ve made the entrance to the track I refer to in paragraph [13] a bit hidden. Over the last few months, including in early August, I have gone to the area around Mt Sefton to check for maliki (strangers)
729 In considering the exchanged submissions on this topic, it must be said that the evidence in relation to the particular areas about which the State is concerned is significantly less expansive than evidence on other areas. Doubtless, this was recognised by the Sullivan applicant as well as the State.
730 That said, as is clear from the foregoing submissions, it is not as though there was no evidence in relation to these locations about which the State has expressed concern. Given the nature of things, having regard to the vast distances in the Western Desert and the remoteness of the particular areas from where people now live, taken with the general absence of accessibility by vehicle and the generally very low level of resources available in the areas, the limited amount of evidence is unsurprising. Additionally, there is evidence of actual knowledge and use of the areas and of the significance of those areas. There is no competing evidence to suggest that the relatively small amount of evidence is wrong and there is no contradictory evidence to suggest that the evidence is false or mistaken. If the entire claim was based on evidence of that nature alone, the position might be different, but taking the relatively limited amount of evidence in the context of all the other evidence in support of the claim and the factors referred to above, I consider that the Yilka applicant has brought sufficient evidence to prove, on the balance of probabilities, that those areas should be included within the Claim Area (subject to possible extinguishment).
731 As a result of the 1998 amendments, s 61(1) NTA now relevantly provides:
61 Native title and compensation applications
Applications that may be made
(1) The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:
Applications | ||
Kind of application | Application | Persons who may make application |
Native title determination application | Application, as mentioned in subsection 13(1, for a determination of native title in relation to an area for which there is no approved determination of native title. | (1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group. (2) A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned. |
…
732 At POC [92], the Yilka applicant contends that it has been authorised by all of the persons (the Yilka claim group) who, according to the traditional laws and customs of the WDCB, hold rights or interests as set out above in relation to the ‘my country’ areas covering the Yilka claim area. It is particularised that the authorisation was in accordance with a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that nature. Of course, the Sullivan applicant does not accept this because the Sullivan claim group was not invited to authorise the Yilka claim.
733 The position of the Sullivan applicant will be dealt with separately, but the State raises other issues with regards to authorisation. First, it raises concerns about (lack of) authorisation by senior wati. As it is, the Yilka applicant makes the submission that the evidence in the case makes clear that the concerns and rights of relevant senior wati is focussed on maintaining the integrity of particular significant places. The people whose ngurra the country is possess the right to speak for the country generally and make decisions about it, subject only to reserving ultimate authority to the senior wati in the event that a place of interest to them may be in jeopardy. Absent any suggestion that the bringing of a native title claim is likely to create such jeopardy, there is no need under traditional law and custom (which are the basis of the authorisation process) for the senior wati to specifically authorise the claim.
734 More broadly, the State raises the issue of whether the native title determination application can be said to be authorised by, or indeed made on behalf of, all the persons who hold the common or group rights comprising the ‘particular native title claimed’. It argues, again, that the NTA does not permit a non-traditional aggregation of individuals to bring a native title determination application. The presentation of such a group as the holder of ‘the particular native title claimed’ compounds and underscores the fictitious foundation for a claim by such a group. The State says the use by a group so contrived of a power to ‘recognise’ or refuse to recognise, which essentially allows incumbents to decide whether or not they approve of any individual or group who asserts connection, is a separate but equally concerning fiction with equally real potential consequences. The State argues that cumulatively, these two features create an insurmountable barrier to the inclusion in the claimant group of persons who incumbents wish to exclude. The State submits that the result of the ‘self-fulfilling constraints’ is that the composition of the group is artificial, which compromises its compliance with s 61 NTA.
735 The Yilka applicant submits (Yilka POC [93]) that, in the event that there is a finding that the claim was not properly authorised, it should nevertheless be permitted:
(a) an opportunity to seek authorisation of the Yilka claim with or without amendment consistent with the reasons for decision and findings of the Court; or
(b) to ask the Court to hear and determine the Yilka claim despite the defect in authorisation pursuant to s 84D(4) NTA.
736 Section 84D was introduced into the NTA by the Native Title Amendment (Technical Amendments) Act 2007 (Cth). It is in the following terms:
84D Proceedings affected by possible defect in authorisation
(1) The Federal Court may make an order requiring:
(a) a person who, either alone or jointly with another person, made an application under section 61, to produce evidence to the court that he or she was authorised to do so; or
(b) a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the court that he or she is authorised to do so.
(2) An order under subsection (1) may be made:
(a) on the Federal Court’s own motion; or
(b) on the application of a party to the proceedings; or
(c) on the application of a member of the native title claim group or compensation claim group in relation to the application.
(3) Subsection (4) applies if:
(a) an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or
(b) a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.
Note: Section 251B states what it means for a person or persons to be authorised to make native title determination applications or compensation applications or to deal with matters arising in relation to them.
(4) The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:
(a) hear and determine the application, despite the defect in authorisation; or
(b) make such other orders as the court considers appropriate.
The Explanatory Memorandum makes clear that the mischief intended to be overcome by s 84D is that there was uncertainty as to whether the Court would continue to hear and determine an application in the event it determined that a claim was not properly authorised. The new section was to give and define that power.
737 The Yilka applicant submits that if authorisation was lacking, this is an appropriate case for the application of s 84D NTA. The State disagrees.
738 The State makes the point that, at least since the time of filing its original POC in 2011, the Yilka applicant has foreshadowed resorting to s 84D NTA in the event that its claim is found to be flawed due to lack of authorisation. The concerns that have been raised by the State could have been addressed much earlier by thorough review of the way in which the Yilka applicant has framed its claim. Instead, the Yilka applicant has sought to proceed with s 84D NTA as its fall-back position. The State says this has had at least three consequences. First a substantive difficulty arises in that if the Court were disposed to proceed according to s 84D(4) NTA, the proceedings could not be said to be guided by an applicant who can be expected or is likely to be seen as capable of acting as a representative of all the persons who might assert or hold native title. Secondly, the Court has little basis to be assured that it has heard all relevant evidence from all relevant parties so the disposition of the proceedings on the basis of evidence that is presently before the Court may lock in, rather than cure, an imbalance in access to the Court. Thirdly, the State argues that s 84D NTA requires consideration of the interests of justice. It may be thought that a party which has prosecuted proceedings in the conscious expectation that, if necessary, consideration of the interests of justice will avert otherwise self-inflicted futility arising from failure to meet a substantive requirement would not easily secure the indulgence made possible by s 84D.
739 The Yilka applicant responds that a respondent who raises a question about authorisation but takes no steps under s 84D or s 84C NTA to challenge it, but rather allows the proceeding to run its course on the merits, can hardly complain if discretions in s 84D NTA are exercised in favour of an applicant. If the State is seeking a procedural dismissal on the grounds of lack of authorisation, it should say so. Why ‘all claimants’ should have to come to Court to say that they have authorised the claim is not explained. The Yilka applicant further contends that merits about the individual nature of the claim and about ‘recognition’ are substantive arguments which have been dealt with elsewhere.
740 In relation to authorisation, the facts will be closely examined in Chapter 2 in the context of the objections raised by the Sullivan applicant. It is unnecessary at this point to say more than, subject to the findings concerning the Sullivan applicant, in my view, the claim has been properly authorised by properly authorised meetings. In the context of this claim, as it has been crafted, there is no basis for insisting on a requirement that every individual claimant should give evidence to confirm that he or she has authorised the claim. There is some specific and very detailed analysis of the facts surrounding the authorisation process which goes to the question of whether or not the claim was properly authorised, but as to this general complaint by the State that not all individuals have confirmed their authorisation, (senior wati being a particular example), I accept the submission for the Yilka applicant that such a requirement is not dictated by the provisions of the NTA and to the extent that authorisation may be inferred from the facts which have been supplied, in my view, they satisfy the requirements. Subject to the issue concerning the Sullivans, the claim has been authorised.
741 I accept that there has been the necessary authorisation. But if there is not, I would for the reasons advanced by the Yilka applicant, and in relation, if necessary, my findings concerning the Sullivans, apply s 84D NTA to cure any defect in the authorisation.
742 A draft determination, the Yilka Determination Sought is annexed to these reasons as Annexure 2. It has been revised slightly as the claim has unfolded. The Yilka applicant would not oppose the Court following the formulation of the non-exclusive right to take resources as stated by North J in BP (Deceased) on behalf of the Birriliburu People v Western Australia [2014] FCA 715 (at [104]) and Willis on behalf of the Pilki People v Western Australia [2014] FCA 714 (at [135]). Both passages are phrased identically thus:
In the result, in accordance with s 225(b) of the [NTA], 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.
743 Consistency with that formulation would require the replacement of the current proposed Order 4(b) with the following phrase: ‘the right to access and take for any purpose the resources of the determination area’. That formulation is almost the same and would have the same effect as the formulation adopted by Finn J in the determination made in Akiba, which remained undisturbed by the High Court.
744 I did not understand there to be particular difficulty about the terms of the Yilka Determination Sought, despite the very firm opposition to the determination being made at all. Nor do I understand there to be specific opposition to the formulation referred to above from Birriliburu People. In any event, what I propose to do is to reach my findings and permit the parties a further opportunity to deal with the specific consequences which will follow from those findings.
CHAPTER 2 – CONNECTION - SULLIVAN CLAIM
745 It is unnecessary to repeat the reference to and discussion of the various sections of the NTA already discussed in relation to the Yilka claim see Chapter 1, Pt 1.1. However, this is a convenient point at which to deal with some other introductory aspects which arise from the parties’ various exchanges and, in particular, from the written submissions.
746 The claim advanced for the Sullivan applicant is in respect of the Sullivan Edwards families as designated in the ‘Form 1 Native Title Determination Application’ filed 7 December 2011 (Sullivan Form 1). The Sullivan applicant seeks recognition of the claim group members’ individual native title rights and interests, over an area which overlaps but is smaller than the Yilka claim area, in common with any other native title holders. The claim is advanced on the basis of the traditional laws and customs of the WDCB of which the Sullivan Edwards families are members. Importantly, they contend that the Sullivan claimants should have been included as members of the Yilka claim group at the time of lodgement of the Yilka Form 1.
747 More specifically, as the evidence reveals, the Sullivan claim is pursued in respect of the Sullivan family members, based on their descent from apical ancestor Kitty Nganyi, who was born at Kaarnka, near Lake Yeo. Anthropologist Dr Cane located a site known as Kaarnka, or also known as ‘Little Kaarnka’, near Bishop Riley’s Pulpit. That location, according to Dr Vachon, is approximately 35 kilometres from the eastern claim boundary of both the Yilka and the Sullivan claim areas.
748 The Sullivan family’s claim is a descent-based claim supported by, it is said, the Sullivan family’s long association with the Claim Area and by the ritual rights and responsibilities within the Claim Area held by the Sullivan family wati.
749 As to the Edwards family, they claim through the mother of claimant Mr Patrick Edwards, Mrs Wingrove, who is also a daughter of Kitty, and additionally is said to have been born at Cosmo Newberry. That pathway of connection, it is said, is supported by the long term association of Patrick Edwards and his family with the Sullivan claim area and by the ritual rights and responsibilities within the Sullivan claim area held by wati within the Edwards family.
750 The Sullivan applicant applies for ‘exclusive native title’, that is, the right to possession, occupation, use and enjoyment of that part of the Sullivan claim area as against the whole world. An exception to the claim for exclusive native title is in respect of areas where there may have been partial extinguishment of native title. In those areas, the rights and interests claimed are those lesser rights and interests that can continue to exist commensurate with the partial extinguishment. Those respective areas are described in the various schedules of the Sullivan Determination Sought, which was annexed to the Sullivan Connection Submissions and is attached to these reasons as Annexure 5. The Sullivan Determination Sought is substantially similar to the initial determination sought by the Yilka applicant, which has since been amended. It should be noted that it uses a different numbering system to refer to specific areas of land from that used in the Yilka Determination Sought and in Chapter 3 of these reasons. It should also be noted that Sch 1 to the Sullivan Determination Sought does not provide a description of the external boundaries, which is presumably due to the fact that this document was filed prior to the amendment of the Sullivan claim area. There will be an opportunity following delivery and publication of these reasons for the parties to reconsider the content of the draft determination. I should note that all of the parties have asked that I make my reasons available before final orders are made. If those final orders are to be in favour of both applicants, it would be expected that there would be, should it be necessary, consultation concerning the content of the actual declaration so as to ensure that it reflects the findings reached in these reasons.
751 As another introductory matter, the Sullivan applicant makes the point that the State’s response submissions (‘First Respondent’s Submissions on Connection’, referred to as State Connection Submissions) have focussed principally on the Yilka claim, rather than the Sullivan claim. In many instances, the State has merely ‘tacked on’, the Sullivan applicant says, comments about the Sullivan claim that are not on point, are unsubstantiated or are incorrect. In particular, it is contended that the State Connection Submissions fail to address the Sullivan applicant’s detailed submissions which go to the evidence of connection, rights and interests of the Sullivan claimants through the birth and long association pathways. Given the State Connection Submissions often focus on the Yilka claim or apply to both the Yilka and the Sullivan claims, in this chapter I will not set out the State’s submissions, except where the State specifically refers to the Sullivan application. In general, the State’s response has been dealt with in the above chapter relating to the Yilka applicant, however, I will note the Sullivan applicant’s response to the State’s submissions where this is particularly relevant or adds to the discussion.
752 The Sullivan applicant contends that the State seeks to ‘downplay’ or ‘sidestep’ key shared conclusions of the anthropologists emerging from their conference. I generally agree that the State’s submissions give insufficient recognition to the shared conclusions of the anthropologists. The Sullivan applicant also notes, and I agree, that as in the Yilka claim, the State has sought to rely heavily on the Wongatha judgment of Justice Lindgren, which was a completely differently constructed case involving different claimants over a different area. As I have already indicated in relation to the Yilka claim, and, in particular in the context of the Yilka Connection Submissions, while I would accord the greatest respect to the judgment of Justice Lindgren, it is necessary or at least preferable in an entirely different case for me to reach my own conclusions. That, of course, is a conclusion with which the State firmly takes issue.
753 It is necessary here to deal with two additional points raised for the State. One is the general point that the Sullivan application appears to be a derivative of the Yilka claim. While it is clear that the POCs are very similar, it is argued for the Sullivan applicant that that is to be expected, given that the same WDCB laws and customs apply. Nevertheless, there are differences in terms of basis, nature of the claim group, area and other features. There are also differences in the content of the evidence. To the extent that the State complains that the Yilka evidence appears to be based on evidence and findings in the Wongatha judgment, that complaint, which I have already accorded little weight, is not so readily made against the Sullivan evidence, which was presented in a different format. Similarly, there is a reference by the State to an earlier claim made by Mrs Sullivan on behalf of the Sullivan, Edwards and Winter families as being one made by a party ‘outside [the Cosmo Newberry] Community’. The evidence on this is unclear and I accord it little weight. It appears that, to the extent there is evidence to support it, some members of those families were then, and are now, members of the Cosmo Newberry Community.
754 For the Sullivan claim, the claim group is described as:
(a) the descendants of Mrs Sullivan;
(b) the descendants of Mrs Wingrove;
(c) any other person that has a connection to the Sullivan claim area by which that person claims country through one or more of:
(i) their own or an ancestor’s birth on the Sullivan claim area;
(ii) their own or an ancestor’s long association with the Sullivan claim area; or
(iii) their own holding of senior ritual authority with respect to places on the Sullivan claim area,
and in respect of whom that claim is recognised according to traditional laws and customs.
755 The Sullivan applicant notes that para (c) is necessary not only to include persons having senior ritual authority (who cannot be identified by reference to descent), but also to reflect the traditional law and custom which, in the present, as in the past, allows persons without ancestral connection to the Sullivan claim area to acquire rights in the Sullivan claim area (and be able to transmit those rights to their descendants) through their own birth or long association.
756 The Sullivan Edwards families claim their connection through apical ancestor Kitty and two of her daughters. Mrs Sullivan was a daughter of Kitty and had the following children: Mr R Sullivan (deceased), Alfred, Mervyn, Irwin, Mr G Sullivan (deceased) and Celia. Mrs Wingrove was also a daughter of Kitty. Her children were Charles, Heather, Patrick and two other girls who have passed away.
757 Kitty had a sister, Alice Yampi. The Yilka applicant points to the fact that it is strange that none of Alice Yampi’s descendants have been put forward as claimants in the Sullivan claim, notwithstanding the evidence of Mrs Sullivan that she (Alice) was born at Kaarnka. Alice is survived by a number of grandchildren, according to that evidence. As this is a claim brought by the descendants of Kitty, I find this observation to be irrelevant. As indicated below, others may come to be recognized.
758 I will deal with the members of the claim group in greater detail below in Pt 12 ‘People who possess those rights and interests’.
759 The State alleges, as it does in relation to the Yilka claim, that the Sullivan claim unconditionally includes the descendants of certain named ancestors, who are not or never will be subject to the recognition requirements and are unsurprisingly members of the Sullivan Edwards families. However, it is clear from the Sullivan claim that claimant status is asserted through the recognised WDCB pathways. The Sullivan applicant says that its claim is not exclusionist in the sense that if others can show traditional connection to country and rights and interests over the same area, it will recognise such connection and rights and interests. This, it is said, is entirely unsurprising and consistent with traditional WDCB laws and customs.
760 Accordingly, the Sullivan applicant would argue that if the Yilka claimants are shown to have traditional connection, this would be recognised by the Sullivan claimants. Conversely, the Sullivan applicant contends that the Sullivan claimants should not be left out of any determination as holders of native title rights and interests in a determination of the Yilka claim. The Sullivan applicant alleges that the Yilka applicant has employed a territorial ‘gatekeeper’ approach. On the one hand, it is fair to say that the Yilka applicant has said that there has not yet been recognition of the Sullivan claimants, suggesting that the Sullivan claimants’ claim may be recognised in the future. On the other hand, the strong attack the Yilka applicant has made on the lay evidence in support of the Sullivan claim would not give the impression that there is much likelihood that the Sullivan claimants’ claims would be recognised by the Yilka applicant in the reasonably near future.
761 In response to the State’s point that the individuals represented in the Sullivan claim are a non-traditional ‘group’ comprising an aggregation of individuals’ connections to the land, the Sullivan applicant contends that the native title rights and interests claimed are individual rights and interests of family members held in common. The Sullivan claimants are not a group in the sense of being an entity said to hold the rights and interests. The Sullivan applicant argues that there is nothing in the NTA which prevents the bringing of a claim of this nature. As noted by the Full Court (Finn, Sundberg and Mansfield JJ) in Bodney (at [145]-[146]):
145 Turning to the “communal”, “group” and “individual” rights and interests typology, it is convenient to use observations made in De Rose FC (No 2) 145 FCR 290 as a starting point. The Court said (at [38]-[39]):
It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as “communal”, “group” or “individual”. The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community.
The distinction between group and individual rights and interests (to the extent it matters) is perhaps more difficult to identify. An example of group rights and interests may be those held by a subset of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas. The members of the subset may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community. The members of the subset might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites. Ordinarily, it might be expected that the ‘group’ holding native title rights and interests would have a fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed.
146 We agree with this understanding of the classification and accept its consequence that s 223(1) envisages three possible native title “owning” entities - the community (or “society”) under whose laws and customs native title is possessed, a group or groups, and an individual or individuals: see [Wongatha] at [1135]. With the Act itself so envisaging three distinct types of possible native title holder, a recurrent issue in determination applications (including the present: see [Bennell] at [348]), has been whether the possibilities provide alternative, or cumulative, bases for the possession of native title rights and interests in the circumstances of a given case: see eg [Northern Territory v Alyawarr] at [79]-[86]; De Rose FC (No 2) 145 FCR 290 at [31].
762 More importantly, it is said that the Sullivan claim is not an ‘aggregation’ in the sense used in the Wongatha claim, on which the State relies, for the primary reason that the rights claimed by each claimant are over the entirety of the Sullivan claim area, not over different parts of it.
763 As noted, on completion of the hearing of the evidence, the Sullivan applicant sought to reduce the area claimed as provided for by s 64 NTA. The Sullivan applicant amended its Form 1 by filing its ‘Form 1 Amended Native Title Determination Application’ on 28 July 2014 (Sullivan Amended Form 1), which reduced the boundary to that described in Attachment B and shown on the map (Attachment C) of the Sullivan Amended Form 1. That application was unopposed. The reduction of the original claim area was designed by the Sullivan applicant to ensure that its claim area was consistent with its POC and the evidence. The external boundary description at Attachment B to the Sullivan Amended Form 1 and the map at Attachment C to the Sullivan Amended Form 1 are annexed to these reasons as Annexure 6 and 7 respectively.
764 The Sullivan applicant notes that, if it be the submission of the State that boundaries of the claim must be traditionally set (which it appears to suggest), there does not appear to be any provision of the NTA or other authority which precludes a claim comprising part of a claimant’s country and bounded by appropriate recognisable boundaries, such as pastoral lease boundaries or State or Territory boundaries.
765 The involvement of the Sullivan applicant was very much a matter in the background for the first part of the hearing, as previously discussed. It appears to be accepted that lack of funding for the Sullivan applicant prevented the claimants from playing any meaningful part in the proceedings prior to Dr Vachon’s participation in the conference of experts in July and August 2012. The Sullivan applicant was represented by Messrs Vincent and Cummins of counsel at later tranches of evidence held on 9-12 September 2013, 10-13 December 2013 and 13 March 2014 and then at subsequent closing submissions in July 2014.
766 The evidence from the Sullivan applicant and other lay evidence called on its behalf was heard from 10-13 December 2013. Affidavits were filed and tendered as with the witnesses for the Yilka applicant. Portions of evidence required to be adduced orally were deleted from the final form of the tendered affidavits.
767 Concurrent evidence was given by anthropologist Dr Vachon, with Dr Sackett, during the 10-13 December 2013 tranche at Kalgoorlie, and with Professor Trigger (who was called by the State) on 13 March 2014.
768 In addition, the Sullivan applicant tendered a book of documents it relies upon (Exh 60), including transcript excerpts and exhibits from Wongatha pursuant to s 86 NTA, as well as other documentary evidence. It has also tendered further exhibits of transcript evidence from Wongatha (Exhs S65, S65 and S94(a)-(d)).
769 The Yilka applicant complains that the Court has been very accommodating towards the Sullivan applicant, referring to the history of the proceedings. The Yilka applicant’s account of the history is that by application filed on 26 October 2011, Celia Sullivan applied to be joined as a respondent to the Yilka claim under s 84(5) NTA. That application related only to the Sullivan family. The joinder application was thus made after the Yilka claim had been opened (on 20 and 21 October 2011), but before commencement of the evidence (on 31 October 2011). On 7 November 2011, arrangements were made for Mervyn Sullivan to speak with a registrar of the Court in the presence of representatives of the Yilka applicant and the State. I noted that that meeting had taken place and that the Sullivans did not wish to cross-examine any of the Yilka applicant’s witnesses who had been giving evidence. The Sullivan Form 1 was filed on 7 December 2011. I made orders on 1 March 2012 that the claims be heard together. Following this, the Yilka applicant provided the Sullivan applicant with a range of documents previously filed in the proceedings, and on 15 January 2013 detailed programming orders for the resumption of the trial were made. The Yilka applicant raised complaints that the Sullivan applicant did not comply with any of the orders made that were directed to it, including making no appearance at the hearings of 24 and 25 June 2013, and as a result the trial was inconvenienced. The Sullivan applicant remained unrepresented in fact until 15 August 2013 when a Notice of Acting – Appointment of Lawyer was filed by Cross Country Native Title Services. Mr Vincent of counsel was permitted to participate in the concurrent evidence of the expert anthropologists given between 9 and 12 September 2013, but Dr Vachon did not participate in the process at that stage. Lay and expert evidence was given in relation to the Sullivan claim by various witnesses in Kalgoorlie in December 2013.
1.6 The structure of the submissions
770 The Sullivan applicant has also, most helpfully, followed the structure, including subject headings, as ordered by the Court on 5 March 2014. Those orders were made in order to attempt to streamline the process and to ensure that the parties were responding one to the other in any submission sought to be made.
771 This part contains a summary of some key conclusions I have reached as well as a short outline of the parties’ main points.
772 By way of a brief summary, the Sullivan applicant seeks a determination of native title which recognises the individual rights and interests of the members of the claim group held in common with other native title holders. Those rights and interests comprise exclusive native title, and a lesser bundle compatible with partial extinguishment where partial extinguishment has been established.
773 As already indicated, the basis of the claim is the claimants’ membership of the WDCB and their descent from ancestors who were born on or near the Sullivan claim area and who had long association with the area, reinforced and ‘actualized’ by the claimants’ own long association with the area. Some claimants have rights and interests through their ritual status as watis, in addition to their ancestral connection. The Sullivan applicant asserts that the Sullivan claimants have maintained their connection with the Sullivan claim area through use, knowledge, experience and realisation of their rights and interests, which are based on their ancestral connection to the land.
774 It is clear that the Yilka POC and the Sullivan POC are virtually identical. For that reason, it is unnecessary to set out in full the Sullivan POC as well as the Yilka POC. The point of departure between the two applicants concerns the acceptance or recognition of the Sullivan applicant. The Sullivan applicant claims that the Sullivan claimants should have been included in the Yilka claim, but if not, that they are entitled to native title in their own right. The Yilka applicant does not admit that the Sullivan claimants have rights and interests in the Claim Area, although it does not exclude the possibility of future recognition of a relevant connection event in relation to those not currently included in the Yilka claim.
775 As may be apparent already, in light of many of the same issues arising in the Sullivan applicant’s claim, as in the Yilka applicant’s claim, I do not propose repeating in this chapter all the exchanges and analyses that have been recorded in relation to the Yilka claim.
776 The Yilka applicant points to the fact that the primary matters in issue between the two applicants relate to the birthplace and long association criteria and the requirement of recognition under WDCB laws and customs, as they apply (or not) to the Sullivan claimants.
777 That certain members of the Sullivan native title claim group, such as Patrick Edwards, may claim rights and interests in part of the Sullivan claim area on the basis of senior ritual authority is accepted by the Yilka applicant.
778 The primary submission of the Yilka applicant is that, on the whole of the evidence, and on the basis of legal principles, the Sullivan applicant has not made good the propositions of fact and the contentions asserted in the Sullivan POC, so as to entitle it to a finding in its favour that native title is held by the persons comprising the Sullivan native title group. If that submission is rejected, the Yilka applicant submits that it would be open to the Court to find that:
(a) Mervyn Sullivan satisfies the long association criteria; and
(b) Mrs Wingrove was born at Cosmo Newberry
as matters of objective fact, albeit that such findings would not be the preferable findings on the evidence.
779 The Yilka applicant, however, submits that it is not open to the Court to find, for example, that Mervyn Sullivan’s claimed long association is to be recognised as giving him a ‘my country’ relationship with any part of the Sullivan claim area. This approach to the recognition of Mrs Wingrove’s birthplace is the same. Other than the (partial) admissions in the two paragraphs above, the Yilka applicant submits that that all other elements of the Sullivan claim must fail.
780 The Yilka applicant contends that the evidence in support of the Sullivan claim is, in various respects, confusing. The Yilka applicant also says there is no basis for any adverse finding about the credibility of Mrs Murray or CDNTS in relation to their dealings with the Sullivan applicant.
781 As to the main distinction between the two sets of claimants, the Yilka applicant says that the Sullivan claimants make expansive and indeterminate claims to country. For example, Mrs Sullivan gave differing accounts of her ngurrara, as is set out in detail in the analysis below. The Yilka applicant also complains that Mr G Sullivan (deceased) gave evidence in the Wongatha case that his mother’s country was Laverton, Mt Margaret, towards Neale Junction, Tjirrany, White Cliff, Point Salvation, Talintji and Kaarnka. Later in his evidence in relation to Kitty (his mother’s mother), Mr G Sullivan (deceased) said that her country was White Cliff, Point Salvation, Talintji, Lake Yeo and the Victoria Desert, towards the top of the Victoria Desert. That was because she was born in and she lived around the area. He said that his mother’s country and Kitty’s country were the same. It is said that Mr G Sullivan (deceased) had claimed both his mother’s country and his father’s country, saying that his children have the same country as him. I deal with this observation in more detail below.
782 The Yilka applicant makes similar criticisms of the evidence given by Patrick Edwards who, it is contended, said in Wongatha that he claims his mother’s country, being the country from Baker Lake to Laverton, as well as country from Kalgoorlie to Laverton based on his own long association. The Yilka applicant contends that this is utterly unrealistic and unworkable. Patrick Edwards cannot succeed, it is said, in establishing any ‘my country’ area in the vicinity of the Sullivan claim area based on descent from Kitty because he either believes that Kitty was from Baker Lake or he does not know where she was from. Similar criticisms are made of Mervyn, Celia and Irwin Sullivan (based on their evidence given in Wongatha and in the present proceedings), in terms of their asserted lack of clarity and understanding about their country, and as to purported inconsistencies or inaccuracies in their evidence. In response to these submissions, the Sullivan applicant says that there is no evidence to suggest that the ‘my country’ claims of the Yilka claimants are confined to the Claim Area; and that there is as much consistency between the asserted connections to the Claim Area as between the Sullivan claimants. As to the more specific evidence about ancestors’ and claimants’ connections to land, this will be discussed in detail below.
783 Despite this, it appears to me that there is, in fact, a large amount of common ground between the Yilka applicant and Sullivan applicant’s claims and their respective Connection Submissions. This is reflected in the virtually identical pleadings, and is at the least implicitly, if not expressly, acknowledged in the Yilka applicant’s response.
784 Both applicants are in agreement on the nature and content of the customary rights and interests in the Claim Area and on the criteria for establishing a WDCB pathway to connection, pursuant to which such rights and interests are gained or held. The key dispute lies in their different positions as to the outcome of the application of the criteria to the Sullivan applicant, particularly in relation to the birth and long association pathways.
785 It is also common ground between the applicants that meeting any one of the connection pathways’ criteria will result in rights and interests being held by the person in question. It is not necessary to prove that more than one criterion is satisfied.
786 A further aspect of common ground between the two applicants is that the Yilka Determination Sought would accommodate any members of the Sullivan claim group who are found by the Court to satisfy the relevant criteria, rather than found to have satisfied the Yilka applicant.
787 The Yilka applicant would also agree with the Sullivan applicant that there was much common ground between all anthropologists. This is discussed in more detail below, but very significantly, in my assessment, the anthropologists had difficulty in distinguishing any basis upon which the Sullivan applicant could be excluded from the Yilka claim.
788 The thrust of the Sullivan applicant’s evidence is that for all Sullivan claimants the ‘my country’ rights and interests are possessed through Kitty’s birth country, which encompasses the Sullivan claim area (as amended) and Kitty’s long association with the Sullivan claim area. For all claimants in the Sullivan family, their rights and interests are underpinned through the birth country of Mrs Sullivan, encompassing the Sullivan claim area, and Mrs Sullivan’s long association with the Sullivan claim area. For all the Edwards family claimants, their rights and interests are underpinned through Mrs Wingrove’s birth county, encompassing the Sullivan claim area, and Mrs Wingrove’s ‘long association’ with the Sullivan claim area. In addition to this, for some members of the Sullivan and Edwards families, their rights and interests are underpinned through their own ‘long association’ with the Sullivan claim area, as is the case with Mervyn Sullivan, and/or their senior ritual authority, in the case of those who are watis. For the reasons which follow in the body of this chapter, I consider that the evidence does show that the Sullivan claimants possess rights and interests in the Sullivan claim area.
789 I do not propose at present to descend into great detail about the competing arguments as to the thrust of the evidence concerning the relevant ancestors and claimants. In short summary, I consider that the Yilka applicant’s submissions in response to the Sullivan Connection Submissions considerably overstate the position, and that the complaints about the nature and quality of the evidence relied upon in support of the Sullivan claim could apply equally to the evidence advanced in support of the Yilka claim.
790 There is selective reliance by all parties on findings and evidence in Wongatha, which, in my view, only serves to muddy the waters. I have firm doubts as to the Yilka applicant’s criticisms about the credibility of the Sullivan applicant’s witnesses and equally grave doubts about the Sullivan applicant’s complaints about some of the Yilka applicant’s witnesses.
791 In short, although the Sullivan applicant did not have legal representation for as long as the Yilka applicant, in my view the general substance of the evidence in support of the Sullivan claim is broadly consistent with the evidence adduced in support of the Yilka claim. The refusal to include the Sullivan claimants in the Yilka claim, in my view, was in error and cannot be justified on the basis of a traditional WDCB custom. I consider that both claims should succeed, if one does.
792 Insofar as the State’s comments on the brief outline of the Sullivan applicant’s case are concerned, the State has, as noted above, advanced ten issues in respect of both applicants. I will now deal with each of these in turn, as they relate to the Sullivan claim.
793 The State has accepted that the WDCB is the relevant body of law and custom to look to in relation to the Claim Area, but does not accept that the WDCB laws and customs are observed and acknowledged by the Sullivan Edwards families or that they hold native title rights and interests under those laws and customs. The State does not admit that some people may have a connection to places and sites within the Claim Area on the basis of their holding senior ritual authority, and that such connections are capable of providing a basis for possessing rights in relation to those particular places or sites. Authorisation is also raised in relation to the Sullivan claim. Similarly, there are questions of issue estoppel, ‘Anshun’ estoppel and abuse of process in light of the earlier Wongatha judgment. These topics are dealt with separately to the connection issues in Chapter 4 below.
794 The first of those issues, it will be recalled, arises in relation to the complaint about assertion of continuous connection to the whole of the Claim Area. The State asserts that there is far too little evidence to support connection with the whole of the Claim Area, if any. In my view, this sort of evidence is not necessary. As noted by the Full Court (Jagot, Barker and Perry JJ) in Western Australia v Graham on behalf of the Ngadju People (2013) 305 ALR 452, it is clear that evidence of physical occupation of the entirety of the Sullivan claim area is not necessary to establish connection. The Court noted (at [37], [38] and [43]):
37 There is nothing in the use of the expression “have a connection” to suggest that the connection must be physical, although plainly it can be that. There is every reason to accept, having regard to authority, that the connection may well be, or also be, religious or mythological in nature, but it need not necessarily be so.
38 There is no requirement that connection be made out by reference to any particular features within the land or waters or activities in respect of the land or waters. Indeed, the authorities disclose that the laws and customs, and facts and circumstances of each claim, will guide the connection judgment to be made.
…
43 In Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 (Moses FC), at [238], the Full Court (Moore, North and Mansfield JJ), in respect of proposed consent orders of the parties altering the terms of an earlier determination under the NTA, noted that the orders reflected the agreed position of the parties that, in the circumstances of the matter, recognition of native title rights was not to be limited only to those places where the evidence showed they are currently exercised. The parties, referring to Ward HC at [64] and De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 at [303], [313] and [316], submitted that use of every part of the land or waters in the claim area was not required to be proved to establish the geographical extent of native title rights and interests for the purposes of s 223 NTA.
795 As a second point of concern, the State complains about the grouping of claimants where connection, rights and interests are held individually in relation to particular places. This misunderstands the nature of the Sullivan claim which asserts rights and interests by each of the Sullivan claimants to the whole of the Sullivan claim area by virtue of connection with certain places.
796 As to the third point raised for the State, there is concern about the integration as claimants of non-wati and wati where the rights of each are markedly different. While the rights are certainly different, those members of the Sullivan claim group who are wati on the Sullivan case have rights over the whole of the Sullivan claim area as descendants of the common ancestor, Kitty. These members exercise rights in areas of ritual significance on an appropriate basis according to their status, in addition to holding descent-based rights as members of the Sullivan Edwards families.
797 The fourth point raised by the State is the concern about the advancement of a claim by one individual on behalf of a grouping of other individuals where the various individuals assert rights to different sets of places and the grouping does not assert communal or group rights. Generally speaking, this is covered by the response to the second point set out above, namely, that the rights and interests asserted by each of the claimants are to the whole of the Sullivan claim area; and in this regard it is to be noted that native title claims can be made on a representative basis, pursuant to s 61 NTA.
798 The fifth point of concern raised by the State is that the advancement of a claim by a non-wati on behalf of a grouping of other individuals that includes wati where some assert rights based only on their status as wati and some cannot, and the grouping does not assert communal or group rights, cannot be sustained. The Sullivan applicant would rely upon the response to point three above, and on the fact that s 61 NTA provides for claims to be brought by a representative of the claim group.
799 The sixth point relates to the characterisation of laws and customs as traditional, normative and being acknowledged or observed by a grouping of individuals, where there is little or no evidence from which to assess or draw inferences as to attributes, traditions and norms of most of those individuals, and where some evidence of acknowledgement or observance is not indicative of a normative practice amongst all such individuals. The Sullivan applicant would again rely on the fact that the claimants comprise a small family based group descended from one apical ancestor, Kitty. Given this nature of the claimant group there is sufficient evidence, the Sullivan applicant contends, for the Court to draw inferences about the application of WDCB laws and customs to the attributes, traditions and norms of all members of the group. This is especially so given that all expert anthropologists agreed (Proposition 28) that the WDCB is the label used for a system of normative laws and customs. While rights may be claimed on an individual basis, this does not mean that inferences cannot be drawn as to aspects of the normative system acknowledged and observed by members of the claim group.
800 The State’s seventh complaint was that the provenance of laws and customs which purport to relate to ‘recognition’, ‘contestation’ and qualification on access and use of resources is unestablished. The Sullivan applicant contends that all of the relevant laws and customs are those of the WDCB which covers the Claim Area as agreed by the anthropologists (Proposition 11). These laws and customs thus provide the basis for the concepts of the recognition, contestation and qualifications on access and use of resources.
801 The eighth complaint by the State relates to the legitimacy of an assertion of exclusive possession based on the compounding of the non-exclusive rights of a number of individuals. This may be responded to again by reference to the response to the State’s second point above.
802 The ninth concern raised by the State was with the investing in the claimants of the function of conferring or denying recognition to others who assert that they hold rights where the claimants, and the holding of such a function by the claimants, has not been shown to be in accordance with any law or custom of the Western Desert society. This complaint would be more directed to the Yilka claim, as the Sullivan claimants do not deny or have not denied recognition to other claimants.
803 The tenth point of concern raised by the State was in relation to the matters identified by Justice Lindgren as reasons for the failure of the Cosmo and Wongatha claims in the Wongatha judgment (at [2893]). This paragraph relates specifically to the Cosmo claim, although similar reasoning was used in dismissing the Wongatha claim. As discussed above in relation to the Yilka claim, I do not find it appropriate to adopt the findings made in a separate set of native title proceedings when it is based on a different body of evidence. To the extent that the Wongatha and the Sullivan claims may be said to be identical, this will be dealt with in the context of the State’s abuse of process submissions Chapter 4 below.
3. THE EVIDENCE – PRINCIPLES AND OVERVIEW
804 For the Sullivan claim, six Aboriginal witnesses gave evidence and were cross-examined. Detailed witness statements were tendered from these lay witnesses. They were:
(a) Mervyn Sullivan;
(b) Patrick Edwards;
(c) Celia Sullivan;
(d) Irwin Sullivan;
(e) Glen Cooke; and
(f) Doreen Harris.
805 As noted in Pt 3.1 of Chapter 1, Aboriginal evidence is of the highest importance in a claim of native title.
806 While it would have been preferable for the Sullivan Edwards witnesses to have given their evidence on country for cultural reasons, as explained by Dr Vachon, their delayed participation in the trial due to lack of funding meant that the Court had already completed the on country sessions of evidence by the time they became actively involved in the proceedings. Their evidence was therefore heard at Kalgoorlie, which, while not entirely convenient for the Yilka applicant or the State, was more suitable than Perth for the Sullivan Edwards witnesses, due to its relative proximity to the claim area in light of a shortage of funding to meet the travel and accommodation costs of the witnesses.
807 The following section outlines the background and evidence of the six witnesses, with a focus on the evidence which goes to the issue of whether the Sullivan claimants have the necessary connection to the Sullivan claim area, and should have been included in the Yilka claim. The first four witnesses are claimants from the Sullivan Edwards families, and the last two witnesses were not Sullivan claimants but gave evidence in support of the Sullivan claimants’ country encompassing the Sullivan claim area.
808 Mr Mervyn Sullivan was born at Mt Margaret Mission on 13 September 1944. He lives at the Cosmo Newberry Community, which he says he has lived at on and off since the 1960s, and relatively permanently since around 1989. He gave evidence that he can speak the Wongatha and the Ngaanyatjarra languages. He also gave evidence in the Wongatha hearing in 2002, which he described as being mostly about his father’s country and only a little bit about this mother’s country. As can be seen from the detail which follows, he is related to the Murray family, as Mr M’s mother, Alice Yampi, was a sister of his grandmother, Kitty. Charlie Winter (deceased), the father of Rhys Winter, is his uncle. Mrs Wingrove is Mervyn Sullivan’s Kurntili (aunt). He has four children with a lady from Jamieson who has now passed away, who were raised in the 1960s when Mervyn Sullivan and his wife were going back and forth between Laverton and the Cosmo Newberry Community. He has three children with his current wife, who all grew up in the Cosmo Newberry Community, went to school there, and still come back and stay with him there now. He learned about his mother’s country from both his mother and his father. He was the chairman of the Cosmo Newberry Community for a few years, starting in 1985.
809 His mother, Mrs Sullivan, passed away in Laverton in May 2013. She told him that she was born at Laverton in 1922. She was born where the old rubbish tip is now, along the old airport road. Her Afghan father, Abdul (Bill) Sada (Suther), owned land nearby.
810 Mervyn Sullivan said that his mother informed him that his kaparli (his mother’s mother) was born east of a place known as Lily Rockhole. Her name was Kitty. His mother remembered Lily Rockhole as ‘she was there with her family a big mob of people when she was young’. He described Lily rockhole as having a waterfall that runs into a big waterhole, while waterlilies with pink centres, and white cockatoos (kakalyalya). He gave evidence that Kitty was born in a place called Little Kaarnka. He had never been there, but his mother, who had travelled through that place, said that it was south of Pukankura (Lake Baker), but quite a long way from there. Lily Rockhole is in about the same direction from Laker Baker, but a little further west. He stated that Kitty’s birthplace place was not far from the Claim Area, maybe two days’ walk or less.
811 He also knows that Kitty’s sister was Mr M’s mother, Alice Yampi.
812 He explains that on this basis he was closely related to the Murray family. He remembers Charlie Winter saying to his own son, Rhys, that when he went into the Mt Margaret Mission he saw a little boy there and that was his (Charlie’s) cousin, Mrs Murray’s deceased husband. Charlie Winter called Mrs Murray’s deceased husband kurta or older brother. They went to school together for many years at the Mission and when they left school they worked together at Glenorn Station. Mervyn Sullivan said that he has always known Charlie Winter and Mrs Murray’s deceased husband as his kamaru, his mother’s brothers. His mother had a few Aboriginal fathers. One was Charlie Winter’s father, but Mervyn Sullivan says that he does not know much about the other fathers and is not sure where their country was. He describes Charlie Winter’s father’s country as being Pukankura and says that when he died, they buried him at Minnie Creek (Pirlpirr). His mother told him that after 12 months his family went back and dug the bones up to see why he died, consistently with the practice of reburial. Mervyn Sullivan says that these days, reburials are no longer practised, but that they do visit the grave sometimes after the funeral.
813 Mervyn Sullivan said that his mother, Mrs Sullivan, mainly spoke of the Laverton area, White Cliffs and the places in the Cosmo area where she grew up and walked around. She was born at Laverton, but her mother and others took her away from there when she was very small. This was to prevent her from being taken by the police, which they heard were picking up ‘half-caste’ kids to send them to settlements like Moore River and, because they wanted to live off the land like they had always done. Mervyn Sullivan’s mother said that she walked around her country with her mother and her relatives until she was around 11 or 12 years old. She said that her country was from White Cliffs Station to around where the Cosmo Newberry Community is today, from there to Limestone Well, Mapa, Dorothy Ranges, Pirlpirr, Talintji and around Yamarna. She also said that her country was Lake Yeo. Her country also includes other places in between, according to Mervyn Sullivan. She did not talk about walking around places like Lake Carey, Leonora, Mulga Queen or Linden. His mother told him that her brother, Charlie Winter was born at Mulgabiddy Creek, which is near Tatjarn.
814 His mother told him that they shifted around a lot, walking from place to place and camping in the bush. One time they walked to the Cosmo Newberry cattle station, a long time before it was a ration station, and ran into Jack McIntyre (Ranji McIntyre’s white father) who was working there at the time. He got Charlie Winter’s father to help him dig some wells. They dug the One Mile Well, just to the east of what is now the Cosmo Newberry Community, Kurrajong Well, to the west of Limestone Well, and a well just west of Judson’s Well.
815 Mervyn Sullivan said that his mother told him a lot of stories about when she was young and living on her country with her mother, his kaparli, Kitty. One of those stories came from his kaparli, who said that when she was near Marntjal (probably near Mt Tobin), she saw a white prospector fall down. When they saw he was dead, they cried for him, and put his body in a cave. They shifted from that place and decided that a mob should tell somebody in Laverton that the man had died.
816 His mother would talk a lot about how she and her family lived off the land around Marntjal and Talintji. Mervyn Sullivan said that he himself had been to those places many times. He knew that when Marntjal dries up, Talintji has a lot of water in it.
817 Mervyn Sullivan gave evidence that he was in Laverton when the ‘Stolen Generations mob’ came to speak to his mother about how she was chased and caught by the police and authorities of the day. His mother said that when they finally caught her, they gave her a good hiding and then took her to the Mt Margaret Mission. She stayed there until she was 18 when she married his father. His Father, Roy Sullivan, was born between Kookynie and Niagara town. His country was all around that way: Kookynie, Edjudina, Mt Celia, Yundamindera and Morgan town. But his father also had a lot to do with his wife’s (Mervyn Sullivan’s mother’s) country, around the Cosmo area. His father went to Korong Station when he was about 12, where he lived and worked until he married Mervyn Sullivan’s mother in 1940. They had six children, three of them when they were still at the Korong Station. Aside from Mervyn Sullivan, their children were Mr R Sullivan (deceased), born at the Mt Margaret Mission, now passed away; Alfred, born at the Mt Margaret Mission; Irwin, born at the Mt Margaret Mission; Mr G Sullivan (deceased), born in Leonora, but now passed away; and Celia, born in Leonora.
818 He gave evidence about the death of his kaparli, at Puntitjarra, just to the east of the present-day Cosmo Newberry Community.
819 Mervyn Sullivan has four children with a lady from Jamieson who has now passed away. They are Cleve, Roslyn, Lloyd, and Diane. Lloyd was born at Laverton hospital and the others were all born at Leonora hospital. They were raised in the 60s, when Mervyn Sullivan and his wife were going back and forth between Laverton and Cosmo Newberry. He says that this meant they got to know their kaparli’s, (which was also his mother’s) country, early on. He is now married to Pauline Golding. She was born in Warburton and her country goes up to Giles and Warakuna. She is the sister of Rhys Winter’s wife. Mervyn Sullivan has three children from that marriage: Jessica, born in Alice Springs; Roderick, born on Laverton; and Roberta, born in Kalgoorlie. Those three grew up in Cosmo Newberry, went to school there and still come back and stay with him there now. His other relatives on his mother’s side include his uncle, Charlie Winter (deceased); and his cousins, Rhys Winter and his (Rhys’) two sisters who passed away, and Patrick Edwards, along with his brothers and sisters. The mother of Patrick Edwards is Mervyn Sullivan’s kurntili (aunt), Mrs Wingrove, who Mervyn Sullivan says was born at Cosmo Newberry but has now passed on. According to Mervyn Sullivan, she lived around Cosmo a lot of the time in the 1940s and early 1950s. She lived with her mother, Mervyn’s kaparli, Kitty.
820 Mervyn Sullivan recounts that he spent his early years with his parents living on Korong Station, North Pools, and Mt Crawford Station, until they moved to Laverton when he was about four and half years old. He lived in Laverton until 1961. As a child, he did not go into the area around the Cosmo Newberry Community until he was about 8 or 9 years old. He went with his father to collect an engine from Mr Tilbrook, a retire policeman from Laverton who looked after the ration station at Cosmo Newberry in the early 50s. He said that when they were living in Laverton, they would go out bush in the Laverton area most weekends. He said that his parents also went to Cosmo and out as far as the country around Yamarna with his younger brothers and sister. He says that his father would sometimes go to Mt Weld to kill sheep for the station owner and for himself. They would also get bush tucker, which is why they went out bush. His father would mainly shoot marlu (red kangaroo), karlaya (emu), and yirlpa (goanna). He would cook the kuka (meat) the proper way; he would cook it in the ground, cut it up and hand it out. Mervyn Sullivan explained that because he killed it, he was the ‘boss for the meat’. He taught Mervyn this way of doing things. Mervyn Sullivan’s mother would use a crowbar to dig for yirlirlpa (honey ants), karlkurla (like a bush tomato), maku (bardi grubs), tarnmarta (little bush onions) and wanarn (little plants with little white flowers with white roots on which you chew on). He learnt about those things from his mother.
821 He cannot recall when he first discovered that his mother’s country was in the Cosmo area, although he says it was a long time ago. She told him stories about her country when he was going to school in the 1950s, and her brother, Charlie Winter, was born out there. After Mervyn Sullivan left school he was sent by Native Welfare to Kalgoorlie, and worked for Native Welfare there for four months.
822 He later worked for the Native Welfare at Leonora for about two years between 1960-1961, and then worked at a few stations on and off, including Korong Station. He then went back to live in Laverton, but the police told him he had to get work or leave town. Thereafter, in around 1963, he went out with his father on grading trips, doing work for the Laverton Shire and camping out. They went to places like Lake Rason, Lake Yeo, Lake Wells and the main road through the Cosmo Reserve to Warburton. They graded the Warburton road many times in the 1960s. In 1968, when they returned from Warburton, they graded the Minnie Creek track to Yamarna and then made a new track from Yamarna to the Warburton road near Mt Shenton. Later the Shire gave him a job and his father was his foreman. Three of his brothers also worked on the roads in the Laverton Shire. When he was working on those roads, his father would tell him the Wangkayi names for the rockholes and other places in the Cosmo area. His father knew the songs too. Mervyn Sullivan therefore learned his mother’s country, not only from his mother, but also from his father.
823 Between 1965 and 1968, they would pull into the Cosmo Newberry Community, visiting his uncle, Mrs Murray’s deceased husband, and his family. A lot of other people were there too, like the Nelsons, Shaws, Greens, Mitchells and Bates. These other people were all Ngaanyatjarra from Warburton and Tjirrkarli. The Nelsons were from his wife’s family and she would stay with them at Cosmo with a couple of his children. Mervyn Sullivan says that in 1968 the Murrays were still at Cosmo, and it was about that time they shifted to Mt Margaret. Mervyn Sullivan’s recollection was that the Murrays were at Cosmo from around 1962 to 1968. In 1973, his father retired. Mervyn Sullivan, his father and Mr R Sullivan (deceased) had a little gold venture a couple kilometres south of the Cosmo Newberry Community, living in a tent and a caravan for a while near the Community. They would fill 44 gallon drums and take them to the Yarrie battery to get crushed. They worked on that on and off for a while until about 1975 when his father got sick and died in 1976. Mervyn Sullivan then went to Alice Springs for two years, where he met his current wife and had one child, before returning to Laverton in about 1977 or 1978.
824 When he returned from Alice Springs, he worked in Warakuna until 1982 doing community work; building houses, shower blocks and the store and the clinic. In the summer months he would come back to Laverton. In 1983 or 1984 he went to the Cosmo Newberry Community with his wife and children where they lived in one of the houses. In 1985 he became the chairman of the Community, and did that for a couple of years. A lot of work was done in the Cosmo Newberry Community at that time, such as repairing the houses and building a new community store. Mervyn Sullivan recalls that people were living there at that time: Patrick Edwards and his sister, Heather with her husband; Mervyn Sullivan’s daughter, Roslyn and her husband, Keith Dodd; Glen Cooke and his wife; Mr Watson and his wife and children; Mr Harris and his wife and children. Mervyn Sullivan’s cousin, Rhys Winter, had lived there earlier but left to return to Laverton in 1983. He says that around this time, the Westlakes were at Tjirrkarli, Warburton and Leonora and the Murrays were at Mt Margaret and Laverton. In 1986, before Rhys Winter’s father died, Mervyn Sullivan and his family went to Mulgabiddy Creek. His uncle, Rhys Winter’s father, was very sick at the time and he wanted to see the country that he was born in. They camped out there one night.
825 Mervyn Sullivan left the Cosmo Newberry Community in 1986 and at that time Philip O’Donohue took over as adviser. His brother, Mr G Sullivan (deceased) and his wife, Lois, stayed on at Cosmo. Later, in 1986, Mervyn Sullivan went to work at Warakuna, but went backwards and forwards between there and Laverton. During that time he would stop in at Cosmo and see his relatives. In 1988 and 1989 the Cosmo Newberry Community closed down. Mervyn Sullivan believes this was because there was no adviser in the Community, and the Aboriginal Land Trust did not want people living there because they wanted the land for mining.
826 In 1988, during the time that the Cosmo Newberry Community was closed down, he was driving from Warakuna to Laverton around sundown and saw a light in the community. When he went into Cosmo to have a look, he saw his cousin Rhys and his family, his brother Irwin and his family, and his cousin Patrick Edwards and his family, all camping at Cosmo. They said that they would travel from Laverton to Cosmo on the weekends and go hunting out from there. After that, Mervyn Sullivan would go and stay at Cosmo with them too.
827 He was living at the Cosmo Newberry Community in 1990 when the Murray family started to move there. The Community had not started up properly, so for them to live there, his cousin, Rhys Winter, and the families had to come back to Laverton to get supplies. He has been living in the Cosmo Newberry Community ever since.
828 Mervyn Sullivan gave evidence about Tjukurrpa, life in the desert and traditional laws and customs, much of which accorded with evidence given by the Yilka applicant witnesses.
829 Mervyn Sullivan also gave evidence about (his) ngurra, speaking for country and making decisions, looking after country, other laws and customs, and rights and interests.
830 He gave evidence of a number of places in the Claim Area and what he knew about them. This evidence is extensive. It was not seriously challenged, and is substantially consistent with evidence given by the Yilka applicant witnesses.
831 Mr Patrick Edwards gave evidence from the Edwards family side of the claim. He was born in the Kalgoorlie hospital on 14 December 1964. He lives in Laverton, where he has lived on and off for the last 20 years. His mother was Mrs Wingrove, who is said to have been born in the Cosmo area. She passed away in Laverton around 1981 or 1982, or possibly a bit later. As can be seen from the detail which follows, Patrick Edwards lived at the Cosmo Newbery Community on and off from about 1980 for about three years. He also camped there in the late 1980s while the Community was closed down. He learned about the places in the Cosmo area from his mother, his aunty (Mrs Sullivan), and people like Mr Harris and Doreen Harris. He is a wati and has learned more about places in the Cosmo area from the men. Over the past few years he has taken his sons who are wati out to places around the Yamarna and Cyril Well area, telling them the wati stories and that those places are their kaparli’s country (his own mother’s country). He speaks the Wangkayi language.
832 Patrick Edwards gave evidence that his mother told him that she was born in the Cosmo area, and that no one has given him a more precise location. His aunty, Mrs Sullivan, also told him that his mother was born in the Cosmo area. He was not sure if his aunty was there at the time she was born, but he believed that was likely, as she would have been there with their mother, his kaparli (Kitty). He was brought up believing that his mother was born there, that it was her ngurra and her kaparli’s ngurra.
833 His mother had told him about the places she walked around with her mother and family when she was a child. She explained that she walked around the Yamarna area, Lake Baker, Neale Junction and the Cosmo area, and even down to White Cliffs and Burtville area. She walked around with her mother, her sister Mrs Sullivan, and her brother Mr Winter. His mother was still a girl when she went into the Mt Margaret Mission. Mrs Sullivan looked after her when she was at home. He explained that this mother travelled to Linden and to Cosmo during her school holidays.
834 Patrick Edwards’ father was Clarrie Byfield (deceased), a white man. Patrick Edwards saw his father when he was really little, about five or six years old. His mother married Tommy Edwards (referred to as Mr E), an Aboriginal man from the Warburton/Jamieson area, when she was at the Mission. He explained that Mr E was his stepfather, from the Ngaanyatjarra group of people, generally from around Warburton.
835 Patrick Edwards explained that Mr E and his mother raised him in Laverton, Leonora and Menzies. He attended school in Laverton to year 8, living with his mother, brothers and sisters both in the town itself and on the Reserve. When he was about 13 years old, he ran away from school and worked in fencing and cattle mustering on Erlistoun for about six months. Following this, he went to Laverton Downs Station for about five years, and then worked for the CDEP at Warburton for about two years doing cattle work for the community.
836 He also worked for Laverton Shire for about 18 months doing road work. After that, he lived at Cosmo on and off from about 1980 for about three years. During that time he was contracted to go out and work over at White Cliffs Station trapping cattle, so he would stay at White Cliffs for a week and go back to Cosmo for the weekend. He was paid by Cosmo for doing that. At Cosmo he lived with his uncle and aunty, Joey Munro and his wife. When he was off work, he lived at Laverton and Warburton. This was before he was married. Later on in the 1980s, after the Cosmo Newberry Community closed down, he went there and started camping there with Joey Munro and Mr Harris and Doreen Harris. They camped there for quite a while before the Cosmo Newberry Community restarted. Since living at Cosmo, he has lived in Laverton, except for about six months in the 1980s when he stayed at Mt Margaret while Ron Harrington-Smith was the manager there. He was a member of the Aboriginal Cultural Materials Committee (ACMC) for about four years. The ACMC advises the Western Australian government on the protection of Aboriginal places and objects.
837 Patrick Edwards gave evidence about his skin and the rules and customs about skin.
838 He gave evidence of the language that he spoke (Wangkayi), saying that he can understand the language spoken by people from Warburton, which is same as his language.
839 He gave evidence about his ngurra and its foundation. He explains that his traditional connection to the Cosmo area came from his mother, because she was born there and lived in that country with her mother, his kaparli, when she was young; and also because he has lived there himself and learned about the country. He says that the Cosmo area was his kaparli’s ngurra because she was born not too far away from there and she walked all through that country before and after his mother was born. She drank from the rockholes, lived off the land and practised her culture there with her family, walking around from place to place. He maintains that they would not have been able to do that if it was not their country. By virtue of being his kaparli’s ngurra, it is also his mother’s ngurra and his ngurra. He says that they are the traditional owners of the country in the traditional way.
840 Further, Patrick Edwards explains that he learned about the places in the Cosmo area from his mother and his aunty, Mrs Sullivan, and people like Mr Harris and Doreen Harris, who always told him that Cosmo was his mother’s country. He also learned about the country by hunting and camping there and also because he went through the law. He learned about places in the Cosmo area, like Minnie Creek, from the men. He says that around the Cyril Well area and Mt Shenton are good places for camping, hunting and living off the land. Over the past few years he has taken his sons, the ones who are wati, out to places around the Yamarna and Cyril Well area. He tells them about the wati stories out there, and that those places are their kaparli’s country (his own mother’s country). He has told his sons about the tree, not far from Minnie Creek, where Rhys Winter’s thamu (grandfather) died. He has shown his sons all the rockholes in the Cosmo area, and how to clean the rockholes. He says that he has taught them how to survive in the bush and the proper cultural way to do things, which he learnt from his mother, aunty and other old people.
841 He explained that when he is in the bush on his ngurra he does not feel frightened; he knows where he is and ‘feels good inside, relaxed’. He says:
The spirits of my old people have are there and they know me. If I’m on someone else’s country then I will go with someone from that country. This shows respect and makes sure I don’t go somewhere I shouldn’t.
He asserts that being a wati who belongs to that country and who knows that country well also helps him understand who belongs to the country and has rights to that country under traditional culture.
842 Patrick Edwards gave evidence that he was concerned about the Sullivan family and other people not being accepted in the Yilka claim. His evidence was that the Sullivans know that country, and that they have been brought up there, as was their mother. Their mother and his mother were sisters and they walked around the country with their mother, Kitty (his kaparli). He says that, as it was their kaparli’s country, it is their country too.
They have been living off the land, camping in the bush, not just living in the community. They respect the country and help look after it, they teach their kids and grandkids about it too. They are passing on the culture how it should be passed on. They should be recognised and their rights to the country should be respected.
He explained that the same goes for his family.
843 He explains, as others do in evidence, that only certain people at Cosmo want to keep them out. He says that the Murray family do not accept the Sullivans and Edwards, because they have had a grudge against them, since the 1990s. He says this was a personal grudge, and not due to any absence of traditional rights to Cosmo.
844 He explained about going through the law, saying:
I went through the Law for the first time about 25 years ago. I was grabbed in Laverton, and about four months later I was let go in Amata, South Australia. Since then I have been through many more stages of the Law, it could be two or three or five times per year. I am still actively involved in Law business. It’s very important to me and I’m going to continue with it.
845 He has been on law business at Warburton, Wiluna, Jigalong, Laverton Tjuntjuntjara, Blackstone and Warakuna.
846 As with Mervyn Sullivan, Patrick Edwards gave evidence of various places in the Claim Area, responsibilities and rights for country, hunting, camping and bush food and about passing on the information to his children.
847 The evidence of Celia Sullivan was confirmatory of the evidence of Mervyn Sullivan. She was born 8 April 1955 in Leonora hospital, and was taken back to Laverton by her mother when she was about a week old. She spent a lot of time growing up in Laverton, although she went bush with her family most weekends, and still lives there now. She explains that she has a Tjukurrpa, which is marlu, the same as her brother, Mervyn. Consistently with Mervyn Sullivan’s evidence, she recounts that her mother, Mrs Sullivan, said she was born in Laverton. As can be seen from the detail which follows, She learnt about the country and the Tjukurrpa from her mother. She says that the Cosmo area is her ngurra because it was her mother’s and her kaparli’s ngurra. She takes her nieces and nephews and grandchildren to her country to pass on her knowledge of the land and how to look after it.
848 Mrs Sullivan’s year of birth was either 1917 or 1920 or 1922, which the Mt Margaret Mission gave her as her birthdate. She was born out of town where the airstrip is today, and where there was a big Wankayi camp at the time. Mrs Sullivan told her stories about her own mother, Celia Sullivan’s kaparli, Kitty. Mrs Sullivan told her that Kitty was born in the bush in the Victoria desert, south of Lake Baker where there is a big breakaway and rockhole. Back in 1990, Mrs Sullivan told her that Kitty was born at Kaarnka. This is not the same Kaarnka as the one the other side of Warburton, but is between Lake Yeo and Lake Rason, closer to Lake Yeo. In around 1996, Celia Sullivan went with her brothers out that way to try to find the place. She says they knew where the area was, but it was hard to get through there with vehicles.
849 Mrs Sullivan said that before she was born in the early 1900s; her mother (Kitty) and a little group of family found the skeleton of a gold prospector in a cave at Rutter’s Grave. They told the police in Laverton. This story shows that in those days her kaparli, Kitty, was walking around the Cosmo area.
850 Her mother told her a lot of stories where they walked around when she was a girl. She says that after her mother was born, they would travel all around that country: White Cliffs the area where the Cosmo Newberry Community is now, but was then a pastoral outstation, Yamarna, Minnie Creek, Lake Yeo, and Neale Junction. Her mother told her that she walked all around the Sullivan claim area, because it was their country.
851 Celia Sullivan says she is related to the Murray Family, and that she used to get together frequently with Sue Murray and her (Sue’s) two sisters in Laverton. They lived across from them in the town. She worked in the hospital with Sue, Norma and the sister who passed away.
852 Celia Sullivan grew up in Laverton, but she travelled around with her family, going bush on most weekends. She gave confirmatory evidence about the activities of the family and the locations that would be visited. The evidence was given in different terms from the previous witnesses, which I consider adds to its apparent authenticity. She learnt about the country and the Tjukurrpa from her mother. After finishing school at Laverton, she worked the in the hospital there as a nurse’s assistant. She later worked at a shop at Warburton and as a health worker at the Tjirrkarli community (her husband’s mother’s country), before returning to Laverton where she now works on the night patrol.
853 Celia Sullivan explains that her mother’s country, which she said was also her country, includes the Cosmo area because her mother (Celia’s kaparli) was born near there and roamed through all that country with Celia’s mother when she was a little girl. They lived on that country in the traditional way: they lived on bush tucker, had no blankets, and walked around without clothes. They made fire with a flint and spinifex. At night they would make a big fire then scrape out the coals to make a warm place for sleeping. They camped in wiltjas and walked around everywhere, hunting and collecting bush tucker and moving from kapi (water place) to kapi. They knew all that country; where to go and where to stay away from. They would communicate with other family groups by making smoke. Celia Sullivan says that this shows that her kaparli and her mother belonged to the country and had traditional rights to live on it. She also says that her kaparli was buried at Puntitjarra, which shows that it was her traditional country. She says it is her ngurra, because it was her mother’s and her kaparli’s ngurra. She also said that she takes her nieces and nephews and grandchildren to her country to pass on her knowledge of the land and how to look after it.
854 She also gave brief confirmatory evidence about Tjukurrpa, bush foods, looking after country and speaking for country and the refusal to recognise the Sullivan claim.
855 Mr Irwin Sullivan was born on 21 February 1940 at Mt Margaret Mission. He lives at the Wongatha Wonganarra Village in Laverton and is a pensioner. His Tjukurrpa is ngoondiwarra (swan). He is the fourth oldest in his family, four years behind his brother, Mervyn Sullivan. He is a Wangkayi person and can speak both Wangkayi and English. He grew up at Crawford Station and moved to Laverton when he was very small. In 1983 and 1984 he lived at the Cosmo Newberry Community, where he did community work, and then started travelling between Warburton (where his partner was from) and Laverton, stopping in at Cosmo on the way through. He says that he lived in Cosmo with his brother Mervyn and with Patrick Edwards, after it had closed down but before the Murrays came there. Since then he has continued to visit the Community. He went through the law in the early 1990s.
856 Mr Glen Cooke is not part of the Sullivan Edwards families, but gave evidence in support of their claim to country. He lives in Wiluna, has been a wati since he was 18 years old and holds knowledge which has been passed down to him by his people. He is a Ngaanyatjarra man, who speaks Ngaanyatjarra and English. He was born in Jamieson and grew up in Warburton until he was 9 years old. He then came to Laverton and spent quite a few years around Cosmo and Laverton, which is when he first got to know the Sullivan and Edwards families. As his parents were out sandal-wooding then, he used to stay with the Sullivans; and Mervyn Sullivan looked after him like a father.
857 He first went to Cosmo in 1965 or 1966, and he went to school there. Later on he lived and worked at the Cosmo Newberry Community, for example, he helped build the shop there in the 1980s. He worked in the Community with the Sullivans and with Patrick Edwards. He kept going back to the Cosmo area from time to time, and says he has a good knowledge of the country and the people from that area. He does not claim that country, but says he he does have watiku rights to an important man’s place at Minnie Creek.
858 He gave confirmatory evidence that the Sullivan brothers worked grading roads around the country. He said that he spent a lot of time with the Sullivan family in Laverton. Their mother, Glen Cooke said, would tell her children about all the places in the Cosmo area when she roamed around as a child with her mother and family. She talked about how they walked around their country, living off the land. The Sullivans’ kaparli (Mervyn Sullivan’s grandmother) was born near Lake Yeo in a place called Kaarnka, not the Kaarnka in the Warburton/Jamieson area, but the Kaarnka around the Lake Yeo area. It is not far to walk from Cosmo. He gave evidence of his belief that she lived all around the Cosmo area. She had her daughter (the Sullivans’ mother) with her, and they roamed through this country, traditional way; and it was their country. They would never go across to other people’s land which is outside of their country; they would not have been able to live and roam around like they did on someone else’s land. He spoke further about boundaries and the Sullivan and Edwards families’ claim to country. He concluded by stating that the country between Lake Yeo, Cosmo and Laverton has always been the country of the Sullivan and Edwards families.
859 Mrs Doreen Harris has a Wangkayi name which is Margillee. She is a Ngaanyatjarra woman who speaks Ngaanyatjarra and also English. She is a pensioner but also works at the Laverton Leonora Cross Cultural Centre in the women’s centre. She paints traditional Wangkayi art and makes traditional bush medicines. She was born on 8 August 1944 at Warburton in the old copper mine area. She lived at the Cosmo Newberry Community for a long time and knows a lot about that country, as it was part of the country of her husband, Mr Harris, who is a named ancestor in the Yilka claim. He told her that his kaparli and his mother roamed around that country from rockhole to rockhole, and they were from the country around Minnie Creek and Cosmo, which is what gave her husband rights to that country. Her husband also knew the country well because the old people taught him about it. He lived a long time there and people respected his right to speak for that country. Their children and grandchildren also had rights to Cosmo through her husband, his mother and kaparli. Her son, Junior, is a Yilka claimant and gave evidence in support of that claim (see Chapter 1).
860 Doreen Harris has been told that the Sullivans and Edwards families were not in the Yilka native title claim over Cosmo, but believes that they do have traditional rights to Cosmo as well.
861 She describes her own family background (including that her parents lived at Cosmo before her birth), and the time she spent living at Cosmo in the 1960s. Her daughter Wilma was born in in 1967, and when Wilma was about six months old, they moved back to Cosmo. They lived in a wiltja until they got a house in the 1970s. Their son Junior was born 29 April 1968 at the Leonora Hospital. They were living at Yamarna Station near Cosmo at the time. She and her husband lived at the Cosmo Newberry Community most of the time from the late 1960s until 1996. She says it was their home. They would go away to do seasonal work on the stations and spend time at Mt Margaret and Laverton, but always went back to the Cosmo Newberry Community. Their daughter, Wilma, left for a while but then came back to Cosmo and was a teacher’s aide at the Cosmo school. She also worked at the shop.
862 Doreen Harris was the community health worker at the Cosmo Newberry Community, running the clinic from 1983 to 1986. Her recollection is that he missionaries headed Cosmo over to the Community in the early 1980s, while Mr Watson was the Chairperson of Cosmo. She became the Cosmo Chairperson in 1984 or 1985, after Mr Watson. They stayed at Cosmo until the Aboriginal Lands Trust took over and closed Cosmo down in about 1986. She says that she and her husband were the last people to leave Cosmo, moving to Laverton where she worked as a health worker. While the Cosmo Newberry Community was closed in the late 1980s, they would still go there every couple of weeks to check on the Community because it was their home and they did not want it damaged or to have things stolen. They were always thinking about it and planning to go back there.
863 Mrs Murray’s deceased daughter was the manager of the Wongatha Wonganarra Corporation in Laverton at the time and Doreen Harris asked her to reopen the Cosmo Community. In 1991, Doreen Harris, her husband and the children moved out to Cosmo. She says that Mervyn Sullivan, Rhys Winter and their families also moved there at about that time as well as her sister, Joan Mitchell, and her husband. The late Mr Watson came down to Cosmo from Tjirrkarli. Some other people moved there from Mt Margaret a bit later, like the Murrays and the Stokes. Doreen Harris and her husband stayed at Cosmo until moving to Laverton in 1996.
864 Doreen Harris gave detailed evidence about her knowledge of country and rights to country, and the authenticity of the Sullivan Edwards’ connection to Cosmo. Her evidence is impressive.
865 In relation to the Sullivan Edwards family’s connection to Cosmo, she said (at [36]-[42] of her affidavit evidence):
36. The Sullivans have spent a lot of time at Cosmo, going back a long time. They know about that country.
37. Mrs D. Sullivan, who died not long ago, told me a lot of stories about when she walked with her mother all around the Cosmo area, stopping at the rockholes and living the old traditional way. That was when she was a girl. She had a lot of interesting stories about that, true stories, and I always like to hear those stories. Mrs Sullivan knew all the rockholes around Cosmo really well, she could tell the stories in a lot of detail. In our culture it’s important to listen carefully to those stories about the old days, and pass on those stories to the younger generations. It’s only by listening carefully that you understand the history and the culture.
38. I always heard that Mrs Sullivan’s mother belonged to that country around Cosmo. It was her ngurra and that’s why she walked around there with her children, and that’s why she was buried there, at Puntitjarra. That means her koordi [spirit] stays there.
39. Mrs Sullivan belonged to that country too because it was her mother’s ngurra and also because she herself was raised up on the country, walking around it with her mother from rockhole to rockhole.
…
42. Mrs Sullivan’s children also have rights to Cosmo under Wangkayi culture – they get their rights from their mother and their kaparli. That country is their ngurra. And they know the country too, they have lived there and travelled around the country, hunting and camping and living off the land and passing on their knowledge to the next generations. They know about the rockholes, the tjukurrpa and the koordi. They have learnt about these things from their mother and other old people. That’s important because you need that knowledge passed down to you to be able to speak for the country.
3.1.7 Comments on the primary evidence
866 It is submitted for the Sullivan applicant that the evidence of the Sullivan Edwards Aboriginal witnesses was not only un-contradicted in large measure, but was credible, cogent and compelling.
867 In my view, this rather overstates the position. I accept that all Aboriginal witnesses for both applicants did their best in the circumstances and were, in respect of most evidence given, entirely credible. There is, of course, a gaping chasm between conventional courtroom terminology and the approaches to reasoning, language and expression of the Aboriginal witnesses. So much has been written on this topic that it is too obvious to repeat. All counsel did very well in recognising this circumstance.
868 The State does not appear to be particularly critical of the evidence of the Sullivan applicant’s witnesses, and does not raise any issues of credibility.
869 The Yilka applicant is critical.
870 The Yilka applicant says firstly, that the Sullivan witnesses’ evidence about their knowledge of various places on the Claim Area, and the laws and customs of the WDCB, is generally speaking not particularly cogent. The Yilka applicant also criticises the Sullivan applicant for not adducing restricted evidence, saying that the fact that the hearing of the evidence was in open court is not a valid excuse.
871 Much of the expert evidence has already been identified in considering the Yilka applicant’s connection case.
872 As indicated, expert anthropological evidence for the Sullivan applicant was given by Dr Vachon. He initially participated in a conference of anthropological experts held on 24 July and 16 August 2012 pursuant to Court orders of 26 April 2012. This in turn gave rise to the experts giving concurrent evidence during the trial process.
873 The participants in that process were Dr Sackett and Dr Cane for the Yilka applicant, Professor Trigger for the State and Dr Vachon. Dr Vachon gave evidence on 12 and 13 December 2013 and 13 March 2014. In addition to his oral evidence, he provided a number of reports and exhibits, including a report dated March 2012 with genealogies attached (which were later updated); a report dated 24 August 2013, which was subject to certain objections; a restricted exhibit; an affidavit of 13 November 2013 concerning compliance with Practice Note CM7, entitled ‘Expert witnesses in proceedings in the Federal Court if Australia’ (Practice Note); an affidavit of 13 November 2013 in relation to cultural and customary concerns to assist the Court regarding the Aboriginal evidence; updated genealogies of the Sullivan Edwards family group; and, finally, a supplementary report of 28 February 2014.
874 The State filed objections to Dr Vachon’s report of 24 August 2013 on 4 November 2013, which it has subsequently withdrawn. The Yilka applicant filed objections to this report on 11 November 2013. The Sullivan applicant filed a response to each set of objections, in two separate documents dated 22 November 2013. Although the State has subsequently withdrawn its objections, the Yilka applicant adopts the State’s objections to four paragraphs of the report. As I am not presently descending into the detail of his report, I will not, at this point, consider in detail the specific objections other than to note that some of them were advanced on the basis that the underlying facts had not been established.
875 The Yilka applicant made two general objections to Dr Vachon’s expert report. The first of these was that it should be disallowed as it relies on factual material gathered over many years by Dr Vachon’s co-researcher for the Wongatha proceedings, Dr Sandra Pannell. While s 79(1) of the Evidence Act requires that opinions be the author’s, this does not prevent experts from drawing on underlying factual information for their opinions. Those findings referred to contained factual information, which was generally a record of what Dr Pannell had been told by Mrs Sullivan.
876 In my view, this is simply a matter of weight: see Jango v Northern Territory (No 2) [2004] FCA 1004 per Sackville J where his Honour said (at [33]-[34]):
33 The authorities in this Court support the proposition that s 79 of the Evidence Act does not incorporate the ‘basis’ rule – that is, the common law requirement that for an expert’s opinion to be admissible, it must be based on facts stated by the expert and either proved by the expert or assumed by him or her and proved aliunde. The common law rule was recently restated by Heydon JA in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, at 731-732 [64], while the authorities in this Court have been recently analysed by Sundberg J in Neowarra v Western Australia, at 151-155 [16]-[27].
34 It seems that proof of the facts assumed by an expert in giving his or her opinion goes to the weight that should be accorded to the opinion rather than its admissibility. Nonetheless, as Sundberg J observed in Neowarra v Western Australia (at 153 [23]) a report should be presented in a form that make it
‘possible for the court to determine whether the opinion is wholly or substantially based on the expert’s specialised knowledge which in turn is based on training, study or experience’.
See also HG v The Queen, at 427 [39], per Gleeson CJ.
877 Dr Pannell’s extensive field notes were cited in Dr Vachon’s report as appropriate, and those field notes were available to the parties and addressed in the cross-examination of Dr Vachon.
878 Another objection arose concerning requirements of the Practice Note, compliance with which is mandatory under r 23.13(1)(h) of the of Federal Court Rules 2011 (Cth) (FCR). Insofar as this objection relates to [2.1(ga)] and [2.2] of the Practice Note, these requirements have now been met by the filing of an affidavit affirmed by Dr Vachon on 13 November 2013, in which he gave the required acknowledgement and declaration. He sought the leave of the Court to have that affidavit read with his report. I grant leave and consider that the Practice Note is complied with.
879 The Yilka applicant contends that caution should be exercised in relation to Dr Vachon’s evidence, asserting that he has ‘gone in to bat’ for the Sullivan applicant. To support such a conclusion, the Yilka applicant refers to specific findings of Dr Vachon which it finds problematic. I do not accept this submission. It is not a proposition that was put to Dr Vachon. None of the issues raised by the Yilka applicant are sufficient to cast doubt on his credibility. Further, the submission conflicts significantly with the State’s submission which endorses the approach of Dr Vachon, saying that he gave evidence in a frank and impartial manner. I accept the State’s submission. The State also withdrew any objections to Dr Vachon’s evidence. Any remaining objections by the Yilka applicant to particular parts of Dr Vachon’s 24 August 2013 Report (‘Specific Objections’) are very minor matters. To the extent the Yilka applicant adopted the State’s objections, the State has withdrawn them. As to the objection to para 1.1.3, clearly this is no more than an introductory summary. As to para 2.9, this is a statement of opinion from general expertise as is para 2.10. Paragraph 2.13 is introductory: ‘As I discuss presently’. Anything remaining by way of objection is to material of very minor weight.
3.2.2 Extent of agreement between anthropological experts
880 As has been previously noted, there is a very considerable amount of agreement between the experts (see the Propositions considered in the conference of experts above Chapter 1, Pt 3.2.1.5). Dr Cane also helpfully set out as an annexure to his report each of the experts’ opinions on each of the Propositions considered – this can be found at Annexure 3 to these reasons.
881 The key topic addressed specifically to the Sullivan family’s rights and interests was Proposition 34 which was as follows:
Given the system of law and custom for determining rights and interests in land on the Yilka claim area, and given Dr Vachon’s report and the discussion on this issue during the expert’s conference (as opposed to transcript of [Mrs Sullivan’s] evidence from the Wongatha proceeding) it is difficult to see any reason why [Mrs Sullivan] and her descendants would not have rights in the claim area as Landholders.
882 To that, Dr Sackett reported ‘[w]e all agreed with Proposition 34, though Professor Trigger, Dr Cane and Dr Vachon all had qualifications’. Dr Sackett himself did not have any qualifications to the agreement.
883 Dr Cane was concerned with the description ‘Landholder’, explaining that he disagreed with the proposition only insofar as it introduced a new concept ‘Landholder’ into the discussion, which he understood to be equated with the ‘my country’ relationship. He went on to say:
I have no doubt that the Sullivan claimants have rights and interests in the claim area and I am surprised that they are not part of the original Yilka claim, but would differentiate those rights from ‘ngurrangka’ or ‘my country rights’ as defined in Proposition 30.
(emphasis added).
884 Dr Cane was of the view that WDCB laws and customs give rise to both ‘my country’ relationships and rights and interests to larger sections of land. It was also his opinion that other rights and interests are acquired and can be asserted according to pathways other than a person’s ‘my country’ areas, including extensive ritual knowledge, and short and long term association with country (which is generalised as ‘growing up’ on country). He concluded that the Sullivan family claimants for whom he had information had a ‘my country’ relationship with areas outside the Claim Area (Laverton and Lake Yeo areas) and have rights and interests in the Claim Area by virtue of the other pathways that do not amount to a ‘my country’ relationship with the Claim Area. (This excludes the Edwards, as he considers that Mrs Wingrove had a ‘my country’ relationship with the Claim Area.) Dr Cane said that his experience was that people now have rights in a number of ‘countries’ with a drift away from the core notion of ‘my country’ as a result of the normative imperative in the context settlement since sovereignty.
885 In the body of his report, Dr Cane stated:
Given that geographic and historic perspective one can see the criteria presented by the Yilka and Sullivan claimants (summarised above) for asserting rights in land as consistent with the normative system. They are the same traditions, in my experience, expressed in the same way and giving the same rights in land as recognised and employed by other Aboriginal people subject to the same traditional laws and customs across the neighbouring desert region – in this case the Wangkayi, Martu and Ngaanyatjarra.
(emphasis added)
886 The qualification expressed by Professor Trigger, called on behalf of the State, was that:
My agreement with the proposition notes its consistency with Dr Sackett’s research for Yilka concluding that Rhys Winter and perhaps [the late Mr Watson] now make claims different to those made in the Wongatha proceeding.
This is also consistent with Dr Sackett’s findings that the choices that people make at a point in time about their rights to country are not necessarily their choice for all time.
887 Dr Vachon’s only qualification was that he was relying on information contained in his report, which is mentioned in the proposition itself.
888 Dr Sackett did appear to qualify his position subsequently, saying that it may be that Mrs Sullivan and her descendants could make claims based on birth and/or growing up/long association; but that it equally may be the case that the areas between Laverton and Kaarnka were merely a run/road used by the Sullivan family, and as such could not be claimed as country under Western Desert law and custom. Neither Dr Cane nor Professor Trigger have adjusted their positions, Professor Trigger saying in his final report:
I agree with Dr Vachon’s opinion (1.1.3) that, to the extent that the broader Yilka claimants hold traditional rights and interests in the claim area, then the Sullivan-Edwards group would hold the same rights and interests derived from their observance and acknowledgement of the same laws and customs.
(emphasis added)
889 The Yilka applicant submits that Professor Trigger’s new that, in essence, he cannot see much difference between the Yilka and Sullivan claims, is more a matter of impression than of detailed analysis. However, in light of the evidence of the other anthropologists as detailed here and below, that submission has minimal bearing on the Sullivan applicant’s claim.
890 The State has submitted that the historical evidence (set out above in Chapter 1) supports its contention that conditions in the Claim Area are not such as would support an inference of continuity. For essentially the same reasons as explained in connection with the claim by the Yilka applicant, I do not consider the historical evidence supports this submission. I accept the submissions for the Sullivan applicant that:
(a) the fact of the 1905 legislation, the founding of the Mt Margaret Mission, its status as a ration station and its taking of mixed descent children does not indicate that children, including Mrs Sullivan, lost their identity as WDCB children or lost their connection to country through WDCB pathways. In any event, Mrs Sullivan had begun to form a connection to country prior to living at Mt Margaret;
(b) Kitty was born on the desert near Lake Yeo, not at or near to a settled area. There is no inference to be drawn, nor do I draw it, that this was influenced by white settlement or otherwise;
(c) the closing down or ‘abandonment’ of the Cosmo Newberry Community for a short period of time in the 1980s does not, as a matter of law, demonstrate a lack of continuity;
(d) the establishment of a pastoral lease over Cosmo Newberry in 1923 has not been shown on the evidence to have affected Kitty’s occupation of the Sullivan claim area, nor to have any other adverse implications for the Sullivan claim;
(e) the creation of the Cosmo Newberry Aboriginal Reserve and rations station would actually have advanced, rather than detracted from, the ability for continued occupation of the area. The mere fact that rations were available does not mean that there was a lack of continuity of existence and adherence to the WDCB pathways;
(f) the fact that the Cosmo Newberry Community area was temporarily closed following certain deaths does not show abandonment as such. This temporary vacation of the area does seem to be consistent with traditional observance. More importantly, there is no evidence of any ‘abandonment’ of traditional connection to any part of the Sullivan claim area by Sullivan claimants or, indeed, by Yilka claimants.
891 The key documents relied upon by the Sullivan applicant includes from Exh 60, the book of documents relied on, including s 86 NTA material comprising transcripts and exhibits from the Wongatha proceeding. Notably, Exh 60 also includes an earlier anthropologist’s report, R. O’Connor and W. Christensen’s Cosmo Newbery Inquiry Report of July 1986 (Christensen O’Connor report), which the Sullivan applicant contends confirms the then acknowledged connection of Sullivan apical ancestor, Mrs Sullivan, to the Cosmo Newberry area.
892 Other exhibits relied upon by the Sullivan applicant are a map showing the location of Bishop Riley’s Pulpit, identified by Dr Cane as being close to Kaarnka, also known as Little Kaarnka, the alleged birthplace of Kitty (Mrs Sullivan’s mother); a hand drawn ‘mud map’ (Mrs Sullivan’s map) and list from Mrs Sullivan provided in the Wongatha proceedings with places she recalled from travels as a child with her mother, Kitty, in and around the Claim Area; and a marked up version of the Yilka site map showing the places identified on Mrs Sullivan’s map (Sullivan site map). Other documentary evidence tendered by the Sullivan applicant are the documents which were put to Mr O’Dell when he gave evidence which, it is submitted, show a lack of consideration of inclusion of Sullivan Edwards family members in the Yilka claim when it was prepared by CDNTS.
893 As discussed above in relation to the Yilka claim, all parties have relied upon extracts of evidence from Wongatha pursuant to s 86 NTA. For the purpose of the Sullivan applicant, this includes transcripts of oral evidence given by Mrs Sullivan and her son, Mr G Sullivan (both now deceased). As noted in Chapter 1, Pt 3.3, I consider this evidence to be admissible. I do not find it necessary to decide the admissibility of transcript evidence of Dr Pannell, Dr Vachon or Dr Sackett from Wongatha, which is said to be relied on by the State, given that the State has not developed any arguments based on this evidence.
894 As in the Yilka claim, the State seeks to rely upon findings and evidence from the Wongatha proceedings in view of the fact that, according to the State, the nature of the claims and the substance of the evidence in the Wongatha claim and the Sullivan claim are the same. The findings relied upon relate, it is said, to the same issues. Relevantly, here, the State contends that failure to consider and/or adopt the findings relied upon in the Wongatha proceedings has the potential to result in conflicting findings or judgment as between the Sullivan claim and the earlier findings of Justice Lindgren in relation to the Wongatha claim. To the extent that these findings may not be received as evidence under s 86 NTA, the State relies on them as submissions.
895 In relation to the Sullivan claim, the State identifies the following specific findings of Justice Lindgren in Wongatha (at [1167], [302]-[303], [494(c)], [704], [314]-[316], [1882], [1907] and [1910]):
1167 The Wongatha Claim fails because:
1. The Wongatha applicants were not authorised to make the Wongatha application as required by s 61(1) of the NTA.
2. The evidence does not establish that the Wongatha Claim group is a group recognised by WDCB traditional laws and customs as a group capable of possessing group rights and interests in land or waters.
3. The evidence does not establish that group rights and interests exist in the Wongatha Claim area under WDCB traditional laws and customs.
4. The evidence does not establish that at sovereignty, WDCB laws and customs provided for an ancestral group of the Wongatha Claim group to possess group rights and interests in the Wongatha Claim area, or for individuals to be able to form themselves into a group possessing such rights and interests.
5. The Wongatha Claim is an aggregation of claims of individual rights and interests, and the Wongatha Claim area is based on an aggregation of individual ‘my country’ areas, the subject of those claimed individual rights and interests, and the NTA does not provide for the making of a determination of native title consisting of group rights and interests in these circumstances.
6. The Wongatha Claim area is not an area that is ultimately, whether directly or indirectly, defined by reference to Tjukurr (Dreaming) sites or tracks.
7. Approximately the western one sixth of the Wongatha Claim area lies outside the area of the WDCB ‘society’ on which the Wongatha Claim is based.
8. Many, if not most or all, of the Wongatha claimants are the descendants of people who migrated into the Wongatha Claim area from desert areas outside that area, in particular, to the east of it, since, and under the influence of, European settlement, and it is not established that their ancestors had any connection with the Wongatha Claim area at sovereignty, or that they or the Wongatha claimants descended from them, acquired rights and interests in the Wongatha Claim area in accordance with pre-sovereignty WDCB laws and customs.
9. The evidence does not establish that the claimants constituting the Wongatha Claim group have a connection with the Wongatha Claim area by Western Desert traditional laws and customs as required by s 223(1)(b) of the NTA.
(emphasis in the original)
302 While claimants can point to ancestors who had various kinds of post-contact association with places within the Wongatha Claim area, I cannot infer, without more, that those ancestors’ own ancestors at sovereignty had connections to those same places. Indeed, in many cases there is positive evidence that the post-contact ancestors migrated to the outskirts of townships and to ration depots in the Goldfields in the closing years of the nineteenth century and the first half of the twentieth century, from places to the north, north-east and east of the Wongatha Claim area.
303 Whatever the effect of pre-contact ‘traditional’ migration within the Western Desert (due to drought, for example) may have been under Western Desert laws and customs, migration to points of European contact because of certain attractions there is something quite different. I do not accept that the latter was an adaptation of the former.
494 On the basis of Professor Veth’s evidence I find that:
…
(c) it is impossible to know the identity, including group identity, of the Aboriginal persons who were present at the sites visited, before sovereignty or since sovereignty, other than that they exhibited many characteristics consistent with the presence of Western Desert people;
…
704 Further, to the extent that the migration was intra-Western Desert, I am not satisfied that under traditional laws and customs, those from the desert acquired rights and interests in the new locales. The reason is that whatever traditional laws and customs may have provided in relation to the acquisition of rights and interests by migration in the area to which intra-Western Desert migration occurred, the choice of the fringes of European settlement was not traditional. It might be different if it could be proved that if the Europeans had never come, the same migration would have occurred, that is to say, that drought or other pre-European causes would have brought about the migration that occurred. However, no attempt was made to establish that this was the case, and perhaps it would be impossible to establish it. The evidence that European activities, townships and settlements had a strong drawing power is incontrovertible.
314 The GLSC and Cosmo Claim groups, and less clearly so, the Maduwongga and NK 1 and NK 2 Claim groups, comprise aggregations of individuals and the Claim areas comprise aggregations of their individual ‘my country’ areas. In my view, a claim by such a group to hold group rights and interests in the total area cannot be sustained under the NTA as explained in Yorta Yorta HCA.
315 This important point calls for elaboration, and is discussed in detail at 3.6(c)(4). Each individual in the Wongatha Claim group, for example, has a ‘my country’ area, which represents only a small part of the vast Wongatha Claim area. There will be parts of that Claim area of which the individual has no knowledge and to which he or she professes no connection.
316 The position was made clear in the course of opening submissions by senior counsel for the GLSC Claim groups. He said that I may find it appropriate, at the end of the day and in the light of the evidence, to divide up the Wongatha Claim area into five ‘Determination areas’ as shown on a map which was admitted into evidence, and which is Annexure E to these reasons for judgment. The proposed determination areas, senior counsel said, might be found to be shared as follows:
• Proposed Determination Area 1: Wongatha and MN
• Proposed Determination Area 2: Wongatha, MN and Cosmo
• Proposed Determination Area 3: Wongatha
• Proposed Determination Area 4: Koara, Wutha, some NK 1 claimants, and those Wongatha claimants who have a connection to this area
• Proposed Determination Area 5: (this is the area that was, by amendment, omitted from the Wongatha Claim in favour of this Pilki claim)
In substance, this was an invitation to me to do as the claimants had attempted to do – to constitute groups and areas based on the ‘my country’ entitlements of individuals.
1882 In my opinion, in the case of a claim of group rights and interests, it is the claim group (the claimants as an entity) that must have the connection required by para (b) of s 223(1). The Wongatha Claim does not meet this requirement for the same reason that it does not meet the requirement of para (a) of s 223 (1): the Wongatha Claim group (like the other Claim groups) is not one recognised, directly or indirectly, by pre-sovereignty Aboriginal law and custom, as having a connection with the Wongatha Claim area. Any connection is at the individual rather than at the group level, and is with a ‘my country’ area rather than with the entire Wongatha Claim area.
1907 I accept the State’s submission that ‘the advent of European settlement in the region precipitated rapid and widespread demographic change’, with the result that ‘Aboriginal groups east, north-east and south-east of the [Wongatha] Claim area left their traditional homelands and moved to the fringe of European settlement where many of them lost their connection to their former traditional lands’, and that ‘[t]he original occupiers of these areas of early European settlement were either displaced, or otherwise moved away’, or at least, in my opinion, that they were numerically overwhelmed or dominated by the migrants from the east, north-east and south-east.
1910 For the reasons given above and elsewhere, it is not established that the Wongatha Claim group possesses group rights and interests in the Wongatha Claim area, and the Wongatha application should be dismissed.
896 The State says that those passages established the absence of law and custom linking the claimants to the Wongatha claim area which significantly also covers the land and waters claimed in the Sullivan claim. The Wongatha claimants had not established that their ancestors had any connection with the Wongatha claim area at sovereignty, or that they acquired rights and interests in the Wongatha claim area in accordance with pre-sovereignty WDCB laws and customs. The State contends, in the context of the Sullivan claim, although it is presently relevant as well to the Yilka claim, that the Sullivan applicant seeks to overcome that finding by asking the Court to make a finding which is clearly contrary to that previously made by the Court on evidence, including its own earlier evidence.
897 The Sullivan applicant makes the following submissions concerning the evidence in the Wongatha proceeding and the Wongatha proceeding generally:
(a) The evidence was given in the context of a trial involving eight different claims covering a very large area. The claims include the Wongatha claim and the Cosmo claim. The current Claim Area was only a relatively small part of the total trial area in the Wongatha proceedings;
(b) Mrs Sullivan and the current Sullivan claimants who gave evidence in the Wongatha proceedings were at that time part of the Wongatha claim group. Most of the Cosmo claimants who gave evidence in the Wongatha proceedings are now members of the Yilka claim group;
(c) The evidence provided by Mrs Sullivan and other members of the Sullivan and Edwards families was not focussed on the Cosmo claim area in the same way that the evidence in the current proceedings has been focussed;
(d) The Sullivan applicant accepts that there were some deficiencies in the oral evidence which was given on that occasion, but that those deficiencies were, at least in part, the result of the well-known difficulties which Aboriginal people face in giving evidence before a court (see, for example, Ward FC (at 497) and on appeal, Ward FC per Beaumont and von Doussa JJ (at [222]));
(e) While the evidence given by the Sullivan Edwards witnesses in Wongatha was not as detailed and well-focussed as could have been the case, due to those sorts of difficulties, it nevertheless was generally consistent with the evidence that the Sullivan claimants have given in the current proceedings. For example, Mrs Sullivan gave cogent and compelling evidence about the sites in the Cosmo area that her mother, Kitty, walked to, lived at, taught her children about and regarded as her ngurrara.
898 The Sullivan applicant also make a number of general and specific submissions in response to the State’s submissions on Justice Lindgren’s findings:
1. The Wongatha and Cosmo claims did not cover ‘an area which [sic] identical to the Sullivan claim area’, as the States contends;
2. It is not the case that conclusive findings were made by the Court in Wongatha in regard to the Sullivan claimants and their claim of native title rights and interests over the land and waters claimed in the proceedings. Justice Lindgren decided that the Wongatha claim was not authorised and that he therefore did not have jurisdiction. Justice Lindgren’s further findings were in the context of the claim that the Wongatha group as a whole held the native title rights. His Honour did not make any findings about whether the current Sullivan claimants hold individual native title rights and interests over the area as claimed in these proceedings;
3. Section 86 makes a distinction between materials that may be ‘received in evidence’ and emanations that may be ‘adopted’. Insofar as the section refers to ‘findings’ that may be adopted, the Sullivan applicant submits that a court should be cautious to only adopt findings that are essential to the prior court’s actual decision;
4. All the Wongatha ‘findings’ relied on by the State are obiter and do not relate to the essentiality of the decision, lack of authorisation of the Wongatha applicant and the Wongatha claim. Many of them are in fact irrelevant, as they are findings concerning the aggregation of rights and interests by the Wongatha claim group (found by his Honour to be inappropriate).
5. Insofar as the State refers to the issues of migration raised by Justice Lindgren’s judgment in Wongatha (at [302], [303], [494] and [704]) a careful reading of the passages cited by the State does not indicate any ‘finding’ that all claimants’ ancestors migrated and in particular that the Sullivan Edwards’ ancestor Kitty did. Further, the evidence is that she was born in the desert, not on the fringe of a settlement, and that she spent a substantial portion of her life living traditionally at locations remote from settlements. There is no other evidence of possible migration that needs to be rebutted.
6. Reliance by the State on the findings of Justice Lindgren ‘as its submissions’ in the event that they are not received as evidence would be misconceived if not referable to and supported by evidence from these proceedings.
7. The State refers with emphasis to the Wongatha judgment (at [1167] point 9 (lack of connection)). It is important to note in considering this ‘finding’ that Justice Lindgren explained his particular view that connection must be shown at the group level, and must be on a claim wide basis rather than individual level as a matter of law, to satisfy s 223(1)(b) NTA. At [1882] his Honour said:
1882 In my opinion, in the case of a claim of group rights and interests, it is the claim group (the claimants as an entity) that must have the connection required by para (b) of s 223(1). The Wongatha Claim does not meet this requirement for the same reason that it does not meet the requirement of para (a) of s 223 (1): the Wongatha Claim group (like the other Claim groups) is not one recognised, directly or indirectly, by pre-sovereignty Aboriginal law and custom, as having a connection with the Wongatha Claim area. Any connection is at the individual rather than at the group level, and is with a ‘my country’ area rather than with the entire Wongatha Claim area.
(emphasis added)
Paragraph [1891] of the judgment is to like effect.
Understood in this way, Wongatha [1167] cannot be considered adverse to the Sullivan claim in the context of these proceedings.
899 I am in general agreement with these submissions. As discussed above, and in light of the Sullivan applicant’s submissions on this topic, I consider the claims presently before me to be distinct from those which were before Justice Lindgren in Wongatha. The evidence and findings in Wongatha were given and made in a different claim; as such, I will focus on the evidence before me in the present proceeding, and will deal with the abuse of process issues separately in Chapter 4.
900 The Yilka applicant has not specifically responded to the Sullivan applicant’s brief submissions on this topic.
901 As the parties have observed on a number of occasions ‘society’ is not a word which appears in the NTA; but rather is a conceptual tool used in its application (as noted in Northern Territory v Alyawarr (at [78]) per Wilcox, French and Weinberg JJ). Essentially it is derived from Yorta Yorta in the High Court (at [89]) where it was made clear that a determination of native title requires a consideration of whether the persons said to be the native title holders are members of a society which has existed from sovereignty to the present time as a group united by its acknowledgment of the laws and customs under which the native title rights and interests claimed are said to be possessed. It is well established (Yorta Yorta (at [83])) that change to or adaptation of traditional laws and customs, or some interruption of the enjoyment or exercise of native title rights within the society, is not necessarily fatal to a native title claim.
902 These requirements are addressed further in Chapter 1, in relation to the Yilka applicant’s claim.
4.2 The Sullivan claim area as within the ‘Western Desert’
903 One of the features of both the Yilka and the Sullivan claims is that the applicants assert that the claimants are members of the WDCB. There appears to be no dispute that the Claim Area is within the Western Desert, (which was agreed to by all anthropological experts), although the State does not admit that the WDCB laws and customs apply to the Claim Area.
4.3 The Sullivan claimants as members of the society
904 Both of the applicants contend that the ‘society’ referred to is the WDCB.
905 All anthropologists agreed with Proposition 10 of the conference of experts, which was substantially that the claimants in both claims were members of the WDCB, based on the genealogical history of the claimants. Dr Vachon qualified this by observing that the claimants and their forebears adhered to ‘Wangkayi law’ or ‘the Law’, being the name of people from one part of WDCB. Dr Vachon drew on research of anthropologists, such as RM Berndt and Robert Tonkinson, as well as the Christensen O’Connor report, in support of Proposition 10.
4.4 The situation at and since ‘sovereignty’
906 Proposition 11 was expressly supported by all anthropologists, that proposition being that, ‘[t]he claims lie within the geographical limits of the WDCB, which exists across an area to which the laws and customs of the WDCB apply’. Proposition 8, with which they all agreed (subject to a qualification by Dr Vachon) was that the WDCB exists, and at all times since sovereignty has existed, as a society in the native title sense of a body of persons united in and by its acknowledgement and observance of a body of law and customs, albeit including some diversity. As to that diversity, Dr Cane’s opinion was that there was regional and local variation within the WDCB. Dr Vachon’s qualification to the Proposition was that the Proposition refers to a society ‘in the native title sense’, but that he does not see the WDCB as a single society in the sense of all of its members interacting across the whole of the Western Desert. Dr Cane’s view on this was that it was unlikely that people interacted across the whole of the WDCB in the past, but it is apparent that the religious traditions conjoined across this huge area to the extent that it was possible. That possibility has now been realised to an extent with the advent of better communication and transport. The experts also agreed without qualification to Proposition 28, which was ‘[t]he WDCB is an anthropological label for an indigenous system of normative laws and customs and this system, to varying extents, has had a continuing existence and vitality since sovereignty’.
907 It is part of the Sullivan applicant’s claim that the findings of the anthropologists support, therefore, the conclusion that the WDCB, of which the Sullivan claimants are members, was the relevant society to the Claim Area at the time of sovereignty and has had continued existence until the present day. The State accepts that the WDCB existed as a society at sovereignty and at all times since.
908 It clear on the evidence, and there is relatively little dispute, that the Yilka and Sullivan claimants are members of the WDCB, a society which has had continued existence since sovereignty, and that the Claim Area is located in the Western Desert.
909 The requirements relating to laws and customs are found in s 223(1) NTA as set out at Pt 1.1 of Chapter 1.
910 By way of summary, it is common ground that the requirements of s 223(1)(a) NTA are questions of fact. It is necessary to identify laws and customs said to be traditional laws and customs, as well as rights and interests in relation to land or waters which are possessed under those laws and customs. This is a separate inquiry to that required by s 223(1)(b) NTA, that is, ‘connection’, although they may very well depend on the same evidence: Ward HC per Gleeson CJ, Gaudron, Gummow and Hayne JJ (at [18]) and De Rose (at [160]). On the Sullivan applicant’s case, with which I agree, the laws and customs under which rights and interests are possessed in the Claim Area are those of the WDCB. The the nature and effect of these laws and customs as they relate to land are set out in the Sullivan POC at [23]-[35]. The Yilka applicant agrees with the Sullivan applicant’s description of the WDCB laws and customs set out in its POC, but does not agree that those laws and customs apply to the Sullivan applicant.
6. LAWS AND CUSTOMS RELATING TO THE POSSESSION OF RIGHTS
6.1 Bases for possessing rights
911 Paragraph 24 (together with its footnotes) of the Sullivan POC deals with the WDCB ‘pathways’ to rights and interests in land in identical terms to the Yilka POC, namely:
Rights or interests in relation to land and waters are possessed by a person:
(a) who has a connection to the land and waters, through:
(i) his or her own birth
[Note: Contestation may occur in relation to the place of birth or the significance of the birth at a place where, for example, the birth occurred when the parents or mother was ‘just passing through’ or ‘visiting’ the place. Analogously, today where a birth occurs in a hospital away from the area at which the mother or both parents are living, such fact is not regarded as giving rise to customary rights or interests in that place of birth.]
and/or long association
[Note: contestation may occur in relation to:
(a) the nature and length of association required to establish connection and the possession of rights under this law or custom; and
(b) whether a particular person’s association is such as to establish that person’s connection and possession of rights under this law or custom.]
or holding senior ritual authority [Note: Being put through an initiation ritual and thereafter participating in the ritual life of men of the WDCB is necessary for the attainment of senior ritual authority]; or
(ii) the birth and/or long association of one or more of his or her ancestors,
by which the person claims to possess rights or interests in relation to the land and waters; and
(b) in respect of whom that claim is recognised [Note: Any discretion to recognise a claim is limited to whether a criterion for holding rights has been met by the person claiming to possess the rights or interests. Further, recognition is not necessarily a matter of discretion for living persons. It may be determined by reference to the remembered views and action of ‘old people’.] under WDCB laws and customs.
912 This in turn was discussed by the experts, in the form of Proposition 15. Once again, all anthropologists agreed in substance with Proposition 15, subject (on behalf of Dr Cane, Dr Vachon and Professor Trigger) to clarification being required in relation to:
(a) The notion of ‘long association’; and
(b) The relationship between rights obtained via ritual authority and rights obtained via other pathways.
913 Some claimants, such as Patrick Edwards, assert rights and interests both as holders of ritual knowledge and under other pathways. Relevantly, the anthropologists generally agreed with Proposition 30 which in substance was that:
(a) Persons do not hold ‘my country’ rights by virtue of holding rights through ritual authority; the latter type of rights are concerned with ‘spiritual’ as opposed to ‘utilitarian’ aspects of land use;
(b) Persons with ancestral connection or other connections have ‘my country’ rights, which concern ‘utilitarian’ land use and management; and
(c) Persons with ancestral association, but who do not at present assert rights as claim group members, have generic Western Desert rights, such as the rights to hunt, gather and camp on the Claim Area. They can actualise landholder (‘my country’) status by carrying out activities on country, participating in social or ritual activities, and so on.
914 There were nonetheless qualifications to this Proposition. Professor Trigger said that a greater degree of specificity about where on the Claim Area the ritual knowledge experts have rights is desirable. He also said that ‘[w]hether the comments for category (b) landholders are consistent with or different to the previous claim group description in the Cosmo Newberry Claim requires clarification’. In regards to Dr Vachon, the qualification was that ‘in respect of (c), it would be very unusual but not illegitimate for an adult with little prior personal experience with the claim to assert a landholder status even where the condition[s] in (c) are met.’ Taking on board these qualifications, the Sullivan applicant contends that the anthropologists have generally agreed with the pathways to or bases of holding rights and interests as described in the Sullivan POC, subject to clarification of what ‘long association’ is and/or who determines it, and clarification of the specific places the subject of the rights under knowledge of ritual authority.
6.1.1 Birth, long association and descent
915 The Sullivan applicant contends that ‘landholder’ or ‘my country’ rights are obtained in the Sullivan claim area by virtue of one’s own birth or long association or descent from a person who could claim through the birth and descent pathways. The Sullivan applicant draws on the following evidence of the Aboriginal witnesses to support and explain these pathways:
Under Wangkayi culture you get rights to country if you were born there or if your parents or grandparents were born there. You don’t just get rights to the actual birth place, but also to the places around there. Those places are your ngurra. You also get rights if you were raised up in a place and spent a lot of time there living on the land and learning about the rock holes and the tjukurrpa. So if your mother or your father walked around with you when you were little, going from rockhole to rockhole, that country is your ngurra and your children and grandchildren can claim that country as their ngurra too.
Celia Sullivan:
In our law we get country, you know, you inherit that country. Like me, I inherit from my kaparli to my mother. Their country is my country. Their story is my story. And from that it will keep going down to my children and their children. … With whitefellas they get paper to inherit a house or something like that. With Aboriginal people, you inherit country through your knowledge, feeling the country in your heart, knowing the country in your head: language, country, culture, family, dreamtime stories. And you live the land and eat from it. That’s your country.
You can also be a traditional owner for country if you are born on that country, or your parents are born there or your grandparents are born there in that area. You can do that only if you can prove it. You can do that if you can show it was passed down to you by your old people through word of mouth and other people say the same thing. When I talk about being born at a place I’m not talking about a little place where you are born. I’m talking about all the places where you lived with your tribe or mob when you were young, walking around, hunting, going to the rock holes, learning the country and learning about the people for that country. That’s traditional law and custom.
916 In his oral evidence, Mervyn Sullivan said that birthplace, length of association and knowledge of the country were all important factors in deciding the ‘long association’ criteria. He also confirmed that acceptance is important in determining someone’s long association, although the question he was asked was not specific as to whose acceptance is required.
917 Importantly, in my view, he also confirmed (as did other witnesses) that it was ‘okay’ to effectively skip a generation by claiming, for example, one’s maternal grandparent’s country without claiming one’s mother’s country. Although the entirety of Mr Sullivan’s answer to this line of questioning was somewhat equivocal, he clearly accepted that it was appropriate to claim in respect of one’s grandmother’s country.
918 Mr Glen Cooke gave the following evidence on the topic:
Well, I can say that anyone who's - who has been born in a place and went, as a child, into the bush and roamed around and they went back into the society or into the town and never went back - never went back and - in their mind - in their mind they have a strong connection of the - their childhood days that they've been roaming around the bush and they - and they - and they - they say that ngayuku ngurra - ngayuku ngurra nyarratja meaning - meaning "My" - "My country is over there." They still have that connection of - of the place, even though that they never went back, you know. They had childrens (sic) and, you know, families and never went back but they always think of their - think of their childhood days of that ngurra
919 It is not apparent to me that there is any significant difference between the Sullivan applicant, in terms of the concept of the birth and long association pathways, and the Yilka applicant. Further, there is no reason to think that in all respects the evidence given by the Sullivan Edwards witnesses in relation to these rights was anything other than genuine.
920 In relation to the birth pathway, the State concedes that an individual (or a group of individuals descended from a common ancestor) may assert connection to a place in the Western Desert by virtue of their (or their ancestor’s) birth. The Sullivan applicant contends, and it is quite important to their case, that the evidence shows that while the specific place of birth may be located outside (but perhaps near to) the Sullivan claim area, the ancestor’s ‘birth country’, being the place of birth together with the area incorporating the constellation of sites associated with the birth, could include the Sullivan claim area or part of the Sullivan claim area. This is significant because it is asserted that the birth country of Kitty, ancestor of both the Sullivan and Edwards families, and Mrs Sullivan, a Sullivan ancestor, overlap the Claim Area, although the specific locations of their birth are outside of it.
921 The notion of long association was discussed in Proposition 16, which was that:
Under WDCB law and custom (and for the purpose of the previous Proposition), “long association” as a basis for possessing rights to country is reckoned not merely by the duration of the association but also by the knowledge of the physical and spiritual landscape and looking after country. The assertion of long association and its acceptance is subject to customary forms of recognition.
922 Dr Cane and Dr Sackett agreed with Proposition 16, but Professor Trigger and Dr Vachon, quite appropriately, held further qualifications. Professor Trigger’s qualification was that a mechanism for resolving who has long association needed to be established. Dr Vachon’s qualification was that ‘long association’ did not necessarily mean long physical association. The Sullivan applicant concedes that the notion of long association is not without complexity, and that contestation may occur, as asserted for the State.
923 Witnesses also made it clear that the rights in relation to areas of men’s ritual significance (which Glen Cooke referred to as watiku rights) do not depend on having ngurra rights to the area in question. For example, the following exchange took place with Patrick Edwards:
MR EVANS: If they didn’t – so may be I should give you a way of example. If there was a wati from Warburton, his country is up at Warburton, he’s never lived in the claim area; he doesn’t have a parent or a grandparent that was born there or lived there; would that wati have anything to do with the normal country in the claim area?
PATRICK EDWARDS: Well if there’s any sacred sites or anything to do with wati, well they got the rights.
924 Patrick Edwards also gave the following evidence in his affidavit:
There is a special place in the Yamarna area that is very important - Minnie Creek. I have responsibilities for that place under our law. Other watis, from Cosmo, Tjirrkarli and Warburton and further away than that, also have that responsibility. Watis from all around know about this place. It is very important. I don’t want to go into details.
925 Celia Sullivan likewise said there are places that only wati can talk about, and that this is very strong in Wangkayi culture. In her affidavit she said: ‘As a woman I’m very careful about what I say and do because I respect our Law, and don’t want to get myself or my family into any trouble’. From all of this evidence, it is apparent that there was ample basis for the anthropologists to reach the conclusions they did that under the WDCB laws and customs applicable to the Claim Area, rights in certain areas are held by men who have senior ritual authority in relation to such areas. The State also accepts that attainment of the status of wati gives rise to a connection to places of ritual significance to wati, including Minnie Creek, according to WDCB laws and customs. As noted above, the Yilka applicant accepts that some members of the Sullivan claim group, such as Patrick Edwards, may be able to claim rights and interests in parts of the Claim Area on this basis.
926 In relation to recognition, the State contends that the Sullivan applicant’s case is that the requirement of recognition does not apply to the descendants of their named ancestors. I do not understand this to be the case. The claimants have assumed recognition and asserted this in their case, for example, by calling Doreen Harris and Glen Cooke as witnesses. The Sullivan applicant’s submissions discuss recognition at length. The Sullivan applicant asserts that, while there is no WDCB formal process of acknowledgement regarding claims to country, senior knowledgeable men and women may give their views and such views would be given deference, as noted by Dr Vachon (see Pt 13.1) (see footnotes to Sullivan POC [24]). There may also be contested views, as in any society. In the end, in a case such as the present, it is necessary for the Court to form a view as to whether or not there has been recognition under WDCB laws and customs. The Sullivan applicant’s case is that one would discount those factors which are not part of the normal WDCB process, which it alleges are conclusions reached on inadequate advice given to the Yilka claimants, motivated by irrelevant personal factors, resulting in a ‘gatekeeping’ approach. As to the question of recognition of wati, which the State considers a ‘jarring feature’ of the applicants’ claims, the evidence of Dr Vachon, which I have accepted, is that there is a process of acknowledgment of rights and interests to the ritual content of land and waters in the Claim Area under WDCB laws and customs, namely that they are available to men who have ‘gone through the law’. They exercise their rights in the areas of ritual significance on an appropriate basis according to their status. There are a number of Sullivan claimants in that category. It is not apparent to me why there is any confusion in relation to who constitutes persons holding senior ritual authority.
6.2 Content of the rights and responsibilities
927 The starting point is that the claim is for ‘exclusive native title’, that is, the right of possession, occupation, use and enjoyment of the Sullivan claim area as against the whole world, except in areas where there has been partial extinguishment of native title. See also Pt 11, ‘Rights and interests possessed under the law and customs’. As discussed above in relation to the Yilka claim, the State’s main point of contention here concerns the perceived inconsistencies between the rights held by wati and non-wati respectively. The main submission asserted for the Sullivan applicant is that the exercise of these rights as they relate to one another is an intramural matter determined by the relevant laws and customs. The Sullivan applicant submits that the NTA can accommodate both types of rights and interests, if this is the reality of the Aboriginal traditional cultural world. I accept these submissions.
928 Consistent with the principle of exclusive native title being ‘akin to freehold’, in addition to the use of the land, exclusive native title includes, and the Sullivan applicant seeks, the ability to exclude strangers in the way that right has existed in the past and (depending on the status of the claimant resolved on an intramural basis), the ability to speak for country. With those rights come concomitant responsibilities including looking after, caring for, protecting and maintaining country. The anthropologists agreed that, subject to the Minnie Creek site being the ultimate responsibility of holders of ritual authority, under traditional WDCB laws and customs landholders who hold rights or interests in an area have those responsibilities. The extent of responsibility is qualified on the basis of age, gender, ritual knowledge and authority. This topic is discussed further below in Pt 11.
929 The State’s extensive submissions on this topic, outlined in detail in Chapter 1 above, are focussed on whether the applicants’ claims, under which the rights asserted are individual rights, can properly be brought as group claims under the NTA. To the extent that the State’s submissions suggest that a claim should have been brought on behalf of all members of the WDCB, the Sullivan applicant asserts that this is not what is required by the NTA, is impracticable, and is inconsistent with other WDCB claims, for example, the Ngaanyatjarra Lands claim and the Spinifex claim.
930 The Sullivan claim is for individual rights held in common with others, based on the traditional laws and customs of the WDCB. For convenience, I repeat the previously cited passage from the Full Court in Bodney where their Honours specifically envisaged that such types of claims may be brought (at [145]-[146]):
145 Turning to the “communal”, “group” and “individual” rights and interests typology, it is convenient to use observations made in De Rose FC (No 2) 145 FCR 290 as a starting point. The Court said (at [38]-[39]):
It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as “communal”, “group” or “individual”. The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community.
The distinction between group and individual rights and interests (to the extent it matters) is perhaps more difficult to identify. An example of group rights and interests may be those held by a subset of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas. The members of the subset may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community. The members of the subset might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites. Ordinarily, it might be expected that the ‘group’ holding native title rights and interests would have a fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed.
146 We agree with this understanding of the classification and accept its consequence that s 223(1) envisages three possible native title “owning” entities - the community (or “society”) under whose laws and customs native title is possessed, a group or groups, and an individual or individuals: see [Wongatha] at [1135]. With the Act itself so envisaging three distinct types of possible native title holder, a recurrent issue in determination applications (including the present: see [Bennell] at [348]), has been whether the possibilities provide alternative, or cumulative, bases for the possession of native title rights and interests in the circumstances of a given case: see eg [Northern Territory v Alyawarr] at [79]-[86]; De Rose FC (No 2) 145 FCR 290 at [31].
931 Again, this was a focus of attention in various Propositions considered by the anthropological experts, particularly Proposition 37 and Proposition 21.
932 Proposition 37 was as follows:
The rights and interests in relation to the whole of the application area are held by:
(a) persons claiming membership based on ritual knowledge; and
(b) persons claiming membership on other bases.
In relation to:
(a) these people have rights in respect of particular areas in the claim area (ritual rights); and
(b) these people hold rights more generally across the claim area as Ngurrangka (sic.)
The members of the claim group as a whole hold rights across the claim area in its entirety. As Ngurrangka (sic.) they can be part of the communal decision making and land using group for the claim area as a whole (subject to qualifications on the basis of age/gender etc).
933 Dr Sackett noted that all of the anthropologists agreed with Proposition 37, although Professor Trigger qualified it by saying that while the Proposition seemed plausible, he was unsure why there is not more specific information demarcating the area in which different rights and interests are held according to different personal connections to country arising from law and custom. As an example, he asked: if claimants now living have mostly ‘grown up’ at Cosmo, does this mean that the suite of places in which they hold rights is the same, or are there differences around the vicinity of the Cosmo area in this regard?
934 Dr Vachon’s qualification to this proposition was that it was ‘contingent upon the Sullivan group being added to the claim group’.
935 In relation to this topic it is relevant to note the reduction in the area claimed by the Sullivan applicant. The Yilka applicant, on this point, contends that it is not clear on what basis the reduction is justified, nor it is clear how the nature or shape of the reduced claim area is determined according to traditional laws and customs. However, the Sullivan applicant explains that the reduction reflects the specific ‘suite of places’ used and occupied by the Sullivan claimants’ ancestors Kitty, and Mrs Sullivan and Mrs Wingrove. The concession is in response to the findings of Dr Vachon where, in his supplementary report of 28 February 2014, he said that he was uncertain as to whether Kitty’s country would encompass the entire Claim Area. While he had information associating Kitty to sites in the central part of the Claim Area, he did not have any information on Kitty’s association with the northeast sector of the Claim Area (that is, east and northeast of Mapa); the southeast sector of the Claim Area; or the northwest corner of the Claim Area. This is reflected in the Sullivan Edwards Sites Evidence Summary, annexed to the Sullivan Connection Submissions (Annexure 8 to these reasons) and Sullivan site map, and in Mrs Sullivan’s map. The reduction in the area claimed by the Sullivan applicant is also intended to address the qualification expressed by Professor Trigger. This is one significant difference in the nature of the evidence as between the two claims, but affects only a relatively minor portion of the Claim Area.
936 Proposition 21 relates to the main area identified as having ritual significance on the Claim Area, namely, the Minnie Creek site. It is common ground amongst all witnesses and anthropologists that the Minnie Creek site was of ‘exceptional significance’ and that there were obligations for all landholders in regard to it, with the ultimate responsibility for the site resting with those persons who held ritual authority. Dr Cane explained that the site of Minnie Creek is also known as Pirlpirr. Along with other sites of ritual significance identified by the Sullivan claimants in their evidence, this Proposition addresses Professor Trigger’s qualification as it relates to the need to specify sites of ritual significance.
937 Proposition 39 dealt with the area of a person’s birth country. This Proposition is that the expression ‘born at’ (e.g. irti ngarringu), a place, as used by many Western Desert people, contains the culturally recognised inference of including a number of places variously regarded as propinquitous (ila, itilykira) to the named place of birth and such places are acknowledged as making up that person’s country (ngurra) by birth.
938 Dr Cane noted that he, Dr Sackett and Dr Vachon agreed with Proposition 39. Professor Trigger agreed with the Proposition, subject to the qualifications that it is vague, applies to a small number of people and that he is not aware of the applicability of the terms used. Dr Cane disagreed with that qualification because he did not find the Proposition vague, and he did not find the number of people to whom the Proposition applied to be relevant. As the Sullivan applicant notes, it appears that Professor Trigger may have overlooked the fact that the question of birth country is relevant not only to those living claimants who claim rights and interests through the pathway of their own birth on country, but also, as in the case of the Sullivan claimants, to those claiming rights and interests through the birth of an ancestor. That increases the potential number of persons to whom the Proposition applies.
939 Additionally, Dr Vachon in his report of 28 February 2014 addressed the question of area associated with birth, referring to the Christensen O’Connor report and the research of R Berndt, Elkin and Bates, noting that:
[T]he criterion of ‘birth’ should not be interpreted in a ‘narrow geographical view’ ([O’Connor Christensen Report] 35). Rather, as a pathway to land-based rights, a person’s birth-place should be regarded not in reference to a single site but in reference to a ‘run’ - being a foraging route linking water sources (ibid: 20-1, 35) ... R Berndt 1959: 96-7 (after Elkin, for example Elkin 1934:172) noted the importance of birth-place as creating the relationship of ‘camp/owner’. As well as this, he concluded that a person’s ‘country’ encompassed a constellation of sites about one’s birth-place (but not necessarily along a water-hole route).
940 Mrs Sullivan’s map (as noted by Dr Vachon) shows the places where she said she had travelled with her mother and which comprised her mother’s country (ngurrara). Dr Vachon compares this with the map of country of Turada, an informant to Ms Daisy Bates. He explains that Turada described to Ms Bates his occupation of country not in terms of an area, but rather in terms of a number of discrete, named places and his movement between them. That was exactly what Mrs Sullivan did, according to Dr Vachon. Furthermore, Turada’s map of his country was very similar in extent to the sites east of Laverton that Mrs Sullivan included on her map.
941 The Sullivan applicant contends that the Berndt description of ‘constellation of sites’ surrounding a birthplace, linked by foraging and water places, and the example of the historic Turada map, gives specificity to the concept of area related to birth and, in particular, in respect of the birth area of Kitty, the Sullivan Edwards ancestor.
942 I have set out above, inter alia, under Pt 6.1, the primary lay evidence regarding the area encompassed by birth and long association rights and by ritual authority rights, which supports the findings of the expert anthropologists.
943 In relation to this topic, the Yilka applicant does not take issue with the anthropologists’ findings in relation to Proposition 39. The Yilka applicant does, however, consider that the opinion of Dr Vachon as to the area associated with birth (quoted above) does not adequately describe the matter, and that the evidence of the Sullivan Edwards witnesses does not support the assertions regarding Kitty’s birthplace. In relation to the Sullivan applicant’s reliance on the Yilka claim in support for the assertion that Mrs Sullivan’s birth at Laverton means that her birth country extends into the Sullivan claim area, the Yilka applicant says ‘[t]his analysis misunderstands the operation of the WDCB laws and customs and ignores the major differences that exit between the areas claimed by the Yilka claimants and those claimed by the Sullivan claimants’. Without further explanation or evidence in support of these submissions, it is not possible for me to find favour in them; hence I would agree with the conception of the extent of birth country as put forward by the Sullivan applicant. As to the question of Kitty’s birthplace, this will be discussed in detail below.
6.5 Authority and the exercise of rights
944 The Sullivan applicant addresses this topic by reference to Proposition 20 of the conference of experts which is in the following terms:
Persons who possess rights or interests in an area do not have equal authority in relation to, and are not equally entitled to speak for or participate in decision making about, the area. Rather, such authority is conceded to one or more of them having regard to a range of factors, in particular:
a. their ‘my country’ status, age, gender, social and/or ritual knowledge and seniority, knowledge of the country and its resources, residential location, the extent to which they actively participate or have actively participated in the care and use of the area; and
b. the extent to which the person asserts such authority and in turn the extent to which the assertion of authority is accepted by others.
945 From the perspective of the anthropologists, Dr Cane indicated that this Proposition was accepted without qualification by himself and Dr Sackett. Dr Vachon agreed, but that noted that the extent to which a person actively participates may be due to factors outside their control. Professor Trigger also agreed to this Proposition, with the qualification that the mechanism for asserting and recognising authority was not addressed, nor were aspects of the personal attributes. Dr Cane pointed to the fact that he did in fact address the mechanisms by which authority is asserted and recognised at various specified paragraphs in his report.
946 Examples of evidence given by the lay witnesses which is relevant to this topic can be found below in Pt 11 and Pt 12.
947 The Sullivan applicant submits, and I agree, that the authority and exercise of rights amongst those within the society and rights and interests at this level are intramural matters which need not concern the Court. It should be noted that such intramural matters are determined according to traditional laws and customs. In support of this, the Sullivan applicant contends that as long as the rights of all of the native title holders are expressed in detail, it is not necessary for the sake of the determination to expressly identify which particular individual or group can exercise which particular rights: Gumana per Selway J (at [140]). This was confirmed more recently by Mansfield J in Starkey v South Australia (2011) 193 FCR 450 (at [62]-[63]), noting that there is nothing in s 223 NTA which requires the Court to address the intramural or internal relations of the holders of native title, and also that the definition of native title under s 225 does not require the consideration of, or the resolution of, the respective status and responsibilities of claim group members: see also Ward FC (at [189]-[213]) per Beaumont and von Doussa JJ.
948 The Yilka applicant agrees with the Sullivan applicant’s submission as to the content of the relevant laws and customs, while not admitting that those laws and customs apply to the Sullivan claimants. The Yilka applicant also emphasises that the Sullivan applicant has not brought evidence in support of [33B] of the Sullivan POC, which states that authority in respect of places that may only be visited by wati, may be exercised and is in fact at times exercised by members of the Sullivan claim group who are less senior watis or who who are not watis. In relation to this, the Sullivan applicant submits that this is an intramural matter which is worked out pursuant to traditional law and custom: see, for example, Pt 6.1.3 ‘Recognition’. I agree with the submission for the Sullivan applicant.
6.6 Qualifications on access – owners, visitors and strangers
949 Proposition 19 was to this effect:
It is, and since sovereignty has been, an element of WDCB laws and customs that persons who are locally considered to be “strangers” wishing to visit an area ideally must ask permission from a person or persons who possess ‘my country’ rights or interests and have knowledge of or authority in respect of the area.
This was agreed to by all of the expert anthropologists.
950 There was a substantial volume of evidence in support of both applicants’ cases on this topic. Generally speaking, my impression was that the evidence in both cases leads to the same conclusion. While such a practice is not rigidly enforced at all levels and the boundaries around who constitutes a ‘stranger’ are unclear, it nonetheless exists and is observed by and practised by most people, other than in regards to the more fleeting incursions through country. Sometimes the reason for observing this custom is more at a practical level, but that does not diminish the existence of the law or custom. The Sullivan applicant makes submissions concerning ‘visitor rights’, being generic Western Desert rights such as hunting, gathering and camping. Proposition 30 of the conference of experts, discussed at Pt 6.1 above, includes explanation of those generic Western Desert rights and the means by which persons with ancestral association to the Claim Area may ‘actualise’ their landholder rights. While actualisation of landholder rights may have relevance elsewhere, ‘generic Western Desert rights’ have not been claimed by either applicant, as the Yilka applicant observes.
951 In relation to the laws and customs discussed at Pts 7.1-7.11 below, the relevance of these is explained in Sullivan POC [17A], which states that the laws and customs set out in Sullivan POC [37]-[65] and [76]-[79] and their acknowledgement and observance are part of the context in which the:
(a) laws and customs under which rights and interests are possessed are acknowledged and observed; and
(b) rights and interests are exercised.
952 In relation to each of the laws and customs discussed at Pts 7.2-7.11 (excluding Pt 7.5 ‘Language’, which is phrased slightly differently), the Yilka applicant has submitted that the evidence establishes some knowledge and acknowledgment of the relevant WDCB laws and customs; but that the evidence does not of itself establish a basis for the possession of rights and interests in the Sullivan claim area.
953 However, none of these laws and customs so discussed are intended, in and of themselves, to establish connection to the Sullivan claim area so as to give rise to rights and interests in land. Rather, as a whole, they go to the membership of the Sullivan claimants of the WDCB, and the continued acknowledgment and observance of WDCB traditional laws and customs by these claimants. They are evidence of an extensive normative system of laws and customs pursuant to which the Sullivan claimants possess rights and interests in land.
954 It is well established that laws and customs and the society or group who acknowledge and observe those laws and customs are interrelated, as noted in Yorta Yorta per Gleeson CJ, Gummow and Hayne JJ (at [49]):
Laws and customs do not exist in a vacuum… Law and custom arise out of and, in important respects, go to define a particular society. In this context, “society'' is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs. …
955 The State’s submissions on these laws and customs are based on the findings of Justice Lindgren in Wongatha. As discussed relatively above, the Sullivan claim group is a family group with a relatively small number of claimants, such that even if the State’s argument on this point did hold in relation to the Yilka claimants, it certainly does not hold here. The State’s submissions on each of these laws and customs have been more extensively canvassed in Chapter 1 above in relation to the Yilka claim.
956 As a general comment concerning other laws and customs in Pts 7.2-7.11 below, the Sullivan applicant submits that the views of Dr Vachon and Professor Trigger are to be preferred to any other expert witness in analysing the evidence on this topic. In that regard, Dr Vachon expressed the view that the Sullivan claim group has rights and interests in the Yilka claim area derived from their observance and acknowledgment of the same laws and customs as described in the Yilka claim. Dr Cane had reservations about this on the basis that ‘kinship seems to have lost some of its socialising force among some of the Sullivan claimants’, but this view was not shared by Professor Trigger who opined that he was unconvinced that reference to the Sullivan claimants not being initiated together with other material available to Dr Cane allowed the conclusion that those persons had a piecemeal knowledge of the Claim Area in comparison to the broader group of claimants. On consideration of the evidence on the kinship topic which is discussed below, in my view, the conclusion reached by Dr Vachon, supported by Professor Trigger, is correct.
957 Although the evidence was nowhere near as detailed or voluminous in relation to particular laws and customs as that given by Yilka witnesses (of whom there were quite a few more), the general evidence about WDCB laws and customs was reasonably consistent. Whilst not as specific, it did, as the Sullivan applicant conservatively submits, compare favourably with the Yilka witnesses’ evidence on this topic.
958 Further, in light of my finding that the Sullivan claimants should have been part of the Yilka claim group (see Pt 13 and Pt 16 below), the Yilka witnesses’ evidence on these topics is also relevant to the Sullivan claim in showing that both sets of claimants adhere to a body of normative laws and customs. The Sullivan evidence supports such a finding, and also goes to show that they are part of the WDCB. This evidence is also relevant in showing that the laws and customs followed by the Sullivan claimants are similar to those followed by the Yilka claimants, which supports a conclusion that the Sullivan claimants should have been included in the Yilka claim group.
959 Tjukurrpa (or ‘Dreaming’) is a significant part of each of the applicants’ cases, and is referred to in Sullivan POC [15]-[17] and [37]-[39]. The anthropologists appear to agree on the importance of the Tjukurrpa, which provides a basis for laws, spiritual connection with country and social connection and authority within the WDCB. That is expressed in these terms by the anthropologists in Proposition 7 of the conference of experts:
In the belief system of the people of the Western Desert, the concept of Tjukurrpa, or Dreaming:
(a) is a time when beings acted and interacted on the earth. The Beings (termed Tjukurrpa, like the Dreaming itself) often are personified as at one and the same time possessing human and plant, animal or natural object characteristics;
(b) explains the physical formation of the landscape. Tjukurrpa are evidenced by particular features in the landscape;
(c) informs and provides the basis for and source of WDCB laws and customs;
(d) is the object and subject matter of particular WDCB laws and customs;
(e) provides a normative element in the acknowledgement and observance of those laws and customs;
(f) is the source of a direct spiritual connection between people and country as well as a connection mediated through law and custom; and
(g) gives rise to social status and political power and so authority in relation to rights in land.
960 The importance of Tjukurrpa therefore goes beyond that of the other laws and customs at Pts 7.2-7.11 below, as it is more directly related to connection to and rights in land, and it informs and provides a normative basis for other laws and customs. There was much evidence as to the beliefs held by witnesses about the Tjukurrpa, and their right and responsibility to pass on their knowledge concerning the Tjukurrpa to their children and grandchildren. It was also evident from the witnesses that there is an obligation to comply with traditional laws and customs in relation to restricted Tjukurrpa, such as sacred Tjukurrpa that may only be known and passed on by the wati. There was also evidence given of Tjukurrpa stories associated with various places and ‘tracks’ in the Sullivan claim area.
961 Examples the Sullivan applicant gives of the Aboriginal evidence about Tjukurrpa are from Celia Sullivan, Mervyn Sullivan, Irwin Sullivan and Patrick Edwards. Celia Sullivan said:
I recall my mother talking to me about Tjukurrpa then [when I was young]. I remember her telling me about the Seven Sisters Tjukurrpa places. We learnt all about these things from when we were little.
…
The tjukurr is really important to us Wangkayi people. We believe in that, it’s part of our religion and how we see the world. It’s about how the land was made a long time ago but it’s also a living thing, it’s not just in the past. When I went on camping trips with my parents we always used to sit around the fire and sometimes my parents would tell us tjukurr stories about our country. Those stories are a very important part of our culture and we have to be careful about what story to tell and how to tell it, otherwise we can get in to trouble.
Some tjukurr stories are for men only, some are for ladies only and some can be told to both men and women, more openly.
…
I know the Seven Sisters dreaming and where it goes. My mother told me about Seven Sisters and so did old ladies that are passed away now.
I know a mallee hen tjukurrpa in the western part of the claim area.
962 Mervyn Sullivan said:
From what I learnt from my mother and my father about that country around Cosmo, it is more than rockholes, hills and creeks. Because out that way there is Tjukurrpa, dreamtime stories and other stories too that I am not allowed to talk about. That’s because I am not an initiated man, a wati. The main big Tjukurrpa is at Pirlpirr and that one I can’t talk about. But there are others I can. I know that there is a Ngarnamarra Tjukurrpa south of Mitika. And there is another Tjukurrpa for moon in that same area at a place called Cutterblood. And there is a Warnampi Tjukurrpa at Tjiwarturn, which is a soakage and that is on Puntitjarra Creek.
…
The Tjukurrpa is important to me because it ties me and my family to the country. It connects us to our old people and our traditional ways through tribal law and custom. I also know about the Seven Sisters Tjukurrpa. As far as I’ve been told by many people including my mother the Seven Sisters Tjukurrpa started from West Well on Koorong and then they went north north-east to Salt Soak and then went north-east to Yilliyilli at the top of Lake Wells and then they kept going east right up to Warnan…
963 Irwin Sullivan said:
I was taken and went through the law in the early 90’s. There are important men’s Tjukurrpa places on the claim area but I can’t talk about that.
964 Patrick Edwards said:
I also have knowledge about the spiritual side of the country - tjukurrpa, koordi (spirits) and yayiyarr (little men). This is a very important part of knowing the country. It’s not just what you see with your eyes, there’s more to it than that, there’s what you can feel and what you learn about the spirits and the tjukurrpa. These are all part of my family’s traditional connection to this country.
…
At Puntitjarra there is a windmill. Nearby is Tjiwartan rockhole which is a Wanampi [sic] Tjukurrpa site. Judson’s Soak is another Warnampi Tjukurrpa site. Mt Gill has two hills, and is a Marlu Tjukurrpa site. Near there is a Karlaya (emu) Tjukurrpa site. Pirlpirr (Minnie Creek) has a rockhole where everyone can go, but the men’s place there is only for wati. It is a very important men’s site, with a sacred tjukurrpa. I don’t want to say more than that. At Hunter’s Waterfall there is a Wati Kutjarra Tjukurrpa.
965 Witnesses indicated a variety of locations in the Sullivan claim area associated with particular Tjukurrpa, which have been identified by reference to site numbers on the Sullivan Edwards Sites Evidence Summary and Sullivan site map. These include Marlu (kangaroo) and Karlaya (emu) Tjukurrpa at Mt Gill; undisclosed Tjukurrpa at a men’s place at Mt Cowderoy; undisclosed Tjukurrpa at a men’s place at Pt Newland; Warnampi (snake) Tjukurrpa at Tjiwartun; Warnampi Tjukurrpa at Judson’s Soak; undisclosed Tjukurrpa from men’s stories at Cyril Well; undisclosed Tjukurrpa from men’s place at Pirlpirr (Minnie Creek); moon Tjukurrpa at Cutterblood; Ngarnamarra (mallee hen) Tjukurrpa at Mitika; and Wati Kutjarra (two men) Tjukurrpa at Nanirri (Hunter’s Waterfall).
966 The State accepts that belief in the Tjukurrpa forms an important part of the law and custom in relation to some Sullivan claimants.
967 I accept that this concept is of continued importance in the Sullivan claim group, as shown by the evidence, and that it is closely intertwined with other WDCB laws and customs. The knowledge of particular Tjukurrpa associated with the Sullivan claim area also goes to show the connection of the Sullivan claimants to that particular area, as opposed to the Western Desert more broadly or to other areas within it.
968 There was also, understandably, greater evidence on this topic in the Yilka claim than in the Sullivan claim, but there was nonetheless evidence in the Sullivan claim from Mervyn Sullivan, Celia Sullivan and Patrick Edwards. Mervyn Sullivan referred to ‘plenty of other laws and customs that we have to abide by’ in their Aboriginal law. He listed rules about how you behave with certain relations:
There are rules for your yumari: you are not supposed to talk to her and you are supposed to give her meat and money through your wife. For your marutji (your brother-in-law) you have to respect him and give him what he asks. You can give your marutji a kangaroo and make him work – make him cook it and share it to the family. That will make him very proud. But for your sister-in-law you do not look at or talk to her. For your grandkids you care for them and do what they ask. Those are some of the rules about how you are supposed to behave with your relatives.
969 Celia Sullivan explained that in their kinship system:
[W]e go by skin, which classifies you and connects you up in different ways. You have to marry someone from the right skin group and there can be trouble if you marry wrong way. Even if people don’t know, someone who does know will tell them.
970 Patrick Edwards said:
I am purungu skin. My mother was panaka. For me to marry right way I must marry milangka. My wife is milangka. My children are panaka, the same as my mother. In Wangkayi way, there are rules and customs about how you treat your relations.
971 Rhys Winter, a Yilka claimant, stated that he learned about skin groups from Mrs Sullivan (his aunty), among other people; and Mrs Sullivan herself gave evidence in Wongatha that showed her traditional knowledge of the kinship system.
972 In my view, the substance of the evidence relating to kinship in each case was to similar effect.
973 The public evidence established that a substantial number of the Sullivan claimants from different generations are initiated men or wati. In the Sullivan case, none of those wati gave restricted evidence, so the details of the male secret ritual were not provided. Nonetheless, there was consistent evidence given as to the continued observance of such practices among the Sullivan Edwards wati, and the widespread acknowledgement of and respect for such male secret ritual among the Sullivan claimants Irwin Sullivan, Patrick Edwards, Mervyn Sullivan and Celia Sullivan gave evidence on this topic. The Yilka applicant appears to concede (and I find) that several members of the Sullivan claim group are initiated, and that some are likely to be considered persons holding senior ritual authority.
974 There is an overlap to some extent between the discussion of this topic, the discussion of Tjukurrpa, and the discussion below at Pt 7.9 on ‘Restricting and transmitting knowledge’.
975 The substance of the evidence in the case of each applicant was to similar effect.
976 The evidence on this topic is slim. The Sullivan applicant refers to the evidence of Mervyn Sullivan, who said that when his mother first went with his father to Korong Station, her mother (Kitty) died at Puntitjarra, just to the east of where the Cosmo Newberry Community is today. He continued:
My mother told me that people cleared the ground and they had that yirrkapi. That’s when her mother’s close relatives laid down on the ground while her brothers-in-law and sisters-in-law buried her, traditional way. Much later on, I went with my cousin Rhys Winter, my brother who died and a few others to look for that old sorry camp and we found it.
977 Additionally, Mrs Sullivan spoke about reburial custom in the evidence she gave in Wongatha. That was followed in relation to her father, Mungulu Harris, at Minnie Creek. She went back to Minnie Creek with her mother and other people when that was done. The State submits that these brief examples do not disclose the nature of the law and custom, and nor it is possible to draw inferences as to the origins of this current practice, in order to show its continuity. The State submits that, while certain behaviours following death may be practised among families or groups, it does not follow that this is part of a body of laws and customs. In response, the Sullivan applicant contends that inferences can be drawn based on the evidence of sorry camps and reburial practises which it refers to, which in turn support the existence of normative aspects of traditional laws and customs. In addition to the scope for some inference as suggested, it must also be noted that the Sullivan evidence on this topic accords with the evidence in the case for the Yilka applicant. In that regard, I would repeat my observation (at [958]). I therefore find that there is sufficient evidence to show continuing acknowledgment and observance of this law and custom.
978 The evidence in respect of language is not discernibly different between the two cases. There is no doubt that the Sullivan applicant has established that the language spoken by members of its claim group is similar to that spoken by the Yilka witnesses, which are both associated with broader areas than the Claim Area. Taken alone, as the Yilka applicant points out, this does not establish connection to the Claim Area, but it is certainly one feature going towards the claimants’ affiliation with the WDCB from which the relevant laws and customs are derived, as it is in the Yilka claim.
979 Evidence on language was specifically given by Mervyn Sullivan, who gave evidence that he is a Wangkayi person. He said he can speak the Wongatha language and the Ngaanyatjarra language, which are very similar to one another. He learnt those languages from his mother and other relations of his. Similarly, Irwin Sullivan said that he was a Wangkayi person and could speak the Wongatha language, which he learnt that from his mother and other relations. Patrick Edwards also gave evidence that he speaks the Wangkayi language and can understand the language spoken by people from Warburton.
7.6 Dealing with kangaroo meat
980 With regard to both claims, the applicants have established knowledge and acknowledgment of the WDCB laws and customs in relation to the preparation and cooking of kangaroo meat.
981 The evidence on kangaroo meat, again, was given predominantly from Irwin Sullivan, Patrick Edwards and Mervyn Sullivan. Once again, the extent of the State’s case is that the evidence of the Sullivan witnesses is much more confined than the evidence in the Yilka applicant’s case; however, I find it to be no less plausible. Each of these witnesses spoke about the ‘right way’ or ‘proper way’ to cook kuka (meat). In particular, Patrick Edwards said that because he is an initiated man he has to do to the proper way and ‘can’t break the rules’. This evidence demonstrates the normative content of this law and custom.
982 There is more evidence as to the preparation of kangaroo and other meat set out in Pt 7.9 ‘Restricting and transmitting knowledge’ below.
983 Again, the position is the same, both as to the existence of the evidence and its effect. Evidence about the beliefs and practices regarding personal dreamings came from Mervyn Sullivan, Irwin Sullivan and Celia Sullivan who have Tjukurrpa of marlu (red kangaroo), ngoondiwarra (swan) and marlu respectively. Mervyn Sullivan also gave evidence about other members of his family who have different personal dreamings. He explained that the tjuma is the story about ‘who you are’, saying that he was taught that every man and woman has a tjuma. The State once again says that insufficient evidence has been brought to show the prevalence or importance of this custom among the Sullivan claimants.
984 The evidence on this topic was given by Celia Sullivan who said that her daughter was a ‘foster carer’ for her nieces and nephews. She continued:
When I say foster carer that’s how she is described whitefella way, but in Wangkayi culture this is traditional, looking after your nieces and nephews. I call those kids my thamu, my kaparli.
985 I do not consider that this very limited evidence carries any weight in the claim brought by the Sullivan applicant.
7.9 Restricting and transmitting knowledge
986 There was more evidence about both transmitting and restricting knowledge. I consider that the evidence given on this topic is sufficient to draw an inference that this is a law and custom generally acknowledged and observed by the claim group.
987 In relation to transmitting knowledge, the Sullivan applicant focuses on the following evidence on its case.
Mrs Sullivan (from Wongatha):
When I was six or seven walking around with my mother, I would watch her and my kaparli (grandmother) to see how they do things.
988 Mrs Sullivan went on to talk about learning from her mother and other old people for example about bush foods, emu poison (kunkungu), kirti (wax) for artefacts, cleaning and purifying water holes, porridge from wintalyka (mulga tree seed) and ‘plenty of other plants I learnt about from my mother’.
989 She also stated that she taught her children about bush food and how to cook it.
Celia Sullivan:
My mother and father taught me about bush foods and I’ve passed on what I know to my kids. When I go on camping trips we eat bush foods like kalkurla, parka parka (red and black berries), lingi (like peas), gamberat (round berries a bit like grapes), ngultur and yilinji (honey ants). Yilinji have a white stripe on their backside, and they have underground nests below trees. I leant about all these things from my parents and other old people when I was growing up and I pass it on to the younger generations so they know too.
I remember when I was about 15 years old the women used to collect the seed pods from a certain type of little shrub, then sift out the seeds and use the walu and tungaru stones to grind the seeds to make a kind of flour. The old ladies and young girls would use this flour to cook damper. My mother’s aunty showed us how to make this flour and damper, and sometimes she made it for herself. The smaller stone is used on top of the flat stone to grind the seeds with a backwards and forwards movement. We still make damper now when we go out bush but we buy the flour from the shop now. I have found grinding stones at Wangkayi camp sites in the bush and I leave them there where I find them – they remind us of our old people.
When we were kids we were taught to read tracks on the ground – which tracks belong to which animals and things like that. If we’re driving along and see fresh animal tracks we might stop and see whether we can find a yilpa or marlu.
My parents showed me how to dig for bardi and yilpa (goanna). When I dig for yilpa (or baparnmaru, as we sometimes say), I use a crowbar. I hit the ground with the crowbar until I find the tunnel of the yilpa. Then I close off the escape holes of that yilpa and start digging. When I catch a yilpa, I hit it on the head to kill it. Then I clean out the yilpa in the traditional way that I learnt. I then put the yilpa in the hot ashes and cover it up with earth. My mother and my father showed me how to cook a yilpa that way.
Mervyn Sullivan:
My mother would have a crowbar on these trips. She loved digging for yirlirlpa (honey ants), karlkurla (like a bush tomato), maku (bardi grub), tarnmarta (little bush onions) and little plants with little white flowers with white roots – you chew on them. We call them wanarn. I learnt all about those things from my mother.
I teach my children and grandchildren those things about ngurra. They know where to go, where not to go. They know there are places they can’t talk about. Plenty of times my kids have been to places on my country. And I tell them it’s their country too and I teach them what I know about the culture, about how to survive in the bush and about the places in the Cosmo area. We travel for bush tucker. I teach them what it means to have a ngurra traditional way. Even two of my little kaparli (grandkids) they know about bush tucker. Tillisha and Cheyenne both live in Cosmo and they are mad about honey ants and digging maku. They go out most weekends and they bring back bush tucker like sand goannas.
Irwin Sullivan:
I’ve done a lot of hunting in the Cosmo area. And I have learnt all the right ways to cook in Wangkayi culture. I know how to cook marlu, ngintarka (goanna), liru (snake) and maku (bardi) and porcupine and other things.
I also learnt from my mother how to crush up special black seeds from a little plant for making little dampers and cooking them in the ashes right way.
I know what bush plants we can eat and I know how to get quandongs, goanna eggs and honey ants and lots of other types of bush tucker. I learnt all this from my mother and other elders and I pass it on to the younger generations.
Patrick Edwards:
Over the past few years I’ve taken my sons – the ones who are wati – out to places around Yamarna and Cyril Well area. I told them about the wati stories out there. I also told them that those places were their kaparli’s country, my own mother’s country. One tree out there, not far from Minnie Creek, is where Rhys Winter’s thamu (grandfather) died. And I told my sons about that tree too. I’ve shown my sons all the rockholes in the Cosmo area, I’ve been showing them how to clean the rockholes too. We’ve been doing that together. I’ve taught them to survive in the bush, how to hunt, how to find their way around and I’ve passed on to them what I learned from my mother and aunty [Mrs Sullivan] and other old people. I’ve taught them all the proper cultural way to do things. I’ve been doing that for years and they understand and know their country because of this. They can survive and not get lost and they know how to do things the right way culturally.
I stop at the rockholes and other kapi places in the Cosmo area and over the years I have shown them to my children so that if they ever get lost they will know where to find water. I also know how to find hidden water, where you can dig and find water. I know the signs and what to look for and I’ve also passed this knowledge on to my children, just like it was passed on to me by my elders. I have taught my children how to hunt and how to cook marlu, yilpa and karlaya the proper Wangkayi way. I’ve got to do it the proper way because I’m an initiated man and I have to set a good example. I can’t break the rules. Even before I was a wati I used to do it the right way, because that’s how I was taught - that’s our culture. I was taught to cook kangaroo in the ground by the old watis and I never cook them any other way. I want to follow that way because that is how the law is and I want to keep doing it like that.
990 There was also much evidence given on the topic of restricting knowledge. This is demonstrated in the reluctance of watis to discuss certain matters relating to law business and sacred sites, as the following examples show.
Irwin Sullivan:
I was taken and went through the law in the early 90’s. There are important men’s Tjukurrpa places on the claim area but I can’t talk about that.
Patrick Edwards:
MR KEELY: Now we know that you’ve been a wati for a long time or for many years – 20 years, 30 years or something like that?
PATRICK EDWARDS: Yeah.
MR KEELY: When you were first a wati, did you have the right to go out to Minnie Creek on your own?
PATRICK EDWARDS: No.
MR KEELY: What needed to happen before you could go there?
PATRICK EDWARDS: I'm not answering that.
MR KEELY: Okay, I understand.
991 Mr Keely later pursued questions touching on secret men’s business with another wati, Glen Cooke, and again the point was reached where the witness was unwilling to disclose further information due to cultural requirements to restrict such information.
Celia Sullivan:
There are places that only wati can talk about. This is very strong in Wangkayi culture. As a woman I’m very careful about what I say and do because I respect our Law, and don’t want to get myself or my family into any trouble.
Mervyn Sullivan:
There is another men’s place at Mapa and I can’t talk about that. Same for Mount Gill and also Cowderoy Hill which is north of the Warburton road. There’s a men’s place at Point Newland too, south of the road. I know about those dangerous places from my own father. He told us about those wati places when we were grading in that country. But even though I can’t talk about them, I still pass on to my children that they are dangerous places. I have told my children about the Ngarnamarra and that Warnampi too. If I was to talk about those men’s places in the wrong way, something bad could happen to me or my family.
992 Mrs Sullivan gave evidence during the Wongatha hearing of restricted ceremonies, the expression pika ngurlu, which refers to sacred things, and the need to avoid talking about those things.
7.10 Respect for senior people
993 I do not consider it is necessary to deal with this evidence in detail. Celia Sullivan made it clear, as did other witnesses, that the older people can speak more about the country because they have more knowledge, and that on the younger generations can take over when they have learnt more and the old people pass on. This is a theme made very clear by the evidence of Yilka witnesses as well. The evidence and conduct of witnesses was unequivocal, and was sufficient to infer its acknowledgement and observance by the claim group as a whole.
994 The Sullivan applicant has provided evidence on the following laws and customs additional to those discussed by the Yilka applicant. These are not the subject of specific paragraphs in the Sullivan POC but are said to go generally to show Sullivan POC [73], which is that the WDCB today is a normative system that has had a continuous existence and vitality since sovereignty.
995 Contrary to the State’s submission, and despite the relatively confined nature of the evidence on some of these topics, I find that this evidence is probative of the existence of traditional laws and customs in the sense of societal norms, especially when taken with the body of evidence on this topic as a whole.
996 Both applicants gave a considerable amount of evidence concerning ‘looking after country’. It was relatively uncontentious. As the State accepts, it is probative of connection or attachment to land. Once again, it was an important area of evidence to the parties so I repeat some of it:
Celia Sullivan:
Looking after country means things like cleaning out rockholes of dead animals and sand. If you find a cave, and if anything is in there you don’t touch and you show the kids how people lived before houses. You show the kids how to respect the land. In the old days my kaparli Kitty and my mother travelled on foot from rockhole to rockhole in the Cosmo area. A yiwarra is a track – it is where Wangkayi people walked from rockhole to rockhole – the yiwarra connects the rockholes. I have taught my children and grandchildren what I learnt about rockholes, so that if they have to travel through the land with no water they know where to go and what to do. I’ve taught them how to clean the rockholes properly. It is important that the animals are also able to get water, not just people.
Patrick Edwards:
It was in about 1997 that I first took an active role in looking after and protecting sites on my mother’s country in the Cosmo area. It’s other people’s country too, like [the late Mr Watson], [Mr Harris (deceased)], my cousin brother Mervyn and cousin brother Rhys Winter. We all have rights in that country. I learnt a lot about my mother’s country from my aunty [Mrs Sullivan] and some other old people like [Mr Harris (deceased)], Doreen Harris and Bruce Smith, and I want to care for these places.
Also I was asked by wati from further away to keep an eye out for the men’s sites in the Cosmo area. I keep checking up on all the sites to see if they have been damaged. If I see a place has been damaged, I go and tell all the other watis.
For me, I see it as my responsibility to look after these places, not just the wati places but also places on my mother’s country.
There is a special place in the Yamarna area that is very important - Minnie Creek. I have responsibilities for that place under our law. Other watis, from Cosmo, Tjirrkarli and Warburton and further away than that, also have that responsibility. Watis from all around know about this place. It is very important. I don’t want to go into details.
I always clean out rockholes. I never stop at a rockhole without cleaning it out. I was taught to do this from the time I was little. It’s a cultural practice that is about looking after the country and surviving. Rockholes are not only for people, they are important to the animals and healthy rockholes also means good hunting. I teach this to my children too.
Mervyn Sullivan:
Looking after country is a big issue. It comes from your heart and comes from the Tjukurrpa too. The place you look after is your ngurra. I’m not talking about just one place, but all those places inside your boundary. You have to clean your ngurra and one thing that means is you have to keep the rockholes free from dead animals and sand. Sometimes you don’t need to clean the rockholes because a big rain might come through and clean it for you. I remember that happened once at a big rockhole near Wartu or Rutter’s Grave. A long time ago the watis were really strict. This was way before native title. They still make the laws today. I believe that the watis have to be part of making decisions for country. I believe that the watis are the ones who make decisions for sacred sites. There is also the proper way you care for country. So, when I go out hunting, I can easily kill a lot of kangaroos (marlu) but I don’t. I only take what I need. And also, you have to have respect for your Tjukurrpa and so because I am marlu Tjukurrpa – and I’ve got a mark on my body to prove that – I don’t shoot large male marlu. I share marlu and other bush meat that I get with my family and other relatives. Looking after country also means that you respect those men’s places on country. You don’t go to those places, you don’t tell anyone about them and you make sure that your children don’t go anywhere near them.
Celia Sullivan:
Ngurra is for me like my own backyard, homeland. When you go out there you’ve got spirit – kuurti - inside you. You’re happy to go out there and camp. The kuurti of the old people are in the country and sometimes they come along and show themselves to you when you are asleep. I’ve had those types of dreams. Because they know me and they know my family they don’t harm us, they look after us. But if the spirits don’t know you they can hurt you, they can make you sick. Sometimes when I go to places I throw dirt to let the spirits know who we are. If I’m not on my ngurra I don’t have that same feeling, because the spirits don’t know me in those places and I might get sick.
Irwin Sullivan:
The kuurti (spirits) of the old people that roamed around the country are still there. You hear things and sometimes you feel your hair stand up. But they don’t hurt us – we know they are the spirits of the old people from that country who have died.
Patrick Edwards:
I also have knowledge about the spiritual side of the country - tjukurrpa, koordi (spirits) and yayiyarr (little men). This is a very important part of knowing the country. It’s not just what you see with your eyes, there’s more to it than that, there’s what you can feel and what you learn about the spirits and the tjukurrpa. These are all part of my family’s traditional connection to this country. When I am in the bush on my ngurra I don’t feel frightened. I know where I am and I feel good inside, relaxed. The spirits of my old people are there and they know me. If I’m on someone else’s country then I will go with someone from that country. This shows respect and makes sure I don’t go somewhere I shouldn’t.
Mervyn Sullivan:
I can feel the koordi (spirit) inside me when I’m on my ngurra. I feel good and safe there.
Celia Sullivan:
One place – Ngarrurtji – she said they were camping there when she was a little girl. She heard shouting. It was little men called yayiyarr.
…
I also know about the yayiyarr. They are out there at Wartu and Karntuny.
Irwin Sullivan:
I also know about the yayiyarr, the little people who live in the hard country around White Cliffs. They come out sometimes.
Patrick Edwards:
I also have knowledge about the spiritual side of the country - tjukurrpa, koordi (spirits) and yayiyarr (little men).
Mervyn Sullivan:
There’s also punishment in our law. One of them is called ngarparrtji ngarparrtji. That is our payback and I believe in that. And I believe in tribal payback too. So if somebody kills someone let’s say, he has to be punished and that’s in tribal law and not white man’s law. If he is not punished by his relations then something will happen later. That man’s father might die, or his mother or his brother.
8. THE LAWS AND CUSTOMS AS NORMATIVE RULES
997 Again, this does not appear to be a particularly contentious area. The applicants must prove that the laws and customs are normative, as opposed to merely being observable patterns of behaviour. The legal principles are discussed in Chapter 1 at Pt 8 which cites the summary of the law on this topic given by Finn J in Akiba (at [171]-[174]).
998 The Sullivan POC at [66]-[67] contends that there are particular factors which give normative force to the WDCB laws and customs, including commitment to Tjukupurr, respect for elders and others with ritual status and fear of enforcement of social and other sanctions.
999 The anthropologists did not regard this as controversial. They all agreed, without qualification, with Proposition 28 that the WDCB is and has been since sovereignty, a system of normative laws and customs. This was discussed at Pt 4.4 above.
1000 Within the lay evidence given on this topic, there was support from the witnesses for the Sullivan applicant as to the normative nature of the laws and customs. For example, Celia Sullivan, in noting that there were places that only wati can talk about, said that as a woman, she had to be very careful about what she said because she respected the law and because otherwise herself and/or her family would get into trouble. In explaining the kinship system, she said that ‘[y]ou have to marry someone from the right skin group and there can be trouble if you marry wrong way. Even if people don’t know, someone who does know will tell them.’
1001 Further evidence came from Patrick Edwards, who explained that he had taught his children how to hunt and how to cook marlu, yilpa, karlaya the ‘proper Wangkayi way’. He said that he had to do it the ‘proper way’ because as an initiated man he ‘has to set a good example, and cannot break the rules’. He said that even before he was a wati, he used to do it the ‘right way’ culturally because that was how he was taught. He said that he always follows the way to cook kangaroo which he was taught by the old watis because ‘that is how the law’ is and he wants to keep doing it like that.
1002 Similarly, Mervyn Sullivan said ‘if I was to talk about those men’s places in the wrong way, something bad could happen to me or my family’.
1003 In my view, once again, the extent of the Sullivan applicant’s case is much more confined than the evidence in the Yilka applicant’s case, but no less plausible. The evidence set out above, which talks about the right or wrong way of doing certain things which are part of the laws and customs and the sanctions which attach to non-conformance, sufficiently demonstrates that the laws and customs in general are normative and not just ‘observable patterns of behaviour.’
1004 The Yilka applicant again accepts that the Sullivan applicant has established some knowledge and acknowledgement of the WDCB laws and customs as normative rules, but maintains that this evidence does not of itself establish a basis for the possession of rights and interests in the Sullivan claim area. The question of the possession of rights and interests of the claimants over the Claim Area is discussed in greater detail below; here it is merely relevant, as the Yilka applicant concedes, to note that there is a degree of acknowledgment and observance of the traditional laws and customs of the relevant society among the Sullivan claimants, and that those laws and customs have a normative content. The rights and interests which the Sullivan claimants possess in relation to the Sullivan claim area (as discussed in Pt 11 below) can therefore be said to be possessed under the traditional laws acknowledged, and the traditional customs observed, by the Sullivan claimants pursuant to s 223(1)(a) NTA.
1005 The State submits that there is an absence of a normative quality to the notion of recognition, due to the lack of precision surrounding the applicability of this law and custom. I consider that such a precise mechanism is not required in order for this to constitute a law and custom having normative content. As to the process of recognition, see the discussion on the report of Dr Vachon below at Pt 13.1.
9. THE LAWS AND CUSTOMS AS ‘TRADITIONAL’
1006 Again the POC (at [68]-[73]) in the Sullivan case pleads aspects which are intended to show the traditional nature of the laws and customs of the WDCB and, in particular, of these claimants. The Sullivan applicant contends that the laws and customs have been passed down by word of mouth and common practice, substantially uninterrupted since sovereignty until today, although with change and adaptation.
1007 Proposition 27 in the conference of experts specifically dealt with this topic in the context of Western Desert laws and customs. All anthropologists agreed with Proposition 27, although Professor Trigger had a qualification. In substance, Proposition 27 was:
(a) As best as can be determined, the laws and customs (in particular those relating to possessing rights and interests in land and waters) of the claimants and their Western Desert fellows existed at sovereignty.
(b) Acknowledging that change has occurred, those laws and customs have their origins in laws and customs that were acknowledged and observed in the Western Desert at sovereignty.
(c) There has been intergenerational transmission of knowledge of aspects of those laws and customs.
(d) This is not to suggest that all Western Desert laws and customs were observed by the people in the Claim Area at sovereignty.
The qualification advanced by Professor Trigger was that current forms of laws and customs may be adaptations from laws and customs operative in pre-sovereignty times which now operate in a changed form.
1008 However, some degree of change and adaptation is permissible, as noted by Brennan J in Mabo (at 70):
It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains.
1009 The Sullivan applicant (as does the Yilka applicant) also refers to the decision of Selway J in Gumana (at [196]-[202]) where his Honour discussed the practice of the English courts of inferring past ‘immemorial’ custom from evidence of the existence of current custom. In that case, his Honour noted that there is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and tradition, and the existence of rights and interests arising under that tradition or custom as at the date of sovereignty.
1010 His Honour continued (at [201]-[202]):
201 ... Although no such inference would seem to have been relied upon in Millirrpum (see at 184 and 197-198) Australian cases thereafter would seem to have relied upon such inferences, although without expressly acknowledging the common law authorities which plainly supported doing so: see, eg Mason v Tritton (1994) 34 NSWLR 572 at 588; Yarmirr (FC) at [66]; De Rose at [259]; Lardil at [116] ff. This does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement: contrast [Yorta Yorta]. However, in my view where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had “always” been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement. That was not the case in [Yorta Yorta]. It is the case here.
202 In my view it is appropriate to rely upon such evidentiary inferences in this case to the extent it is necessary to do so. Subject to the issue of succession discussed below, I find that the relevant claimant clans had the same system of traditions, laws and customs as at 1788 as they have today. They have observed those traditions and customs continuously since that date. If necessary to do so, I also find that the rights and interests that the clans enjoy today pursuant to those traditional laws and customs are the same rights and interests that they enjoyed in 1788 and that they have enjoyed those rights and interests continuously since then.
The reasoning at [201] was referred to, with approval, in Sampi v Western Australia (2010) 266 ALR 537 by the Full Court (at [64]).
1011 There was lay evidence on this topic with a number of witnesses providing much information about the transmission from generation to generation of knowledge about laws and customs and the continued observance and acknowledgement of these laws and customs. Much of this evidence has already been covered throughout Pt 7.
1012 I accept the evidence that has been adduced to show that Kitty and her children, when young, lived a traditional lifestyle in the bush (see Pt 12 below). The current senior generation of the Sullivan claimants, being Kitty’s grandchildren, had the benefit of learning from Kitty’s children and other ‘old people’ who were knowledgeable about and committed to traditional laws and customs. The Claim Area is quite remote and ‘effective sovereignty’ occurred relatively recently as can be seen from the historical sources and the evidence given by both the Yilka and Sullivan claimants. The evidence also supports the inference that the Sullivan claimants have continued through to the present to live on or near the Sullivan claim area and on a regular basis to visit and care for sites on the Sullivan claim area; camp, hunt and gather bush foods; teach their children, participate in ritual activities and observe various other customs and practices; such that it can be confidently inferred that these practices are consistent with those of their ancestors at sovereignty. The anthropological evidence, such as Proposition 8 and Proposition 28 discussed at Pt 4.4 above, also support the ongoing vitality of traditional WDCB laws and customs.
1013 The State’s submissions on this topic, which principally rely on the Wongatha findings and on the issue of drawing inferences as to all members of the claim group or across time, have been dealt with above in relation to the Yilka applicant. In my view, once again, the extent of the Sullivan applicant’s case is much more confined than the evidence in the Yilka applicant’s case, but no less plausible. I would therefore conclude that the laws and customs pleaded by the Sullivan applicant are traditional.
10. ACKNOWLEDGEMENT AND OBSERVANCE OF THE LAWS AND CUSTOMS
1014 Paragraph 80 of the Sullivan POC pleads that the laws and customs relied on, which have been outlined in detail in Pt 6 and Pt 7 above, are acknowledged and observed by the persons on whose behalf the Sullivan claim is made. The evidence in support of this proposition, found in Pts 6, 7, 11 and 12 of these reasons shows that the Sullivan claimants acknowledge and observe these laws and customs (with exceptions as specified). Once again, the Yilka applicant notes that it concedes acknowledgement and acceptance of some WDCB laws and customs by some Sullivan claimants, but that the Sullivan applicant has not shown that this sustains the possession of rights and interests in the Sullivan claim area.
11. RIGHTS AND INTERESTS POSSESSED UNDER THE LAWS AND CUSTOMS
1015 Both applicants have made substantial submissions as to identification of rights and interests that are to be translated into native title rights and interests for the purposes of recognition and determination of native title. The Sullivan applicant’s case is that the same rights as apply to the Yilka applicant should be recognised in the relation to the Sullivan applicant. In my view, once again, the extent of the Sullivan applicant’s case is much more confined than the evidence in the Yilka applicant’s case, but no less plausible.
1016 Those rights and interests are pleaded in [82] of the Sullivan POC and are the rights and interests to:
(a) ‘speak for’ and ‘look after’ an area – including the rights to make decisions about an area and to control the access to and use by others of the area;
(b) access, remain on and use an area for any purpose;
(c) take from an area everything that is useful and to use it for any purpose; and
(d) protect places of importance.
1017 Where there has been found to be partial extinguishment of native title, a lesser bundle of rights and interests which can continue to exist commensurate with that partial extinguishment is sought.
1018 In regard to the rights and interests pleaded at Sullivan POC [82], the anthropologists were generally in agreement with Proposition 41 of the conference of experts, which provided that:
The identification with a site or an area expressed as ‘my country’ (ngayuku ngurra, ngurra yungarra) according to WDCB laws and custom is marked by cultural labels (ngurrara, ngurraritja, ngurrarangka) and attaches to rights such as speaking for and looking after country, not otherwise held by those without such a ‘my country’ relationship. The enjoyment of such rights are (sic) conditioned by such factors as age, gender and appropriate ritual status.
1019 This proposition was agreed to by the anthropologists, although Professor Trigger noted the reservation that he was not in a position to know whether the Western Desert terms are known now amongst the Yilka or Sullivan claimants.
1020 There was also agreement between the anthropologists in relation to Proposition 29, which corresponds to Sullivan POC [82] and was in these terms:
It is appropriate to describe the rights and interests that other people with a ‘my country’ relationship may possess in a stretch of countryside under WDCB laws and customs as the rights to:
(a) ‘speak for’ and ‘look after’ the area – including the rights to make decisions about the area and to control access to and use of the area by strangers;
(b) access, remain on and use the area;
(c) take from an area anything deemed useful; and
(d) protect places of importance on the area.
1021 Proposition 22 was important in explaining the relationship between rights and responsibilities, and was as follows:
Subject to the previous Proposition [ie Proposition 21, which referred to rights in respect of Minnie Creek], it is an element of WDCB laws and customs that landholders who hold rights and interests in an area have responsibilities and, concomitantly, rights to ‘speak for’, ‘look after’, care for, protect and maintain the area including its sites and spiritual features. The extent of responsibility permitted and expected to be exercised by such persons is qualified on the basis of age, gender and ritual knowledge and authority.
1022 The anthropologists all agreed with this Proposition and with Proposition 29 without qualification.
1023 Given that at all times the primary focus must be on the evidence of the Aboriginal witnesses, it is relevant to note that this evidence provides ample foundation for the conclusions reached by the anthropologists. A number of examples are given below. The following extract from the cross-examination of Sullivan Edwards witness and wati, Patrick Edwards, is supportive of this proposition and shows how rights are viewed and exercised in practice:
MR KEELY: … An owner-what can an owner do on country? I suppose an owner can live there for a start.
PATRICK EDWARDS: Yes.
MR KEELY: An owner can go and hunt there?
PATRICK EDWARDS: Yes.
MR KEELY: An owner can look after the country?
PATRICK EDWARDS: Yep.
MR KEELY: Go and get firewood or they can manage the country in the way that they see fit?
PATRICK EDWARDS: Yes.
MR KEELY: So it's like a-is it-do those people as you see it, have what you might call full rights as owners? In other words they own it, you know, in a not just an Aboriginal sense but they own it in a way that Europeans can understand too.
PATRICK EDWARDS: Yeah.
MR KEELY: I'm not sure you got that question. Do you follow what I'm asking? I'm asking is it - I've got a house in Melbourne and I'd say I'm the owner of that house along with my wife and we've got certain rights there. You own country in this part of the world and you've got rights as owners haven't you, in the same kind of way?
PATRICK EDWARDS: Yes.
MR KEELY: Now you've been asked questions about what other people can do on your country. Let me ask you hypothetically - suppose an Aboriginal person from Queensland is over this way for some reason. Can they just go poking around your country doing what they like?
PATRICK EDWARDS: No.
MR KEELY: Why not?
PATRICK EDWARDS: Because he's not from there.
MR KEELY: Doesn't know the country?
PATRICK EDWARDS: He don't know the country, he don't know where he is.
MR KEELY: And suppose there was that person from Queensland who was over here and suppose that person just took off and drove around and started poking around and doing things. How would the people who are the owners feel about that?
PATRICK EDWARDS: They'd want to know what he's doing there.
MR KEELY: People get worried don't they?
PATRICK EDWARDS: Yeah.
MR KEELY: When strangers are there poking around their country, they don't know what's happening.
PATRICK EDWARDS: Yep.
MR KEELY: And suppose that same person - suppose they cause trouble there in some way; they go and shoot unbranded cattle, or they go and chop down trees, or they do something like that; how would local people react? How would the owners deal with that?
PATRICK EDWARDS: I don't know.
MR KEELY: Okay. Would it be safe to assume that they'd be unhappy about it?
PATRICK EDWARDS: Yeah.
MR KEELY: Now let's talk about people from closer to home. Say someone from Warburton whose got a relationship with you. This person from Warburton knows you and he knows the country. If that's the case, would you be happy to let that person go out hunting on your country?
PATRICK EDWARDS: Yes.
KEELY: But suppose that person doesn't know anything about your country, would you just say oh yeah, go out wherever you like or would you want to show them where to go.
PATRICK EDWARDS: I'd go with him.
MR KEELY: You'd go with him. Is the reason for that - that if you just let someone go out and they don't know, they might go somewhere they shouldn't go and that would cause problems?
PATRICK EDWARDS: Yes.
MR KEELY: If someone went out to Minnie Creek and stumbled in there and didn't know what they were doing, that would - people would get very upset about that wouldn't they?
PATRICK EDWARDS: Yes.
MR KEELY: And if that person from Warburton - you know the person so you've got some trust there. If that person comes down here and does the wrong thing, you know, for example, they start taking sandalwood away or they light a bush fire or they start killing cattle or whatever it might be, if they do the wrong thing, do you think you've got the right to tell them to get out?
PATRICK EDWARDS: I'd report them to the police.
MR KEELY: Yes. And that's your right to do that as the owners because that's infringing your rights as owners.
PATRICK EDWARDS: Yeah.
MR KEELY: So these other people who can come in, in certain circumstances, that assumes that they're going to do the right thing. If they're not doing the right thing, everything changes.
PATRICK EDWARDS: Yes.
1024 Other evidence on this topic comes from the affidavits of Mervyn Sullivan, Celia Sullivan and Doreen Harris. Mervyn Sullivan said:
When I think about the places that I have a right to go to, without asking anyone, I think about the Cosmo area, which is my Ngurra. I also have a right to make decisions about those places along with the other traditional owners of this country. And I have responsibility to help take care of this country. And by that I mean those places I put on the map and the places in between. Of course I have to stay away from wati places, but except for that I have never asked permission from anybody to go on my country.
In our law Wangkayi don't just go around asking other Wangkayi permission to go on their country. It doesn't work like that because Wangkayi have the right to get a feed from the country. But I know for myself that people from another place who don't know the Cosmo area will come up and ask me where are the good places to get marlu or ask me to show them those places. So I will do that. But the other thing that I do is not just show them where the marlu is but also the places that they should stay away from - men's places. So when they ask me that, they can get marlu, feed themselves, and they don't get into danger.
But being able to go on to get a feed is not the same as being a traditional owner of the country. It's the traditional owners that have the say about the country. That's what I am, and my family too, we are traditional owners of the country around Cosmo.
1025 Celia Sullivan gave the following evidence in relation to speaking for country:
When it comes to speaking for our country, traditional knowledge of the country passed down from the older generations is really important. I can explain it like this. I've got grandkids and my brother has grandkids and we take them out bush and show them the country, the names of the places, the yabu (hills), the kapi (water places), the landmarks. Ten years down the track I might not be here anymore and somebody might say to my grandkid: "You are the grandchild of Celia Sullivan, can you say anything about this country?" That grandkid will say: "Yes, I grew up in that land and I can speak for that land because I've been there and been shown all those things by my thamu and kaparli.”
To speak for country the kuurti for that country have to know you, and know your ancestors. And you have to have the traditional knowledge about the country. The older people can speak more about the country because they have more knowledge. Later on the younger generations can take over when they learn more and the old people pass on.
1026 Similarly, Doreen Harris said:
[My deceased husband Mr Harris] told me that his kaparli and his mother roamed around that country from rockhole to rockhole - they were from that country around Minnie Creek and Cosmo. That's what gave my husband rights to that country. Also he knew that country well because the old people taught him a lot about it. My husband lived a long time there and people respected his right to speak for that country.
1027 The State makes a number of submissions on this topic, which have been quite comprehensively outlined in Pt 11 of Chapter 1. In regards to the right to speak for country, the State complains that it is unclear as to which claimants hold this right. However, as the Sullivan applicant contends, this is a legitimate matter of intramural decision-making, which does not need to be decided by the Court (see Pt 6.5 above). The evidence of Celia Sullivan and Doreen Harris on this question pertains to the existence of considerations pursuant to which rights to speak for country are delegated intramurally. There was much evidence discussed in the context of the Yilka claim in regards to the right to control access against ‘strangers’. The Sullivan applicant suggests that the State fails to pick up the subtle distinction between ‘rights’ and what can be regarded as reasonable expectation bounded by protocol. This is similar to the approach taken by the Yilka applicant and adopted by myself, in distinguishing between the existence and the exercise of a right. While these rights may be difficult to translate into Western legal concepts, this does not preclude their recognition. As to the rights to access the Sullivan claim area, take and use resources, and protect places on the Sullivan claim area, the State does not accept that the rights are held or exercisable by all of the Sullivan claimants. I consider that the evidence brought by the Sullivan claimants is sufficient to support an inference that the claimants hold these rights, although their exercise may differ according to intramural considerations. Insofar as the State’s submissions suggest difficulties due to the difference or incompatibility between the rights of wati and the rights of non-wati, again the exercise of these rights is an intramural matter, and in this instance is informed by the level of respect, reverence and awe shown towards wati. The Yilka applicant agrees with the conceptualisation of the ‘my country’ rights by the Sullivan applicant, noting that they are the same as those pleaded for the Yilka applicant, but does not accept that the Sullivan claimants possess such rights in the Sullivan claim area.
1028 I accept that the evidence, outlined here and elsewhere in these reasons, along with the evidence of expert anthropologists, supports the claim by the Sullivan applicant that the Sullivan claimants have exclusive possession rights in accordance with [82] of the Sullivan POC, in areas where there has been no extinguishment of native title rights.
12. PEOPLE WHO POSSESS THOSE RIGHTS AND INTERESTS
1029 Those said to possess rights and interests in the Sullivan claim area comprise a small group, as set out in Order 2 of the Sullivan Determination Sought, which in turn embraces Sch 2, which consists of:
(a) the descendants of Mrs Sullivan;
(b) the descendants of Mrs Wingrove; and
(c) any other person who has a connection to the Sullivan claim area by which that person claims country through one or more of:
(i) their own or an ancestor’s birth on the Sullivan claim area;
(ii) their own or an ancestor’s long association with the Sullivan claim area; or
(iii) their own holding of senior ritual authority with respect to places on the Sullivan claim area,
and with respect of whom that claim is recognised according to traditional laws and customs.
1030 The footnote to this schedule explains that paragraph (c) is necessary, not only to include persons having senior ritual authority who cannot be identified by reference to descent, but also to reflect the traditional law and custom which, in the present, as was the case in the past, allows that persons without ancestral connection to the Sullivan claim area might acquire rights in the Sullivan claim area and be able to transmit those rights to their descendants through their own birth or long association.
1031 The Sullivan applicant acknowledges that other people may also hold native title rights and interests over the Sullivan claim area. The State argues that this means that not all the persons who are said to hold native title rights and interests are included in the claim group description. The Sullivan applicant disputes this by reference to paragraph (c) and further submits that the acknowledgment that others may hold native title does not preclude the Sullivan claimants from bringing a claim: see Pt 6.3 above.
1032 As discussed above, Sullivan POC [24], which is in the same terms as the Yilka POC, sets out the connection pathways through which rights and interests in the Sullivan claim area are possessed. These pathways are the person’s own birth and/or long association or holding of senior ritual authority, or an ancestor’s birth and/or long association. There is also a requirement that that person’s claim be recognised under WDCB laws and customs.
1033 The main point of contention in relation to the Sullivan claim is whether the claimants can show the required connection to land through which they possess rights and interests in the Sullivan claim area, which is disputed by the Yilka applicant.
1034 I consider that the evidence supports the conclusion that under WDCB laws and customs the Sullivan claimants possess ngurra rights and interests in the Sullivan claim area. These rights are claimed through Kitty’s birth and/or long association, as well as the birth and/or long association of her two daughters Mrs Sullivan and Mrs Wingrove. The claimants’ own long association with the Sullivan claim area, while not essential to their connection to it, further reinforces their claims. I also accept that some members of the Sullivan Edwards families hold rights in regard to certain areas of ritual significance by virtue of their status as wati. Before discussing the various pathways to connection claimed, I will first touch on two evidentiary matters – the first being the evidence about specific sites on the Sullivan claim area brought by the Sullivan applicant, and the second being issued raised by the Yilka applicant with regards to past claims by the Sullivan and Edwards family members.
12.1 Sullivan Edwards Sites Evidence Summary and Sullivan site map
1035 The Sullivan applicant marked up the Yilka site map with numbers corresponding to each of the sites listed in the table below (Sullivan sites list). These sites were all mentioned in the evidence in Wongatha and the current proceedings, and there is evidence linking 44 of them with Kitty. The sites are marked in different colours on the Sullivan site map, according to whether the evidence associates them with Tjukurrpa, Kitty, or both. The Sullivan site map has not been annexed to these reasons, as the sites identified in the Sullivan sites list are for the most part identifiable on the Yilka site map (although different spellings are sometimes used). There are certain sites in the eastern part of the Claim Area which do not appear on the original Yilka site map, but the written submissions for the Sullivan applicant collect the evidence about the location of those sites. The evidence about each of these sites has been set out in the Sullivan Edwards Sites Evidence Summary which is a collation of evidence pertaining to each of the sites listed in the Sullivan sites list, on which the Sullivan applicant relies. The Sullivan Edwards Sites Evidence Summary is attached to these reasons as Annexure 8. The Sullivan sites list is as follows:
No | Name | Grid ref | No. | Name | Grid ref |
1 | Mt Feldtman | G3 | 24 | Papul aka Bubbles Rockhole | D6 |
2 | Mapa | G3 | 25 | Claypan Well | D5 |
3 | Mt Gill | H4 | 26 | Bullrush Rockhole | D5 |
27 | Tjirrany (rockhole) | E6 | |||
4 | Mt Cowderoy | H4 | 28 | Wurrka aka White Cliffs Homestead area rockhole | E6 |
5 | Point Newland | I4 | 29 | Cutterblood | E6 |
6 | Katangurn | E4 | 30 | Mitika | E5 |
7 | Pilki | D5 | 31 | Wurnta | F5 |
8 | Cosmo Newberry | E5 | 32 | Nanirri aka Hunter’s Waterfall | F6 |
9 | Tjiwartun | E5 | 33 | Tatjarn | G6 |
10 | Puntitjarra | E5 | 34 | Mulgabiddy Creek | G6 |
11 | Limestone Well | F4 | 35 | Patjarta Soak | G6 |
12 | Jutson Soak aka Judson’s Soak | G4 | 36 | Pt Mohr | G6 |
13 | Cyril Well | G4 | 37 | Marntjal | H6 |
14 | Murray’s Bore | F5 | 38 * | Talintji* | Between Marntjal (site 37) and Pt Sunday (site 44) |
15 | Mt Shenton | G5 | 39 * | Rockhole (unnamed)* | Between Marntjal (site 37) and Dorothy Hills (site 43) |
16 | Wartu aka Rutter’s Grave | G5 | 40 * | Rockhole (unnamed)* | Between Marntjal (site 37) and Dorothy Hills (site 43) |
17 | Ngarrurtji aka Thatcher Soak | G5 | 41 * | Lagoon (unnamed)* | Between Marntjal (site 37) and Dorothy Hills (site 43) |
18 | Palkapiti aka Mt Venn | H5 | 42 * | Kirti (resin place)* | Between Marntjal (site 37) and Dorothy Hills (site 43) |
19 | Pirlpirr aka Minnie Creek | H5 | 43 | Dorothy Hills | I5 |
20 | Kurrajong Well | C5 | 44 | Pt Sunday | J5 |
21 | Laverton | C7 | 45 | Lake Yeo | K5 |
22 | Yuntut aka Crawford Soak | C7 | 46 | Mt Fleming | I6 |
23 | Tipa | D6 | 47 * | Kaarnka / Little Kaarnka* |
* These sites are not shown on the Sullivan site map. Refer to the Sullivan Edwards Sites Evidence Summary (Annexure 8) for information about the location of these sites. (The spelling of the names in the Sullivan sites list is taken from the spelling used in the Sullivan claimant evidence (affidavit or transcript). Sometimes this spelling varies from the spelling of the site name on the original Yilka site map.)
1036 The Yilka applicant contends that this evidence merely shows that some members of the Sullivan claim group have some knowledge of some sites within and outside of the Sullivan claim area; and have visited some of those sites. I consider that taken in context, its value goes beyond this, as discussed throughout this Part.
1037 The Sullivan applicant suggests that the evidence given about places and sites of significance to the Sullivan claimants within and near the Sullivan claim area supports their asserted connection to this area and hence their possession of rights and interests in it under the WDCB laws and customs. The sites marked on the Sullivan site map are spread throughout most of the Claim. I accept the Sullivan applicant’s submission that when considered in light of the evidence provided about them, the pattern of the sites dispels any contention that Kitty simply travelled through the Sullivan claim area for the purposes of getting from one place to another is not sustainable. The correlation with the Yilka site map (the Yilka site map) is notable. Although there are some additional sites in the Sullivan sites list and Sullivan site map, this is because, the Sullivan applicant contends, Kitty’s ngurra extends to Lake Yeo and Kaarnka.
12.2 Past claims by the Sullivan and Edwards families
1038 The Yilka applicant refers to past claims brought by the Sullivan and Edwards families, as evidence of their lack of connection to the currently pleaded Sullivan claim area.
1039 Those past claims are the Tjinintjarra Family Group application WC95/57 (Tjinintjarra application). Mrs Sullivan was the only person comprising the applicant in the Tjinintjarra application, lodged in 1995. It was brought on behalf of the Tjinintjarra Family Group comprising the Sullivan, Winter and Edwards families. Mrs Sullivan apparently wrote the Tjinintjarra application by hand, although it is said to have been drafted by a lawyer from a firm of Perth solicitors. The original claim area extended to the South Australian border, and encompassed the whole of the area later the subject of a consent determination in favour of the Spinifex people, part of the areas that was later the subject of a consent determination in favour of the people of the Ngaanyatjarra Lands and a large area to the south of the Claim Area. While that area was later reduced, even the amended area was much larger than the present Claim Area. The Yilka applicant points to inconsistencies between the Tjinintjarra application and the present claim.
1040 Dr Cane was very critical of the Tjinintjarra application, saying that everyone in that part of the desert was confused as to who Mrs Sullivan was, and what the area of her claim was; and concluded that she was someone who did not know a lot about their country and who exaggerated boundaries.
1041 In relation to the fact that Mrs Sullivan previously brought the Tjinintjarra application, which in many respects differs from the Sullivan claim, in my view this is of little weight. It was a claim which was very much at an embryonic stage. It contained errors and was not pursued.
1042 In Wongatha, Justice Lindgren was also of the view that any claim by Mrs Sullivan to have country within the Cosmo claim area, insofar as it may have been based on the evidence that was taken before the Court, was a weak one. He also had some reservations about certain aspects of the testimony of Patrick Edwards. The Yilka applicant also points to a number of inconsistencies as between various descriptions given by Mrs Sullivan of her own and her mother’s ngurra during the Wongatha proceedings. For example, at one point when questioned about the places which were part of her mother’s ngurrara, Mrs Sullivan replied ‘Well she just said Kaarnka, that’s all.’ Mrs Sullivan later said that her mother’s ngurrara was from Kaarnka to Laverton, listing a number of places within that area. The Yilka applicant also quotes Mrs Sullivan’s descriptions of her country as being ‘Laverton area’ and ‘about 20 or 30 miles around Laverton’. Later, when describing her map, Mrs Sullivan pointed to a small circle around Laverton saying that that was the Laverton area, and then made a bigger motion with her hands saying ‘that’s all our country too.’ She later made a similar gesture, indicating that her ngurrara was Laverton as well as the whole of the area on the map, saying ‘I walked all around and around there when I was as [sic] little kid.’
1043 As to the Wongatha proceedings, I have referred to this many times insofar as conclusions reached by Justice Lindgren are concerned. I heard different evidence. In relation to Mrs Sullivan’s evidence about her and her mother’s ngurra in Wongatha, although there was some confusion in the descriptions she gave, she is certainly not alone in that regard and was an elderly, if not (relatively speaking) very elderly woman at the time of giving evidence in a difficult cross-cultural environment. Further, I accept the evidence referred to by the Sullivan applicant to the effect that apparent inconsistencies may be explained, at least in part, on the basis of different word usage of ‘ngurra’ or ‘ngurrara’. For example, Mervyn Sullivan explained his understanding of the word ngurra thus:
Ngurra is where you stay, where you live, the Aboriginals call their ngurra. White men call it house – you know what I mean? My ngurra could be a little wiltja anywhere and where I travel you make a ngurra, make a camp there. But it’s still your ngurra. And our ngurra can be places where you’ve travelled and camped around. It’s still your ngurra. Your ngurra can be at home in your house.
I accept that the totality of the evidence shows that throughout her life, Mrs Sullivan did regard the Claim Area as her ngurarra/ngurra and referred to it as such. The evidence in support of this, and objective consideration of her long association and birth country, is set out in detail in 13.4 below.
12.3 Birth and long association of Kitty Nganyi
1044 The Sullivan claimants base their claim on descent from Mrs Sullivan and Mrs Wingrove, who are said to have connections to the Sullivan claim area in their own right and by virtue of their descent, in turn, from their mother, Kitty.
1045 The Sullivan applicant asserts that Kitty, the apical ancestor, had a connection to the Sullivan claim area through the birth and long association pathways.
1046 In relation to the birth pathway, this is based on the contention that Kitty was born at a location called Kaarnka or ‘Little Kaarnka’ which is quite proximate (in Western Desert terms) to the Sullivan claim area.
12.3.1 Kitty’s birthplace – Aboriginal witnesses
1047 In summary, the evidence given by the Aboriginal witnesses as to Kaarnka (also known as Little Kaarnka), relied upon by the Sullivan applicant includes the following:
Mrs Sullivan (from the Wongatha transcript):
[My mother told me she was] from Kaarnka.
[My mother told me she was born at] Kaarnka…That’s south of Lake Baker…So it’s east of Minnie Creek
[My mother] took me there…and showed me the place…It’s a big rockhole…She just said that’s her country. That’s where she’s born, that’s all.
It’s east [from Lake Yeo]…Well, about I think it’s 100 - 100 kilometres from south-east of Minnie Creek
Celia Sullivan:
Back in the 1990s my mother told me the name of that place where her mother was born – she said it was called Kaarnka…The Kaarnka she was talking about is close to Lake Yeo. It’s between Lake Yeo and Lake Rason, closer to Lake Yeo. In around 1996 I went with my brothers out that way to try and find that place. We know where the area is but it’s hard to get through there with vehicles.
Then she never left a landmark or something for me to go and see where she was born. She told us her country that she was born in, and the country is right near Bishop Riley’s Pulpit…My mother talked about that for a long time when I was a little kid growing up…She drew pictures and drew maps in her brain the knowledge that she had of her country…All we knew that she was born in Kaarnka…And she told us she didn’t know the English name. All she did was draw a picture of that hill with a pulpit like that up top.
Mervyn Sullivan:
My kaparli was born at a place called Little Kaarnka…The place where my kaparli was born is not far from this claim area – maybe two days walk or less.
Glen Cooke:
The Sullivans’ kaparli (Mervyn Sullivan’s grandmother) was born near Lake Yeo in a place called Kaarnka. This is not the Kaarnka in the Warburton, Jamieson area. This is a different place. This is the Kaarnka around the Lake Yeo area. It’s not far from Cosmo, not far to walk.
12.3.2 Kitty’s birthplace – Dr Vachon
1048 In addition to the evidence of the Aboriginal witnesses, the expert evidence of Dr Vachon, in his supplementary report of 28 February 2014, which I now discuss in detail, is particularly relevant. In that report, Dr Vachon explains that he first heard of Kitty early in the research for the Wongatha native title claim on 23 May 2000, being the day following his first interview with Mrs Sullivan. He was told by Mrs Sullivan that her mother’s birthplace, or the area of her birthplace, was Kaarnka. He knew that word to mean ‘crow’ in many Western Desert dialects. Mrs Sullivan said that there were two places called Kaarnka, one of them was 160 km southeast of Minnie Creek, and the other 80 km from Walku corner. Dr Vachon stated that he does not know the location of Walku corner, but, if it exists, he believes it to be well east of the Claim Area.
1049 Mrs Sullivan explained to Dr Vachon that she had been taken to her mother’s birthplace once, when Mrs Sullivan was a little girl. She was walking with her mother at the time as well as, it seems, with other Wangkayi people. As only Aboriginal persons were there at the time and this was an area which was far from any European settlement, Dr Vachon took it that they were at Kaarnka in the course of hunting and gathering pursuits. Mrs Sullivan had never gone back to her mother’s birthplace.
1050 When Dr Vachon interviewed Mrs Sullivan she was, by her estimate of her birth date, in her late seventies. Therefore he took Mrs Sullivan’s location of Kaarnka to be an estimate based on recollection of an early life experience. In this regard, it was his view that in his experience with working with Western Desert people, particularly senior men and women, their reckoning of distance in Western terms of miles and kilometres can be quite inaccurate. Further, when such people describe a place as being ‘east’, like Mrs Sullivan did, it could be better translated as ‘eastward’.
1051 He was told of two places called Kaarnka by other Wongatha or Wangkayi people as well. Often his informants made distinctions between these two locations by calling the most western Kaarnka, (the one that he takes to be the place Mrs Sullivan described as 160 kilometres southeast of Minnie Creek) as ‘Little Kaarnka’. The other Kaarnka was usually said to be east of Warburton. He has received no information from any of his informants about any other site in a broad area from Mt Margaret and Warburton with the name Kaarnka.
1052 Dr Vachon expressed the view that there was no doubt that the place Mrs Sullivan said was the birthplace of her mother was Little Kaarnka, however, despite his best efforts, he was unable to find anyone in the region of the Northeast Goldfields to given him a precise location of the place. He did find some reference in two sources to a site that may be Little Kaarnka. One was in the field notes of AP Elkin, who conducted research at Mt Margaret Mission in November 1930. He recorded a list of 22 place names and one of those, number 18, was ‘Kanga’ - but Elkin gives no indication of this site’s location or even known places that are nearby. Mr Norman Tindale’s record of what may be this ‘Little Kaarnka’ provides some better detail. He associated a site spelt as ‘Ka:nga’ or ‘Karnga’ with two women, neither of whom was Mrs Sullivan’s mother. On one of his 1939 genealogies taken at Mt Margaret Mission he wrote below the name of a woman called Alice (Aboriginal name, Jambi), ‘E of Karnga, wh [waterhole?] is E of Burtville, WA’. The second woman, Dinah, was described by Mr Tinsdale as ‘fb [full blood] of Karnga’; and he writes beneath this place: ‘E[ast] of Burtville & ESE of Minnie Creek c 200m from Mt Margaret. sandhills & big hill there’. Dr Vachon notes that if you take a bearing straight east for 200 miles (320 km) from Mt Margaret its intersection with a line running east-southeast from Minnie Creek would place the site about 40 km southwest of Neale Junction and to the west of the Neale Breakaways. This would be about 115 kilometres from the southeast corner of the claim area. These are estimates of Mr Tindale taken from Mt Margaret; he did not actually visit Karnga. In his attempts to get a more accurate location, he may have used some of his own maps when interviewing people, but he does not explain whether or not this was so.
1053 The ‘Alice Jambi’, described by Mr Tindale (modern spelling, Yampi), in Dr Vachon’s view, is the father’s mother of the Yilka applicant, HM. Of greater relevance for the Sullivan applicant is that, according to Mrs Sullivan, Yampi is the sister of Kitty, Mrs Sullivan’s mother. In Dr Vachon’s experience in the Western Desert, it is not unusual for siblings, especially those who are deceased at the time the information is elicited, to be said to have been born in the same area. Mrs Sullivan said her mother was born at Kaarnka, and Mr Tindale associated Yampi with east of a place of the same or similar name.
1054 Mr Tindale used the words ‘Nangata’ and ‘Nangatadjara’ to identify Dinah and Alice Yampi respectively. This is the name of one of the tribes that Mr Tindale recorded for the region. He describes the area for this tribe as extending from just outside Burtville and Lake Minigwal to the Jubilee Lakes in the far east, and to the northern tip of Lake Throssell in the northeast. Lake Rason and Lake Yeo are in the middle of the Nangatadjara territory as is Neale Junction. Dr Vachon notes that since Baker Lake and Warburton are well to the northeast of this ‘tribal’ territory, it would suggest that Kaarnka is some distance south and west of these places.
1055 From this information, Dr Vachon was only able to conclude that Mr Tindale gave information about a site that, by Mr Tindale’s spelling and estimated location, was very likely the Little Kaarnka he had recorded for Mrs Sullivan as her mother’s birthplace. Mr Tindale placed that site about 320 km east of Burtville and SSE of Minnie Creek, in an area about 115 km from the Yilka claim area boundary at its southeast corner. That would place Kaarnka as well south of Lake Baker and Warburton.
1056 Dr Vachon also referred to the more recent visit by Dr Cane to a site that he was told was called Kaarnka by his Aboriginal informants. Dr Cane located it as the mesa called Bishop Riley’s Pulpit, which is a site on a crow Tjukurrpa. The track of the Tjukurrpa goes to Bishop Riley’s Pulpit from the south (with the mesa itself being the transformation of the crow woman) and continues in a north-easterly direction, but not as far as Baker Lake. Dr Vachon says this would place Kaarnka or Bishop Riley’s Pulpit about 35 km from the eastern boundary of the Yilka claim area, which is much closer than Mr Tindale’s estimated position of Kaarnka.
1057 Dr Vachon notes that Dr Cane seems to have received information from Mrs Sullivan that her mother was born at Kaarnka and ‘coming from the Lake Yeo area’. Dr Cane made the point that if this site was the same as the one that Mrs Sullivan says is her mother’s birthplace, ‘then the location of the site orientates the location of her mother’s country, although it does not locate it’. This is because, according to Dr Cane, ‘there may be a number of places called Kaangka [sic] along the Tjukurrpa associated with the site called Kaangka that we visited’.
1058 Dr Vachon agrees with Dr Cane that in certain contexts people may refer to a site on a Dreaming track by the name of the Dreaming, but usually this would be in addition to the name of the site, which varies from site to site. Dr Vachon took into account the possibility that the name Bishop Riley’s Pulpit, being a site on the Kaarnka Dreaming track, was not known to Dr Cane’s informants, but they did know it was on that Dreaming, so they referred to it as Kaarnka. In his view, however, he considers that the site known by Mrs Sullivan as ‘Kaarnka’, which Dr Cane suggests is in the vicinity of Bishop Riley’s Pulpit, has only one name.
1059 Dr Vachon makes four points about the observations of Mr Tindale and Dr Cane. The first was that Mr Tindale recorded a place called Kaarnka in 1939 from informants who lived in the area of that site, and therefore would have known its name. That site, located only approximately by Mr Tindale, was said to be southeast of Minnie Creek. Bishop Riley’s Pulpit is in that direction, although it is closer to Minnie Creek than Mr Tindale’s estimate. Secondly, Mr Tindale did not record and approximately locate any other site in a wide area between Mt Margaret and Warburton by the name ‘Kaarnka’ (or similar). Thirdly, as Dr Vachon had been told by a number of Aboriginal people in the Northeast Goldfields, there are two sites called Kaarnka, but no more than two, and one of these is east of Warburton. Dr Vachon notes that Dr Cane provides information for only one site named Kaarnka, not several. Finally, Dr Vachon says that there is no evidence at hand that there is more than one site called Kaarnka in the Lake Yeo area, being the area that Dr Cane records Mrs Sullivan’s mother as coming from. Comparing Dr Cane’s more precise location for a site named Kaarnka with Mr Tindale’s description and estimates of Kaarnka, there is considerable similarity between the descriptions of the environs, such as there being a hill (which may refer to Bishop Riley’s Pulpit, a flat-topped hill) and its location.
1060 Dr Vachon also notes that Mrs Sullivan gave evidence concerning her mother’s birthplace as Kaarnka during cross-examination in Wongatha. She was asked the location of Kaarnka ‘from Lake Yeo’, to which she replied that it was ‘east’. When she was asked how far east, she said that she thought it was ‘100 kilometres from south-east of Minnie Creek’. This would place Kaarnka south of Lake Yeo and just north of Lake Rason. However, Mrs Sullivan told Dr Vachon at his second interview with her that her mother’s birthplace, Kaarnka, was 160 kilometres southeast of Minnie Creek, which would place it further from the Claim Area. When asked in examination in chief in Wongatha about Kaarnka, her mother’s birthplace, she gave two answers. She was asked where her mother was from and Mrs Sullivan said ‘Kaarnka’. When she was asked if her mother described any other place as well which she was from, Mrs Sullivan answered ‘Just Kaarnka, that’s all. Just south of Warburton’. Mrs Sullivan subsequently said she thought it was south of Lake Baker and east of Minnie Creek.
1061 As Dr Vachon notes, Bishop Riley’s Pulpit is certainly south of Warburton and it is also south of Lake Baker. Why Mrs Sullivan said ‘just south of Warburton’, implying that Kaarnka was close to Warburton, was, he said and I agree, impossible to say. Mr Mervyn Sullivan, at the December 2013 hearing, said that he had not heard from his mother that Kaarnka was south of Warburton, but rather, his mother had said to him that Kaarnka was south of Baker Lake and north-northwest of Neale Junction. It may be that Mrs Sullivan meant by her evidence to distinguish that Kaarnka from the other supposed Kaarnka east of Warburton.
1062 It is the case, as the Yilka applicant points out, that none of Mrs Sullivan’s children have been to Little Kaarnka and they only know its general location. Mervyn Sullivan said that his mother had told him that Kitty was born east of Lily Rockhole, and also said that Kitty was born at Little Kaarnka. From what his mother told him, Mervyn Sullivan estimated the site to be quite a long way south of Baker Lake and maybe two days’ walk or less from the Claim Area. In Celia Sullivan’s view, Kaarnka is ‘between Lake Yeo and Lake Rason, closer to Lake Yeo’. This varies from Mervyn Sullivan’s estimate, but does put Kaarnka closer to Bishop Riley’s Pulpit. Irwin Sullivan said that he was told by his mother that ‘her mother was born at a little waterhole out from Pt Salvation’.
1063 While the precise location of Mrs Sullivan’s mother’s birthplace is still, as Dr Vachon says, an open question, there is nonetheless some consistency on the information as to its approximate location. Comparing the findings of Mr Tindale and Dr Cane, along with the statements by Mrs Sullivan identifying the site of her mother’s birthplace by the name of Kaarnka as being located in a south-easterly direction from Minnie Creek, Kaarnka may be as close as 95 km from Minnie Creek (based on the location of Bishop Riley’s Pulpit), or as far as 190 km, being Mr Tindale’s approximate location of Kaarnka. This would put the site of the birth 35 km to 115 km from the Claim Area boundary.
1064 It is important to recognise that the case advanced for the Sullivan applicant, as explained in Pt 6 above, is that the birth country ngurra is not confined to the precise actual place of birth, but rather, comprises a ‘constellation of sites’ surrounding a birthplace linked by foraging and watering places. In view of the need for survival in the harsh desert environment, the constellation of such sites frequented by a child’s parents necessarily extends a considerable distance from the actual place of birth.
1065 The Sullivan case is that on the basis that Kitty was born in the Lake Yeo area near Bishop Riley’s Pulpit, her birth country ngurra almost certainly extended to the eastern part of the Sullivan claim area. Her extensive association with and knowledge of the Sullivan claim area (discussed in detail below) further supports the inference that the constellation of sites linked to her birthplace extended west into the Sullivan claim area.
1066 Celia Sullivan explained in her cross-examination that her mother told her that Kaarnka was already part of Kitty’s country through her ancestors and that Mr G Sullivan (deceased) explained that it was her country because ‘She was born there … Because she’d lived around that area … that’s where she come from’. He confirmed this was the area where his mother’s mother, Kitty, was ‘born and where she grew up’.
1067 The way that the Yilka claim has been put, and evidence given by the Yilka witnesses, supports a conception of birth country as not being confined to a specific location. The Yilka applicant has not mapped the geographic extent of the rights held by the descendants of each ancestor; it appears to contend that if an ancestor was born on the Claim Area then their descendants can can assert ‘my country’ rights and interests throughout the Claim Area or at least large parts of it. Significantly, the Sullivan applicant contends that it is likely that the distance from Kitty’s birthplace to many locations on the eastern parts of the Claim Area is considerably less than the distance from the birthplace of some relevant Yilka ancestors to places claimed by the relevant Yilka descendants based on the birthplace of their ancestor. This submission seems to be correct. So, for example, if Kitty’s birthplace was located at 35 kilometres from the eastern boundary of the Claim Area, then it would be substantially closer to many places in the eastern part of the Claim Area than the Cosmo Newberry Community, for example, is to Minnie Creek (about 80 km) Dorothy Hills (about 100 km) and Point Sunday (about 120 km). The Sullivan applicant submits that, by applying similar principles as to the magnitude of birth country as the Yilka claimants, all or at least an extensive portion of the Sullivan claim area is within Kitty’s birth country ngurra. This is supported by the evidence of her walking to, living at and knowledge about sites within the Sullivan claim area, which is more detailed than similar evidence regarding many of the Yilka ancestors.
1068 This conclusion appears to be consistent with that reached by Dr Vachon in his report of 28 February 2014, where he notes that, in giving evidence at the Wongatha hearing, Mrs Sullivan’s account of her mother’s ‘country’ (ngurra) was not without contradiction. That was because at times Mrs Sullivan would say that her mother’s ngurrara was a single place and other times she would say that her mother’s ngurrara was made up of many places. Dr Vachon noted that this is a common occurrence with Western Desert people when they speak of their own or a close relative’s ‘country’. Dr Vachon explains that, as a single place, Mrs Sullivan said her mother’s ngurrara was where she was born. This was a place called Kaarnka and, as discussed above, is (most probably) located in the vicinity of Bishop Riley’s Pulpit and Lake Yeo. Elsewhere in evidence Mrs Sullivan had made reference to her mother’s ngurrara being at Talintji, Minnie Creek and many other places in the Yilka claim area. She also said that her mother’s ngurrara was from Kaarnka to Laverton. A number of the anthropologists have commented upon Western Desert people in similar, even the same, terms in different ways depending upon the particular context of discussion. This may be such an example.
12.3.3 Kitty – long association
1069 Turning specifically to the ‘long association’ pathway in relation to Kitty, Mrs Sullivan gave detailed accounts of her mother’s physical association with places on her ngurrara which are located in the Sullivan claim area. For example, she explained that before coming into Laverton as an unmarried teenager, Kitty and some of her relatives found a white man’s body at Point Salvation. They had walked from Neale Junction. Mrs Sullivan also gave evidence that Kitty took her to many places on the Sullivan claim area while foraging, travelling and camping. In the course of this Mrs Sullivan learnt of the cultural value of these places from her mother. For example, Mrs Sullivan told the story of her mother collecting pukara before sunrise at Nanirri and Tatjarn and ululating/singing as she did so. She told of her mother and her father, Martipu, going off hunting when they were near Talintji. Mrs Sullivan said that when she was a child, presumably with her mother, she witnessed a ceremonial gathering at Wartu/Rutters Grove. There were other examples of events and memories at various locations on the Sullivan claim area. Mrs Sullivan also explained that Kitty buried one of her husbands, Mungalu Harris, at Minnie Creek. Around that time she gave birth to Charlie Winter at that location. Mrs Sullivan was present as a little girl. Mrs Sullivan gave evidence that Kitty gave birth to her other daughter, Mrs Wingrove, in the vicinity of the Cosmo Newberry Community.
1070 Also, according to Mrs Sullivan, Kitty possessed knowledge of the Tjukurr of the Claim Area. Her account was, according to the Pannell Wongatha Field Notes as set out in Dr Vachon’s 2014 report:
My mother’s country includes that Paruta and Mapa, my mother knew all those places. My mother knew that tjukurr but can’t talk about it, because only people who go through circumcision law know that tjukurr.
1071 There was no suggestion from Mrs Sullivan or anyone else that Kitty was a ‘stranger’ to the Sullivan claim area, was just passing through the Sullivan claim area or needed to seek the permission of anyone to enjoy the resources of the Sullivan claim area. It would seem, Dr Vachon suggests, that Kitty knew the location and names of places on the Sullivan claim area as well as their indigenous value in some detail. She, in turn, passed on this knowledge to her daughter, Mrs Sullivan.
1072 As Dr Vachon notes, Mrs Sullivan’s detailed recollections of sites in the Sullivan claim area that she visited with her mother, as well as the number and geographic spread of such sites, suggests intensive use and occupation. The accounts by Mrs Sullivan do not invite a conclusion that she and her mother were travelling through the Sullivan claim area merely to get from one place to another, a possibility (only) raised by Dr Sackett. Dr Vachon’s view, which I accept, is that Mrs Sullivan’s accounts of her mother’s connection to the Sullivan claim area is supportive of a conclusion that Kitty had a ‘long association’ with this land and waters such that it was a pathway that gave rise to rights and interests in the Sullivan claim area.
1073 There is further support of this conclusion from the statements from Kitty’s grandchildren. In his affidavit Mervyn Sullivan claimed that his mother ‘would talk a lot about how her and her family lived off the land around Marntjal and Talintji’. He recounted a story told to him by his mother concerning an experience she had at Nanirri with her brother, Charlie Winter, their mother and Mr Winter’s father. Mervyn Sullivan said that his mother told him her mother, Kitty, went back to Minnie Creek a year after Charlie Winter’s father died to dig up the bones to determine the cause of death. Mervyn Sullivan also said that his mother, Mrs Sullivan, told him that Kitty was buried traditional way at Puntitjarra, just east of the Cosmo Newberry Community.
1074 In short, three of Kitty’s grandchildren contended their mother, Mrs Sullivan, told them that Kitty’s country extended into the Sullivan claim area. Irwin Sullivan said, without reference to Kitty, ‘[m]y mother told me that they spent time in the Cosmo area because it was all part of her mother’s country’. Celia Sullivan said that when her mother was little girl she would walk around with her mother, Kitty, ‘all around the Sullivan claim area. It was their territory so they could do this. They wouldn’t have been able to do this if it wasn’t their country’. Mervyn Sullivan also regarded his mother’s country in the Cosmo area to be his grandmother’s country as well.
1075 The Sullivan applicant makes the following submissions. Insofar as long association is concerned, the Sullivan applicant submits that the Aboriginal evidence shows that Kitty had an intense and long association with the Sullivan claim area. This not only provides support for the contention that the Sullivan claim area is part of Kitty’s birth country ngurra; but also supports the conclusion that, to the extent, if any, that Kitty’s birth country ngurra rights did not extend to all the places she walked and lived within the Sullivan claim area, she gained ngurra rights to such places through the long association pathway.
1076 The Sullivan site map shows the sites that Kitty knew, travelled to and between, lived at, cared for and passed on traditional knowledge about. The pattern of these sites and the evidence about the sites is more consistent with living intensively over extended periods of time on the Sullivan claim area, moving between rockholes and other water sources and hunting and gathering sustenance to survive. The pattern of sites and the evidence about the sites on the map, with special regard to the substantial distances in desert conditions, is not consistent with simply travelling across the Sullivan claim area for the purpose of getting from A to B.
1077 The Sullivan applicant submits that the evidence establishes the following aspects of Kitty’s association with the Sullivan claim area:
(a) Her place of birth was relatively close to the Claim Area (likely to have been about 35 km to the east, although it may have been as far as 115 km).
(b) She lived for many years on the Sullivan claim area in a very traditional manner, living in the bush, walking between the rockholes and gaining sustenance from the country in accordance with longstanding custom. Her children Mrs Sullivan, Charlie Winter and Mrs Wingrove also lived in this way on the Sullivan claim area with their mother, during their early childhood.
(c) She gave birth to two of her children in the bush on the Sullivan claim area, and another in the bush relatively near the Sullivan claim area. The dates of the births ranged from approximately 1920 (Mrs Sullivan), mid 1920s (Charlie) and 1933 (Mrs Wingrove). The fact that all three of her children were born in or near the Sullivan claim area, together with other evidence about the time she spent with these three children on the Sullivan claim area, strongly suggests that it was likely Kitty spent most of her adult life in or near the Sullivan claim area. She raised her three children in the bush in a traditional manner during their early years.
(d) This may be contrasted with the long journey Mrs Sullivan said she went on towards the South Australian border with her mother and others. She described this as a one-off trip. ‘There was only the one big trip. We went and come back’.
(e) Kitty had an extensive traditional knowledge of the physical and spiritual landscape within the Sullivan claim area and passed on this knowledge to her children.
(f) Kitty was living at Puntitjarra in her older years before she died there and was buried there in a traditional manner.
1078 The supporting evidence on which the Sullivan applicant relies to demonstrate the long association of Kitty to the Sullivan claim area includes, as reflected in the Sullivan Edwards Sites Evidence Summary, attached to these reasons as Annexure 8:
(a) Mrs Sullivan gave extensive evidence about her mother’s association with the Claim Area. She was very explicit and precise about the sites that her mother regarded as being part of her ngurrara. This evidence situates most if not all of the Sullivan claim area within Kitty’s ngurra.
(b) Mr G Sullivan (deceased) described his mother’s mother’s country to include White Cliff, Point Salvation, Talintji, Lake Yeo, towards the Victoria Desert. He explained that it was her country because ‘She was born there … Because she’d lived around that area…that’s where she come from’. He confirmed that this was the area where his mother’s mother ‘was born and where she grew up’. [He mentioned that Cosmo was part of his mother’s mother’s country.]
(c) Celia Sullivan said:
My mother said before she was born her mother and a little group of family found a skeleton in a cave at Rutter’s Grave…That was back in the early 1900s and shows how in those days my kaparli Kitty was walking around in the Cosmo area.
My mother’s country includes the Cosmo area because her mother (my kaparli) was born near there and roamed through all that country with my mother when she was a little girl. They lived on that country in the traditional way, living on bush tucker. They had no blankets, they walked around with no clothes. They made fire with a flint and spinifex. At night they’d make a big fire then scrape out the coals and make a nice warm place for sleeping. They camped in wiltjas and they walked around everywhere, hunting and collecting bush tucker and moving from kapi (water place) to kapi. They knew all that country and where to go and where to stay away from. They would communicate with other family groups by making smoke. Under our culture all this shows that my mother and my kaparli belonged to that country and had traditional rights to live on that country, it was their ngurra and that why it’s my ngurra too. In those days people didn’t cross over into other peoples’ country. They stayed in their own ngurra. So if anyone says Cosmo wasn’t my mother’s country or my kaparli’s country then they’ve got it wrong. My kaparli was buried at Puntitjarra and this also shows that she was from there, that it was her traditional country.
Rhys Winter is included on the Yilka claim so it doesn’t make sense that they haven’t included my mother and my auntie [Mrs Wingrove], who were Rhys’s father’s sisters, all from the same mother. They all roamed around together in the Cosmo area as one family. We have the same traditional rights to the Cosmo area as Rhys and we should all be included when it comes to talking for the country and making decisions about it.
(d) Mervyn Sullivan said:
My mother said she walked around her country with her mother until she was pretty big, maybe about 11 or 12 years old. She said that her country was from White Cliffs Station to around where the Cosmo Newbery community is today, from there to Limestone Well, Mapa, Dorothy Ranges, Pirlpirr, Talintji and around Yamarna. She also said her country was Lake Yeo. There are a lot of other places in between that are part of her country.
(e) Patrick Edwards said:
The Cosmo area was my kaparli’s ngurra because she was born not too far away from there and she walked all through that country before my mother was born and after my mother was born. She drank from all the rockholes, she lived off the land and she practised her culture there with her family, walking around from place to place. They wouldn’t have been able to do that if it wasn’t their country. So it’s also my mother’s ngurra and my ngurra. We are owners of that country, traditional way.
(f) Doreen Harris said:
I always heard that Mrs Sullivan’s mother belonged to that country around Cosmo. It was her ngurra and that’s why she walked around there with her children, and that’s why she was buried there, at Puntitjarra. That means her koordi stays there.
(g) Irwin Sullivan said:
My kaparli (grandmother) Kitty was walking around with my mother when my mother was a girl and there were others with them too. My mother told me that they spent time in the Cosmo area because it was all part of her mother’s country…My grandmother’s yiwarra (the tracks she walked from kapi to kapi) included the Cosmo area (our claim area).
My kaparli took my mother around these places when my mother was a child. They were walking around living off the land, moving from kapi to kapi along my kaparli’s yiwarra (pathways), backwards and forwards moving all around the Cosmo/Yamarna area back to White Cliffs and Tjiran rockhole and some other places too.
(h) Glen Cooke said:
The Sullivans’ kaparli (Mervyn Sullivan’s grandmother) was born near Lake Yeo in a place called Kaarnka. This is not the Kaarnka in the Warburton, Jamieson area. This is a different place. This is the Kaarnka around the Lake Yeo area. It’s not far from Cosmo, not far to walk. She lived all around the Cosmo area. She had her daughter with her, the Sullivan’s mother, and they were roaming through this country, traditional way. It was their country. They would never go across to other man’s land which is outside their country. They wouldn’t have been able to live there and roam around like they did on other man’s country.
She [Kitty] died in a place called Puntitjarra on the Great Central Road. That’s where she is buried. She was buried on her own homeland.
12.3.4 Yilka applicant submissions in relation to Kitty
1079 In relation to the claim through Kitty, the focus of the Yilka applicant is on Kitty’s birthplace. The Yilka applicant is very critical of the quality of the evidence in support of a conclusion that Kitty’s birthplace is in the vicinity of Bishop Riley’s Pulpit, and has advanced very detailed submissions on this topic. The Yilka applicant argues that there has been a substantial shift in the nature of the evidence given about Kitty’s birthplace from the Wongatha proceeding to the present proceedings. Mrs Sullivan’s connection to Kitty is obviously closer and more direct than that of any other person whose evidence may be relevant to the issue. It appears that Kitty died before any of Mrs Sullivan’s children were born, and certainly, before Celia Sullivan was born in 1955. Unlike other persons, Mrs Sullivan actually visited Kaarnka, albeit only once and when she was a little girl. The Yilka applicant says that in these circumstances, the firsthand statements by Mrs Sullivan about the location of Kaarnka should be accorded greater weight than second-hand accounts given by others of what Mrs Sullivan told them. The Yilka applicant also stresses that HM has given evidence in the Yilka proceedings that, other than recently as part of the Yilka and Sullivan proceedings, he had not been told that Mrs Sullivan’s mother was born near the Claim Area.
1080 The word ‘Kaarnka’ is not used in the body of the reasons of Justice Lindgren in Wongatha. There are, however, references to it in Annexure F of his Honour’s reasons in relation to various witnesses, namely, Jessie Evans, Darren Mason, Janice Scott, Mrs Sullivan and Mr G Sullivan (deceased). The Yilka applicant says it is apparent, when examining those paragraphs, that the first three witnesses were referring to a different place called Kaarnka. While Mrs Sullivan and Mr G Sullivan (deceased) referred to a place called Kaarnka, the other Sullivan witnesses at the Wongatha hearing did not mention Kaarnka, nor did Patrick Edwards, who is also descended from Kitty. Mrs Sullivan referred to Kaarnka as her mother’s birthplace and as part of her country and ngurrara. Mr G Sullivan (deceased) referred to Kaarnka as a place which his mother told him was part of the country, but, he did not specifically identify it as Kitty’s birthplace. Patrick Edwards’ evidence in Wongatha was that Kitty came from Baker Lake, but in the present proceedings he said that he was unsure whether she was born there or not. The Yilka applicant says that is surprising that Kaarnka was mentioned so little at the Wongatha hearing, particularly given that it is fundamental to any claim by members of the Sullivan and Edwards families based on Kitty’s birthplace, and, if the site is where it is now said to be, it would have been well inside the Wongatha claim area. It is difficult to understand, as the Yilka applicant contends, why there was not more evidence about it from the members of the Sullivan and Edwards families and also by way of supporting evidence from other Wongatha witnesses. The name ‘Little Kaarnka’ was not used in the body of the reasons of Justice Lindgren, nor was it mentioned in Annexure F to his Honour’s reasons. It does not appear that it was referred to in the Wongatha transcripts. Notwithstanding this; there has been a heavy emphasis on Kaarnka (or ‘Little Kaarnka’) being Kitty’s birthplace in the current proceedings.
1081 While the Yilka applicant does not challenge the proposition that Kitty was born at a place called Kaarnka, it does not wish to be taken as accepting that Kitty’s birthplace is also known as Little Kaarnka, saying that the usage of that term has not been adequately explained by the evidence. When it was put to Celia Sullivan, in the present proceedings, why the term ‘Little Kaarnka’ was not used in 2002, her response was that ‘[n]obody asked about it’. The Yilka applicant says this is a rather unsatisfactory reply, but I think this observation may be to overestimate the comfort and familiarity with the adversarial trial process of the witnesses in the previous proceedings.
1082 While accepting that Kitty was born at a place called Kaarnka, its location remains mysterious, according to the Yilka applicant’s submission. The Yilka applicant contends that the references to Bishop Riley’s Pulpit are not particularly helpful, and indeed that it would not be possible for the Court to find that Kitty was born in the vicinity of Bishop Riley’s Pulpit. There is no reference to Bishop Riley’s Pulpit in the body of the reasons of Justice Lindgren in Wongatha. There is reference in Annexure F of those reasons, but it is not relevant to Kitty’s birthplace. It is not apparent that there was reference to Bishop Riley’s Pulpit in the Wongatha transcript, nor indeed, in the affidavits of any of the Sullivan witnesses in the present proceedings. There was mention of it in the oral evidence in these proceedings by two of the Sullivan witnesses, the first being Mervyn Sullivan who, when asked whether Little Kaarnka has a white fella name, replied ‘I think it’s near that Bishop Riley’s Pulpit’. The second was Celia Sullivan, who gave the evidence referred to at Pt 12.3.1 above, although the Yilka applicant points out that the name Bishop Riley’s Pulpit was introduced by counsel rather than the witness.
1083 The Yilka applicant says that her evidence is confusing and inconsistent. I am not sure that I agree. The answer ‘[s]he told us her country that she was born in, and the country is right near Bishop Riley’s Pulpit’ can be taken two ways. The answer does not necessarily mean that the expression Bishop Riley’s Pulpit was used by Kitty herself, but rather that there was a description of the country and, as a matter of fact, the country is right near Bishop Riley’s Pulpit. That does not necessarily mean that the term Bishop Riley’s Pulpit was used at the time. In my view, the Yilka applicant is dissecting this transcript with greater zeal than it would encourage in respect of his own witnesses’ testimony.
1084 The Yilka applicant observes that the picture of the hill with a pulpit like top has not been produced. The Yilka applicant submits that any suggestion that Kitty was born near a prominent or well-known landmark lacks credibility. If that had been the case, the Yilka applicant argues, no doubt Kitty and Mrs Sullivan would have described their country by reference to it and would have done so in a generally consistent manner. It is argued that before Dr Cane’s trip to Bishop Riley’s Pulpit in 2012, it was not considered by anyone that Kitty’s birthplace could or should be located by reference to Bishop Riley’s Pulpit. It is also noted that neither Bishop Riley’s Pulpit nor Kaarnka appears as a numbered site on the Sullivan site map, even though several other sites lie outside the Claim Area. The answer to this is that the sites are identifying different evidence, and that the exact location of Kaarnka is not known.
1085 The Yilka applicant does not accept that Kitty’s birthplace was located near Bishop Riley’s Pulpit. It does accept that the location of Bishop Riley’s Pulpit fits broadly within the descriptions given by Mrs Sullivan of Kaarnka, being ‘east of Minnie Creek’ and ‘100 kilometres from southeast of Minnie Creek’. Bishop Riley’s Pulpit is located almost due south of the eastern end of Lake Yeo, but, loosely speaking, it could be described as being east from Lake Yeo or on the other side of Lake Yeo, as it was by Mrs Sullivan and Mervyn Sullivan.
1086 However, the Yilka applicant points out that the proposition that Kitty was born near Bishop Riley’s Pulpit is simply inconsistent with other evidence given in the Wongatha proceedings, namely, statements that Kaarnka is outside the Wongatha claim area (made by senior counsel for the Wongatha application), Kaarnka is just south of Warburton (made by Mrs Sullivan), Kaarnka is south of Lake Barker (made by Mrs Sullivan) and Kaarnka is 160 kilometres southeast of Minnie Creek (as recorded in Dr Vachon’s field notes based on an interview with Mrs Sullivan). None of the witnesses called in that proceeding or in the current proceedings identified Kitty’s birthplace as having any crow dreaming affiliations, although some witnesses did say that Kaarnka means ‘crow’.
1087 Dr Cane said that the site he visited called Kaangka ‘may’ have been the area referred to by Mrs Sullivan as her mother’s birthplace, but he could not say for sure that it was Kitty’s birthplace. He explains that statement thus:
[W]hen I went down to talk to [Mrs Sullivan] it was probably 2002. I was taken down there by senior people from Warburton who are – who are the sort of people to follow previous questions that you would talk to for advice about who belongs where. And they took me down to talk to [Mrs Sullivan] because they thought her country was between Yeo Lakes and Baker Lake. So, that would put it, you know, to the north, but consistent with the Kaangka Dreaming Track. And that would make more sense to me.
1088 He later returned to this topic, but it is rather unclear as to what (if any) conclusion he reached regarding Kitty’s country, saying:
And then my second encounter with [Mrs Sullivan] is when I interviewed her and was taken there to talk to her by people from Warburton in relation to that connection between country and between Lake Yeo and Baker Lake. Then there’s this - so, that was my understanding this is someone that had a broad perspective of country which could link her to Kaangka number one near the claim area or Kaangka number two, a long way away. .
And I think in the Lindgren evidence there’s some reference to people - to the family saying they had country out near Neale’s Junction which would - slightly confuses the picture further, but I can’t remember if that’s actually said in Lingren [sic].
Then my discussions with [Mrs Sullivan] confirmed that relationship between - in the spinifex country, and maybe she was – that, you know, the ancestral people came in with that first group of, you know, Spinifex people that the claim was talking about. I don’t know. And – but her – her – when I discussed that with her some years ago, she did – that was the indication she gave, her country wasn’t Cosmo but it was that country between Lake Yeo and Baker Lake.
…
So, I then go out into the bush then last year and actually go and visit Kaangka or the Dream like Kaangka, and so now I’ve got a different perspective as well. I hadn’t realised when I was on the field how close Kaangka was to the claim area, and when I came out of the field and just looked at it on a map, I’m thinking goodness me, that’s actually very close to the claim area. And if that was her country and she was born there, the claim area will be I would have thought, in her patch.
So, then I might now think that she’s actually Ngurangka or Ngurritja or her country is just on the side of the claim area, and if the claim area actually only goes to the boundary, then her claim – her country might be right. Next to it, just outside it, it might be – her family might be applicants to a claim that might one day be lodged over that gap area where there currently isn’t a claim.
So, I know that’s a very confusing account, but I’m more inclined to think she is associated with the claim area than I was, and I’ve always thought, and I could not quite – I couldn’t quite understand why family members weren’t recognised as having some rights in the claim area in the first place, given that there’s evidence that they camped and have lived in it and travelled through it. So, if they’re not my country land holders, and I don’t think they properly are within that claim area, but I accept that they’re adjacent to it.
HIS HONOUR: What do you mean by adjacent roughly?
SCOTT CANE: Pardon?
HIS HONOUR: What do you mean by roughly adjacent?
SCOTT CANE: Adjacent within 10 kilometres, you know, approximately right on. I mean if they’re – it depends – you would have – I would have to do fieldwork because the configuration of the country there is curious. It comes off the pediment and into the lake which is, you know, sacred, and then it goes into sand dune country. So, the orientation might have gone with the salt lake into the – into the country. It might have gone with a Dreaming Track away through the dunes. I don’t know. That’s the difficulty but - - -
HIS HONOUR: Fairly close?
SCOTT CANE: But fairly close, absolutely. I mean, you’d be – you’d be picking, you know.
1089 The Yilka applicant contends that, to the extent the Sullivan case depends upon Kaarnka being located near to Bishop Riley’s Pulpit, it involves implausible factual propositions and an absence reliable evidence as to the proximity between Kaarnka and Bishop Riley’s Pulpit, given that none of the present witnesses have been to Kitty’s birthplace and Mrs Sullivan went there only once as a little girl and did not locate her mother’s birthplace by reference to Bishop Riley’s Pulpit. If Kitty’s birthplace is distinct from the place visited by Dr Cane, the distance given by Dr Vachon between Bishop Riley’s Pulpit and the nearest part of the Claim Area is irrelevant, says the Yilka applicant.
1090 The Yilka applicant contends that if, contrary to this submission, the Court were to accept that Kitty was born at Kaarnka in the vicinity of Bishop Riley’s Pulpit, there is a question about the quality of the connection of the members of the Sullivan claim group to that place. That is, whether it can be said that they have, and have maintained, a connection to Kitty’s birthplace in circumstances where none of them has been there and Mrs Sullivan went there only once, its exact location is not known, and its Dreaming affiliations, if any, are not known. The Yilka applicant relies on the following extract from Bodney (at [171]) in regard to this:
Fourthly, though the connection inquiry requires the formal characterisation of the laws and customs we have noted, it equally requires demonstration that, by their actions and acknowledgment, the claimants have asserted the reality of the connection to their land or waters so made by their laws and customs. But the case law on “presence” does illuminate that the connection itself must have a continuing reality to the claimants and that the evidence of how this is manifest is of no little importance in establishing present connection.
1091 The Yilka applicant’s submission appears to rest on a contention that it is necessary to demonstrate that the claimants maintain a connection with the precise location of their ancestor’s birth, as distinct from a connection to the Sullivan claim area generally. There would appear to be many instances in the Western Desert where this would be an unrealistic expectation, and further, this is not what the case law, as exemplified in this extract from Bodney requires.
1092 The Yilka applicant submits that it is not open on the evidence to establish that Kitty and has satisfied the long association criterion. The Yilka applicant emphasises that Kitty appears to have had strong connections to the Baker Lake and Neale Junction areas, and may have spent her early years at one or both of these places. According to the Yilka applicant, the evidence was that it was likely that Kitty was living in Laverton at the time that Mrs Sullivan was born there, or at Windarra with Mungkurti (her husband). To the extent she went to Laverton in her early years, Kitty may have travelled through Cosmo and periodically camped there, but there is nothing to suggest that her presence there would have been of any greater intensity than that of her daughter, Mrs Sullivan, in the early years of her life. The Yilka applicant draws on the evidence given in Wongatha as to trips carried out by Mrs Sullivan, many of which did not include Kitty, predominantly in areas unconnected with her birthplace or the Claim Area.
1093 In relation to Kitty’s burial place, the Yilka applicant raises the issue of whether burial at a place gives rise to rights of their ancestors. The Yilka applicant does not challenge the proposition that Kitty was buried at Puntitjarra. However, it does take issue with the fact that some of the Sullivan witnesses appear to take the view that this must, therefore, have been on Kitty’s country. For example, Doreen Harris says it was Kitty’s ngurra: that is why she walked around there with her children, and that is why she was buried there at Puntitjarra. Celia Sullivan said ‘[m]y kaparli was buried at Puntitjarra and this also shows that she was from there, that it was her traditional country’.
1094 The Yilka applicant is critical of this conclusion, and also submits that the evidence of Mervyn Sullivan on this topic should be treated with caution (it was a topic in a marked up passage requiring it to be adduced in chief with non-leading questioning). Under cross-examination by Mr Evans for the State, Mr Sullivan said that Kitty got sick at Puntitjarra ‘and they buried her when she died there, so they buried her close up’. Mr Sullivan also said in cross-examination that in her older years she was living at Puntitjarra, which he had not included in his affidavit. The Yilka applicant submits that this evidence relates to events prior to Mervyn Sullivan’s birth and should not be accepted as reliable, and that it appears to have been prompted by the immediately preceding discussion about Puntitjarra. In any event, the Yilka applicant says Mervyn Sullivan appeared to accept that people do not always get buried on their country and that in those days people got buried where they died. Mervyn Sullivan agreed that in the old days plenty of people were buried where they died and were not necessarily taken back to their country. He did go on to say that, as a matter of tribal law and custom, if a person was buried on someone else’s country, the descendants of that person become owners of that area. This appears to have no support from any other witness, except for Glen Cooke, who said that when someone passes away in another place, the family of the deceased person have a connection to that place. He said that the connection does not go on indefinitely, but the children and grandchildren have such a connection.
1095 The Yilka applicant submits that it must be acknowledged that people are not all buried on their country, and that consequently the suggestion from these witnesses that burial is an indicator of the location of traditional country, the Yilka applicant submits, must be rejected. I agree that burial at a certain place does not in and of itself give rise to ‘my country’ rights of their descendants; however, I do not find this evidence to be irrelevant altogether.
1096 There would seem to be common ground on the point (on which nothing turns) that it may be the case that the family of someone buried off country has a kind of standing permission to visit the location of the burial or even to expect to be consulted about any disturbances to that specific place for a period of time, but that this does not give rise to ‘my country’ rights.
1097 In my view, it is unsurprising that the precise location of Kitty’s birthplace is not known, in my view. Mrs Sullivan only went to Kaarnka on one occasion when she was a little girl. It does not appear that Kitty and Mrs Sullivan spoke about the location at great length. Indeed, it may be correct, as the Yilka applicant submits, that it was only on one occasion. None of the witnesses in the present case appear to have visited Kaarnka. But the burden of the submissions by the Yilka applicant as to the inadequacy of the evidence to support a finding that Kitty was born at any place in the vicinity of Bishop Riley’s Pulpit is essentially driven by an examination of the evidence in Wongatha as well as, of course, an examination of the findings in Wongatha. It is certainly legitimate to highlight inconsistencies in accounts given on different occasions and this makes the line of submission in relation to previous evidence appropriate, but it does not necessarily mean that there is inconsistency per se between the accounts, nor that differences in the accounts are without explanation. Just as the Yilka applicant would press for latitude in relation to such differences in evidence in the Wongatha proceedings compared with evidence in this proceeding insofar as it touches upon its claim, in all the circumstances that have been described, including the age, the nature of the witnesses and many other obvious factors, a similar degree of latitude needs to be adopted in relation to these submissions concerning the Sullivan applicant’s case.
1098 I cannot be specific as to the precise birthplace of Kitty. There are difficulties (despite the attempts by several witnesses to pin it down) with a conclusion that it was necessarily either at Kaarnka or near Bishop Riley’s Pulpit. That said, I consider that the totality of the evidence favours a conclusion, which I reach, that it was relevantly close to the Sullivan claim area, possibly near Bishop Riley’s Pulpit. While there is some doubt surrounding precise details, on the balance of probabilities, I find that Kitty did possess rights and interests in the Sullivan claim area, both through virtue of her birth country and through her long association with the Sullivan claim area.
1099 The analysis by Dr Vachon in his report of 28 February 2014, which I have set out above, is clearly the result of a great deal of research and balanced consideration of the evidence. The Yilka applicant’s contention that HM had not heard that Kitty was born near the Claim Area does not fully accord with HM’s evidence that he heard Mrs Sullivan give oral evidence in Wongatha, during which, under cross-examination, she said that her mother’s birthplace was Kaarnka, which she thought was about 100 kilometres south-east of Minnie Creek. This would place Kitty’s birthplace about 35 to 40 kilometres to the east of the Claim Area. In the WDCB context this is certainly ‘near the Yilka claim area’ and is also consistent with the location of Bishop Riley’s Pulpit, which Dr Vachon suggested is about 35 kilometres to the east of the eastern claim boundary.
1100 The Yilka applicant does not challenge the proposition that Kitty was born at a place called Kaarnka. Hence, it appears that the location of Kaarnka is the issue. Whereas ‘Kaarnka’ is not mentioned in Justice Lindgren’s reasons, it was the subject of Mrs Sullivan’s evidence in several instances. There was additional evidence in this proceeding given by the Sullivan Edwards witnesses in relation to Kitty’s birthplace, over and above that adduced in Wongatha. This is supplemented by additional information from the Yilka anthropologist, Dr Cane. The evidence in this proceeding is not inconsistent with Mrs Sullivan’s evidence in Wongatha, but is merely more refined. Nor are the various descriptions of the locations of Kitty’s birthplace given in these proceedings inconsistent with one another.
1101 These comments apply equally to the topic of Bishop Riley’s Pulpit. There has never been any assertion that Kitty was born at Bishop Riley’s Pulpit. Indeed, there is no evidence that any of the witnesses who gave evidence in Wongatha knew of the name Bishop Riley’s Pulpit (which is clearly an English term) at the time; rather it was Dr Cane who located Kaarnka as Bishop Riley’s Pulpit. Therefore, the fact that it was not mentioned in Wongatha is of little surprise. The Yilka applicant’s attacks on this aspect of the evidence are unfounded.
1102 Although the Yilka applicant contends that Kitty was not born near Bishop Riley’s Pulpit, I accept the submission for the Sullivan applicant that the weight of the evidence is to the contrary. I refer, in particular, to Mrs Sullivan’s evidence under cross-examination by Mr Hughston SC in Wongatha which was quoted above, and the evidence of Dr Vachon and Dr Cane. Thus, consistent with the geographic extent of the birth country claims made by the Yilka applicant, Kitty would have had ‘my country’ rights in the Sullivan claim area through the birth country criterion. It is impossible to be precise about these things. It is possible that she was born at a greater distance from the Claim Area than Bishop Riley’s Pulpit, but as the Sullivan applicant submits, the key question is whether the area is consistent with the constellation of sites associated with her birth and occupation. In my view that is so. There does not appear to be a strong submission to the contrary on that topic.
1103 I accept the Sullivan applicant’s submissions in relation to Kitty’s long association with the Sullivan claim area, and find that it is more likely than not that Kitty met the long association criterion. I consider that the evidence establishes that, in total, Kitty spent a considerable amount of time in the Sullivan claim area. Evidence about Kitty included living in the Claim Area in the last part of her life, dying and being buried in the claim area.
1104 I accept the Sullivan applicant’s submission, which is not challenged by the Yilka applicant, that the account from Mervyn Sullivan should be accepted that Kitty lived at Puntitjarra in her older years. Rhys Winter, a witness for the Yilka applicant, stated that ‘when [Kitty] was old she lived at Cosmo and she died here. Cosmo was her home when she died. That would be why she got buried here’. This evidence supports Kitty’s long association with the Claim Area and supports the inference that Kitty went to live at Puntitjarra near the Cosmo Newberry Community later in her life because she wanted to be on her own ngurra/traditional country when she died. While I have accepted the submission for the Yilka applicant that burial at a certain place does not give rise to rights in country, I do not understand this to be the case put by the Sullivan applicant.
1105 As the Sullivan applicant points out, while death and burial on the Sullivan claim area are ‘of course insufficient in themselves’ to establish ‘long association’, in the context of the other evidence of Kitty’s association with the Sullivan claim area, her death and burial at Puntitjarra is significant.
12.4 Birth and long association of Mrs Sullivan
1106 Mrs Sullivan was born in the bush on the fringes of Laverton, approximately 45 km from the Sullivan claim area. As discussed above in relation to Kitty, birth country is not confined to the actual site of birth. Mrs Sullivan was taken by her mother to live in the bush in the Sullivan claim area at a very young age, as evidenced by her extensive knowledge of the sites that she walked to and lived at with her mother. Applying the WDCB laws and customs for gaining rights through birth in the manner consistent with the way the Yilka applicant has applied those laws and customs to the situation of the Yilka claimants, she would have birth country ngurra rights within all or at least a substantial portion of the Sullivan claim area, including all the rockholes she travelled around within the claim area as a young child with her mother. As with Kitty, this is particularly so in light of the fact that a reasonable amount of evidence was given about her walking to, living at and passing on traditional knowledge about sites in the Sullivan claim area.
1107 The Sullivan applicant contends that the evidence about Mrs Sullivan’s long association with the Sullivan claim area, pursuant to the meaning of that expression under WDCB laws and customs, is relevant in two respects. It supports:
(a) the contention that the Sullivan claim area was part of Mrs Sullivan’s birth country ngurra; and
(b) a conclusion that she gained rights over the Sullivan claim area through the long association pathway to the extent (if any) that her birth country ngurra rights did not extend to all the places she walked and lived within the Claim Area.
1108 The Sullivan applicant submits that the pattern of the sites and the evidence about the sites referenced in the Sullivan Edwards Sites Evidence Summary and Sullivan site map is consistent with Mrs Sullivan living intensively over extended periods of time on the Sullivan claim area, moving between rockholes and other water sources and hunting and gathering sustenance to survive. The Sullivan applicant emphasises that Mrs Sullivan’s evidence in Wongatha included evidence about numerous places included on Mrs Sullivan’s map, which she learnt about when living on the Claim Area with her mother when she was young; and further, that she was clear that these places were part of her mother’s ngurra.
1109 The Sullivan applicant submits that the following aspects of Mrs Sullivan’s association with the Sullivan claim area are established on the evidence:
(a) Her place of birth was relatively close to the Sullivan claim area (approximately 45 km to the south west)
(b) She lived for several years as a child with her mother and other family members at sites on and near the Sullivan claim area in a very traditional manner, living in the bush, walking between the rockholes and gaining sustenance from the country in accordance with longstanding custom.
(c) This contrasts with the long journey Mrs Sullivan said she made out towards the South Australian border with her mother and others. She described this as a one-off trip. ‘There was only the one big trip. We went and come back.’
(d) She gained a detailed knowledge and experience of the Sullivan claim area, including the names, locations and physical and spiritual characteristics of many sites within the Sullivan claim area. This knowledge and experience, gained in her childhood, left an indelible impression on her that remained with her throughout her life.
(e) She passed on her extensive traditional knowledge of the physical and spiritual landscape of the Sullivan claim area to her children.
(f) She regarded the Sullivan claim area as part of her country and considered that she had the right to speak for sites and country within the Sullivan claim area.
(g) She lived most of her later life near the Sullivan claim area in Laverton, and regularly travelled the relatively short distance to the Sullivan claim area with her husband and children – to camp, hunt, collect bush food, visit relatives and pass on her knowledge about the country to her children and grandchildren and nephews and nieces.
(h) Although her physical visitations declined in her later years due to ill health, she continued to pass on her knowledge about sites, tjukurrpa and various aspects of the laws and customs applicable to the Sullivan claim area.
1110 The Sullivan applicant further contends that Mrs Sullivan’s association with the Sullivan claim area spanned her whole life – more than ninety years from approximately 1920 to 2013. The following are examples of Aboriginal evidence relating to the long association of Mrs Sullivan to the Sullivan claim area, and her views and those of the witnesses in regard to her ngurra rights and interests in the Sullivan claim area.
Mervyn Sullivan:
My mother said she walked around her country with her mother until she was pretty big, maybe about 11 or 12 years old. She said that her country was from White Cliffs Station to around where the Cosmo Newberry community is today, from there to Limestone Well, Mapa, Dorothy Ranges, Pirlpirr, Talintji and around Yamarna. She also said her country was Lake Yeo. There are a lot of other places in between that are part of her country.
My mother would talk a lot about how her and her family lived off the land around Marntjal and Talintji. I’ve been to those places many times. I know that when Marntjal dries up, Talintji a lot of water in it.
In cross-examination:
MR KEELY: Can I just try and cut to the chase, Mr Sullivan is that – would you agree, if what your mum was endeavouring to do there was to depict her country as extending from say, Lake Yeo, Minnie Creek, Mapa, back to Laverton, it [sic] that a fair description of it or not?
MERVYN SULLIVAN: Yes, that’s a fair description of her country there.
Irwin Sullivan:
My mother also told me herself that [around Mount Shenton and Rutter’s Grave, Thatcher’s Soak and Point Salvation] was her country. She said that’s where they walked around when she was young – wandering around through the country to Minnie Creek sown to Neale Junction way. I heard a lot about that from her and auntie [Mrs Wingrove] and uncle Charlie.
My kaparli took my mother around these places when my mother was a child. They were walking around living off the land, moving from kapi to kapi along my kaparli’s yiwarra (pathways), backwards and forwards moving all around the Cosmo/Yamarna area back to White Cliffs and Tjiran rockhole and some other places too.
Celia Sullivan:
My mother’s country includes the Cosmo area because her mother (my kaparli)was born near there and roamed through all that country with my mother when she was a little girl. They lived on that country in the traditional way, living on bush tucker. They had no blankets, they walked around with no clothes. They made fire with a flint and spinifex. At night they’d make a big fire then scrape out the coals and make a nice warm place for sleeping. They camped in wiltjas and they walked around everywhere, hunting and collecting bush tucker and moving from kapi (water place) to kapi. They knew all that country and where to go and where to stay away from. They would communicate with other family groups by making smoke. Under our culture all this shows that my mother and my kaparli belonged to that country and had traditional rights to live on that country, it was their ngurra and that [sic] why it’s my ngurra too. In those days people didn’t cross over into other peoples’ country. They stayed in their own ngurra. So if anyone says Cosmo wasn’t my mother’s country or my kaparli’s country then they’ve got it wrong. My kaparli was buried at Puntitjarra and this also shows that she was from there, that it was her traditional country.
1111 Mrs Sullivan’s association with the Sullivan claim area did not cease when she went to Mt Margaret, but she maintained her association throughout her life, according to the Sullivan applicant. The Sullivan applicant relies on the following evidence in support of this contention:
1112 Celia Sullivan explained how she used to go out bush with her mother and father and two of her brothers camping in the bush most weekends when she was young. Her mother would dig for honey ants and goanna. They went to the Cosmo area including:
Limestone, Judson's Rocks, Mount Shenton and Mount Venn. There'd be kangaroo out there and turkeys that we'd get when we were camping. We'd make a little windbreak (wiltja) and put down our blankets and camp the night... We'd go out with other family like Rhys Winter and his father - hunting, camping, getting all kinds of bush tucker.
All the time we went out that way past where the Cosmo community is today , my mother would be showing us places all through our claim area where she'd been walking around with her mother and family when she was little. She told us this was her country. She'd tell us which rockholes to camp at, she said some of them had spirits (mamu).
1113 Irwin Sullivan referred to hunting and camping trips with his mother in the 1950s when he was young:
My father had a car and all us kids and my mother would be in it...Sometimes we'd go out hunting about thirty miles past White Cliffs on the road to Minnie Creek. We'd camp out bush. We'd go out on the weekend and then come back.
Doreen Harris:
[Mrs Sullivan], who died not long ago, told me a lot of stories about when she walked with her mother all around the Cosmo area, stopping at the rockholes and living the old traditional way. That was when she was a girl. She had a lot of interesting stories about that, true stories, and I always liked to hear those stories. Mrs Sullivan knew all the rockholes around Cosmo really well, she could tell the stories in a lot of detail. In our culture it's important to listen carefully to those stories about the old days, and pass on those stories to the younger generations. It's only by listening carefully that you understand the history and the culture.
Mrs Sullivan belonged to that country too because it was her mother's ngurra and also because, she herself was raised up on the country, walking around it with her mother from rockhole to rockhole.
Glen Cooke:
I have always heard that the Sullivans and the Edwards are people from the Cosmo area. This is not new. This goes way back to the days when Mervyn Sullivan and the rest of his family were young, with their mother. They would go from Laverton over to Cosmo and camp and hunt around there, every now and again, because that area was so significant for them. It was their country that they feel inside, their home that they keep going back to. They have done a lot of hunting and gathering around that area. I know that myself, I have seen it with my own eyes.
1114 Mr G Sullivan (deceased) spoke about places east of Laverton that his mother told him were her country including, inter alia, Point Salvation, Talintji and Kaarnka, the first two of which are on the Claim Area. During the Wongatha hearing under cross-examination by the Cosmo Newberry counsel, Mr Parsons put to him ‘... your mum's country is really on the east of Laverton, isn't it?’, to which Mr G Sullivan (deceased) replied ‘Yes’.
1115 The Yilka applicant denies that Mrs Sullivan satisfied the long association criteria. While there is some discrepancy about the area she was born, the Yilka applicant makes the point that Mrs Sullivan was only eight years old when she went to Mt Margaret Mission. Therefore, it is said, even allowing for some degree of weighting for association during her early years, the proposition that she has acquired ‘my country’ rights in the Sullivan claim area by virtue of long association with it may readily be seen to be problematic. The Yilka applicant contends that it most certainly is not the case that Mrs Sullivan spent all or anything like all of those eight years on or near the Sullivan claim area, but rather that it is clear that substantial parts of the period were spent in Laverton and in other places to the west of the Sullivan claim area. After going to the Mission, Mrs Sullivan never went back to live in the bush.
1116 The Yilka applicant contends that during the first eight years of her life, on careful examination of the evidence, Mrs Sullivan could only be said to have been living in Laverton, although she also spent substantial time at Windarra with her foster father, Mungkurti, who was Kitty’s husband at the time Mrs Sullivan was born (her biological father was Abdul Sutha, an Afghan from Calcutta). It is not accurate, the Yilka applicant submits, to say that Mrs Sullivan was living on the Sullivan claim area at any time, although she undoubtedly made several trips to or through it and camped there at times. After Mungkurti, Kitty married Mungulu Harris who died when Mrs Sullivan was about two years old. Kitty was then a widow, before she married Billy Maratipu when Mrs Sullivan was about six or seven years old. There was not much walking on country done with Kitty and Mungulu Harris: the only place they went out bush was to Minnie Creek. Mrs Sullivan’s trips to country with Mungkurti, at least one of which was by horse and sulky appear generally to have related to the Laverton/Mt Margaret/Windarra area, except for a trip with him and three of his wives, but not including Kitty, to Cosmo Newberry and camping for about a month at Puntitjarra. There were trips to country with Kitty and Billy Maratipu, but, given the timing, these appear to have been confined to the last year or two before Mrs Sullivan went to the home at Mt Margaret and they extended well beyond the Sullivan claim area. The only trip to country that Mrs Sullivan appears to have made with Kitty while she was was a widow was the trip to Minnie Creek for the reburial of Mungulu Harris about two years after he died. The Yilka applicant mentions Mrs Sullivan’s description of the other events on the Claim Area, although it is unclear whether these are additional or occurred during the trips already mentioned. In essence, the Yilka applicant contends that this does not amount to evidence of Mrs Sullivan living or growing up in the Sullivan claim area, which is what is required to show long association.
1117 Further, in relation to Mrs Sullivan’s map, the Yilka applicant emphasises that it simply records the places where Mrs Sullivan had been, as distinct from being a map of places that she had lived or even camped at, nor does it show where her country is. In my view, having regard to the country and the distances involved, it may readily be inferred that most of these were places at which Mrs Sullivan camped, obtained water and/or gathered sustenance; and thus could be said to have ‘lived at’ in a WDCB sense. It is said that the lines on the map are roads and the great majority of sites on Mrs Sullivan’s map are beside roads or tracks that were then in existence. This, it is argued, suggests strongly that what was depicted on the map are runs/roads/yiwarra with Laverton at its centre. It is argued that the map is not a map of Kitty’s or Mrs Sullivan’s country, first, because that is not what Mrs Sullivan said it was and, second, because it does not include Lake Baker, Neale Junction or even Kaarnka.
1118 Dr Sackett’s conclusion in his report of 27 November 2013 was that it was open to find that the descendants of Kitty and Mrs Sullivan could make claims along the lines of birth and/or growing up/long association; but that it may equally be the case that the area(s) between Laverton and Kaarnka was a road/run used by the Sullivan family members and could not be claimed as country under WDCB law and custom. After hearing the evidence of the Sullivan witnesses in December 2014, Dr Sackett said:
the way in which they were talking about travelling through, and I said there was a notion that people wouldn’t travel outside their country, and because people had travelled – their ancestors had travelled through the country it automatically was their country. So that sort of argument seemed to me to be conveyed on the evidence…
1119 The Yilka applicant’s contention in relation to both Kitty and Mrs Sullivan is that they were merely travelling through the area, which was insufficient to establish a ‘my country’ pathway connection with the Sullivan claim area.
1120 Despite the extensive evidence referred to by the Yilka applicant, I find that Mrs Sullivan has satisfied the long association pathway to connection.
1121 In my view, the evidence shows that Mrs Sullivan was born in the bush near Laverton. I find that this meets the birth country criterion in relation to the Sullivan claim area. There is little doubt that her birth country will extend into the claim area, given the degree of proximity to it. This accords with the nature of birth country claims made by a number of witnesses for the Yilka applicant. While this is disputed by the Yilka applicant, as discussed at Pt 6.4 above, it has given minimal explanation and provided no evidence to support this challenge. The Yilka applicant also mentions that Laverton is approximately 50 kilometres away from the nearest part of the Sullivan claim area, as opposed to approximately 45 kilometres away; however I find that this is of little significance, given the mobility of persons at that time. Importantly, the Sullivan applicant’s characterisation of Mrs Sullivan’s ngurra is consistent with the assertion of my country rights by those Yilka claimants, including Rhys Winter, whose claims are based on the birth country of Kitty’s son, Charlie Winter. Charlie Winter substantially shared the same birth country as his older sister, Mrs Sullivan, as a result of them both having the same or similar constellation of sites associated with their place of birth due to their shared experience as young siblings living with Kitty in the bush, gaining sustenance and moving from water source to water source between Laverton and the eastern part of the Claim Area. The Yilka applicant emphasises that Rhys Winter’s claim through his father Charlie Winter is based on the latter’s birth at Palkapiti, which is on the Claim Area. However, the Sullivan applicant points out that Rhys Winter’s claim covers most of the Claim Area and extends towards Lake Yeo. It is common ground between both applicants that birth country is not just the specific place of birth, but the country associated with the birth. Relevantly, when asked why he claimed many areas based on his father’s birth at Palkapiti, Rhys Winter answered ‘Because he would have travelled from rockhole to rockhole right around all the area, even way out to Talantji …’ Later, when talking about the Sullivan family’s claim, Rhys Winter explained ‘my auntie [Mrs Sullivan] been here in this country as a girl … my father and [Mrs Sullivan’s] brother and sisters from one mother, so wherever my father travel, so she travel too.’ Hence, it appears that, even though Charlie Winter and Mrs Sullivan were born in the bush approximately 100 kilometres apart, they shared the same or similar birth country within the Claim Area because the ‘constellation of sites’ associated with each of their births was the same or similar.
1122 In relation to Mrs Sullivan’s long association, in my view, this is also established, even though she did spend time outside of the Sullivan claim area during her early years, including a period of time when her mother was working at the Laverton Hospital and living at a camp near town. But it was clear from her evidence in Wongatha that she spent a considerable amount of such time living a traditional bush life on the Sullivan claim area and became embroiled in the physical and spiritual landscape of the country during those early years of her life. This is supported by the Sullivan Edwards Sites Evidence Summary and site map. It is true that Mrs Sullivan lived in the bush and sometimes covered large distances by foot with her mother, and later her newborn brother, Charlie Winter, including trips to places outside the Sullivan claim area. However, this is consistent with the traditional patterns of nomadic behaviour at the time. It does not detract from her strong association with the Sullivan claim area.
1123 I am satisfied that the Sullivan family have rights and interests in the Sullivan claim area through their descent from Kitty and Mrs Sullivan.
12.5 Birth and long association of Mrs Wingrove
1124 The place of birth of Mrs Wingrove was put in issue by the Yilka applicant, primarily relying, contrary to Patrick Edwards’ assertions that she was born at Cosmo Newberry, on an entry in the Mt Margaret Mission ‘Birthday Book’, which indicated that Mrs Wingrove’s place of birth was Laverton. She was admitted to the Mission at age 7, and the ‘Birthday Book’ notes both her address and the source from which she was received as ‘Cosmo’.
1125 Patrick Edwards both in the present proceedings and in Wongatha said that Mrs Wingrove was born at Cosmo. The Yilka applicant points to the fact that in the Wongatha proceedings, Patrick Edwards said that he was never told a precise place, either by his mother or anyone else, but that his sisters had told him about his mother being born at Cosmo. That is also supported in the present case by Mervyn Sullivan and Celia Sullivan, who gave evidence that Mrs Wingrove was born at Cosmo. However, the Yilka applicant says that the evidence of these two witnesses should be given little weight, as Mervyn Sullivan’s suggestion that Mrs Wingrove spent a lot of time around Cosmo in the 1940s and 1950s is inconsistent with the records of the Mt Margaret Mission, which show her admission in 1941, discharge in 1949 to some location and final discharge in 1952. Patrick Edwards definitely disagreed with the record in the ‘Birthday Book’ of his mother’s birthplace being Laverton. Despite it being a well-kept account, there is always the possibility that the records are inaccurate. The Yilka applicant does not challenge the proposition that Patrick Edwards believes that his mother was born at Cosmo, but relies upon the ‘Birthday Book’ and other evidence to suggest that this belief is, at least, doubtful.
1126 In addition, the Yilka applicant relies upon a file note prepared by CDNTS in-house anthropologist, Mr Calderwood, dated 23 October 2008, to the effect that Patrick Edwards’ brother, Charles Edwards, stated that his mother had been born at Burtville. Charles Edwards was not called by the Yilka applicant, nor was Patrick Edwards cross-examined in relation to this assertion. I can give the file note little weight.
1127 Dr Vachon, on the other hand (in his 28 February 2014 report), reports that his research colleague for the Wongatha proceeding, Dr Pannell, was informed by Mrs Sullivan that her sister, Mrs Wingrove, Patrick Edwards’ mother, was born at Cosmo Newberry.
1128 Mr Calderwood, the CDNTS in house anthropologist, also reported that Mrs Sullivan told him this when he interviewed her at the Laverton Hospital in 2008. Mr Calderwood also recorded having been informed by a Yilka claimant, the son of the older brother of Mrs Wingrove, Rhys Winter, that Mrs Wingrove was born at Cosmo. However, in his oral evidence Rhys Winter said he did not know the location of Mrs Wingrove’s birthplace.
1129 Dr Sackett, called for the Yilka applicant, also expressed the view that, after hearing Patrick Edwards give evidence about this issue in December 2013, he thought it likely that Mrs Wingrove was, indeed, born in the Cosmo area. He discounted the probative value of the Mt Margaret ‘Birthday Book’ entry. He gave the following oral evidence:
… when I saw Patrick Edward’s face when he was shown the book, it kind of confirmed my view of – I mean, he certainly believes that his mother was born in the Cosmo area somewhere, and I’ve over the years found records to be widely inaccurate. Sometimes they’re very helpful, and as I say, you know, it’s nice to have the records support the claims but sometimes they-when one little snippet doesn’t support a claim if – in this instance we have evidence through Dr Pannell I think it was – I can’t remember, you might have recorded it – anyway, somebody, one of the partners have recorded [Mrs Sullivan] suggesting that she was born, I believe – yes [Mrs Wingrove] was born out on country.
1130 The Yilka applicant also relies on the fact that Mrs Sullivan, apparently the only surviving sibling at that time, said nothing about her significantly younger sister’s birthplace during the long evidence she gave in the Wongatha trial. The Yilka applicant says this omission is ‘startling’, particularly given that it would be a central fact in any claim by Mrs Wingrove’s descendants that they have ‘my country’ rights and interests at Cosmo Newberry. The Yilka applicant says that although Dr Vachon comments about this by saying ‘I can’t speak for the – lawyers that were asking questions in Wongatha’, it should be remembered that the Wongatha applicant was represented by both senior counsel and junior counsel including Mr Vincent who now appears for the Sullivan applicant. In my view, the response from Dr Vachon is, however, entirely appropriate. It is a response which illustrates the difficulty in placing too much emphasis upon apparent differences in content of evidence in different proceedings. The Yilka applicant also points to the fact that although the Sullivan connection submission placed considerable store on the Christensen O’Connor report, they do not mention the fact that neither Mrs Wingrove nor her children are listed under the ‘Birth Links’ section of that report, unlike Mrs Sullivan, Charlie Winter and their children. HM gave evidence to the effect that he knew Mrs Wingrove when he was living in Laverton in his late teens and twenties and that, other than recently as part of these proceedings, he had not been told that she was born in the Claim Area.
1131 Doreen Harris, who was born in 1944, said that she had known the Sullivan family for a long time, including Mrs Sullivan, Mrs Wingrove and Charlie Winter. However, she gave no evidence about Mrs Wingrove’s birthplace, simply saying that Mervyn Sullivan and his family, Rhys Winter and his family and Patrick Edwards and his family all have traditional rights to Cosmo through their kaparli. The Yilka applicant suggests that her evidence does not recognise any claim by Mrs Wingrove’s descendants through her birth, and also fails to recognise a claim of Rhys Winter and his descendants through Charlie Winter’s birth, which it contends shows a lack of depth of Doreen Sullivan’s knowledge.
1132 The Yilka applicant accepts it would be open to the Court to find that Mrs Wingrove was born in either Laverton or in Burtville, but that of the two, Laverton appears to be the more likely birthplace because Kitty lived there or at least was based there over a substantial number of years. The Yilka applicant admits that it would also be open to the Court to find that Mrs Wingrove was born at Cosmo Newberry. There is evidence to that effect that cannot be dismissed as being unreliable. Equally though, the Yilka applicant submits, given the conflicting accounts, that it would be open to the Court to find that it is unable, on the evidence, to make any finding on the balance of probabilities about Mrs Wingrove’s birthplace.
1133 On balance I consider that the evidence of Patrick Edwards, what Mrs Sullivan has said to researchers, and the place where Mrs Wingrove was received from to go to Mt Margaret at an early age being recorded as ‘Cosmo’ supports the conclusion that her birthplace was more likely than not to be Cosmo Newberry. In any event, even if this were not so, I also accept the submission that if Mrs Wingrove was born at Laverton (approximately 45 km from the Claim Area) or Burtville then for the same reasons set out above in relation to Mrs Sullivan, her birth country would nonetheless have extended into the Sullivan claim area to include the places and country she travelled to and lived at with her mother, Kitty, and other members of her family when she was a young child. There is no support, in my view, for any conclusion that any of these people were simply passing through the area. The positive evidence is that they regarded the Sullivan claim area as their country.
1134 This evidence not only supports the finding that it was part of Mrs Wingrove’s birth country, but also goes to her satisfaction of the long association pathway. There is, for example, the following evidence of Patrick Edwards in his affidavit:
My mother told me that she was born in the Cosmo area. My auntie [Mrs Sullivan] also told me that my mother was born in the Cosmo area. I was brought up believing that my mother was born there, that it was her ngurra …
…
My traditional connection to the Cosmo area comes from my mother because she was born there and she lived in that country with her mother (my kaparli) when she was young and also because I have lived there myself and learnt about the country. The Cosmo area was my kaparli’s ngurra because she was born not too far away from there and she walked all through that country before my mother was born and after my mother was born. She drank from all the rockholes, she lived off the land and she practised her culture there with her family, walking around from place to place. They wouldn’t have been able to do that if it wasn’t their country. So it’s also my mother’s ngurra and my ngurra. We are owners of that country, traditional way.
1135 And in cross examination:
MR EVANS: Through your mother, thank you sir. So she was born in the Cosmo area and you don’t know a specific location but do you know roughly, is it around the community area or was it way up past Minnie Creek or is it out on the way to Warburton or you can’t – you don’t know any more?
PATRICK EDWARDS: I think it was just may be just on the outskirts of Cosmo.
1136 Celia Sullivan’s evidence was that:
The Edwards family also belong to the Cosmo area. I remember that my auntie [Mrs Wingrove] (my mother’s sister, Patrick Edwards’ mother) stayed with us right through until the 1980s. She was born at Cosmo. She lived around Cosmo too – she was brought up around there by her mother and so she had rights there for the same reason that we Sullivans do. Her children and grandchildren have rights there too.
1137 As to Mrs Wingrove and the long association criterion, the Yilka applicant submits that it has not been established that the long association criterion has been satisfied in the case of Kitty in respect of any part of the Sullivan claim area, and it must follow from this that it has not been established that the long association criteria has been satisfied in the case of Mrs Wingrove. The Yilka applicant points to a lack of evidence from Mrs Wingrove or anyone else about her early years before being admitted to Mt Margaret Mission, or, indeed, about the later years of her life. Further HM, who knew Mrs Wingrove when he was living in Laverton as a young man, said he has no knowledge of Mrs Wingrove going to Cosmo Newberry or anywhere else on the Sullivan claim area. However, I find that the evidence that Mrs Wingrove was born at Cosmo or at least nearby Cosmo, the record in the ‘Birthday Book’ that she was received from Cosmo, the fact that she was a member of Kitty’s family who travelled around the Sullivan claim area, and the evidence of Patrick Edwards and Celia Sullivan is sufficient to show at the least that she met the birth country criterion in relation to the Sullivan claim area. She and her descendants can claim country through descent from her mother Kitty regardless.
12.6 Living members of the Sullivan Edwards families
1138 It follows that the current living members of the Sullivan and Edwards families have ngurra within the Sullivan claim area inherited through both their kaparli (grandmother), Kitty, and their respective mothers, Mrs Sullivan and Mrs Wingrove. Either of these pathways is sufficient under WDCB laws and customs. In this case, they can demonstrate a valid claim through both pathways.
1139 There is also, I consider, ample evidence of the claimants’ own long association with the Sullivan claim area involving visiting, camping, hunting and learning about the physical and spiritual characteristics and values of the country from their parents and relations, such as Mrs Sullivan, Mrs Wingrove and Charlie Winter, from a young age. They gave evidence of continuing these activities as adults and passing on their traditional knowledge to their own children, grandchildren, nephews and nieces. While evidence of the claimants’ own long association with the Sullivan claim area does not need to be proven, it nonetheless shows that they have ‘actualised’ (per Proposition 30) their rights and interests in the claim area, and reinforces the conclusion that their ancestors had rights in the claim area, which they have inherited. There are examples of this evidence to which I have already referred, but the following evidence is particularly relevant as to the connections of those claimants to country:
Celia Sullivan:
Ngurra is for me like my own backyard, homeland. When you go out there you’ve got spirit – kuurti - inside you. You’re happy to go out there and camp. The kuurti of the old people are in the country and sometimes they come along and show themselves to you when you are asleep. I’ve had those types of dreams. Because they know me and they know my family they don’t harm us, they look after us. But if the spirits don’t know you they can hurt you, they can make you sick. Sometimes when I go to places I throw dirt to let the spirits know who we are. If I’m not on my ngurra I don’t have that same feeling, because the spirits don’t know me in those places and I might get sick. We’ve got plenty of food on our ngurra. We can live off the land free. It gives me a feeling. It’s a spirit feeling of family who’ve been there before you. That’s how I feel about my mother’s and my kaparli’s country in that Cosmo area. There’s something else about country. I pass on the knowledge that I have. I take my nephews and nieces and grandchildren out there. I show them the land and how to look after it.
…
When it comes to speaking for our country, traditional knowledge of the country passed down from the older generations is really important. I can explain it like this. I’ve got grandkids and my brother has grandkids and we take them out bush and show them the country, the names of the places, the yabu (hills), the kapi (water places), the landmarks. Ten years down the track I might not be here anymore and somebody might say to my grandkid: “You are the grandchild of Celia Sullivan, can you say anything about this country?” That grandkid will say: “Yes, I grew up in that land and I can speak for that land because I’ve been there and been shown all those things by my thamu and kaparli”. To speak for country the kuurti for that country have to know you, and know your ancestors. And you have to have the traditional knowledge about the country. The older people can speak more about the country because they have more knowledge. Later on the younger generations can take over when they learn more and the old people pass on.
Irwin Sullivan:
So this country we are claiming is my ngurra nyayagu barna, my homeland, because of these things, because my mother walked around all that country and all the places I mentioned. She walked around those places for many years with her mother until she went into the Mount Margaret mission. So I claim on her side, same side as my uncle Charlie Winter and my auntie [Mrs Wingrove], through their mother, my kaparli Kitty. It’s the ngurra of uncle Charlie and auntie [Mrs Wingrove] too because they also walked around with my kaparli when they were young.
I will mention some of the places on my ngurra that I have been to and learnt about from my mother. They are all places she walked to with her mother and family. There’s Bullrush, Tjiwartun, Puntitjarra, Wurnta (a place east of the Cosmo community where I have hunted and camped). There’s Mitika and Mt Venn, which are other places I’ve hunted and camped at. There’s Rutter’s Grave, Mt Shenton, Mt Scott, Tatjarn, Brown’s Camp, Thatcher’s Soak, Pt. Salvation and Marntjal, Pirlpirr, Pt. Sunday and Lake Yeo, which is to the east of our claim over Cosmo.
I know all the rockholes and other kapi places along the old yiwarra. That’s where the old camel road to Warburton went through. It’s a different route to the road that goes through now. When I was young I got to know all the hills and landmarks in that country so I wouldn’t get lost. I also learnt how to navigate by the stars. I learnt this from my mother and other old people like uncle Charlie and Auntie [Mrs Wingrove]. They were close family and I gained knowledge of the country and our culture from all of them
Patrick Edwards:
I learnt about the places in the Cosmo area from what I was told by my mother and by my auntie [Mrs Sullivan] and people like [Mr Harris] and Doreen Harris, who always told me that Cosmo is my mother’s country. I also learnt about this country by hunting there and camping there and also because I went through law. There are places in the Cosmo area like Minnie Creek that I learnt about from the men.
…
Being a wati who belongs to that country and who knows that country well also helps me understand who belongs to the country and has rights to that country under our traditional culture…The Sullivans they know that country, they have been brought up there and so was their mother. Their mother and my mother were sisters and they walked around the country with their mother, my kaparli. It was their kaparli’s country and so it’s their country too. They have been living off the land, camping in the bush, not just living in the community. They respect the country and help look after it, they teach their kids and grandkids about it too. They are passing on the culture how it should be passed on. They should be recognised and their rights to the country should be respected. The same goes for my family. We should be recognised too, for the same reasons.
…
I will give a few examples of places that I go to and know about in the Cosmo area. I never get lost because I know all the yabu (hills) and all the kapi (water) places. I always know where I am. I’ve lived off the land and travelled right through the claim area, cutting across country away from roads. I can do this because I know it really well and I have been taught the old knowledge about how to survive in the bush. I’ve spent many, many months out bush in the Cosmo area over the years. The places I list below aren’t the only places I know – I know all that country out there. I don’t know all the names of the places but I know the places and I know the country in between.
…
Some of the people that are at Cosmo now don’t involve me in surveys and decision making about the country there. They should do because I have a lot of knowledge of that country and I have rights in that country and so I should be asked, so should my family, because we are traditional owners of the Cosmo country through my kaparli and my mother. I know a lot more about the country than a lot of the people who live at the community and haven’t been traveling and camping and hunting through that country like me and my family. I know that country right through, like the back of my hand.
…
I stop at the rockholes and other kapi places in the Cosmo area and over the years I have shown them to my children so that if they ever get lost they will know where to find water. I also know how to find hidden water, where you can dig and find water. I know the signs and what to look for and I’ve also passed this knowledge on to my children, just like it was passed on to me by my elders.
1140 Mervyn Sullivan gave evidence of his own long association with the Cosmo Newberry Community, starting in the 1960s with periodic visits in the 1970s. He then started living permanently at Cosmo Newberry in the 1980s and has been there ever since. He stated:
In 1983 or 1984 I went to the Cosmo Newbery community with my wife and kids. There were people living there and we stayed in one of the houses. In 1984, Mike Willick was there as the community adviser. I became chairman of the community around 1985 and I did that for a couple of years. A lot of work was done in the Cosmo community then like repairing the houses and building a new community store. A whole heap of people were living there then: Patrick Edwards and his sister Heather with her husband; my daughter Roslyn and her husband, Keith Dodd; Glen Cooke and his wife; [the late Mr Watson] and his wife and kids; [Mr Harris] and his wife and kids. My cousin Rhys Winter was also there earlier but he left to go back to Laverton in 1983. Around this time the Westlakes were at Tjirrkali, Warburton and Leonora and the Murrays were at Mount Margaret and Laverton.
…
I remember in 1988, during the time that Cosmo was closed down, I was driving from Warakuna to Laverton around sundown and saw a light in the community. I was told that nobody should be there and when I went in to Cosmo to have a look I saw my cousin Rhys and his family, my brother Irwin and his family and my cousin Patrick Edwards and his family, all camping at Cosmo. They told me they would travel from Laverton to Cosmo on the weekends and go hunting out from there. After that, I would go and stay at Cosmo with them too. In 1990, when the Murray family started to move out to the Cosmo community, I was living there. The community had not started up properly, so for us to live there my cousin Rhys and me and our families still had to come back to Laverton to get supplies. I have been living in the Cosmo community ever since.
1141 In cross-examination this was repeated:
MR EVANS: Mr Sullivan, I’ve – based on your evidence in your affidavit and what’s come out – your understanding of where your kaparli, Kitty, was born and your mother’s country, I take it that the claim area, the Yilka claim and Sullivan Edwards family claims – you claim that country based on birth and birth of your grandmother?
MERVYN SULLIVAN: Yes and on where my mother lived when she was a young girl, where she travelled with her mother.
MR EVANS: If there was any dispute about their birthplace – that of Kitty’s birthplace and of what your mother’s country might be, what do you say about your longstanding association around Cosmo Newberry?
MERVYN SULLIVAN: Well I've been there in Cosmo Newberry just as long as anybody else, may be more than them – you see. And even my children now, Jessica, Roderick and Roberta, they’ve lived there when they were small. They grew up there; even today they go back there. Roderick is still there now, today.
1142 Mervyn Sullivan also gave evidence about his children’s long association. For example:
[My second wife and I] have three children: Jessica (born in Alice Springs), Roderick (born in Laverton) and Roberta (born in Kalgoorlie). Those three grew up in Cosmo Newbery. They went to school there and they still come back and stay with me there today.
1143 Mrs Doreen Harris and Mr Glen Cooke gave evidence about the strong association of current members of the Sullivan Edwards families to the Sullivan claim area, much of which has been set out above in relation to Mrs Sullivan’s long association with the Sullivan claim area, or is set out in Pt 13 below.
1144 The Yilka applicant argues that the only claimant who may be found to have a long association with the Sullivan claim area is Mervyn Sullivan.
1145 The Yilka applicant has not challenged Mervyn Sullivan’s evidence that he lived at Cosmo from 1983 or 1984 to 1986 and has substantial geographical and other knowledge about the Sullivan claim area. Further, HM gave evidence that Mervyn Sullivan has lived at the Cosmo Newberry Community for 20 years or so, and in Wongatha said that Mervyn Sullivan knows about the country and where to hunt and does not need permission to do so. The Yilka applicant also says:
A comparison of Mervyn Sullivan’s Wongatha evidence and his 2013 evidence in the present proceeding suggest that he was now more knowledgeable about the Sullivan claim area than he was in 2002. This is not surprising, given that 11 or 12 years have elapsed.
1146 The Yilka applicant says there is a lack of evidence that Mervyn Sullivan or his siblings and their respective children exercise responsibility for the Sullivan claim area, though that should, in fairness, be seen in the context of the evidence that his family has not been asked to participate in site surveys and the like. Further, the Yilka applicant relies on a narrow meaning of exercising responsibilities, which does not include passing on knowledge about country. The Yilka applicant submits that it is open to find that Mervyn Sullivan satisfies the long association criterion, which would mean that his children could also be found to have rights to the country flowing from descent from their father. However, the Yilka applicant’s submission is that this outcome is not compelled by the evidence, that is, it is equally open to the Court to find that he does not satisfy that criterion. The Yilka applicant argues that such a finding is not open in respect of the other Sullivan family claimants, saying that evidence of picnics, camping trips, social visits and short periods of residence in the Cosmo Newberry Community does not amount to satisfaction of the long association criterion. The Yilka applicant points to evidence of HM, which was that he had only seen the members of the Sullivan family on the Claim Area occasionally over the last two years, and prior to that had only seen Mr R Sullivan (deceased) on the Claim Area many years ago. Therefore, it is said that the only member of the Sullivan family who could possibly satisfy the long association criteria is Mervyn Sullivan.
1147 In relation to Mrs Wingrove’s children, Patrick Edwards had four siblings, two of whom have passed away, and the other two being Charles and Heather. Patrick Edwards was the only sibling who gave evidence in the Wongatha proceedings and in the present proceedings. Patrick Edwards lived at the Cosmo Newberry Community for about three years from 1980 and for part of the period worked at White Cliffs Station during the week and came back to Cosmo only on the weekends. When he was not working he lived at Laverton and Warburton. He also gave evidence that at times he used to camp at the Cosmo Newberry Community during the period when it was closed down in the 1980s. None of this is sufficient to satisfy the long association criterion, the Yilka applicant submits. The Yilka applicant contends that there is no evidence which could go towards the long association criteria in respect of his siblings. Therefore, according to the Yilka applicant, no member of the Edwards family could assert ‘my country’ rights in the Sullivan claim area.
1148 Insofar as Mrs Sullivan’s children and the long association criterion are concerned, it is clear that Mervyn Sullivan has established long association, and that his children could also claim through him. Further, it can be said that Mervyn, Celia and Irwin Sullivan have realised their rights and interests in the Sullivan claim area which they possess through their mother and grandmother. All of these conclusions are supported by Dr Vachon’s expert conclusions. In my view, once the primary Aboriginal evidence is accepted, there is little, if anything, substantive in the evidence of the expert anthropologists which would detract from the conclusions reached by Dr Vachon.
1149 As Dr Vachon notes in his report dated 28 February 2014 (footnotes omitted):
4.3.5 With these cultural considerations regarding ‘long association’ in mind, I have summarised the evidence at hand for three of [Mrs Sullivan’s] children – Mervyn, Celia and Irwin – and also Patrick Edwards that I find relevant to the question of the nature of their association with the claim area:
Apart from Mervyn who only began to physically associate with the claim area from around 20 years of age, Celia and Irwin travelled and camped on the claim area when they were growing up.
All the boys learnt of their mother’s country on the claim area from their father during the years he was grading roads for the shire.
Patrick Edwards learnt about the places on the Cosmo area from his mother and his mother’s sister, Mrs Sullivan, and also from the Yilka claimant [Mr Harris] and his wife Doreen.
All these children of Mrs Sullivan learnt that places on the claim area were part of their mother’s and grandmother’s ‘country’ through stories they were told remotely or from information they received while physically on the claim area.
Apart from Mervyn, who has hunted and gathered on the claim area since being an adult, all gained sustenance from the resources gathered on the claim area when they were growing up.
All these children gained knowledge through oral transmission from their parents about sites and valued resources on the claim area.
Patrick has spent ‘many many months out bush in the Cosmo area over the years.
Mervyn has lived on the claim area there for most of the time since 1983. During that time he has exploited the indigenous resources of the claim area.
Irwin lived on the claim area in the 1980s. As an adult, he has ‘done a lot of hunting in the Cosmo area’.
Mervyn and Celia have taught their children the cultural values of the claim area.
Patrick has taken his initiated sons to places around Yamarna and told them wati stories. He has shown his sons the rockholes in the Cosmo area and how to clean them.
4.3.6 From these statements, it seems to me that these three children of Mrs Sullivan and Patrick Edwards have, for some time, been engaged in a process of realising their rights and interests in the claim area which they possess through their grandmother, Kitty, and their mothers, Mrs Sullivan and [Mrs Edwards]. In their view, it is this pathway that they have taken, not the fact that they have had [sic], for some time, hunted and camped on the claim area, gained sustenance from its resources, lived on the claim area, learnt the cultural values of its sites and transmitted these to their children. In other words, the basis of their claim is not what might be regarded as their own long association with the claim area. Rather, it is a realisation of their rights legitimately gained. In my view, the claimants’ actions in respect of the claim area represent a Western Desert expectation fulfilled, namely, that the land and waters to which they have associated is also the ngurrara of their grandmother.
1150 In relation to Patrick Edwards, I do not accept the Yilka applicant submission that his evidence was insufficient to support long association with Cosmo. His evidence was that he spent ‘many many months’ out bush in the Cosmo area over the years. He said: ‘I never get lost because I know all the yabu (hills) and the kapi (water) places.’ He has also shown all the rockholes and other kapi places in the Cosmo area to his children so that if they ‘ever get lost they will know where to find water’.
1151 It should be noted however, that the Sullivan claimants possess rights and interests in the Sullivan claim area through their ancestors, regardless of their own ‘long association’ or other engagement the the Sullivan claim area .
12.7 Rights in areas of sacred and ritual significance
1152 As mentioned above, there are some members of the Sullivan Edwards families who also claim rights in areas of ritual significance due to their status as wati. These rights are held concurrently with ngurra (my country) rights to the Sullivan claim area. The Yilka applicant accepts that some members of these families do have rights based on their holding of senior authority.
1153 As discussed at many instances above, the possession of rights and interests in the Sullivan (and Yilka) claim area pursuant to a pathway to connection is contingent on recognition of that claim under WDCB rights and interests – this is the formulation in both the Yilka and Sullivan POCs at [24]. The footnote about recognition states that discretion to recognise a claim is limited to whether a criterion for holding rights has been met in relation to the person claiming possession of rights and interests; and that recognition is not necessarily a matter of discretion for living persons, but may be determined by reference to the remembered views and actions of ‘old people’. Other footnotes to Sullivan POC [24] address the ways in which contestation may occur, in relation to the birth and long association pathways.
1154 The Sullivan applicant makes two main points on the topic of recognition. The first is that there has been and remains a high degree of recognition, under WDCB laws and customs, of the Sullivan claimants and ancestors’ claims to possess rights and interests in the Sullivan claim area. This is for the Court to decide, based on the evidence, and is necessary for the claimants to show in order to prove that they possess rights and interests in the Sullivan claim area, given the pleaded para 24.
1155 The second is that the contestation of the claims of the Sullivan Edwards family members, as evidenced by the exclusion from the Yilka claim group, has not been based on an informed application of WDCB criteria for possessing rights and interests to the Sullivan Edwards’ ancestors and claimants. In support of this, the Sullivan applicant points to evidence regarding what it contends is inadequate information and advice provided by CDNTS, which did not enable the Yilka claimants to make an informed decision as to whether or not to recognise the rights and interests of the Sullivan claimants under WDCB laws and customs.
1156 The Sullivan applicant also argues, and I agree, that the contestation of the Sullivan claimants’ and ancestors’ claims to possess rights and interests in the Sullivan claim area appears to have been motivated, at least in part, by irrelevant personal factors and a ‘gatekeeping’ approach carried over from the Cosmo claim group. This was an aspect recognised by Justice Lindgren in Wongatha (see for example at [718]-[725], [2882]) and [2888]).
1157 I am quite satisfied that on a more detailed examination of the claim, the Sullivan claimants should never have been excluded from the Yilka claim.
13.1 Evidence of recognition of the Sullivan Edwards families
1158 I turn firstly to the evidence of anthropologist Dr Vachon. As noted by Dr Vachon in his 28 February 2014 report, in the Western Desert there is no formal process for acknowledgment regarding claims of a place being one’s country or access to land and resources. Senior knowledgeable men and women may give their views and such views will be given deference. In his August 2013 report, Dr Vachon noted some degree of acknowledgment of the claims of the Sullivan family. For example, Dr Vachon, citing his field notes noted a discussion with a now deceased wati, Mr Harris, who told him that Cosmo was ‘also the country of “auntie” [Mrs Sullivan] and her offspring’. Similarly, Dr Vachon had recorded in his field notes a discussion with Rhys Winter (also a wati), who acknowledged that Mrs Sullivan (and his father) claimed country in the Yilka claim area. Dr Vachon also referred to the evidence of wati and Yilka claimant, Junior, in these proceedings in which Junior stated that in his personal opinion, Mervyn Sullivan was a traditional owner of the Cosmo area as ‘[h]e spent a lot of time here and his old people would have spent a lot of time in Minnie Creek’.
1159 Dr Vachon says that in his experience of living in a Western Desert community, as well as travelling and camping for extended periods with Western Desert people on their customary lands, he has found that there is a great deal of talk about people’s relatives. This informal commentary can be about certain matters concerning ‘country’. Nearly always, if the talk is negative, the person who is the subject of the discussion is known well, but is not present at the time. People may give their views on such topics as an individual’s knowledge or ignorance of the cultural values of a place or area, the ‘country’ of an individual’s close antecedents, an individual’s behaviour in speaking out of place regarding some ‘country’ or an individual’s claims of being an ‘owner’ of some ‘country’.
1160 The important point Dr Vachon makes is that he has used the word ‘commentary’ in this discussion because such talk is ‘just that’. It does not operate in an exclusionary way. People do not take their complaints as justification for ostracism or otherwise preventing some individuals from making claims. Apart from anything else, there is no authority available from whom relief can be sought. Such talk never includes many matters that have to do with rights in country: ‘You do not hear people complaining about another taking too much kangaroo, for instance, or camping too long at some place’. However, he said that he has heard that ‘some individuals do not behave as kin should’. He said ‘They are accused in absentia for not sharing, for instance. They are accused of not recognising properly the country of others.’
1161 Dr Vachon notes that in secular life, there are no formal processes of acknowledgment regarding claims of a place being one’s own country or access to land and resource use. Senior knowledgeable men and women give their views regarding the status of a person as landholder or their relationship to any area of land as ngurrara. Such senior people are given deference and their views are usually considered to be worthwhile, but there is no final arbiter existing for land ownership.
1162 The acknowledgement of senior people is not a precondition for the enjoyment of utilitarian rights by others. There is no provision in Western Desert laws and customs for an established and neutral third party to determine breaches and apply sanctions in every day affairs. Notwithstanding this, there is acknowledgement in the Western Desert that certain protocols need to be followed when accessing land. These come under what Dr Vachon calls the law of kurnta. He discusses those processes.
1163 While kurnta translates to ‘shame’, this concept is about more than good manners. Dr Vachon notes that if a person is so kurnta wiya or ‘without shame’ that he or she ‘speaks for’ someone else’s country or does not present him or herself to the people who ‘belong to’ a place, the consequences are not of a punishment, but rather, there is a concept of shame involved in that that person is shaming everybody, themselves and other people.
1164 While individuals may have their ‘own’ country, it is always also the ‘country’ of some other Wangkayi person, alive or dead, as well as other beings of Thukurr. This is an essential precondition of ownership. Whatever rights one has as a Wangkayi person to use the land and as a land holder of one’s ‘own country’ are contingent rights, in that they can only be enjoyed in the context of equivalent land based relationships of others. Dr Vachon says the inescapable fact for a Wangkayi person is interrelatedness: not only to others through kinship and marriage, but also because one’s own country is enmeshed in the country of others, as all personal countries are encompassed in the coherent cultural landscape of Thukurr. This condition of being Wangkayi necessarily brings an individual together with other people connected to the Claim Area. No formal structure of authority or decision-making exists in Western Desert society for non-ritual rights to be determined or disputes to be settled. There is wide recognition that people have a right to gain sustenance from the land. However, through protocols relating to what Dr Vachon has described as the ‘law of kurnta’, there is a process of acknowledging the standing of landholders.
1165 Turning now to the evidence of the Sullivan claimants themselves, much of this has been quoted or mentioned above in Pt 12 above. Additionally, Mervyn Sullivan, in asserting recognition of his family’s rights in the Claim Area and referring to his perception of the ‘gatekeeping’ approach taken by the Murray family, stated:
[Y]ou can’t brush aside the history of my mother and her mother, which goes way back over 100 years of walking around this country, living on it, caring for the country and being accepted by other Wangkayi people as belonging to this country. A lot of the people who used to be at Cosmo accept me and my family and the Edwards family and think we should have a say but these days it’s the Murray family that wants to have all the say and they don’t want to include us even though we have got traditional rights to that country
1166 In cross-examination by counsel for the State there was this exchange:
MR EVANS: We’ve talked – you’ve given evidence this morning about your country and this claim and there’s been evidence about who supports your claim. Has anyone told you that the [Sullivan claim area], same as the Yilka claim area, has anyone told you that that’s not your country?
MERVYN SULLIVAN: No I haven’t never had anyone come up and say that, straight out to me like, you know. I’ve never heard anyone say that.
1167 During cross-examination by counsel for the Yilka applicant:
MERVYN SULLIVAN: I've had people come up and tell me, this is your country, Wati. Wati people have told me that.
MR KEELY: Yes, when they say that, what is your country? What country are they talking about?
MERVYN SULLIVAN: They're talking about around Cosmo Newberry
MR KEELY: Round Cosmo?
MERVYN SULLIVAN: Around that area now.
1168 Celia Sullivan, Patrick Edwards and Irwin Sullivan all gave evidence about recognition of their families’ claims by others including ‘old people’. Celia Sullivan and Patrick Edwards both stated that only some people at Cosmo do not accept them, but that this is for personal reasons. Irwin Sullivan said: ‘Nobody hunted my mother’s family away all those years and that’s because other Wankayi people know they belong to that country and accepted them’. Patrick Edwards said in his affidavit evidence:
It’s only some people at Cosmo that are wanting to keep us out. The Murray family have a grudge against the Sullivans and Edwards from back in the 1990s and they don’t accept us because of that…I think it’s important that personal grudges are put to one side when it comes to who has traditional ownership and rights to the country.
…
Some of the people that are at Cosmo now don’t involve me in surveys and decision making about the country there. They should do because I have a lot of knowledge of that country and I have rights in that country and so I should be asked, so should my family, because we are traditional owners of the Cosmo country through my kaparli and my mother. I know a lot more about the country than a lot of the people who live at the community and haven’t been traveling and camping and hunting through that country like me and my family. I know that country right through, like the back of my hand.
1169 Celia Sullivan gave the following evidence:
Most people recognise the Sullivan family’s traditional connection to the Cosmo area but the Murray family don’t accept us and don’t want us to have a say. But that’s only because they have a personal grudge against us going back to something that happened at Wongatha Wonganarra Aboriginal Corporation back in the 1980s, around about 1986. After that the Murray family left Laverton and went out to Cosmo.
Rhys Winter is included on the Yilka claim so it doesn’t make sense that they haven’t included my mother and my auntie [Mrs Wingrove], who were Rhys’s father’s sisters, all from the same mother. They all roamed around together in the Cosmo area as one family. We have the same traditional rights to the Cosmo area as Rhys and we should all be included when it comes to talking for the country and making decisions about it. It’s not right that some people want to shut us out. Traditional connection is what should count and we know we have that connection. We can’t lose out heritage through personal grudges.
1170 Although the Yilka applicant puts in issue the place of birth of Mrs Wingrove, in relation to Edwards’ family, the preponderance of evidence supports a finding that she was, more likely than not, born at Cosmo Newberry: see Pt 12.5.
1171 In addition, there was evidence of recognition given by other senior or Western Desert people who are not claimants. The Sullivan applicant called two non-claimant Aboriginal witnesses, Mr Glen Cooke, who is a senior wati, and Mrs Doreen Harris, a senior woman. They demonstrated knowledge of WDCB laws and customs in relation to the possession of rights and interests in land. They demonstrated knowledge and experience gained over many years of the Sullivan claim area and the Sullivan Edwards families’ association with it. They recognised the Sullivan claimants’ claims to possessing rights and interests in the Sullivan claim area. They provided explanations as to the bases of their recognition. They also gave evidence of recognition of the Sullivan Edwards families’ claims by others.
1172 Glen Cooke said the following in his affidavit:
I have always heard that the Sullivans and Edwards are people from the Cosmo area. This is not new. This goes way back to the days when Mervyn Sullivan and his family were young with their mother.
…
... The Sullivan and Edwards families are custodial owners of the Cosmo country and they should be recognised. The country between Lake Yeo, Cosmo and Laverton has always been the Sullivan and Edwards families’ country. It is still their country, traditional way. A lot of people know that. I have known that for a long time…
1173 When Glen Cooke was asked ‘… can you tell us about other people, other Aboriginal people, do they recognise the Sullivan and Edwards family and acknowledge that as well, or is it just you?’, he answered:
GLEN COOKE: No, no, it's a wide range. Where the people came from and in our way, everybody knows who, and who - who came from where, so the people that came from that area and finish up in Laverton, and the people that - some other half of the people that went to Warburton, they knew their country was for - for Kitty.
MR VINCENT: Now, Mr Cooke, you're a wati, you mentioned. Do you go to other places other than Laverton and talk to other watis?
GLEN COOKE: I - I travel really a large area. I - I travel everywhere and I - I speak to the watis, yes.
MR VINCENT: And have you - are there watis who say this isn't correct, what the Sullivan claim is about?
GLEN COOKE: No. No, they - I haven't heard any comments from the wati that says that they are not the rightful owner or they are trying to claim that country.
1174 He was also asked in cross-examination about Mrs Sullivan’s ngurra:
MR KEELY: She went across to the South Australian border for a trip. Does that - if you accept that that's, in fact, what happened, does that make it a somewhat different situation than what you had thought it was?
GLEN COOKE: Well, I can say that anyone who's - who has been born in a place and went, as a child, into the bush and roamed around and they went back into the society or into the town and never went back - never went back and - in their mind - in their mind they have a strong connection of the - their childhood days that they've been roaming around the bush and they - and they - and they - they say that ngayuku ngurra - ngayuku ngurra nyarratja meaning - meaning "My" - "My country is over there." They still have that connection of - of the place, even though that they never went back, you know. They had childrens and, you know, families and never went back but they always think of their - think of their childhood days of that ngurra.
1175 He confirmed this in re-examination:
MR VINCENT: Okay. And that little baby that's been born going around with the parents to those rockholes with the parent, does that baby get the country from those places they've been going to?
GLEN COOKE: Yes, yes, they would. Any - any child who was travelling or going from rockhole to rockhole would grow up and that would become a country. It would say, "Ngayuku ngurra. Ngayuku ngurra", meaning, "That's my country".
MR VINCENT: You're talking about - you talked to my friend about the 50 kilometres for the birth.
GLEN COOKE: Mmm-hmm.
MR VINCENT: And then that's the ngurra from the birth, I think you said.
GLEN COOKE: Yes.
MR VINCENT: And is - can - and I think you're now talking also, another way of getting country so that people can say that's that person's country if they've been walking around with their parents to the rockholes getting water and hunting and so forth.
GLEN COOKE: Yes, that can happen if - if the mother has taken - taken the child and went back into her country and lived around that country, it becomes that child's - child's ngurra. That's where she grew up.
1176 In relation to Doreen Harris, similar important evidence was given. She had lived for a long time at the Cosmo Newberry Community and knows a lot about the country there, which is part of her husband’s, Mr Harris’ (deceased) country. She gave evidence about her husband’s connection to and knowledge of the Cosmo Newberry area and she mentioned the evidence given by her son, Junior, one of the Yilka claimants. She stated that she lived in the Cosmo Newberry Community for periods of time in the 1950s and 1960s and resided there from the 1970s to 1996, apart from a period when the community was closed in the 1980s during which time she lived in Laverton and visited Cosmo Newberry from time to time. She said she was the chairperson of Cosmo Newberry Community in 1984 or 1985.
1177 She also said that she has known the Sullivan family since she was young; and that ‘Mervyn Sullivan and his family Rhys Winter and his family and Patrick Edwards and his family all have traditional rights to Cosmo though their kaparli.’ Doreen Harris was clearly of the opinion that Mrs Sullivan and her family belong to the country around Cosmo. She said:
40. Anybody who says that Mrs Sullivan was not from that country is wrong and doesn’t know the true story. Some people might have something personal against the Sullivan family but they should put that aside so they can listen carefully. Then they will understand.
41. I heard about the Sullivans’ connection to Cosmo not only from Mrs Sullivan but also from my husband and my brother. My husband always said that Cosmo was the Sullivans’ ngurra. Also, I can remember sitting around at night listening to the old people, like my uncle Claude Davidson and his daughter Betty Davidson. I can remember them saying that Mrs Sullivan and her mother belonged to that country around Cosmo. This was when I first stayed at Laverton when I was 19 years old.
1178 The Yilka applicant is critical of the evidence on recognition given by Glen Cooke and Doreen Harris. With regards to Glen Cooke, the Yilka applicant emphasises his close relationship with the Sullivans, and points to evidence he gave in cross-examination in which he cast doubt on the legitimacy of claims to the Claim Area by the Murray and Westlake families. The Yilka applicant therefore questions his impartiality and the reliability of his evidence generally. However, the Yilka applicant’s submissions do not lead to the conclusion that Glen Cooke was not frank and honest in the information he gave about the recognition of the Sullivan Edwards family’s rights among Western Desert wati and within the WDCB community generally. Further, Glen Cooke’s knowledge of the Sullivan family and their history adds weight to his evidence in regard to recognition, especially given that he is a senior member of the Aboriginal community of the Western Desert and a senior wati.
1179 As regards Doreen Harris, the Yilka applicant points to what it suggests is her incomplete knowledge about Mrs Sullivan and her family’s connection to the Sullivan claim area, and further alleges bias in her evidence against the Murray family or particular members of that family. Again, there is not sufficient evidence to discount Doreen Harris’ evidence due to bias, or to conclude that the evidence she gave was not honest. Given that she was a senior woman, and had knowledge of the WDCB laws and customs and of the Sullivan Edwards family, her evidence should be given a relatively high degree of weight as regards recognition. Further, her evidence accord with Dr Vachon’s notes that her husband, Mr Harris (deceased), who was on the Wongatha claim and whose descendants are included in the Yilka claim, told him that Cosmo was also the country of Mrs Sullivan and her offspring.
1180 The Yilka applicant did not adduce any evidence from relevantly knowledgeable senior Western Desert people (non-claimants) who could speak to recognition of the rights and interests claimed by the Sullivan claimants in the Sullivan claim area. The Yilka applicant had the opportunity to do so at or prior to the December 2013 tranche of evidence. Instead the Yilka named applicant himself (HM) gave evidence at the December 2013 tranche about this issue (discussed in detail below). This failure to call any witness to explain a reason for lack of recognition of the Sullivan claimants may well suggest that evidence of this nature adverse to the Sullivan claimants was not available.
1181 In fact, two of the Yilka claimants gave evidence in support of the Sullivan claimants’ assertion of their rights in the Sullivan claim area. As noted, Junior made it clear that from his point of view he would accept Mervyn Sullivan as a traditional owner. Similarly, Rhys Winter, who gave joint evidence with Mervyn Sullivan and Mr Harris (deceased) during the Wongatha hearing, did not distinguish between his father’s and his aunt’s rights to Wurrka, located a short distance outside the Claim Area. In his affidavit in the present proceedings he made numerous references to the Sullivan Edwards family’s connection to, and use and occupation of, the Sullivan claim area. As examples,
(a) He acknowledges that his tjamu (grandfather) died at Minnie Creek while he and his father’s mother (Kitty) were ‘coming through to Cosmo’ and that ‘My aunty (Mrs Sullivan) …was there’.
(b) He states that after the birth of his father ‘my kaparli, [Kitty], went to Cosmo with her baby, my father…She came to Cosmo to stay here’.
(c) He speaks of the first time he remembers visiting Cosmo being a trip with his mother, father, sister and Mervyn Sullivan and his wife in 1965.
(d) With reference to ngurra he recalls visiting Nyanyirri for the first time in the 1960s, with his father, mother, sister and Mervyn Sullivan and his wife and children. Similarly he recalls being with his father and Mervyn Sullivan when he first visited Ngarrutji (Thatcher’s Soak) in about 1965.
(e) He speaks of hunting and traveling around the Cosmo area in 1975 or 1976 with Mr R Sullivan (deceased) and of staying with Mervyn Sullivan at Cosmo in the late 1970s.
(f) He speaks of camping at Cosmo with Mervyn Sullivan in the late 1980s ‘when there was nobody living here…We didn’t just stop in the house, we went out around Palkapiti and Wartu in the Mt Venn area…and Wurnta’.
(g) He recalls Mervyn Sullivan helping his (Rhys Winter’s) father cleaning around the soak at Tatjarn .
(h) With reference to ngurra he mentions the importance of Puntitjarra to the Sullivan, Edwards and Winter families. ‘It’s a very important place for me, and also for the families, Edwards families, Sullivans and the Winters, because that’s where our grandmother is buried’.
(i) With reference to ngurra he speaks of ‘One place that my father and my aunty, his sister, [Mrs Sullivan] used to talk about all the time is Talintji. They say they’ve been there all the time, travelling through there to Lake Yeo. He told me it’s part of his ngurra’.
(j) With reference to connection and occupation he mentions going on a hunting trip up the Mount Shenton Yamarna Road through Palkapiti, Ngarrutji and Wartu, with his cousins Mr G Sullivan (deceased) and Celia Sullivan.
1182 I take Rhys Winter’s evidence to be at a personal level, supportive of recognition of the Sullivan claimants, although he was reluctant to openly express his personal view, and emphasised that it would be appropriate to make a decision of that sort ‘at a meeting with a big group talking about it’.
1183 In this regard, the Sullivan applicant complains that CDNTS did not provide an opportunity for a decision at a meeting prior to the authorisation of the Yilka claim as the decision to exclude the Sullivans was made in November 2007 by only a small group, which did not include Rhys Winter or members of his family, and that decision was never revisited prior to the Yilka claim authorisation in December 2008. I will deal with this further in Pt 13 below.
1184 The Yilka applicant criticises the evidence of Junior and Rhys Winter on the question of recognition of the Sullivan and Edwards family members. The Yilka applicant points to conflicting evidence given by Junior, such as that he said ‘I just don’t know’ when asked about Mervyn Sullivan’s connection to the Cosmo area. With regards to Rhys Winter, the Yilka applicant says that it must be taken into consideration that Rhys Winter has a close relationship with the Sullivan and Edwards families. Overall, however, I would say that this evidence from members of the Yilka claim group supports the finding that there indeed is recognition of the rights and interests of the Sullivan and Edwards families in the Claim Area. These reasons for recognition appear to be based on the pathways to connection under WDCB laws and customs, rather than just on personal feelings towards the Sullivan claimants. For example, Junior, when giving his opinion on Mervyn Sullivan’s ngurra, said ‘He spent a lot of time here and his old people would have spent a lot of time in Minnie Creek.’
1185 I accept the Sullivan applicant’s submission that there has been and remains a relatively high degree of recognition, under WDCB laws and customs, of the Sullivan Edwards ancestors’ and claimants’ claims to possess rights and interests in relation to the Sullivan claim area. This is despite an apparent lack of recognition on the part of the Murray family, which has been influential in the exclusion of the Sullivan Edwards from the Yilka claim, and which I find is not based on WDCB laws and customs. I turn to this issue now.
1186 Most of the resistance to the Sullivan claim came from Mrs Murray. The Sullivan applicant makes the following submissions concerning her evidence. When giving evidence on 4 November 2011 Mrs Murray, the mother of the Yilka applicant HM, was uncooperative when answering questions from the Yilka counsel about Mervyn Sullivan and other members of the Sullivan family. In the context of how people get their ngurra Mr Keely asked Mrs Murray how long Mervyn Sullivan had lived at the Cosmo Newberry Community. She replied ‘I wouldn’t have a clue’ and when asked whether it was a short time or a long time she replied ‘I don’t know’. These statements are at odds with her affidavit of 4 November 2011 (the same day she gave her evidence in court) in which she states: ‘Mervyn Sullivan has lived here at Cosmo since about 1989’.
1187 Significantly, the following exchange occurred:
MR KEELY: Yes. And let me ask you another situation, let's ask about Mervyn Sullivan. How long has Mervyn been living here?
[MRS] MURRAY: I wouldn't have a clue.
MR KEELY: Is it just short time or a long time?
[MRS] MURRAY: I don't know.
MR KEELY: You don't know. Do you know whether Mervyn goes out
hunting around Cosmo and places that - - -
[MRS] MURRAY: I never see him but he must be, must be doing it.
MR KEELY: He must be doing it.
[MRS] MURRAY: Yes.
MR KEELY: And do you see him as needing anyone's permission to go out or he can just go because he knows the country?
[MRS] MURRAY: He go - he go, yes.
MR KEELY: He just goes?
[MRS] MURRAY: Yes.
MR KEELY: And why has he got the ability to do that? Why can he just go?
[MRS] MURRAY: I don't know, he's - I saw him - he - I don't know. He just goes.
MR KEELY: Okay. Do you think he knows at least a certain amount about the country around here? There are places that he goes out to and knows?
[MRS] MURRAY: I suppose he does. I suppose he does.
MR KEELY: Now, perhaps I can just ask you a little bit about Mervyn. Who
is his mother?
[MRS] MURRAY: [Mrs Sullivan].
MR KEELY: And is she a woman who's still alive?
[MRS] MURRAY: She's in the hospital, yes.
MR KEELY: She's in hospital at the moment, did you - - -
[MRS] MURRAY: All the time. She's got to stay there.
MR KEELY: So she - and is she a lady who is older than you?
[MRS] MURRAY: Yes, she's long way older than me.
MR KEELY: So she must be really quite old now.
[MRS] MURRAY: Yes.
MR KEELY: And she has a number of children?
[MRS] MURRAY: Got six I think but one passed away last year.
MR KEELY: One passed away.
[MRS] MURRAY: The oldest one.
MR KEELY: Other than Mervyn, has she got children Celia, [Mr G Sullivan (deceased)], Alfred and Irwin?
[MRS] MURRAY: Yes.
MR KEELY: And those - leave Mervyn to one side - those children, where do
they live, which places - - -
[MRS] MURRAY: Laverton.
MR KEELY: Laverton.
…
MR KEELY: ...
… I won't speak long on this, Frances, but I just wanted to know, the four Sullivan
siblings who live in Laverton, do they come here for meetings of the traditional
owners?
[MRS] MURRAY: No, I like to ask you a question. Why I have to talk about the Sullivans because they were the ones that made big trouble in Laverton and hunted my family out of the place.
MR KEELY: Well, I think, Mrs Murray, you've got to trust me on this and if it's relevant - if it's not relevant, either Mr Waters or the Judge will pick me up, but the Sullivans are applying to become a party to your case on Monday.
[MRS] MURRAY: Why they chasing us around?
MR KEELY: Well, you don't - we don't need to worry about that here. Maybe if you just answer this question, okay. I think that's the best way forward.
[MRS] MURRAY: My family had a shop going in Laverton. They had a shop going. They had a office there. They were looking after the people well, but that family, they push - pushed them out of the place.
MR KEELY: Okay.
[MRS] MURRAY: And I don't want to talk about Sullivans.
(emphasis added)
1188 I accept the Sullivan applicant’s submission that this significantly spontaneous evidence from Mrs Murray (probably the most spontaneous evidence in the case), corroborates the evidence of Sullivan Edwards’ witnesses referred to above, to the effect that members of the Murray family hold a personal grudge against them and that this has influenced the Murrays’ willingness to recognise the Sullivan claimants’ traditional rights to the Sullivan claim area. It is clear that Mrs Murray was strongly affected by her personal antagonism towards the Sullivans, resulting from events in Laverton many years before, unrelated to native title. She brought this up without any prompting, in examination in chief, demonstrating that she was unable to separate her animosity from her consideration of native title issues in regard to the Sullivans. This animosity is significant given Mrs Murray’s role in relation to the decision not to include the Sullivan Edwards families on the Yilka claim. HM portrayed his mother, Mrs Murray, as one of only a small number of ‘old people’ whose views carry more weight when making this type of decision. Mrs Murray was one of only a small number of claimants present at the Cosmo Newberry claim group meeting on 27 November 2007 where the decision was made. This is discussed in more detail below, as is the ‘gatekeeper’ approach that appears to have been adopted by Mrs Murray and her son in relation to others’ claims to the Cosmo area, exemplified by their comments at a meeting in October 2008 in relation to the inclusion of elder and wati Mr Harris (deceased) in the proposed new claim:
HM said to put [Mr Harris] on so long as he stays behind and keeps quiet.
[Mrs Murray] also said to put [Mr Harris] on “Put him on but he is not to say anything”.
1189 As discussed in detail below in relation to the evidence of HM and Mr O’Dell, Mrs Murray and other members of her family appeared to rely heavily on research conducted by CDNTS when considering whether to accept others’ claims, but such research was severely lacking in relation to the Sullivan Edwards families. Mrs Murray and other family members therefore lacked the relevant information to determine whether the Sullivan claimants met the criteria for possessing rights and interests under WDCB laws and customs.
1190 I accept the submission that reluctance by Mrs Murray to accept the Sullivan claimants is not based so much on WDCB laws and customs, but rather, is influenced by other extraneous factors, which have no relevance to recognition. As mentioned above, the Yilka and Sullivan POCs state that discretion to recognise a claim is limited to whether a criterion for holding rights has been met. I did form the impression that there was a deal of animosity still present and that this was explicable not simply by the fact that the Sullivan claimants were pressing a claim as such, but due to unrelated reasons which were certainly not based on WDCB laws and customs. Moreover, the attack on the claim of the Sullivan applicant is based not on any evidence from a Yilka applicant witness as the reasoned basis under WDCB law and custom for rejecting the inclusion of the Sullivan claimants. Rather, it is based upon the highly detailed and sophisticated written submissions advanced by counsel on behalf of the Yilka applicant as to weaknesses in the case for the Sullivan applicant as presented. As I have previously noted, by the lofty standards such submissions invite, the case for the Yilka applicant itself would not be without imperfection.
1191 HM sought to justify the exclusion of the Sullivan Edwards families from the Yilka claim by reference to the results of the research presented by their lawyers, CDNTS, as to the composition of the claim group. For his part, HM appeared to have little personal knowledge of the history of the Sullivan Edwards ancestors’ association with the Sullivan claim area. I accept the submission for the Sullivan applicant that HM did not take steps to inform himself about the Sullivan Edwards ancestors’ and claimants’ association, but rather, and not unreasonably, I hasten to add, relied upon CDNTS to carry out the necessary research and provide advice based on those results.
1192 It follows that, to the extent HM has been reluctant to recognise the rights and interests of the Sullivan Edwards ancestors, this is not based on WDCB laws and customs. He has been guided by the recommendations of CDNTS and also I expressly find, quite clearly influenced by the views of his mother, Mrs Murray. As I have stated, and in light of his lack of information as to whether the Sullivan claimants met the requirements of one or more connection pathways, those views were not based on WDCB laws and customs.
1193 In fact, the view I formed of HM’s evidence was that, while he respected the views of his mother and also conformed with views expressed in the CDNTS research, he did not have a particular problem with Mervyn Sullivan, whom he expressly states has lived there for a long time and knows the country being part of the claim, or with Mervyn Sullivan’s family. It may well be the case that he is now willing to revise his views on this topic, also bearing in mind the repeatedly stated observation by senior counsel for the Yilka applicant that the question of the recognition of the Sullivans was not a closed issue, but a matter still under consideration.
1194 In relation to HM, I largely accept the submission of the Sullivan applicant below, although lest there be any doubt, I do so without being critical of the approach taken by HM, who has been guided in this rather complex area in the manner I have discussed.
1195 In his substance of evidence dated 3 December 2013, HM claims that if he had been told by the old people that Kitty was born near the Yilka claim area, he would consider that she and her descendants may have had or may have rights and interests in the Yilka claim area under traditional laws and customs, depending on where it was that she was born. As to this evidence, the Sullivan applicant says:
a. [I]t is clear from HM’s comments in cross examination that he had little knowledge of Kitty’s history of association with the claim area and he made little or no attempt to learn about her birthplace and other aspects of her association with the claim area, instead relying heavily on research and advice of CDNTS.
b. Given the likelihood that Kitty was in fact born near the claim area (refer discussion about this above) it follows that HM would now be prepared to consider that she and her descendants may have / have had rights and interests in the Yilka claim area under traditional laws and customs.
c. As discussed above, Mrs Sullivan said in cross examination in Wongatha that her birthplace Kaarnka was located about 100km south east of Minnie Creek and this information was available to HM. This information, if correct, would place Kitty’s birth near the Yilka claim area. Furthermore, during the Wongatha hearing Mrs Sullivan provided a considerable amount of evidence about Kitty’s extensive association with the Cosmo area, including naming numerous rockholes and other sites within the Yilka / Sullivan claim area that Kitty walked to, lived at, passed on knowledge about and regarded as her Ngurrara. This information appears to have been disregarded by HM.
1196 HM said that other than recently as part of the Yilka and Sullivan proceedings, he was not told that Mrs Wingrove was born on the Yilka claim area. However HM conceded in cross examination that he heard Patrick Edwards say at the Wongatha hearing that his mother was born in the Cosmo area. He also says in the substance of evidence that if he had been told by the old people that Mrs Wingrove was born on the Yilka claim area, he would consider that she and her descendants had rights and interests in the Yilka claim area under traditional laws and customs. As to this evidence the Sullivan applicant says:
a. Given that the weight of evidence supports the conclusion that [Mrs Wingrove] was more likely than not to have been born on the claim area (see discussion about this issue above) it follows that HM may now be willing to accept that her descendants have rights and interests in the Yilka claim area under traditional laws and customs.
b. There was in fact information available from “old people” that [Mrs Wingrove] was born in the claim area. [Mrs Sullivan] stated this to CDNTS anthropologist Sean Calderwood in 2008, before the Yilka claim was lodged. On a separate occasion in 2008 Rhys Winter also stated this to Sean Calderwood. It is not clear whether CDNTS passed this information on to HM or to other Yilka claimants. This is discussed below in relation to Mr O’Dell’s evidence.
1197 It is clear that HM’s knowledge of the Sullivan Edwards’ associations with the Claim Area is very limited. For example even though he said he had heard Mrs Sullivan give evidence at the Wongatha hearing (at which time she referred to many places she had walked around with her mother) he could only recall one of the places she mentioned walking around – Puntitjarra. Given this (understandable) lack of recollection of such relevant information and the fact that HM did not actively seek out any information himself, and relied on CDNTS to conduct the research, HM’s willingness to make adverse assertions about the rights and interests of Sullivan Edwards ancestors and claimants is less convincing. When asked in cross-examination: ‘Did you not think to go and try to get some more information from [Mrs Sullivan]…?’ HM replied: ‘that was done by [CDNTS]…I didn’t research or do researching no.’ This was a statement he repeated in similar terms on several occasions in cross examination, at the same time indicating his own lack of knowledge about the topic in question.
1198 HM did not seek information about the Sullivan Edwards families from Doreen Harris or from Glen Cooke, despite his personal knowledge of both these people and his acknowledgment of their respected status. When it was put to him in cross-examination that they and Junior acknowledge the Sullivan claimants as traditional owners, he merely repeated that he had not done any research on the claim. He said that he only knew about his own family’s position but left it up to Ngaanyatjarra Council and subsequently CDNTS to work out whether other families should be included. When asked about the process for deciding whether or not to include the Sullivan Edwards, the answer was the same:
Well yeah probably in the beginning there was discussions, yes…the [CDNTS] comes in and presents it, what they, what they think their research has found and then people make a decision, it’s all done verbally.
1199 When asked whether the Sullivans’ inclusion had been considered more than once or only once at a meeting, HM said ‘I, maybe once, yeah’. HM conceded that it had been left up to CDNTS to work out the makeup of the Yilka claim based on application of the traditional laws and customs.
1200 In these circumstances, as with Mrs Murray, HM’s reluctance to accept the Sullivan Edwards’ possession of rights and interests does not amount to contestation based on an informed application of the agreed WDCB criteria.
1201 The Yilka applicant argues that, even if the Murray family holds a grudge against the Sullivan and/or Edwards families, is not relevant to the issue of whether the Sullivan claimants’ connection to the Sullivan claim area is recognised under WDCB laws and customs. They point out that the question of recognition is not answered by whether or not there is a grudge. However, as I have indicated, looking outside of the Murray family, the Sullivan claimants’ claim, on the balance of probabilities, is recognised under WDCB laws and customs and one would discount the reasons for rejection of the Sullivan claim if the reasons are not based on WDCB laws and customs.
1202 The Yilka applicant relies upon the rule in Browne v Dunn to submit that, to the extent that the witnesses called by the Yilka applicant contradict the case that is advanced by the Sullivan applicant, the Sullivan applicant has not put the substance of that case to any of those witnesses with the exception of HM and Mr O’Dell. The Sullivan applicant also did not seek to recall any of those witnesses.
1203 Specifically, the Yilka applicant was only confronted for the first time in final submissions, it says, with an attack on the credibility of Mrs Murray. On the application of the rule in Browne v Dunn, the Yilka applicant asserts that it is not open to the Court to make any adverse finding against her, as no question of her credibility was put to her in cross-examination. The Yilka applicant relies on the following statement of Gummow, Kirby and Callinan JJ in relation to the rule in Browne v Dunn from MWJ v R (2005) 222 ALR 436 (at [39]):
One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. An offer to tender a witness for further cross-examination will however, in many cases suffice to meet, or blunt a complaint of surprise or prejudice resulting from a failure to put a matter in earlier cross-examination. In this case, the appellant was confronted with a forensic dilemma: whether to seek to have the mother's evidence of her daughter's assertions of repeated misconduct at Sutcliffe Street excluded by reason of its prejudicial effect, or deliberately to leave it untouched to provide a basis for a submission that a fundamental inconsistency tainted the whole case. In the event the appellant chose the former. In that endeavour he failed, but was still able, albeit unsuccessfully, to rely on it as setting up a significant inconsistency. On no view was the appellant obliged however to seek to have the complainant recalled as a condition of his reliance upon the inconsistency which had emerged in the case for the prosecution.
1204 The Yilka applicant also complains that it is not open to reach a conclusion, as is contended for by the Sullivan applicant, that there has been a gatekeeping approach taken by Mrs Murray, HM and other members of the Cosmo claim. The Yilka applicant contends that the challenge is not only incorrect on the facts, but that little or no weight should be given to it to the extent that the Sullivan applicant has not put the substance of that complaint to any member of the Murray family.
1205 However, I find that the Murrays have had ample time to deal with this suggestion and have not been treated unfairly in any Browne v Dunn sense.
1206 There is no doubt, on the evidence, that members of the Murray family have been aware at all times that the Sullivan applicant asserts that the true reason for lack of recognition is the vestige of a personal dispute. There has been ample opportunity for them to deal with this assertion in evidence and, indeed, they have done so. The rule in Browne v Dunn is simply a rule designed to permit a fair opportunity for a witness to comment on an opponent’s assertion. There has been more than ample opportunity in this situation.
1207 Further, the basis for the submission that Mrs Murray was affected by personal animosity towards the Sullivans is confined to the evidence she gave in examination in chief and the question of the existence of a personal grudge was expressly put to HM. While HM denied that he personally or to his knowledge any other member of the family had such a grudge, he did accept that there had been difficulties between his late sister and members of the Sullivan family in relation to the management of the Wongatha Wonganarra Aboriginal Corporation in the late 1980s. The ‘gatekeeping’ approach was referred to by Justice Lindgren in Wongatha as mentioned above. As I have stated, regardless of HM’s assessment, I do consider that there was ill feeling following this (particularly by the influential Mrs Murray) which has reached over into the question of inclusion of the Sullivan claimants in the Yilka claim for reasons which are not related to WDCB laws and customs.
13.3 CDNTS and the authorisation process of the Yilka claim
1208 Mr O’Dell was at all material times the principal legal officer of CDNTS. Mr O’Dell contended that CDNTS conducted a thorough and diligent research and analysis process and appropriate community council consultation and decision-making processes to ensure the correct people were included on the proposed new claim group description before the Yilka claim was authorised. The Sullivan applicant contends this is not so because the documents produced in response to a subpoena reveal that CDNTS:
(a) failed to conduct any or any adequate research in relation to the Sullivan Edwards family members’ association with the Claim Area;
(b) failed to facilitate appropriate processes to ascertain the views of prospective Yilka claimants and senior non-claimant Western Desert Aboriginal people in relation to the Sullivan Edwards families’ connection; and
(c) failed to facilitate appropriate decision-making processes by prospective members of the Yilka claim group in relation to the Sullivan Edwards families.
1209 The State makes similar submissions (in relation to the issue of authorisation of the Yilka claim).
1210 The Sullivan applicant contends, therefore, that non-inclusion of the Sullivan claimants is not evidence of any widespread lack of recognition of their rights and interests in the Sullivan claim area, pursuant to WDCB laws and customs. Rather, there is said to have been a ‘gatekeeping’ approach on the part of a small number of Cosmo/Yilka claimants based on inadequate research and claim group discussion, according to the submissions of the Sullivan applicant.
1211 The Sullivan applicant complains (and this submission is echoed by the State) that CDNTS simply tweaked the claim advanced (unsuccessfully) in Wongatha to overcome the difficulties in that claim. Thus the contention is that the meeting on 27 November 2007, where the Wongatha decision was discussed and at which a decision was made not to accept the Sullivans, was a meeting of the Cosmo claim group, and consequently, all prospective members of a new claim were not invited.
1212 Further, the research conducted by CDNTS in-house anthropologist, Mr Calderwood, in 2008 was for the purpose of considering ‘amendments’ to the Cosmo claim group description in the context of the appeal and consent determination negotiations with the Western Australian state government. This is apparent from the briefs to Mr Calderwood. Therefore, it is said, the starting point for discussions about the make-up of the Yilka claim group was the existing Cosmo claim group description, meaning that the active meeting-attending members of that group continued to have a preeminent role in the decision-making process despite the ‘gatekeeping’ criticism made by Justice Lindgren in relation to the Cosmo claim group, referred to above.
1213 The Sullivan applicant points out that CDNTS did not start afresh at this point, and implemented no new open process to determine membership of the claim group. It was not until some point in the second half of 2008 that a decision was made to support the formulation and filing of a new claim. The same lawyers who represented the Cosmo claim (Ms Sian Hanrahan and Mr O’Dell) provided advice to the prospective members of the new claim. Perhaps more importantly, the decision in relation to the Sullivans was made in November 2007 at a small Cosmo claim group meeting and CDNTS did not facilitate the reconsideration of that issue at any other meeting prior to the authorisation of the Yilka claim in December 2008.
1214 The 27 November 2007 meeting was attended by only 12 community members, nearly all being from the Murray family, according to the minutes of the meeting. Ms Hanrahan attended that meeting, but Mr O’Dell did not, nor was there any anthropologist present. Without traversing in detail the contents of this meeting, it is plain that no members of the Sullivan Edwards families, Winter family or Harris family were invited or present. Indeed, there had been no meeting with or discussion with them prior to the meeting in relation to the meeting. No anthropological field work had been carried out in relation to them. It is a reasonable construction to place on the meeting that, insofar as the evidence reveals, little was advanced favourably as to the basis and merits of any Sullivan claim to possess rights and interests over the Cosmo area. This was despite the fact that CDNTS had recorded the following information in a document titled ‘Table of Evidence of Wongatha Claimants’ Connections to Cosmo’ dated 19 November 2007:
(a) Mrs Sullivan:
Gave evidence that she claimed her mother’s country, Koornka and that her mother’s ngurrara included all the areas she walker [sic] around such as Minnie Creek to Laverton. She also included all those areas in her own ngurrara…
(b) Mervyn Sullivan:
… claims Cosmo through his mother because it was where she used to roam around. It may be open to him to claim Cosmo on this basis.
(c) Mr G Sullivan (deceased):
Claims Cosmo through his Mother’s mother whose country is around Cosmo. It is her country because that is where she travelled, was born and grew up. On basis that Cosmo is his mother’s mother’s country, it is likely to be open to him and his descendants to claim Cosmo
(d) Celia Sullivan:
Gave evidence that White Cliffs, Yamarna…were her country.
Claims Cosmo as her country but doesn’t say why. Further information required. Unclear whether it is open for her descendants to claim Cosmo
(e) Patrick Edwards:
Mother born around Cosmo. He claims Cosmo because his mother was born there, she used to walk around that country and because he knows the country. It is likely that it is open for him and his descendants to claim Cosmo if they so wish.
1215 CDNTS had also received information from the Goldfields Land and Sea Council (GLSC) on 23 November 2007, which included the following:
(a) Mrs Sullivan’s mother is buried in Cosmo Newberry;
(b) Mrs Sullivan addressed the 1984 Seaman enquiry about being a traditional owner for Cosmo, Yamarna and Minnie Creek;
(c) Celia Sullivan claims connection to Cosmo Newberry, has camped there since young, has taken her children around the country and taught them about the ‘nomad’s walk’ and rockholes, and that she has passed on her knowledge to her children when camping at Cosmo; and
(d) The specific references to evidence in the Wongatha proceedings given by Mrs Sullivan, Mervyn Sullivan, Celia Sullivan and Patrick Edwards.
1216 Based on the minutes of the meeting it appears that, despite this information having been collected by CDNTS, it was not communicated to the attendees at that meeting. One option at that meeting would have been to defer or to postpone any decision regarding the Sullivans in light of this information, but no suggestion was made to the meeting by CDNTS to that effect, notwithstanding that there was no anthropological field work or witness proofing work concerning the Sullivan Edwards’ contentions and that no Sullivan Edwards family members were present.
1217 The Minutes record the following decisions. In relation to the Sullivans: ‘All Sullivans are a no’; and in relation to Patrick Edwards: ‘Agreed that we should wait for further info from GLSC re PE’s connection’. It appears that no further information was provided about Patrick Edwards at any stage.
1218 Insofar as the evidence reveals, this was the only meeting at which any consideration was given to the inclusion of the Sullivans and Edwards prior to the authorisation meeting for the Yilka claim on 4 December 2008. This was notwithstanding that further meetings were held of the same group during 2008.
1219 The Sullivan applicant is also critical of the fact that some of the in-house anthropologists reports failed to mention or gather information about the Sullivan Edwards families; and, where such information was collected, that this was never passed on to the Yilka/Cosmo claimants. In May 2008, Mr Calderwood expressed his views as to the proposed claim group description based on a ‘desktop review’. No reference to the Sullivan Edwards families was made in that report. In a July 2008 report, he recorded having met with Mrs Sullivan at the Laverton Hospital on an unknown date and that other people also present were Celia Sullivan, Mervyn Sullivan, Mr G Sullivan (deceased), Lois Laidlaw and Rhys Winter. He described the meeting as impromptu, implying that it had not been planned hence there had not been an opportunity for him or the Sullivan family members to prepare for it. In relation to the Sullivan Edwards connection to Cosmo, he noted that:
[Mrs Sullivan’s] mother, Kitty lived around Cosmo, White Cliffs, Limestone, Minnie Creek, Yamarna, Hunters Waterfall, Tatjun (sp) and Hatches Soak [sic]. [Mrs Sullivan] walked around Kaarnka (near Neale Junction), Lake Yeo and Dorothy Range. She walked from Laverton to Kaarnka and return.
[Mrs Sullivan] was taken to Mt Margaret in 1930 aged about 10. [Mrs Sullivan] stated that her sister, [Mrs Wingrove] (Patrick Edward’s mother) was born at Cosmo.
[Mrs Sullivan’s] mother is buried at Puntitjarra.
The Sullivan family have been grading the roads in the area “from rockhole to rockhole, from the 1950s to the 1970s. Mervyn still lives at Cosmo. Today the whole family go hunting and looking for bush tucker around Cosmo.
1220 The minutes of the meetings which were held subsequent to the preparation of this report do not suggest that this information was passed on to the persons in attendance.
1221 Mr Calderwood prepared a report in October 2008, under instructions from the CDNTS legal section to discuss with non-Cosmo claimants their opinions on the validity of certain individuals’ native title claims to the Cosmo area. However, he was not instructed to seek views or opinions about any of the Sullivan claimants and the report reveals he did not ask about them. The Sullivan applicant emphasises this omission on the part of CDNTS to canvass views of the wider population of Aboriginal people from within the proposed claim area and from surrounding areas. Such enquiries as the Sullivan applicant contends, would have been relevant to the issue of recognition of the claims of the Sullivans and Edwards by others under WDCB laws and customs. Mr Calderwood reports in a file note that he was informed by Rhys Winter in a face-to-face discussion in October 2008 that Mrs Wingrove was born at Cosmo. This information was also not passed on prior to authorisation of the Yilka claim, insofar as any evidence in the case, including minutes of meetings, shows.
1222 The Sullivan applicant is also critical (albeit, less so) of the nature of the brief to and, therefore, the work carried out by Dr Sackett. Again, there is emphasis on the fact that what Dr Sackett was briefed about was a restructuring of the Cosmo claim. It appears that Dr Sackett was informed by CDNTS that the evidence referred to above of some importance concerning the Sullivan Edwards families was raised at the 27 November meeting, whereas the minutes of that meeting appear to show that it was not. This would mean that Dr Sackett was misinformed as to the basis on which the meeting refused to accept the Sullivans and deferred judgement on Patrick Edwards. At no stage has CDNTS asked Dr Sackett to conduct any field work with members of the Sullivan or Edwards families, and he prepared his reports without having conducted any such field work. I do not understand this to be a criticism of Dr Sackett, but a criticism of the brief that he was given. For my part, I certainly draw no adverse conclusions in any respect of the evidence given by Dr Sackett.
1223 As noted, the Sullivans and Edwards families were not invited to the Yilka authorisation meeting of 4 December 2008, and there was no discussion as to their possible inclusion in the Yilka claim group. Whether Dr Sackett was invited is unclear, but according to the record he was not in attendance. The Sullivan applicant submits that it is a reasonable construction based on the minutes of the meeting that the CDNTS lawyers conceded that the research was incomplete as to who should comprise the Yilka claim group, but that they discouraged discussion about the makeup of the claim group, indicating that this could be addressed later if necessary. It appears that they urged a decision that day by only those people falling within the claim group description as circulated prior to the meeting, but mentioned that others may be included at a later time.
1224 It is conspicuous that Dr Heather Lyens, engaged by CDNTS after the Sullivan claim was filed to potentially conduct anthropological research with the Sullivans, by email to Dr Vachon on 13 April 2012, noted that:
I, too, feel that in an ideal situation CDNTS should have more actively pursued the Sullivan claim much earlier in the scheme of things … From what I can gather, you are right in understanding that CDNTS have not worked with the Sullivans regarding the Yilka matter and it was precisely this issue that myself and Sean Calderwood we retrying to rectify – albeit quite late in the game – when contacting Mervyn and family.
1225 The Sullivan applicant submits that the process by which the decision was made to exclude the Sullivans was badly flawed, meaning that the prospective members of the new claim were not able to make an informed decision about inclusion of the Sullivan Edwards families. The decision to exclude the Sullivans was made in November 2007 by a small number of people on the Cosmo claim group, nearly all the members of the Murray family, in reliance on CDNTS’ research and advice, based on very little information about the Sullivans’ assertion of rights to the Cosmo area and in the absence of anyone from the Sullivan family. It was made without the benefit of any anthropological field work with members of the Sullivan or Edwards families, without the benefit of anthropological research targeted to ascertain the views of senior (non-claimant) Western Desert people with knowledge of the area, and at no stage revisited prior to the authorisation of the Yilka claim.
1226 The Sullivan applicant submits, based on all the evidence relating to the Murray family and CDNTS referred to above, that contestation has been narrowly confined and should be given little or no weight because it has not been based on an informed application of relevant WDCB criteria to the Sullivan Edwards ancestors and the claimants.
1227 Dealing specifically with the CDNTS issues, the Yilka applicant understandably strongly disputes the relevance of any of this material. In essence, the submission is that even if CDNTS has made mistakes in the formulation of the Yilka native title claim group (which is denied), that could not possibly assist the Court to determine whether the requirement of recognition has been established by the Sullivan applicant on the balance of probabilities.
1228 I accept the Yilka applicant’s submission that Mr O’Dell is a truthful witness and an experienced and capable practitioner in native title matters. On the other hand, as the contemporaneous materials reveal, the practical reality was that there was pressure as a result of the pending Cosmo appeal, and CDNTS was pressing the Murray family, the attendees at the 2007 and 2008 meetings, to make a decision with regards to the composition of the claim group at that point in time. For whatever reason, it does not appear that a comprehensive objective outline of the bases upon which the Sullivan Edwards families should have been included in or excluded from the Yilka claim group was fully considered by the Yilka claimants. It is not unreasonable to infer, and I do so, that the Murray family, and Mrs Murray in particular, were far from enamoured with the idea of including the Sullivan Edwards families in the claim group. Whether this was a factor leading to the absence of detailed material being put to the Yilka applicant does not need to be determined.
1229 As I have said, from my perspective, it is difficult to distinguish the authenticity of the Yilka claim from the Sullivan claim. In large measure, that appears also to be the view of the expert anthropologists. On the totality of the evidence, it appears that both the reason for exclusion of the Sullivan claimants from the Yilka claim, and the lack of recognition of their claims to land, have been motivated by personal factors and are not based on informed application of WDCB laws and customs. On the other hand, there is evidence of recognition of the claims of the Sullivan Edwards by relevant people outside of the Murray family which appear to have a reasoned basis in facts surrounding birth and/or long association of the claimants and/or ancestors. Therefore I find it inappropriate to discount the Sullivan claim due to the personal feelings of one family in particular. I come to the positive conclusion that there is sufficient recognition of the Sullivan Edwards family members’ claims to land to find that they do possess rights and interests in the Sullivan claim area pursuant to the requirements of Sullivan POC [24].
14. CONNECTION TO THE CLAIM AREA BY THE LAWS AND CUSTOMS
1230 The requirement that claimants must show connection to the land or waters by the traditional laws acknowledged and the traditional customs observed derives from s 223(1)(b) NTA. The connection aspect is asserted in Sullivan POC at [84]. The Full Court in Northern Territory v Alyawarr stated (at [111]):
The concept [of “connection”] … involves the relationship of the relevant community to its country defined by laws and customs which it acknowledges and observes. The relationship may be expressed in various ways including, but not limited to, physical presence on the land.
1231 Although the question of connection is a separate inquiry to that required by s 223(a), both may depend on the same evidence: Ward HC (at [ 18]).
1232 The State contests connection by the Sullivan claimants generally and specifically challenges the connection to the area to the east of sites 44 and 46 on the Sullivan site map. This is in addition to the State's submission concerning lack of connection with those areas that have already been removed by the reduction to the Sullivan claim area.
1233 The Sullivan applicant refers to the evidence of Dr Vachon in support of the Sullivan claimants’ connection to the Sullivan claim area. Dr Vachon states that Mrs Sullivan’s children continue to regard the ‘Cosmo area’ as their country, and have personal experience with and knowledge of sites in the Claim Area. He considers that the present living generation of the Sullivan and Edwards families have a continued association in WDCB terms with the Claim Area: see the excerpt from his report set out at Pt 12.6. The Sullivan applicant also refers to the evidence of the Aboriginal witnesses, including that which has been referred to throughout Pts 6-12 of this Chapter and in the Sullivan Edwards Sites Evidence Summary (Annexure 8). I consider that the evidence shows that the Sullivan claimants maintain a strong physical and spiritual connection to the Sullivan claim area under WDCB laws and customs.
1234 The NTA requirements regarding authorisation have been outlined in Chapter 1 above. The Sullivan applicant pleads, at [92] of its POC, that it has been authorised by all of the persons, who, according to the traditional laws and customs of the WDCB, hold the rights and interests comprising the native title claimed in this application. The Sullivan applicant pleads, by [93] of its POC, that it otherwise ought to be permitted an opportunity to seek authorisation consistent with the Court’s findings, or to ask the Court to hear and determine the Sullivan native title claim pursuant to s 84D(4) NTA. Evidence regarding the authorisation process was given in the affidavits accompanying the Sullivan Form 1, and in Mervyn Sullivan’s oral evidence. There is no reason to doubt this evidence. I accept it. The Yilka applicant advances a circular argument against it, which I reject. The Yilka applicant does not admit that the Sullivan application has been authorised by all the persons holding the common or group rights of the ‘particular native title claimed’, given that the Yilka claimants hold rights and interests in the Claim Area (as the Sullivan applicant admits) and that there is no evidence of any attempt to include the Yilka claimants in the Sullivan authorisation process. I accept the evidence of the Sullivan applicant that there was authorisation. I consider the particular native title claimed to be the individual native title rights and interests of the Sullivan claimants in the Sullivan claim area.
1235 As with the Yilka applicant, in my view the Sullivan applicant has also made out its claim. While the Sullivan claim group is constituted by a smaller number of people than the Yilka claim group, the evidence in support of the claim was just as persuasive. Quite independently of that conclusion I observe that I have also found that the Sullivan claimants should have been included in the Yilka claim. If that had occurred as it should have done, all the evidence would have been in the one claim. The Sullivan applicant accepts the evidence in the Yilka claim and in saying that the Sullivan claimants should have been included in the Yilka claim effectively also relies on that evidence. But I reiterate that while accepting the Yilka evidence and accepting the Sullivan evidence for almost the same area of land and in respect of the same customs, traditions, rights and practices, nonetheless, I consider that the Sullivan claim has been established independently of and in addition to the Yilka claim.
CHAPTER 3 – EXTINGUISHMENT IN BOTH CLAIMS
1. INTRODUCTION AND SUMMARY OF CONCLUSION
1236 This chapter is concerned with the extinguishment or otherwise of native title rights and interests in the Claim Area, being the area over which rights and interests asserted in the Yilka Amended Form 1, Yilka No 1 Form 1 and Sullivan Amended Form 1.
1237 I have replicated much of the submissions for all parties more in this area than elsewhere despite the fact that agreement between the parties was eventually reached on many issues. Ultimately for the most part I have accepted the submissions of the applicants on extinguishment for the reasons advanced by them which I have also set out. There was also a major issue relating to the State’s position with extinguishment concerning roads, albeit that after a great many submissions were exchanged, it was ultimately revealed that there was far less dispute than originally indicated. On terms as to costs I had permitted the state to re-open to adduce evidence on roads contrary to very strong opposition of the Yilka applicant in particular.
1238 The topic of extinguishment gave rise to very considerable controversy between the parties, although, ultimately, much of this was resolved over the course of the exchange of written submissions. There has been controversy at both a substantive and a procedural level. Detailed written submissions, evidence and other materials in relation to extinguishment were filed over an extensive period of time, including, in particular, submissions in relation to extinguishment in the context of roads on which, as indicated, I permitted the State to reopen following an interlocutory application. Reasons for that ruling appear within this chapter in Pt 9.
1239 This chapter will first address the parties’ initial submissions on extinguishment, before addressing separately those issues which arose following the State’s application to reopen in relation to extinguishment by roads. While agreement was eventually reached on many issues, I have nevertheless recorded the course of the arguments on the various issues which arose. The various exchanges and revisions have necessarily given rise to a need for subsequent amendment of the specific terms of any determination sought. In significant measure, I have preferred the Yilka applicant’s analysis. I have indicated where the position is otherwise.
1240 To begin with, there were a number of areas of difference and disagreement between the Yilka applicant and the State. These included significant differences in relation to matters as fundamental as the proper understanding of the test for extinguishment, or at least the application of it, such as the State’s (initial) contention that gold mining leases and mineral leases under the Mining Act 1904 (WA) wholly extinguished native title at common law.
1241 There was also significant disagreement between the Yilka applicant and the State on a number of other matters, including in relation to rights in water, and the State’s desire for generic treatment of roads and public works otherwise than on the basis of evidence (the State later abandoned this stance with respect to roads).
1242 The Sullivan applicant also disagreed with the State in relation to some of its contentions concerning acts which wholly extinguish native title, .in particular the gold mining leases and mineral leases, in relation to which the State subsequently changes its position.
1243 The State initially relied upon tenure evidence comprised in an Index to Tenure Material, an affidavit of Mr Lee Rex Morgan, sworn 21 December 2012 (Exh 47(b)), an affidavit of Mr Philip Michael Goulding sworn on 17 December 2012 (Exh 48), an affidavit of Mr Ian Robertson, affirmed on 8 November 2012 (Exh 49) and affidavit of Mr John Douglas Connelly, sworn on 14 November 2012 (Exh 50). These are referred to collectively as the Tenure Affidavits.
1244 As that affidavit material explains, Mr Morgan is the Geographic Information System Coordinator of the Native Title Spatial Services (NTSS) section of the West Australian Land Information Authority (trading as Landgate).
1245 Mr Morgan is responsible for the data management in respect of the compilation of the Tenure DVD, which is annexed to his affidavit (Exh 47(b)) as ‘LRM4’. The State has used the indices and various grants contained electronically in the form of PDF files in LRM4 in order to create the Schedules to its submissions entitled ‘First Respondent’s submissions on extinguishment’ (State Extinguishment Submissions).
1246 Most of the State’s initial tenure evidence is contained in LRM4, which contains PDF copies of documentation of all the available current and historical land tenure, mining and petroleum tenements. The PDF files form the basis of evidence in relation to each particular grant.
1247 The information provided from the Department of Mines and Petroleum (DMP), is current to 31 October 2011 in respect of mining tenements, and 29 April 2011 in respect of petroleum titles. LRM4 and the records of Landgate are current to 7 July 2011 in respect of current land tenure, 23 April 2012 in respect of current mining tenements and 3 May 2012 in respect of current petroleum interests.
1248 Neither of the applicants filed evidence of current or non-native title rights and interests.
1249 Mr Goulding is a research officer at the office of the Department of Agriculture and Food, Western Australia and provided evidence in relation to pastoral improvements made on Yamarna Station.
1250 Mr Ian Robertson is the manager of the Titles Spatial Services (TSS) of the Mineral Titles Division of DMP in Western Australia. The role of that Department is to undertake searches to determine the nature of all tenements and to provide the data to NTSS or to Landgate.
1251 Mr Connelly is the Director Regulation of the Department of Water. He provided evidence in relation to the water interests in the Claim Area.
1252 The Yilka Extinguishment Submissions work on the assumption that all evidence of prior and current tenure regarding the Claim Area that is available is in evidence and that the determination is to be made on the basis of that evidence. That was an assumption which later proved to be unfounded when the State sought to adduce additional evidence concerning roads. Following a substantial contest on that issue, I permitted the State to reopen, as discussed in detail below.
1253 Nevertheless, I consider it is necessary or at least helpful to examine the response by the Yilka applicant to those matters which the State has initially raised on the question of extinguishment, as the unfolding of the debate does illuminate the reasoning leading to the ultimate conclusion.
1254 The Yilka applicant works on the basis that the Index to Tenure Material (Exh 47(a)) and the affidavit of Mr Morgan of 21 December 2012 provides the evidence of current and historical tenure in relation to the Claim Area. That evidence is the basis for the area by area analysis of extinguishment undertaken by the Yilka applicant.
1255 On the other hand, the Yilka applicant contends that the affidavit of Mr Goulding, sworn 17 December 2012, which provides evidence in relation to pastoral improvements made on Yamarna Station, is now irrelevant since the High Court decision in Brown HC. The Yilka applicant maintains that such improvements do not extinguish native title and are irrelevant. The activities of construction and use of such things as is permitted by the pastoral lease are unaffected by the existence of non‐exclusive native title rights. That is acknowledged in proposed Order 9 of the Yilka Determination Sought.
1256 In relation to the affidavit of Mr Robertson, affirmed on 8 November 2012, going to the provenance of the mining tenure data, the Yilka applicant does not consider that the limitations on the tenement information as outlined in the affidavit relevantly impact on the area by area analysis conducted by the Yilka applicant.
1257 In relation to the affidavit of Mr Connolly, sworn 14 November 2012, concerning water interests, the Yilka applicant notes that there is only one such interest referred to.
1258 While not ‘tenure evidence’, evidence and findings about traditional rights and the translation of them as native title rights are fundamental to the determination of questions of extinguishment. It is those rights that must be compared with granted rights and measured against any legislation in order to determine questions of inconsistency and extinguishment, as held in Ward HC and Akiba HC. The Yilka applicant relies on the traditional rights are those identified in the Yilka Connection Submissions (see Chapter 1 of these reasons) and that they are properly translated as a bundle of rights comprising the exclusive right as set out in Order 3 of the Yilka Determination Sought and the non-exclusive rights as set out in Order 4.
1259 Other evidence of the Yilka applicant going to questions of extinguishment relates to the ‘occupation’ requirements of s 47A and s 47B NTA which in this case may trigger the disregarding of extinguishment in relation to Aboriginal reserves and Crown land areas.
1.2 Overview of the parties’ positions
1260 The State denies that native title exists. However, it contends that in many cases native title (if it existed), has been wholly extinguished, that is, whatever the content of native title found by the Court, all of the native title rights and interests in that land or waters have been extinguished.
1261 In addition, the State has submitted that, in many cases, native title has been partially extinguished. Because of the range of potential findings on the existence of native title and the content of any native title rights that may be found to exist, the State has not always addressed the manner in which the partial extinguishment contended for will affect the ultimate native title determination. It contends that in those circumstances, native title will be extinguished to the extent of the inconsistency and if the only native title rights in existence are those which are inconsistent with the extinguishing act, then native title will be wholly extinguished. In some instances, however, it may be necessary to identify native title rights with particularity to permit the comparison with non-native title rights that is necessary to assess inconsistency and the extent of extinguishment. The State’s approach is that, where the same area of land and waters is covered by multiple extinguishing acts, any particular native title right and interest is taken to have been extinguished by the earliest act which is inconsistent with that native title right or interest.
1262 The State’s position in its Extinguishment Submissions was initially that, given the absence of any evidence to the contrary, the Court should accept that the non-native title rights and interests in relation to the Claim Area are as depicted in the relevant Tenure Affidavits.
1263 The State’s Extinguishment Submissions are also presented on the basis that all rights, titles and interests purported to have been granted or created by or on behalf of the State and contained in the Tenure Affidavits are valid (both pursuant to the relevant State legislation under which they were granted and/or pursuant to the operation of the NTA and the State Legislation, the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA).
1264 The Yilka applicant disagrees with the State’s suggestion that matters of partial extinguishment must await findings about the contents of any native title rights that might be found to exist. The Yilka applicant observes that the task of the State’s submission on extinguishment was to deal with the content of the rights as claimed and to undertake such analysis as may be necessary to determine what is left for recognition as native title. However, the State’s submissions apparently contemplate further rounds of extinguishment submissions following delivery of reasons for judgment by the Court, which the Yilka applicant says should not be necessary. I do not consider it will be necessary.
1265 The Yilka applicant submits, following the High Court decisions of Ward HC, Akiba HC and Brown HC, that there are many circumstances in which it can be concluded, that extinguishment may extend to a right to control access or conduct by others but leave non-exclusive native title rights un-extinguished. Rights are either exclusive, in that they entitle the exclusion of others for any reason or no reason, or non-exclusive. Contrary to the State’s submission that there is a need to identify native title rights with particularity to permit the comparison with non-native title rights in order to determine inconsistency and the extent of extinguishment, the Yilka applicant submits that there is the need to merely identify the rights possessed under traditional law and custom as properly translated for recognition as native title rights and to consider whether, as a matter of logic, those rights are inconsistent. The Yilka applicant says that Akiba HC and Brown HC make clear that a right is to be regarded as indivisible for extinguishment purposes; and that it is each native title right, not each activity by which the right might be exercised, that may need to be considered for inconsistency. Traditional law and custom is what determines the content and scope of the rights, rather than any arbitrary level of specificity, the Yilka applicant says.
1266 Although the Yilka applicant does not dispute the tenure history evidence, it does examine whether there are questions about the validity of particular tenures, either as granted or under the NTA or the TVA, that may be significant to the overall extinguishment outcome.
1267 The Yilka applicant contends that the proper extinguishment analysis involves consideration of complex legislative provisions of the NTA, the TVA, the common law, the decisions of this Court and the High Court and their application to the current and historical tenures that affect and have affected the land and waters within the external perimeter of the Yilka claim area.
1268 The Yilka applicant has set out, and shown on Yilka Determination Sought and the map at Attachment 3 of the Yilka Extinguishment Submissions, what it maintains is the proper outcome of an area by area extinguishment analysis: see Pt 8 below. That map, which is referred to as the Yilka Tenure Map, is attached to these reasons as Annexure 9.
1269 By way of summary, the outcome for which the Yilka applicant contends in its extinguishment submissions, is as follows (references to areas and roads as recorded in the Yilka Determination Sought and Yilka Tenure Map):
(a) five areas are wholly excluded from the claim being Areas 1 to 5 (namely the vested water reserves);
(b) a part of each of two further areas are excluded from the claim, being the section of Road 2 where it traverses Area 11 and part of Area 12 where extinguishment cannot be disregarded;
(c) four areas are the subject of the exclusive native title right by operation of s 47A NTA, being Areas 6, 7, 9 and 10, namely the Aboriginal reserves. Those areas include Area 17;
(d) a further three areas are parts of Areas 7 and 9 and subject to the exclusive native title right, being Road 1, the part of Road 2 outside Area 11, and Area 17 (which alternatively may be UCL);
(e) four (or five) areas are the subject of exclusive possession native title by operation of s 47B NTA, being Areas 13-16, and possibly also Area 17 (the UCL);
(f) part of a further area is also the subject of exclusive possession native title by operation of s 47B NTA, being the part of Area 12 that is not subject to or covered by those things listed in s 47B(1)(b) NTA (i.e. is not covered by by a mining lease);
(g) two areas are the subject of the claimed non-exclusive native title rights because of the extinguishment of the exclusive native title right, being Areas 8 and 11 (the Warburton Stock Route Reserve and the Yarmana Pastoral Lease respectively); and
(h) a large number of various current tenures require mention in the Yilka Determination Sought as co-existing ‘other interests’ to which the non-extinguishment principle applies.
1270 The Yilka applicant complains that it has been left to do the work of the extinguishment analysis on an area by area basis, because the State has failed to do so, including the identification of tenure areas to which s 47A and s 47B NTA may apply. It falls to the Yilka applicant, in any event, to deal with the evidentiary ‘occupation’ requirements of those provisions.
1271 The way the Yilka applicant has approached the matter in its Extinguishment Submissions is to provide, firstly, a general submission in response to the State’s submissions, and, secondly, an area by area analysis which identifies the overall extinguishment outcome for each of the current tenure areas covered by the Yilka claim. The Yilka Extinguishment Submissions, Yilka Determination Sought, and Yilka Tenure Map use the following numbering to refer to the current tenure areas:
(a) Area 1 - Reserve 18594 (water supply)
(b) Area 2 - Reserve 18595 (water)
(c) Area 3 - Reserve 18596 (water)
(d) Area 4 - Reserve 18597 (water)
(e) Area 5 – Reserve 18714 (water)
(f) Area 6 - Reserve 20396 (use and benefit of Aborigines)
(g) Area 7 – Reserve 22032 (use and benefit of Aborigines)
(h) Area 8 – Reserve 24980 (Warburton Range Stock Route)
(i) Area 9 - Reserve 25050 (use and benefit of Aborigines)
(j) Area 10 - Reserve 25051 (use and benefit of Aborigines)
(k) Area 11 – Pastoral Lease 3114/854 (Yamarna)
(l) Area 12 – UCL 1 Lot 18 of DP 194858
(m) Area 13 – UCL 2
(n) Area 14 – UCL 3
(o) Area 15 – UCL 4 (Yilka No 2 Pt B)
(p) Area 16 – UCL 5 (Yilka No 2 Pt C)
(q) Area 17 – UCL 6 (Yilka No 2 Pt A) (excluded from Area 1)
(r) Road 1 – Rd No. 9462
(s) Road 2 – Rd No. 9463
1272 The ‘Sullivan Edwards Applicant’s Response to First Respondent’s Submissions on Extinguishment’ (Sullivan Extinguishment Submissions) are relatively brief and focussed on the occupation requirement under s 47A and s 47B NTA. It is relevant here to note that the Sullivan applicant agrees with the State that in instances of apparent partial extinguishment of native title arising from the examination of tenure, the Court may be assisted by further submissions as to orders appropriate to give effect to the Court’s reasons. I do not find such further submissions to be necessary in this instance.
1.3 Extinguishing effect of tenure types
1273 Given that these reasons follow the parties’ arguments in much detail, it is useful here to summarise the ultimate findings in relation to the extinguishing effect of various tenure types on the Claim Area.
1274 It is agreed that vested reserves wholly extinguish native title rights and interests. Native title is therefore wholly extinguished over the area of the five vested water reserves. Native title is also extinguished over the area of the four reserves for the use and benefit of Aboriginal people; however, that extinguishment is to be disregarded by the operation of s 47A NTA.
1275 There are two roads which wholly extinguish native title, being Road 1 (unnamed) and Road 2 (White Cliffs-Yamarna Road). However, again, extinguishment by these roads is to be disregarded where they traverse the areas of the four Aboriginal reserves pursuant to the operation of s 47A NTA.
1276 There are a number of interests which the parties ultimately agree partially extinguish the native title rights and interests. That is, these interests extinguish the exclusive native title right, being the right to control access, but not any of the non-exclusive native title rights. There is partial extinguishment by the following interests in the Claim Area:
(a) Gold mining leases, mineral leases and mineral claims granted before 31 October 1975;
(b) Pastoral leases;
(c) Petroleum interests granted before 31 October 1975; and
(d) Unvested reserves, including temporary reserves.
1277 Once again, where any of these interests fall within the area of the four Aboriginal use and benefit reserves, any extinguishment by them is to be disregarded under s 47A NTA. Section 47B also applies over the fix or six areas of UCL within the Claim Area. The net result is that there is only partial extinguishment over the areas of the Yamarna Pastoral Lease and the Warburton Range Stock Route.
1278 It is agreed that pastoral improvements and the ground water licence have no extinguishing effect on native title. It is not possible to find extinguishment by any public works (other than roads) as no such public works were specifically identified by the State. The remaining gold mining leases and mineral claims (being those granted after 31 October 1975) as well as all mining leases, exploration licences, prospecting licences and the petroleum exploration permit likewise have no extinguishing effect on native title.
1279 It is agreed between the parties that any interests extant at the time of the determination which have no extinguishing effect on native title are to be listed in the determination as 'other interests'.
2. GENERAL PRINCIPLES OF EXTINGUISHMENT
1280 Native title is conceptualised as a ‘bundle of rights’, which is vulnerable to complete or partial extinguishment by inconsistent legislative or executive acts of the Crown, including the grant of inconsistent rights and the creation of public works (see Ward HC (at [26], [29], [76], [308] and [618])). Subject to the circumstances provided for in s 47A and s 47B NTA, extinguishment of native title is final.
1281 The permanence of extinguishment is expressly reiterated in s 237A NTA, where it is said that:
The word extinguish, in relation to native title means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native tile rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.
1282 While the Yilka applicant agrees with the proposition that native title is vulnerable to extinguishment by inconsistent legislative and executive acts of the Crown, the Yilka applicant raises issues regarding the test of inconsistency and the character of native title rights as described by the State.
1283 The Yilka applicant emphasises that fundamental to extinguishment at common law is whether rights are inconsistent: Ward HC (at [18]), Akiba HC (at [35]) per French CJ and Crennan J, and (at [52]) per Hayne, Kiefel and Bell JJ. There is a critical distinction between a right itself and the exercise of that right by activities done under it, as emphasised in Akiba HC (at [29] and [35]) per French CJ and Crennan J, and (at [52], [65] and [68]) per Hayne, Kiefel and Bell JJ. Because the subject of the inconsistency is rights and the consequence for one of the rights is extinguishment, the inconsistency must go to the very existence of the rights, that is, there must be inconsistency which is independent of any manner of their exercise or activity by which they might be exercised. The difference between the existence of a right and the exercise of a right is an important theme throughout this litigation.
1284 Inconsistency of rights only arises where legislative or executive actions can be said to clearly, plainly and distinctly necessitate the serious consequence of extinguishment of rights which have their origins in traditional laws and customs: see Akiba HC (at [29]-[30]) per French CJ and Crennan J, Wik Peoples v Queensland (1996) 187 CLR 1 (at 155 and at 185, 201, 202 and 203) per Gaudron J.
1285 There must be a high degree of certainty concerning the inconsistency of rights before the conclusion of extinguishment follows: for example, in Wik Gummow J said (at 195) that there must be ‘necessary extinguishment’ and that the non-native title right must be ‘necessarily inconsistent’ with the native title right (at 190).
1286 Again, and importantly, this strict approach to extinguishment has been recently re-emphasised by the High Court in Brown HC where the Court said (at [38]):
As counsel for the native title holders put the point in argument in this Court, inconsistency is that state of affairs where "the existence of one right necessarily implies the non-existence of the other". And one right necessarily implies the non-existence of the other when there is logical antinomy between them: that is, when a statement asserting the existence of one right cannot, without logical contradiction, stand at the same time as a statement asserting the existence of the other right.
(emphasis added)
1287 The rights said to be inconsistent must be objectively identified: Brown HC (at [34]). The legal nature and content of the rights must be ascertained; and the consideration of the way in which the right has been exercised is only relevant insofar as it assists the correct identification of the nature of the content of the right: Brown HC (at [34]).
1288 In relation to partial extinguishment, the Yilka applicant contends that this must be understood as the extinguishment of less than all of the native title rights and not as the extinguishment of part of any particular native right, following Akiba HC and Brown HC. This is because there would be no relevant inconsistency if a native title right can be exercised at all in some way, at some time or in some place without infringing the non-native title right. The Yilka applicant says that proposition is akin to the non-extinguishment principle’ in s 238(4) NTA which provides that:
If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.
This was considered by French CJ and Crennan J in Akiba HC (at [26]) to be a statutory construct, but their Honours said that it nevertheless is:
underpinned by a logical proposition of general application: that a particular use of a native title right can be restricted or prohibited by legislation without that right or interest itself being extinguished.
1289 The Yilka POC at [82] sets out the rights said to be possessed under traditional laws and customs, comprising two fundamental kinds of rights: the right to control access (the exclusive right) and three rights of use (the non-exclusive rights). This is reflected in the rights claimed for recognition as native title rights in the Yilka POC at [89] and the Orders of the Yilka Determination Sought (the same can be said for Sullivan POC[82] and [89] and the Sullivan Determination Sought).
1290 Where there is to be partial extinguishment, it must be of the whole of one or more of the rights claimed, not part of any one or more of them. Accordingly, there may be inconsistency between the third party right and the exclusive right without there being inconsistency between the third party right and any or all of the non-exclusive rights. For there to be inconsistency with any of the non-exclusive rights, there must be inconsistency with the whole of that non-exclusive right, as indicated in Brown HC and Akiba HC. It follows that, even if a valid and absolute prohibition against taking fish for commercial purposes had been a provision of the legislation considered in Akiba HC, it would not have extinguished any native title right in that case, as the right in question in that case was a right to take resources for any purpose: see Akiba HC (at [66]-[67]). It would still have been possible for the native title holders to exercise their right for non-commercial purposes.
1291 There is also debate between the parties on the proper characterisation of native title. The State refers to native title as being a ‘bundle of rights’, but the Yilka applicant says this is apt to be misleading without any explanation of the consequences of that characterisation.
1292 The plurality in Ward HC mentioned the metaphor of the bundle of rights (at [76] and [95]). Their Honours said (at [95]):
[R]ecognising that the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom are not to be understood as confined to the common lawyer’s one-dimensional view of property as control over access reveals that steps taken under the sovereign authority asserted at settlement may not affect every aspect of those rights and interests. The metaphor of “bundle of rights” which is so often employed in this area is useful in two respects. It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land. (Bold added, italics in original)
1293 The Yilka applicant contends that in this passage the plurality makes clear that the metaphor does not suggest any particular degree of specificity of the range of content of a native title right. Rather, the content must be identified by reference to laws and customs then described as they are found to exist without any assumption first being made about how broad or narrow they might be or how they are to be described. The Yilka applicant points out that the plurality emphasised that the metaphor is used to avoid the application of preconceived ideas about traditional rights, not to create such ideas.
1294 It is important to note, the Yilka applicant argues, that references to native title as a bundle of rights, which most often arises in the context of extinguishment, is not to be understood as either facilitating extinguishment or limiting, prejudging, or giving rise to any assumptions about what the rights and interests under traditional law and custom may be. In particular, that phrase is not to be taken to suggest that a right found to exist is comprised of a number of incidents to undertake the various activities by which the right might be exercised and each of which may be extinguished separately. In saying this, the Yilka applicant relies on the following passage from Akiba HC per Hayne, Kiefel and Bell JJ, where their Honours said (at [65]-[66]) (footnotes omitted):
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.
1295 In the present application, the Yilka applicant argues that the rights in the asserted ‘bundle’ of traditional rights are both specific and clear, though broadly stated. There are four rights in the bundle; one exclusive right and three non-exclusive rights. There is no authority which prohibits claiming or making a finding of broadly stated rights.
1296 The Yilka applicant says that the bundle of rights asserted in this case is no different in its degree of specificity than in Akiba HC, which drew no criticism from the High Court, even in the context of consideration of a question of extinguishment.
1297 The general legislative scheme of the NTA and the common law in respect of extinguishment is to discussed below with references to points of difference between the parties’ explanations and contentions.
2.1 Overview of the NTA regime
1298 Although the parties are not at odds so much on the broad provisions of the NTA regime concerning extinguishment, I should state my views which I adopt largely from the product of the exchanged submissions, but as conveniently collected in the submissions of the Yilka applicant.
1299 The main provisions of the NTA relating to extinguishment are to be found in:
(a) Division 2B of Pt 2, which provides that certain acts done on or before 23 December 1996, will, in the case of previous exclusive possession acts, have completely extinguished native title, or in the case of previous non-exclusive possession acts, have extinguished native title to the extent of any inconsistency where the act extinguishes native title rights and interests apart from the NTA;
(b) Division 2 and Div 2A of Pt 2, which set out the effect of the validation of past acts and intermediate period acts respectively. The effect varies depending on the whether the act is a category A, B, C or D past or intermediate period act;
(c) Division 3 of Pt 2, which deals with the effect of future acts on native title;
(d) Division 4 of Pt 2, which includes ss 47, 47A and 47B. Collectively, those provisions set out the circumstances in which native title claimants may overcome the effects of past extinguishment of native title;
(e) Division 2 of Pt 15, which contains definitions of various terms used in the Act, including ‘act’, ‘act affecting native title’, ‘past act’, ‘intermediate period act’, ‘future act’, ‘extinguish’, and the ‘non-extinguishment principle’;
(f) Division 3 of Pt 15 which contains definitions relating to leases; and
(g) Schedule 1, which sets out the Scheduled interests defined in s 249C and referred to in Div 2B of Pt 2 of the Act. Those relating to Western Australia are set out in Sch 1, Pt 4.
1300 The NTA recognises a number of concepts in dealing with matters that affect native title. The Yilka applicant notes that ‘extinguishment’ is a critical and precise concept in the NTA and must be distinguished from related concepts. The following is an overview of these relevant concepts:
(a) an act ‘affects’ native title if it extinguishes native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise: s 227 NTA.
(b) ‘extinguish’ means permanently extinguish the native title so that there can be no revival of a native title right even if the act that caused the extinguishment ceases to have effect: s 237A NTA.
(c) rights that are not inconsistent with native title rights will generally ‘prevail’ over those native title rights but not extinguish them: for example, rights under some previous non-exclusive possession acts: s 23G(1)(a) NTA.
(d) rights under those acts that are inconsistent with native title rights will in most cases extinguish them to the extent of the inconsistency (category B past acts: s 15(1)(c) NTA, category B intermediate periods acts: s 22B(c) NTA, and some previous non-exclusive possession acts: s 23G(1)(b)(i) NTA), and in other cases, the native title rights will be ‘suspended’ while the act is in force (some previous exclusive possession acts: s 23G(1)(b)(ii) NTA).
(e) certain acts will per se extinguish native title: category A past acts: s 15(1)(a) and (b) NTA, category A intermediate period acts: s 22B(a) and (b) NTA, and previous exclusive possession acts: s 23C NTA.
(f) some acts will extinguish native title ‘apart from’ the NTA: see s 23B(9C)(a) and s 23G(1)(b)(i) NTA.
(g) other acts will render native title wholly or partly ineffective for a time without extinguishing it, so that when the act or its effects are removed the native title rights and interests again have effect: for example, category C and D past acts: s 15(1)(d) NTA, category C and D intermediate period acts: s 22B(d) NTA. This is the ‘non-extinguishment principle’: s 238 NTA.
(h) in relation to some areas any extinguishment by the creation of any prior interests in relation to the area must be disregarded: ss 47, 47A and 47B NTA.
1301 It is common ground that:
(a) critical dates which affect the characterisation of various kinds of acts are:
(i) 31 October 1975: the commencement of the RDA;
(ii) 1 January 1994: the commencement of the NTA and a critical date in the past act regime: ss 228-232 NTA;
(iii) 23 December 1996: the date on which Wik was handed down, the critical date in relation to the intermediate period act regime: ss 232A-232E NTA, and a critical date in the definition of pervious exclusive possession act: s 23B NTA; and
(iv) 30 September 1998: the commencement of the Native Title Amendment Act 1998 (Cth), which is also relevant in relation to acts done after 23 December 1996.
(b) the date ‘when the application is made’ is critical in the characterisation of areas as areas to which ss 47, 47A and 47B apply. The dates when the Yilka applications were made were 15 December 2008 in the case of the Yilka No 1 claim and 6 August 2013 in case of the Yilka No 2 claim. The date on which the Sullivan application was made was 7 December 2011.
1302 Section 11(1) NTA provides that native title ‘is not able to be extinguished contrary to this Act’. The High Court in Western Australia v Commonwealth (1995) 183 CLR 373 (Native Title Act Case) said (at 453) that this provision:
ensures that the exceptions prescribed by the other provisions of the [NTA] which permit the extinguishment or impairment of native title constitute an exclusive code …The [NTA] thus governs the recognition, protection, extinguishment and impairment of native title.
Further, s 11(3) NTA provides that an act consisting of ‘the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or Territory is only able to extinguish native title’ by confirming past extinguishment (Pt 2 Div 2B), by the doing of certain valid future acts (Pt 2 Div 3), or by validating past acts or intermediate period acts (Pt 2 Div 2 and Div 2A respectively).
1303 In light of s 11 NTA, in considering questions of extinguishment, primary regard must be had to the provisions of the NTA: Ward HC per Gleeson CJ, Gaudron, Gummow and Hayne JJ (at [16] and [25]). Even if native title was extinguished at common law, prior to the commencement of the NTA, it is still necessary to consider the application of the statutory provisions (and analogous State and Territory laws) to any act said to have extinguished native title: Wilson v Anderson (2002) 190 ALR 313 per Gaudron, Gummow and Hayne JJ (at [45]–[47] and [50]).
2.2 Past Acts - Pt 2 Div 2 NTA
1304 Part 2 Div 2 NTA and Pt 2 TVA (which implements Pt 2 Div 2 NTA in Western Australia) are directed to the validation of past acts attributable to the Commonwealth or State which, if not for the NTA, would be invalid. The definition of ‘past act’ is provided in s 228 NTA:
Definition
(1) This section defines past act.
Acts before 1 July 1993 or 1 January 1994
(2) Subject to subsection (10), if:
(a) either:
(i) at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or
(ii) at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and
(b) apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist;
the act is a past act in relation to the land or waters.
Options exercised on or after 1 January 1994 etc.
(3) Subject to subsection (10), an act that takes place on or after 1 January 1994 is a past act if:
(a) it would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and
(b) it takes place:
(i) in exercise of a legally enforceable right created by the making, amendment or repeal of legislation before 1 July 1993 or by any other act done before 1 January 1994; or
(ii) in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith before 1 July 1993, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made; and
(c) the act is not the making, amendment or repeal of legislation.
Extensions, renewals etc.
(4) Subject to subsections (6) and (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if:
(a) the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and
(b) an act (the earlier act) that is a past act because of any subsection of this section (including because of another application of this subsection) took place before the later act; and
(c) the earlier act created interests in a person and the later act creates interests in:
(i) the same person; or
(ii) another person who has acquired the interests of the first person (by assignment, succession or otherwise);
in relation to the whole or part of the land or waters to which the earlier act relates; and
(d) the interests created by the later act take effect before or immediately after the interests created by the earlier act cease to have effect; and
(e) the interests created by the later act permit activities of a similar kind to those permitted by the earlier act.
Examples of similar and dissimilar acts for the purposes of paragraph (4)(e)
(5) The following are examples for the purposes of paragraph (4)(e):
(a) the grant of a lease that permits mining only for a particular mineral followed by the grant of a lease that permits similar mining for another mineral is an example of a case where interests created by an earlier act permit activities that are of a similar kind to those permitted by a later act;
(b) the grant of a lease that permits only grazing followed by the grant of a lease that permits mining is an example of a case where interests created by an earlier act permit activities that are not of a similar kind to those permitted by a later act.
Cases excluded from subsection (4)
(6) Subsection (4) does not apply if:
(a) the earlier act was the creation of a non-proprietary interest in relation to land or waters and the later act is the creation of a proprietary interest in land or waters; or
(b) the earlier act was the creation of a proprietary interest in land or waters and the later act is the creation of a larger proprietary interest in land or waters; or
(c) if the earlier act contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the later act does not contain the same reservation or condition; or
(d) the earlier act or the later act is the making, amendment or repeal of legislation.
Example of earlier and later acts for the purposes of paragraph (6)(a)
(7) For the purposes of paragraph (6)(a), the issue of a licence followed by the grant of a lease is an example of an earlier act that is the creation of a non-proprietary interest in relation to land and a later act that is the creation of a proprietary interest in land.
Example of earlier and later acts for the purposes of paragraph (6)(b)
(8) For the purposes of paragraph (6)(b), the grant of a lease followed by the grant of a freehold estate is an example of an earlier act that is the creation of a proprietary interest in land and a later act that is the creation of a larger proprietary interest in land.
Other extensions, and developments, of earlier acts
(9) Subject to subsection (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if:
(a) the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and
(b) an act (the earlier act) that is a past act because of any subsection of this section took place before the later act; and
(c) the earlier act contained or conferred a reservation, condition, permission or authority under which the whole or part of the land or waters to which the earlier act related was to be used at a later time for a particular purpose (for example, a reservation for forestry purposes); and
(d) the later act is done in good faith under or in accordance with the reservation, condition, permission or authority (for example, the issue in good faith of a licence to take timber under a reservation for forestry purposes); and
(e) the later act is not the making, amendment or repeal of legislation.
Excluded acts
(10) An act is not a past act if it is:
(a) the Queensland Coast Islands Declaratory Act 1985 of Queensland; or
(b) any other act declared by the regulations to be an excluded act for the purposes of this paragraph.
1305 Essentially, s 228 NTA defines a past act as an act that took place before 1 January 1994 (or 1 July 1993, in the case of legislation), which, but for the operation of the NTA, would have been invalid by reason of the existence of native title. The invalidity of the past act arises generally, and broadly speaking, by the operation of the Racial Discrimination Act 1975 (Cth) (RDA) which, upon its commencement on 31 October 1975, generally rendered invalid all subsequent acts which had the effect of affecting native title rights and interests, but which did not operate in the same way in relation to non-native title rights and interests. If the source of invalidity relied upon is a breach of the RDA, the earliest date on which a past act could have occurred is 31 October 1975, being the date of the commencement of the RDA. Where an act took place before the RDA commenced, Pt 2 Div 2 NTA is irrelevant. Such acts are not past acts, as they are not invalid by reason of the operation of the RDA as required by the definition contained in s 228(2)(b) NTA: see Ward HC (at [5] and [139]). To the extent that any of the extinguishing acts relied upon by the State were invalid because of the existence of native title, and otherwise fall within the definition of a past act contained in s 228 NTA, the State relies upon the past act provisions of the NTA and the TVA to validate and identify the effect on native title of those acts. It follows, the State says, that any past acts in the Claim Area are valid by virtue of s 14 NTA, or 19 NTA and s 5 TVA.
1306 Part 2 Div 2 NTA not only provides for validation of past acts, but also describes, by categorisation of the acts, the effect of those acts. There are four categories of past acts provided for in this Division, which describes the way in which the rights created by those various categories of act interact with native title rights and interests: ss 229-232 NTA. Some ‘past acts’ extinguish native title.
1307 The Yilka applicant makes the following points on this topic:
(a) where an interest was not valid at the time of its creation for reasons other than the existence of native title, for example, because of a failure to comply with mandated statutory requirements, it is not a past act and the interest will not be validated by the NTA or TVA: see s 228(2)(b) NTA;
(b) acts done prior to 31 October 1975 will not be invalid to any extent due to the operation of the RDA and are not past acts. They may have been effective at common law to extinguish native title rights and interests: Native Title Act Case (at 454) and Ward HC (at [5]);
(c) an act done after 31 October 1975 will only be a past act if, were it not for the validation provisions of the NTA, the act would be invalid to some extent because of the existence of native title: see s 228(2)(b) NTA. For example, in James v Western Australia (2010) 184 FCR 582, the Full Court held (at [41]-[43]) that the grant of mining leases prior to the enactment of the NTA was a past act, as it was otherwise invalid because of native title. The effect of the Mining Act 1978 (WA) in extinguishing native title was found to be inconsistent with the effect of s 10(1) RDA, which confers on native title holders the right to own and inherit property (including the right to be immune from the arbitrary deprivation of property) to the same extent as enjoyed by any other landholder;
(d) an act that may be a past act if it is done when native title with which it would be inconsistent exists, will not be a past act (because it will be valid without validation) if it was preceded by an act which had already extinguished the native title rights with which it would have been consistent. For example, in Ward HC, where the majority found (at [309] and [321]) that mining leases granted under the Mining Act 1978, and after the commencement of the RDA, were valid and did not therefore constitute past acts, as they had been preceded by pastoral leases that had already extinguished native title to the extent that the mining leases otherwise would have done;
(e) the application and operation of the TVA in relation to past acts is essentially the same. The NTA regime applies to ‘acts attributable to the Commonwealth’ ss 14-18 NTA and the TVA regime applies to acts attributable to the State of Western Australia: see s 5 and s 12 TVA and ss 19-20 NTA.
2.2.1 Category A past acts – extinguishment of all native title
1308 Section 229 defines category A past acts:
229 Category A past act
Section defines expression
(1) This section defines the expression category A past act.
Grant of certain freehold estates
(2) A past act consisting of the grant of a freehold estate is a category A past act if:
(a) either:
(i) the grant was made before 1 January 1994 and the estate existed on 1 January 1994; or
(ii) the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) (which deals with such things as the exercise of options) or 228(9) (which deals with other extensions etc. of earlier acts) applies; and
(b) the grant is not:
(i) a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or
(ii) a grant made by or under legislation that grants freehold estates only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or
(iii) a grant of a prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait Islanders.
Grant of certain leases
(3) A past act consisting of the grant of:
(a) a commercial lease, an agricultural lease, a pastoral lease or a residential lease; or
(b) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection;
is a category A past act if:
(c) either:
(i) the grant was made before 1 January 1994 and the lease was in force on 1 January 1994; or
(ii) the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) or (9) applies; and
(d) the grant is not:
(i) a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or
(ii) a grant made by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or
(iii) a grant of a prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or
(iv) a grant over land or waters that, on 1 January 1994, are Aboriginal/Torres Strait Islander land or waters.
Construction of public works
(4) A past act consisting of the construction or establishment of any public work is a category A past act if:
(a) the work commenced to be constructed or established before 1 January 1994 and the construction or establishment had not been completed by that day; or
(b) the work was constructed or established before 1 January 1994 and still existed on that day; or
(c) the work was constructed or established on or after 1 January 1994 and the construction or establishment is a past act because subsection 228(9) applies.
1309 In summary, a category A past act includes (subject to exclusions):
(a) the grant of a freehold estate made before 1 January 1994 and in existence on that date: s 229(2)(a)(i) NTA;
(b) the grant of a commercial lease, an agricultural lease, a pastoral lease or a residential lease made before 1 January 1994 and in existence on that date: s 229(3) NTA; and
(c) the construction or establishment of any public work which commenced to be constructed or established before 1 January 1994 and which had not been completed or, if it had, which still existed on that date: s 229(4) NTA.
(emphasis added)
1310 A category A past act which is not a public work extinguishes native title and a category A past act which is a public work extinguishes native title in relation to the land or waters on which the public work was or is situated: s 15(1)(a) and (b) NTA, or s 19 NTA and s 6 and s 7 TVA.
1311 However, it is relevant to note, as correctly pointed out by the Sullivan applicant, that pastoral leases granted in Western Australia were held by the majority of High Court in Ward HC (at [170], [177] and [195]) not to extinguish all incidents of native title. (This was because they constitute previous non-exclusive possession acts: see Pt 2.4.2 below.)
2.2.2 Category B past acts – partial extinguishment of native title
1312 A category B past act is defined (by s 230 NTA) as the grant of a lease made before 1 January 1994 and still existing on that date, but which is not a category A past act and not a mining lease, with some exclusions. That section is as follows:
A category B past act is a past act consisting of the grant of a lease where:
(a) the grant is not a category A past act; and
(b) the lease is not a mining lease; and
(c) either:
(i) the grant was made before 1 January 1994 and the lease was in force on 1 January 1994; or
(ii) the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) (which deals with such things as the exercise of options) or (9) (which deals with other extensions etc. of earlier acts) applies; and
(d) the grant is not:
(i) a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or
(ii) a grant made by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or
(iii) a grant of a prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or
(iv) a grant over land or waters that, on 1 January 1994, are Aboriginal/Torres Strait Islander land or waters.
1313 Pursuant to s 8 TVA (read with s 19 NTA and s 15(1)(c) NTA), category B past acts attributable to the State or Commonwealth which are wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned extinguish the native title to the extent of the inconsistency.
2.2.3 Category C and Category D past acts
1314 Category C past acts, which are past acts consisting of the grant of a mining lease (s 231 NTA) and category D past acts, which are past acts other than category A, B or C past acts (s 232 NTA), do not extinguish native title. The non-extinguishment principle applies to those acts: s 15(1)(d) NTA or s 19 NTA and s 9 TVA. Where there are any category C or category D past acts to which the non-extinguishment principle applies, if the act is wholly or partially inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act (to the extent of any inconsistency): s 238(3)-(4) NTA. This should be recorded in the determination of native title: s 225(d) NTA.
2.3 Intermediate period acts - Pt 2 Div 2A NTA
1315 Part 2 Div 2A NTA provides for both the validation of intermediate period acts and their effect on native title. It was implemented in Western Australia by Pt 2A of the TVA. An intermediate period act is defined in s 232A NTA as an act that took place after 1 January 1994 and before 23 December 1996, which is invalid to any extent, but would have been valid to that extent, but for the existence of native title. Intermediate period acts include acts that would otherwise have been invalid ‘future acts’ because of the operation of Pt 2 Div 3 NTA. Intermediate period acts are acts which affect an area which had previously been the subject of a valid freehold estate or lease (including a pastoral lease, but excluding a mining lease) or a public work.
1316 The categories of intermediate period acts correspond closely with the categories of past acts: ss 232B-232E and 22B NTA. Some intermediate period acts extinguish native title. However, an important difference between past acts and intermediate period acts is that, whereas all grants of agricultural leases and pastoral leases that are past acts are category A past acts (and extinguish native title); in the case of intermediate acts, grants of non-exclusive agricultural leases and non-exclusive pastoral leases are category B intermediate period acts (and do not extinguish all native title). Category A intermediate period acts extinguish all native title while category B intermediate period acts only extinguish native title rights and interests to the extent that those rights and interests are inconsistent with the rights created by the act in question.
2.4 Confirmation of extinguishment – Pt 2 Div 2B NTA
1317 The provisions in Pt 2 Div 2B NTA were introduced by the Native Title Amendment Act 1998 (Cth) and commenced on 30 September 1998. The object of this division is to confirm the extinguishment of native title by certain acts done on or before 23 December 1996, which are referred to as ‘previous exclusive possession acts’ and ‘previous non-exclusive possession acts’ and are defined by s 23B and s 23F NTA, respectively. As with the past act regime, acts attributable to the Commonwealth are confirmed by the NTA and acts attributable to the State are confirmed by the TVA.
1318 Although they are called ‘confirmation of extinguishment’ provisions, the State asserts that in some cases they go further than the common law and of themselves extinguish native title in order to ensure certainty, citing Anderson v Wilson (2000) 97 FCR 453 per Black CJ and Sackville J (at [27]), where their Honours said:
There is no occasion in this case to consider the precise relationship between the rules embodied in the NTA governing “confirmation of past extinguishment of native title” and the general law principles of extinguishment of native title. It is enough to note that, despite the terminology employed in Pt 2, Div 2B of the NTA, the effect of Div 2B is not necessarily simply to confirm instances of extinguishment of native title that have already taken place under the general law. For example, it is possible that some of the leases, or classes of leases, specified in Sch 1 to the NTA (all of which, by virtue of s 23B(2), constitute “previous exclusive possession acts”) would be found, on general law principles, not to have completely extinguished native title. If that is so, the inclusion of these leases in Sch 1 simply reflects the fact that Parliament, in the interests of certainty, has chosen to interpret the general law differently from the courts. (Compare the effect of the recital to the preamble to the NTA which was said in Wik to have read too much into the judgments in Mabo (No 2): Wik at 125, per Toohey J.)
1319 The State says that, unlike the definition of past acts, acts that might constitute previous exclusive possession acts or previous non-exclusive possession acts are not confined to those where the validity of the act is affected by the existence of native title. These terms do not, however, create two alternatives into which all acts can be categorised. Some acts that occurred in the past are neither previous exclusive possession acts, nor previous non-exclusive possession acts. Consequently, the State argues, Pt 2 Div 2B NTA does not constitute a comprehensive ‘code of extinguishment’, and the NTA expressly contemplates that there be may be extinguishment apart from that provided for in Div 2 and Div 2B NTA and the NTA in general. Where there is overlap between the extinguishment regimes in Pt 2 Div or Pt 2 Div 2A and Pt 2 Div 2B, in general, the provisions in Pt 2 Div 2B relating to previous exclusive possession acts or previous non-exclusive possession acts will apply: s 23C(3) and s 23G(3) NTA.
1320 The Yilka applicant submits that the assertion by the State that though called ‘confirmation of extinguishment’ provisions, in some cases they go further than the common law and of themselves extinguish native title, overstates what is said in authority relied on for that proposition, being Anderson v Wilson (at [27]). The Yilka applicant contends that what the Full Court of the Federal Court said there was carefully circumscribed to avoid reaching any conclusion that the provision exceeded common law principles, emphasising the phrase: ‘Parliament, in the interests of certainty, has chosen to interpret the general law differently from the courts’.
1321 Nor does the Yilka Applicant accept without qualification the State’s proposition that Pt 2 Div 2B does not constitute a code of extinguishment. Notwithstanding that the NTA contemplates extinguishment apart from the Act, it still codifies the extinguishment of native title in a broader sense: see s 11 NTA and the Native Title Act Case (at 453) quoted above. .
1322 The purpose of Pt 2 Div 2B is to confirm past extinguishment of native title by certain acts which were valid and to which the RDA does not apply, or which are rendered valid by the NTA: Ward HC (at [8]). The Yilka applicant submits that, therefore, an act that is invalid for reasons other than the existence of native title (for example, due to ‘breach of an essential preliminary to the exercise of a statutory power’: see Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355 (at [92]-[94]), quoted in Neowarra (at [436]-[437])) is not validated by Div 2 or Div 2A, and will not be valid for the purposes of Div 2B.
2.4.1 Previous exclusive possession acts
1323 Unless extinguishment must be disregarded (because of the application of one of ss 47, 47A or 47B NTA), a previous exclusive possession act over particular land or waters completely extinguishes native title in the area concerned.
1324 Previous exclusive possession acts fall into several kinds. The term is defined in s 23B NTA. Subject to certain exceptions, valid acts that took place prior to 23 December 1996 are previous exclusive acts, if they are acts of the following kind:
(a) grants or vestings of Scheduled interests;
(b) grants or vestings of freehold estates;
(c) grants or vestings of commercial leases that are not agricultural leases or pastoral leases;
(d) grants or vestings of exclusive agricultural leases or exclusive pastoral leases;
(e) grants or vestings of residential leases;
(f) grants or vestings of community purpose leases;
(g) grants or vestings of mining leases, but only in respect of the part of the leased area to which s 245(3)(a) NTA applies (assuming that the reference in s 245(2) to ‘1 January 1994’ were instead a reference to ’24 December 1996’);
(h) grants or vestings of any leases (other than mining leases) that confer a right of exclusive possession; and
(i) the construction or establishment of public works where construction or establishment commenced before 23 December 1996.
1325 A single act may be a previous exclusive possession act on more than one basis. The grant of a special lease, for example, may constitute a previous exclusive possession act because it provides to the lessee a right of exclusive possession; it may also be a commercial lease and/or a Scheduled interest. As noted above, the State clarifies that it has not advanced in all instances the multiple bases upon which extinguishment might have been brought about.
1326 Previous exclusive possession acts attributable to the Commonwealth had the effect of extinguishing any native title when the act was done (or in the case of public works, on commencement of the construction or the establishment of the public works): s 23C NTA.
1327 Similar provisions apply in respect of previous exclusive possession acts attributable to the State (as contemplated by s 23E NTA): s 12I and s 12J TVA. The term ‘previous exclusive possession act’ has the same meaning in the TVA as it does in s 23B NTA: see s 4 TVA. However, not all previous exclusive possession acts attributable to the State extinguish native title. Section 12I TVA incorporates an additional requirement in relation to some classes of previous exclusive possession acts attributable to the State. Section 12I TVA requires that native title is only extinguished by a previous exclusive possession act (that is not a public work) if the act is also a ‘relevant act’. The term ‘relevant act’ is defined in s 12I(1) TVA to mean, in essence, freehold grants whenever made and whether or not still in force, and Scheduled interests and leases when the interest created remained in force on 23 December 1996. Where s 12I TVA applies, extinguishment is taken to have happened when the grant was made. A previous exclusive possession act which is a public work (s 23B(7) NTA) extinguishes native title in relation to the area on which the public work was or is situated, and the extinguishment is taken to happened when the construction or establishment of the public work began: s 12J TVA.
1328 The State contends there are a number of previous exclusive possession acts within the outer boundary of the Claim Area attributable to the State which have wholly extinguished native title in accordance with the NTA and the TVA. In particular, grants of fee simple and of special leases (of which I observe there are none in the Claim Area), the vesting of reserves and public works carried out in the Claim Area, are previous exclusive possession acts. In the case of previous exclusive possession acts that are also relevant acts and public works, the NTA and the TVA confirm that all native title is extinguished. In case of previous exclusive possession acts other than public works that are not also relevant acts, the NTA and the TVA do not confirm extinguishment, but those acts may nevertheless extinguish native title by operation of the common law.
1329 There are exceptions to what constitutes previous exclusive possession acts, namely, those acts which are covered by s 23B, subss (9), (9A), (9B) or (9C) NTA.
1330 Relevantly, those provisions exclude from the expression ‘previous exclusive possession act’ in the case of s 23B(9)(a) ‘the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of Aboriginal peoples or Torres Straight Islanders’. Section 23(9)(b) similarly excludes ‘the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders’. The purpose of the grant or vesting is for the benefit of aboriginal people (or the trust as the case may be) and must be expressly stated in the instrument of grant or vesting. Section 23B(9A) NTA excludes national park areas or any area for the purpose of preserving the natural environment of the area. Section 23B(9C) NTA excludes the grant or vesting in the Crown in any capacity or a statutory authority unless, apart from the NTA, the grant or vesting extinguishes native title or, alternatively, the land or waters of the grant or vesting are used to any extent in a way that, apart from the NTA, extinguishes native title. The term ‘statutory authority’ is defined in s 253 NTA.
2.4.2 Previous non-exclusive possession acts
1331 Section 23F NTA defines the term ‘previous non-exclusive possession act’. In relation to those acts which occurred before 23 December 1996, they will be previous non-exclusive possession acts if they are grants of non-exclusive agricultural leases or non-exclusive pastoral leases and they are valid. An act which is a previous non-exclusive possession act within the meaning of s 23F NTA and attributable to the State, extinguishes any native title rights and interests which are inconsistent with the rights and interest granted pursuant to the previous non-exclusive possession act, but where there is no inconsistency, the rights granted and the doing of any activity in giving effect to them prevail over, but do not extinguish, the native title rights and interests: see s 23I NTA and s 12M TVA.
1332 The Yilka applicant notes that pastoral leases granted under various legislative instruments in Western Australia are previous non-exclusive possession acts: Ward HC (at [187]–[190]). All pastoral leases affecting the area covered by the Yilka (and Sullivan) claim were granted before 1975 and are previous non-exclusive possession acts. To the extent that the rights and interests granted are inconsistent with native title rights and interests, but do not, apart from the TVA, extinguish the native title rights and interests – the native title rights and interests are suspended while the lease is in force: s 12M(1)(b)(ii) TVA. An example would be a post-1975 grant which, by operation of the RDA, was ineffective to extinguish native title rights and interests: Ward HC (at [82]).
1333 According to s 12M(1) TVA, it is only to any extent that there has been inconsistency that native title is extinguished, and therefore ‘cannot revive’ after the act that caused the extinguishment ceases to have effect: s 237A NTA. The Yilka applicant submits, in relation to non-current pastoral leases, that this would be likely only to apply to extinguishment of a right to control access, namely, the right of exclusive possession.
1334 The NTA does not constitute a comprehensive code of extinguishment: for example, s 23B(9C)(a) expressly contemplates that there may be extinguishment apart from that provided for in the NTA. Acts that do not fall within the definition of past act, intermediate period act, previous exclusive possession act (or relevant act in the case of previous exclusive possession acts attributable to the State), or previous non-exclusive possession acts and which are not invalidated by the RDA may still have been effective at common law to have extinguished native title, wholly or in part: see Ward HC (at [5]).
1335 The State says (but the Yilka applicant questions) that at common law, those acts which may extinguish in whole or in part native title rights and interests fall within three kinds of act as explained by Brennan CJ in Wik (at 84-85):
(a) laws or executive acts which simply extinguish native title;
(b) laws or acts which create rights in third parties which are inconsistent with the continued right to enjoy native title; and
(c) laws by which the Crown acquires full beneficial ownership of land previously subject to native title.
1336 The first kind of act creates no rights inconsistent with native title, but has the clear intention, objectively ascertained, of extinguishing native title: Wik (at 85).
1337 In the second instance, rights are created which are inconsistent with the continued enjoyment of native title irrespective of whether or not there was an actual intention on the part of the legislature or executive to extinguish native title and whether or not the legislature or the executive adverted to the existence of native title: Wik (at 85).
1338 The third kind of act occurs by acquisition of native title under statutory authority or where the Crown, without statutory authority, acquires beneficial ownership by appropriating land in which no interest has been alienated by the Crown: Wik (at 85-86). In the latter case, the Crown’s beneficial ownership only arises when the land is actually used for some purpose inconsistent with the continued enjoyment of native title, such as building a school or laying a pipeline: Wik (at 86). This third kind of act occurs where rights or powers have been asserted or exercised by the Crown which are inconsistent with the native title rights and interests.
1339 Statutory extinguishment of native title rights and interests will occur only where the intention to do so is clear and plain. As noted in Wik (at 85 and 155), this is not a special rule with respect to native title, but rather, simply a manifestation of the general and well settled rule of statutory construction that requires that clear and unambiguous words be required before there would be imputed to the legislature an intent to expropriate or extinguish without compensation valuable rights relating to property.
1340 The State says that the Court can ascertain whether a clear and plain intention exists in the following ways:
(a) in the case of legislation, by an examination of its objects and terms, with particular reference to whether the law creates a ‘regime of control’ consistent with native title, referring to Mabo (at 64-65 and 168-169) and Akiba HC (at [24], [29] and [33]) – it was held in Akiba HC that ‘regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence’ (at [33]) ;
(b) in the case of a grant to third parties, by an examination of the nature of the interest or estate granted: referring to Mabo (at 68 and 110) and Akiba HC (at [35]); and
(c) in the case of the Crown’s appropriation to itself by examination of the nature of the appropriation and any use (referring to Mabo (at 68) and Wik (at 84-85)) or by an examination of the purpose of the appropriation and of whether third party rights or assumed acquiescence arise: referring to Mabo (at 110).
1341 It is accepted by the Yilka applicant that there may be extinguishment of native title at common law. The Yilka applicant stresses, however, that at common law as under the NTA regime, an act that is invalid for reasons other than the existence of native title will not be effective at common law to extinguish native title: see Daniel v Western Australia [2003] FCA 666 per Nicholson J (at [573]–[576], [589]–[595] and [881]–[884]); Neowarra per Sundberg J (at [435]–[443] and [562]–[570]).
1342 Although a law or executive act that simply extinguishes native title does not do so via a medium of the grant of inconsistent rights, the test for such extinguishment is, nevertheless, inconsistency with native title rights, as established in Akiba HC (see, for example, at [52]). Importantly, it is not inconsistency with the conduct of a particular activity or class of activities, but inconsistency with the actual right itself. I accept the Yilka applicant’s submission that generally, in relation to the kinds of acts described by the State in its submissions to extinguish native title, it is important to acknowledge the language of the recent High Court authorities of Akiba HC and Brown HC, rather than to rely primarily, as the State’s argument does, on the dissenting judgment of Brennan CJ in Wik.
1343 In Akiba HC, French CJ and Crennan J said (at [29]):
The existence of the distinction between the exercise of a native title right for a particular purpose or in a particular way, and the subsistence of that right, is relevant to the construction of statutes said to effect the extinguishment of native title rights. Put shortly, when a statute purporting to affect the exercise of a native title right or interest for a particular purpose or in a particular way can be construed as doing no more than that, and not as extinguishing an underlying right, or an incident thereof, it should be so construed. That approach derives support from frequently repeated observations in this Court about the construction of statutes said to extinguish native title rights and interests.
1344 Their Honours rejected submissions advanced for the Commonwealth and the State of Queensland (at [39]) saying :
The premise upon which they rest is the characterisation of the exercise, for a particular purpose, of a general native title right as the exercise of a lesser right defined by reference to that purpose. That characterisation is not a logical necessity. Nor is it necessary for coherence in the law. Its rejection is consistent with the maintenance of a proper distinction between proprietary or usufructuary rights and their exercise in particular ways or for particular purposes.
1345 Following Akiba HC, the Yilka applicant submits, and I agree, that where it is still possible to exercise the native title right in some manner or for some particular purpose without infringement of the statute, in that case by fishing non-commercially or fishing with a licence, or taking any other kind of resource for any purpose, then there might be regulation of the native title right but there is no extinguishment of it. In Akiba HC Hayne, Kiefel and Bell JJ confirmed that resolution of extinguishment issue depends on four propositions, established and applied in cases including Wik, Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96, Yanner v Eaton, Commonwealth v Yarmirr (2001) 208 CLR 1 and Ward HC. Their Honours said (at [51]-[52]), quoting Ward HC in relation to the first three principles (footnotes omitted):
51 … First, “[b]ecause what is claimed in the present [matter is] claims made under the NTA, for rights defined in the NTA, it is that statute which governs” (original emphasis). Secondly, “[t]he NTA provides that there can be partial extinguishment or suspension of native title rights”. Thirdly, “[q]uestions of extinguishment first require identification of the native title rights and interests that are alleged to exist”.
52 The fourth proposition of critical importance to the determination of this appeal is established by, and reflected in, all five of the cases that have been mentioned. It is that inconsistency of rights lies at the heart of any question of extinguishment.
(emphasis in original)
1346 The persons claiming native title have the ultimate onus of proving that their native title has not been extinguished: see Ward FC (at [117]). Where the extinguishment is said to arise by force of legislation, the legislation itself is a matter of public record and needs no evidential proof: Ward FC (at [119]). Where extinguishment is said to arise from an act of State or executive act, the party who asserts extinguishment of native title bears an onus to provide evidence to prove the fact and content of the act said to have affected the extinguishment; although the discharge of that evidentiary burden may be assisted by the ordinary presumptions of regularity and continuance: Ward FC (at [120]).
1347 Where a ‘presumption of regularity’ applies to the validity of an act, the party who challenges that presumption bears the onus of establishing that the relevant act was invalid: Watson v Lee (1979) 144 CLR 374 (at 381-382).
1348 Once proved, the effect of the acts upon native title rights is a matter of law: Ward FC (at [120]). In construing a statute that is said to extinguish native title or, in the case of an executive act, the empowering legislation and other written instruments by which an act is effected, ‘doubtful expressions and doubtful provisions are to be resolved in favour of those who are asserting native title’: Ward FC (at [119]–[120]).
1349 The same principles apply in the application of common law principles and the provisions of the NTA.
1350 In determining consistency between native title rights and interests and other rights and interests, the question is not whether, at the time of the act, there was a specific intention to extinguish native title: Ward HC (at [78]). Rather, the test is one of inconsistency as objectively determined between the relevant law or act and the native title rights being asserted: Ward HC (at [79]). The determination of whether rights are inconsistent is to be judged at the time of the grant, not at the time of the claim or some other time: Brown HC (at [37]).
1351 Because native title exists as ‘a bundle of rights’, and is not necessarily as a single set of rights analogous to a fee simple, individual native title rights constituting the bundle can be extinguished by a particular law or act whilst leaving other rights intact: Ward HC (at [82] and [95]). That is, native title can be ‘partially’ extinguished. Alternatively, the law or act may be inconsistent with the continued exercise of all of the rights and interests in the bundle that comprises the native title in question, so that it is wholly extinguished by that law or act.
1352 The extent of extinguishment is essentially a question which requires the Court to conduct an objective enquiry in which the rights created by the law or act are compared against the native title rights existing prior to the law or act. The test for extinguishment of native title is whether the law or act in question is inconsistent with the continuance of the identified native title rights. Extinguishment occurs to the extent of the inconsistency; two rights are either consistent or they are not: Ward HC (at [82]).
1353 I reiterate that the relevant inconsistency in determining whether native title has been extinguished is between the rights conferred on non-native title parties and the native rights and interests, not the actual usage of the land pursuant to those rights: Ward HC (at [78]). Reference to activities on land or how land has been used is relevant only to the extent that it focusses attention upon the right pursuant to which the land is used: Ward HC (at [78]).
1354 There is, in my view, an important distinction, underlined correctly by the Yilka applicant, between native title as a bundle of rights and a single native title right a as a bundle of rights or incidents for extinguishment purposes. The extent of extinguishment will not be ‘essentially a factual question’ as the State contends, but rather, a question of law and the application of strict logic. The factual inquiry is limited to the ascertainment of the two rights or sets of rights which are said to be inconsistent.
3. THE CLAIM AREA, THE RIGHTS CLAIMED AND THE TENURE GRANTED
1355 The external boundaries of the land and waters forming part of the Yilka applicant’s native title claim area are described in Pt A of Sch B to the Yilka Amended Form 1 filed 10 June 2011, Sch 1 Pt 1 of the Yilka Determination Sought and Annexure LRM1 to the affidavit of Mr Morgan. Maps of the Yilka claim area are found in the Yilka Amended Form 1 Attachment C, Attachment 3 to the Yilka Extinguishment Submissions (Annexure 9 to these reasons) and Annexure LRM2.
1356 Those descriptions are by reference to a sequence of parts of boundaries of contiguous Aboriginal reserves all of which, except Reserve 36271, form part of the area claimed. Reserve 36271 is contiguous with the Yilka claim area on the eastern boundary of the claim area in the vicinity of the Yamarna Pastoral Lease as shown on the first map in Annexure LRM2. The map at Attachment C to the Yilka Amended Form 1 does not show the location of that reserve.
1357 The Yilka applicant lists areas within the external boundaries of the Yilka claim area that are not covered by the application, at Pt C of Sch B of the Yilka Amended Form 1. Part C of Sch B excludes from the application:
(a) areas within the internal boundaries of the application which are or have been subject to the following acts, as defined in either the NTA as amended (where the act in question is attributable to the Commonwealth) or the TVA as amended (where the acts in question are attributable to the State of Western Australia), at the time of the Registrar’s consideration:
(i) category A past acts;
(ii) category A intermediate period acts;
(iii) category B past acts that are wholly inconsistent with the continued existence and enjoyment or exercise of any native title rights or interests;
(iv) category B intermediate period acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights and interests;
(b) any area in relation to which a ’relevant act’ as that term is defined in s 12I of the TVA was done and that act is attributable to the State of Western Australia,
(c) any area in relation to which a previous exclusive possession act under s 12J of the TVA was done and that act is attributable to the State of Western Australia;
(d) any area in relation to which a previous exclusive possession as as defined by s 23B (including s 23B(7)) of the NTA was done in relation to the area and that act was attributable to the Commonwealth; and
(e) any areas where native title rights and interests have otherwise been wholly extinguished.
1358 The Yilka Amended Form 1 (at Pt C of Sch B) further says that it specifically excludes any area where there has been:
(a) any unqualified grant of an estate in fee simple;
(b) a lease currently in force in respect of an area not exceeding 5000 square metres, upon which a dwelling, house, residence, building or work is constructed and which comprises:
(i) a lease of a worker’s dwelling under the Workers’ Homes Act 1911-1928 (WA);
(ii) 999 year lease under the Land Act 1898 (WA);
(iii) a Lease of a town lot or Suburban lost pursuant to s 117 of the Land Act 1933 (WA);
(iv) a Special Lease under s 117 of the Land Act 1933; or
(v) any Reserves vested pursuant to s 33 of the Land Act 1933 that are not for the benefit of Aboriginal People.
(c) conditional purchase lease currently in force in the Agricultural areas of the Southwest Division under reg 46 and reg 47 of the Land Regulations 1887 (WA) which includes a condition that the lessee reside on the area of the lease and upon which a residence has been constructed;
(d) a conditional purchase lease of cultivatable land currently in force under Pt V, Div (1) of the Land Act 1933 in respect of which habitual residence by the lessee is a statutory condition in accordance with the Division and upon which a residence has been constructed;
(e) a perpetual lease currently in force under the War Service Land Settlement Scheme Act 1954 (WA);
(f) a public work as defined in s 253 NTA; or
(g) an existing dedicated public road.
1359 The exclusions in Pt C of Sch B are said to be subject to the provisions of s 47A and s 47B NTA. That is, where s 47A or s 47B NTA applies to an area, that area is said by the Yilka applicant not to be excluded even though it was previously covered by an extinguishing tenure.
1360 The Yilka applicant explains that categories of excluded areas are merely a comprehensive list of situations in which, as a matter of law, native title will have been wholly extinguished. The exclusions are intended inter alia to meet the requirements of s 61A NTA which provides:
61A Restrictions on making of certain applications
No native title determination application if approved determination of native title
(1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
Claimant applications not to be made covering previous exclusive possession act areas
(2) If:
(a) a previous exclusive possession act (see section 23B) was done in relation to an area; and
(b) either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23E in relation to the act;
a claimant application must not be made that covers any of the area.
Claimant applications not to claim certain rights and interests in previous non-exclusive possession act areas
(3) If:
(a) a previous non-exclusive possession act (see section 23F) was done in relation to an area; and
(b) either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23I in relation to the act;
a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.
Section not to apply in section 47, 47A or 47B cases
(4) However, subsection (2) or (3) does not apply to an application if:
(a) the only previous exclusive possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made; and
(b) the application states that section 47, 47A or 47B, as the case may be, applies to it.
1361 The position of the Yilka applicant is that the only ‘excluded areas’ are the areas of five small (vested) water reserves, which are identified in Pt 1.2 above and in the Yilka Tenure Map as Areas 1-5.
1362 The difference between the position of the Yilka applicant and the initial position of the State in relation to actual excluded areas following extinguishment analysis is that while the Yilka applicant accepts that the areas of the vested water reserves are excluded from the claim, it does not accept that the following tenements wholly extinguished native title and consequently does not accept that the areas covered by them are excluded from the claim:
(a) the areas of the gold mining leases listed in Sch 1 Table 3 to the State Extinguishment Submissions – to the extent that they may have covered areas beyond areas excluded from the claim or beyond areas where any extinguishment is to be disregarded;
(b) the areas of the mineral leases listed in Sch 1 Table 4 to the State Extinguishment Submissions on extinguishment – to the extent that they may have covered areas beyond areas excluded from the claim or beyond areas where any extinguishment is to be disregarded.
Rather, the Yilka applicant’s position is that such interests have no greater effect on native title than any other mining interest, or for that matter, than any pastoral lease or petroleum interest. It should be noted that ultimately the State changed its position such that it no longer asserts that areas covered by gold mining leases or mineral leases should be excluded from the Claim Area.
1363 In relation to the roads listed in Sch 1 Table 1 to the State’s submissions on extinguishment, referred to by the Yilka applicant as Road 1 and Road 2, the Yilka applicant accepts that they extinguished native title when they were vested but asserts that they no longer exist except for the stretch of Road 2 where it traverses Area 11. This is explained in greater detail below.
1364 In relation to the Yilka No 2 claim, again, the land and waters the subject of these proceedings are those forming part of the Yilka No 2 native title claim as defined in Pt A of Sch B of the Yilka No 2 Form 1 filed on 6 August 2013. This Part sets out a technical description of the outer boundaries (at [7]).
1365 The external boundaries of the areas claimed in the Yilka No 2 claim are essentially three small separate areas that are within the external boundary of the area claimed in Yilka No 1. These areas are identified on the map in Attachment C to the Yilka No 2 Form 1 and in the Yilka Tenure Map.
1366 The areas are:
(a) Area 17 – being the area described in [7(a)] of the Yilka No 2 Form 1 and being an area of UCL in the vicinity of an area known as Great Central Road near Claypan Well (Site 5.8 – Ngatjun). This area is contiguous with and lies between two parts of Area 1 (Reserve 18594). The State suggests it is an area excluded from Reserve 18594 for the Laverton-Warburton Road by an amendment of the reserve in 1993 and refers to file RES18594.pdf in support of that assertion. The Yilka applicant contends that a close examination of that file does not compel that conclusion, as discussed below; and
(b) Areas 15 and 16 – being the areas described in [7(b) and (c)] of the Yilka No 2 Form 1 and being two areas of UCL in the vicinity of and separated only by the area referred to as Road 2 (and in the State Extinguishment Submissions as the White Cliffs-Yamarna Road). The areas are otherwise surrounded by Reserve 25050 (Area 9). These were formerly temporarily reserved under s 36 of the Land Act 1933, according to the State.
1367 Insofar as internal areas excluded from the Yilka No 2 claim are concerned, such areas are small and not the subject of internal areas that are subject of a different tenure. The Yilka applicant says that the general description by categories of ‘excluded areas’ in the Yilka No 2 Form 1 is not as extensive as the corresponding description in the Yilka Amended Form 1, but in the circumstances of the tenure history of the areas involved, is to the same effect. Part C of Sch B to the Yilka No 2 Form 1 excludes from the application areas within the internal boundaries of the application subject of the following acts:
(a) any area that is or was subject to any of the following acts as these are defined in either the NTA, as amended (where the act in question is attributable to the Commonwealth), or the TVA, as amended (where the act in question is attributable to the State of Western Australia) at the time of the Registrar’s consideration:
(i) category A past acts;
(ii) category A intermediate period acts;
(iii) category B past acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights and interests;
(iv) category B intermediate period acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights and interests;
(b) any area in relation to which a relevant act as that term is defined in s 12I TVA was done and the act is attributable to the State;
(c) any area in relation to which a previous exclusive possession act under s 12J TVA was done and that act is attributable to the State;
(d) any area in relation to which a previous exclusive possession act as defined by s 23B NTA (including s 23B(7) NTA) was done in relation to the area and the act was attributable to the Commonwealth; and
(e) any areas where native title rights and interests have otherwise been wholly extinguished, including any:
(i) public works as defined in s 253 NTA; or
(ii) existing dedicated public roads.
1368 The exclusions listed above are said to be subject to the application of s 61A(4) and 47B NTA, according to [9] of the Yilka No 2 Form 1. The Yilka applicant’s position in relation to all three areas is that there are no excluded areas within any of them because they are all areas to which s 47A or s 47B NTA apply.
1369 As to the Sullivan claim, the external boundaries are described in Attachment B to the Sullivan Amended Form 1 filed 28 July 2014, and shown on a map at Attachment C of the Sullivan Amended Form 1. At the time when submissions on extinguishment were made, the claim area in the Sullivan claim was identical to the claim area described in Yilka No 1 claim; however, by way of its Amended Form 1, the Sullivan applicant has since reduced its claim area, which is permissible pursuant to s 64(1A) NTA.
1370 Similarly, Sch B to the Sullivan Amended Form 1 excludes from the Sullivan claim area:
(a) any areas that are covered by any of the following acts as these are defined in either the NTA, as amended (where the act in question is attributable to the Commonwealth), or the TVA, as amended, (where the act in question is attributable to the State), at the time of the Registrar’s consideration:
(i) category A past acts;
(ii) category A intermediate period acts;
(iii) category B past acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights and interests;
(iv) category B intermediate period acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights and interests;
(b) any areas in relation to which:
(i) a ‘previous exclusive possession act’ as defined in s 23B NTA was done and the act was attributable to the Commonwealth;
(ii) a ‘relevant act’ as that term is defined in s 12I of the TVA was done and that act is attributable to the State; or
(iii) a previous exclusive possession act under s 23B(7) NTA done in relation to the area and the act was attributable to the State;
(c) any areas where native title rights and interests have otherwise been wholly extinguished.
1371 Schedule B specifies that the Sullivan claim area includes any areas to which the non-extinguishment principle applies (as defined in s 238 NTA), including any area to which ss 47, 47A and 47B NTA apply.
1372 The native title rights and interests originally claimed by the Yilka applicant were identified in the Yilka POC in the ‘Annexure, Determination Sought’ as follows:
3. Subject to Orders 6 and 7, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 3 [being land and waters where there has been no extinguishment of native title or areas where any extinguishment must be disregarded] is the right of possession, occupation, use and enjoyment of that part as against the whole world.
4. Subject to Orders 5 to 7, the nature and extent of the native title rights and interests in relation to each part of the Determination Area referred to in Schedule 4 [being land and waters where there has been partial extinguishment other than where such extinguishment must be disregarded] are the following rights or interests:
(a) the rights to access, to remain in and to use that part for any purpose;
(b) the rights to access resources and to take for any purpose resources in that part;
(c) the right to engage in spiritual and cultural activities on that part;
(d) the right to maintain and protect places and objects of significance in or on that part; and
(e) the right to protect resources and the habitat of living resources in that part.
5. The native title rights and interests referred to in Order 4 do not confer possession, occupation, use and enjoyment of the native title areas or any parts thereof on the native title holders to the exclusion of all other.
6. The native title rights and interests are exercisable in accordance with and subject to the:
(a) traditional laws and customs of the native title holders; and
(b) laws of the State and the Commonwealth, including the common law.
7. Notwithstanding anything in this determination, there are no native title rights and interests in the native title areas in or in relation to:
(a) such minerals as are wholly owned by the Crown; or
(b) such petroleum as is wholly owned by the Crown.
1373 The version of the determination sought which was annexed to the Yilka applicant’s submissions on connection removed [4(c)] and [4(e)] from the determination sought at the time of filing the Yilka POC, and renumbered the original [4(d)] as [4(c)] accordingly. It should also be noted that the Yilka Determination Sought (Annexure 2 to these reasons) removed the letter ‘s’ from the words ‘rights’ in the descriptions of two of the non-exclusive rights in Order 4. The Yilka applicant explains that this makes no difference to the extinguishment analysis and is intended to better reflect the holistic relationship of people to country under the traditional laws and customs and remove any ambiguity about the character of rights.
1374 In relation to Yilka No 2, the nature and extent of native title rights and interests claimed by the Yilka applicant are identified in Sch E of the Yilka No 2 Form 1, being the ‘right of possession, occupation, use and enjoyment to the exclusion of all others’. Specific non-exclusive rights have not been identified in Yilka No 2. The Yilka applicant explains that this is because the purpose of that claim was to attract the operation of s 47B NTA with a view to the right of exclusive possession being recognised. Thus the alternative non-exclusive native title rights claim remains on foot through the underlying original Yilka claim. In other words, if the Yilka No 2 exclusive rights claim is not successful, then the underlying Yilka application is relied on and the claim is pressed on the basis that non-exclusive rights set out in Order 4 of the Yilka Determination Sought can be recognised in those areas.
1375 In relation to the Sullivan claim, the applicant claims exclusive possession to areas where there has been no prior extinguishment of native title or where ss 238, 47, 47A or 47B NTA applies. Where there is exclusive possession, the rights claimed are possession, use, occupation and enjoyment as against the whole world. Where a claim to exclusive possession cannot be recognised, the Sullivan applicant claims a number of other specific rights and interests: see the Sullivan Amended Form 1, Sch E (at [5]). The native title rights and interests claimed by the Sullivan applicant are also referred to in the Sullivan POC at [89] and in the ‘Annexure –Determination Sought’ to the Sullivan POC. They are described in the same terms as the original Yilka determination sought annexed to the Yilka POC (set out above).
1376 As far as the claims in water are concerned, the State submits that rights of exclusive possession with respect to water cannot be recognised by the common law for the purpose of s 223(1)(c) NTA. This section provides that native title rights and interests must be recognised by the common law of Australia. In Mabo, Brennan J said that the recognition at common law of the rights and interests in land of the indigenous inhabitants would be precluded if the recognition were to fracture a skeletal principal of the Australian legal system: at 43. Likewise, in Fejo, Kirby J (at [104]) stated that ‘a court should not destroy or contradict an important and settled principle of the legal system’.
1377 The State says that at common law there are no rights of property in water, at least in relation to flowing and subterranean water, and that consequently the common law cannot recognise any native title that amounts to ownership of such water. For example, Sundberg J in Neowarra stated that the common law does not recognise private ownership of flowing or subterranean water running running in undefined or unknown channels (at [609]).
1378 The general position at common law that property rights cannot be held in water was confirmed by the High Court in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 (ICM v Commonwealth) (at [55]) where the majority held that water, like light and air, is common property not amenable to private ownership. The High Court in ICM v Commonwealth also referred with approval to two English decisions, Embrey v Owen (1851) 6 Exh 353 and Chasemore v Richards (1859) 7 HLC 349 which had settled the question of ownership of water at common law. In the former decision, cited in ICM v Commonwealth (at [55]), it was held that flowing water is publici juris in the sense that no one has property in the water itself, but a simple usufruct (i.e. right of use and enjoyment) while it passes along. Similarly, Blackstone’s Commentaries on the Laws of England (1766), bk 2, c 2 at 18 classified water as a ‘moveable, wandering thing’, which was ‘common’ property being ‘beyond individual appropriation and alienation’: cited in ICM v Commonwealth (at [55]). ‘Riparian rights did not depend on ownership of the soil of a stream; they attached to land either in lateral or vertical contact with a stream’: ICM v Commonwealth (at [55]).
1379 Given that the common law does not recognise a right of exclusive possession over rivers, lakes or other bodies of water, the State submits that the non-exclusive native title rights may be recognised in relation to waters within the Claim Area.
1380 The Yilka applicant disagrees with the State’s submission that ‘rights of exclusive possession with respect to water cannot be recognised by the common law for the purposes of the NTA’. Justice Barker in Banjima rejected the submission of the State in that case that the common law cannot recognise any exclusive native title rights to water because at common law there is no property in water (at [1971]). His Honour went on to say (at [1972]):
It may be observed, without deciding, that just because, following Roman law, the common law considered there can be no property in flowing water itself, does not necessarily preclude the proof of a native title right in respect of flowing water, depending on the evidence relating to a particular indigenous system. The indigenous system recognised by the common law does not rely, for its internal rules, on the common law. In any event, the common law riparian rules in relation to flowing water recognise water use rights; and the common law rules relating to water not in watercourses indeed apprehends ownership of water: see DE Fisher Water Law (LBC Information Services 2000), Ch 4. These principles are reflected in s 4(1) RIWI Act set out above which seeks to enable governmental control of such use and ownership rights. In no sense therefore can it be said that recognition of a native title right in relation to water use or ownership is repugnant to the common law, as the State’s submission suggests.
1381 As well as noting this paragraph from Banjima, the Yilka applicant makes extensive submissions concerning the State’s submission in the present proceedings. First, the Yilka applicant makes the point that the suggestion that exclusive possession is to be understood as ‘rights’ (plural) is misconceived, as the majority in Ward HC made clear that exclusive possession is a singular right and the use of the singular to refer to it is correct. Their Honours stated (at [89]):
The expression “possession, occupation, use and enjoyment . . . to the exclusion of all others” is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead.
1382 Secondly, the Yilka applicant makes the point that the State does not, and could not, contend that if the land surrounding the water at the Yilka soak, for example, was the subject of a (native title or non-native title) right of exclusive possession, that the holder of the right would not be entitled to exercise that right so as to exclude others from access to the area of the soak, whether specifically or as a consequence of refusal of access to the broader area covered by that right. The Yilka applicant contends that the holder of the right would not be committing an actionable wrong to exclude others, either from the area generally so that they could not access or take the water, or specifically from taking the water. The same would be true if the water from the soak was part of a stream flowing out of the Claim Area. That there may be common law limitations on the right of the owner of the land in the latter circumstances makes no difference.
1383 Further, the Yilka applicant points out that the claim is to the possession of a native title right in relation to an area of ‘land or waters’ as defined in s 223(1) NTA. Assuming proof of the possession under traditional law and custom of a right equivalent to 'ownership' or exclusive possession over that area of a right, the only bases on which the claim to recognition of that right might be refused are:
(a) extinguishment; or
(b) non-recognition due to it being contrary to a fundamental principle of common law.
1384 The Yilka applicant submits that it cannot be suggested that an ordinary right of exclusive possession in relation to the area cannot be conferred by statute, private grant, common law or traditional law or custom for the mere reason that there may be water on it at times.
1385 The Yilka applicant argues that the fallacy in the State’s submission was reflected in the High Court’s rejection in Akiba of the submission for the State of Queensland. Justice Finn in Akiba (at [759]) quoted Bonyhady’s The Law of the Countryside (1987) (at 191), where it was said that the common law drew:
a fundamental distinction between running water in rivers or the ocean and water which has been “severed” so that it is contained, for example, in buckets, pipes or even a pond [Race v Ward at 261, 263 per Lord Campbell CJ] … [W]ater which has been abstracted is regarded as “property” so long as it is reduced into possession. A member of the public who takes such water is open to prosecution for theft as well as an action for damages.
1386 It follows that water taken by claimants, for example, in bores and windmills and held in tanks, from ponds or other depressions, or arising when a soak is dug, is amenable to ownership in the ordinary sense. The State’s submission, it is said, fails to address this situation.
1387 The Yilka applicant notes that the State’s submission about water is not put as a matter of extinguishment, but rather, as a matter of recognition by the common law. It depends on the proposition that it would be to ‘fracture a skeletal principle of the Australian legal system’ to recognise a native title right of exclusive possession over an area without expressly reserving from that right such water as may be present within the area.
1388 It is not a fundamental principle of common law that a right of exclusive possession cannot exist over an area within which water exists. Such a principle would not make sense, given that water exists in some form throughout the globe. There may be common law rules about what, or how much, the holder of a right of exclusive possession may do with some forms of water, but this does not mean that the right itself is ordinarily repugnant to the common law. There is no non-discriminatory basis for regarding a native title right of exclusive possession any differently. A native title right is merely subject to the same rules about water as any other right of exclusive possession. The task of making a native title determination under s 225 is not to codify the law, but simply to afford traditional rights the same recognition as common law rights.
1389 The native title claimed under the NTA concerns rights and interests in relation to ‘land or waters’, pursuant to s 223 NTA. Those terms are defined in the NTA and are set out in s 253 NTA as follows:
land includes the airspace over, or subsoil under, land, but does not include waters.
Note 1: Because of the definition of waters, not only rivers and lakes etc., but also such things as the bed or subsoil under, and airspace over, rivers and lakes etc. will not be included in land.
Note 2: Because of the definition of waters, the area between high water and low water will not be included in land.
waters includes:
(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or
(b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)); or
(c) the shore, or subsoil under or airspace over the shore, between high water and low water.
1390 It is to be noted that the NTA distinguishes between ‘water’ and ‘waters’. The former is referred to in the context of the future acts regime in Pt 2 Div 3 Subdiv H, which concerns the management or regulation of ‘water and airspace’. In that context, ‘water’ is defined in s 24HA(1) NTA for the purposes of that subsection, as follows:
water means water in all its forms and management or regulation of water includes granting access to water, or taking water.
1391 ‘Water’ is also referred to in s 212(1)(b) NTA in the context of permitting the Commonwealth, States and Territories by legislation to confirm ‘any existing right of the Crown in that capacity to use, control and regulate the flow of water’. It is also referred to in the context of the definition of a public work, which includes ‘a well, or bore, for obtaining water’ constructed or established by or on behalf of the Crown or statutory authority: s 253 NTA.
1392 This indicates, the Yilka applicant submits, that the NTA reserves the word ‘water’ to indicate a substance or resource, rather than to describe an area or geographical space. On the other hand, ‘waters’ is reserved for the description of geographical space albeit one ordinarily associated with a body of water.
1393 Further, the terms ‘land’ and ‘waters’ are almost always used in the NTA in the composite phrase ‘land or waters’. For example, in s 225 NTA, which sets out the requirements for a determination of native title, there is reference to ‘a particular area (the determination area) of land or waters’ and in that context, reference to both native title rights and other interests ‘in relation to the determination area’. The usage of this phrase here, and in other sections such as s 62(1)(c) and s 64 NTA suggests that it refers to an area; whether it be an area of land, an area of waters, or an area that includes both land and waters. There is no suggestion that any area of ‘land or waters’ is to be severed or regarded as severable into separate areas of ‘land’ and ‘waters’ for native title purposes, nor is there any suggestion that ‘water’ itself is to be regarded separately from either land or waters.
1394 In ICM v Commonwealth, (at [109]-[115]), Hayne, Kiefel and Bell JJ considered the common law principles relating to water, so also did French CJ and Gummow and Crennan JJ (at [51]-[57] and [71]-[73]). At [51], French CJ, Gummow and Crennan JJ noted that early explorers of the inland geography of Australia discovered ‘that strange phenomenon of Australia’ where even apparently substantial rivers evaporated, especially during drought, ‘from the intense heat of the plains’. In the context of ‘flowing’ water, their Honours said (at [55]), as noted by the State, that (footnotes omitted):
flowing water is a publici juris in the sense that no-one has “property in the water itself, but a simple usufruct while it passes along” … Riparian rights did not depend on ownership of the soil of a stream; they attached to land in either lateral or vertical contact with a stream.
Their Honours went on to say (at [56]) that this can be contrasted with the position in relation to certain water that is not flowing water, noting that in Chasemore v Richards (footnote omitted):
Lord Chelmsford distinguished between “water flowing in a definite channel, and water whether above or underground not flowing in a stream at all, but either draining off the surface of the land, or oozing through the underground soil in varying quantities”. Such water could be intercepted by a landowner.
1395 The importance of the distinction in common law between rights of ownership in relation to the area which holds the water, and rights in the water itself (riparian rights) was made clear by their Honours who said (at [57]) (footnote omitted):
The proposition that water in general cannot form the subject matter of property had the consequence that the grant by a landowner to another of a watercourse did not mean the grant of the water itself.
1396 The proposition that ‘water itself’ is ‘not especially amenable to private ownership’ (ICM v Commonwealth (at [55])) is different from the State’s submission that ‘only non-exclusive native title rights may be recognised in relation to waters within the Claim Area’. While the water itself might be subject to a common law regime, the area in or on which the body of water is situated may be amendable to a right of exclusive possession at common law.
1397 Even on the assumption that by the State’s submission was directed to water itself, rather than waters, it does not explain a need for an express water-specific qualification of the native title right of exclusive possession in relation to land and waters. This is particularly so in light of the complexity of the common law on this topic, which could not be accurately codified by means of an express qualification on the native title right of exclusive possession. At common law a right of exclusive possession over an area of land ordinarily is not taken to amount to ownership of water itself in all of its forms; rather, water is subject to the notion of riparian rights. A native title right of exclusive possession need not be expressed otherwise. The translation of the traditional right into a formulation understandable by the common lawyer is achieved without the suggested express qualification advanced by the State. The common lawyer understands that the right of exclusive possession is subject to the notion of riparian rights. There is no non-discriminatory basis for describing it otherwise for native title purposes.
1398 But at a practical level all this debate is somewhat academic as any particular limitation imposed by the common law on the rights of a landowner in relation to water is recognised in Order 6(b) of the Yilka (and Sullivan) Determination Sought, which states that native title rights are exercisable in accordance with and subject to the laws of the State and the Commonwealth, including the common law.
1399 Similar reasoning applies in regard to the statute law situation. The Yilka applicant submits, and I accept, that in the present case, in considering any questions about extinguishment of rights, the starting point is the rights claimed and the character of the relevant statutory provisions. The native title right of exclusive possession is not relevantly inconsistent with the statutory limitations on the use of particular kinds of water. In Ward HC, the majority referred to s 4(1) of the Rights in Water and Irrigation Act 1914 (WA) (RWIA) (a section which has since been repealed), saying (at [263]):
Part III of the [RWIA] provides (in s 4(1)) that the “right to the use and flow and to the control of the water” in natural waters “shall, subject to only to the restrictions hereinafter provided, and until appropriated under the sanction of this Act, or of some existing or future Act of Parliament, vest in the Crown”. It deals with riparian rights (s 14) and allows riparian owners to apply for special licences to divert and use water (s 15). The vesting of waters in the Crown was inconsistent with any native title right to possession of those waters to the exclusion of all others.
1400 As the Yilka applicant notes, this section did not vest any area of ‘land or waters’ in the Minister, but rather vested certain rights in certain kinds of waters. Further, the majority did not conclude that any native title right had been extinguished.
1401 This is consistent with the reasoning in Akiba HC and Brown HC, which make clear the important distinction between activities by which a right might be exercised and a right itself. As those cases show, a right to control access to and use of an area is not relevantly inconsistent with the presence of a particular statutory limitation on use. Those are limitations on the manner of exercise of the right, not the right itself. For example, by-laws that might extinguish a right to hunt or gather particular resources from a particular location are not to be taken as extinguishing a particular incident of a broader right to take and use resources from the country generally. In Akiba HC, the statutory and regulatory regime included various prohibitions, but such prohibitions were not found to extinguish the broader right.
1402 Because the claimants can use water from the Claim Area in exercise of their right of exclusive possession without breach of the RWIA and without abrogating rights vested in the Minister under s 5A of the RWIA (the equivalent of the former s 4(1)), there is no extinguishment of the exclusive right. Similarly, insofar as the exercise of non-exclusive rights might properly be read as limited by reference to the RWIA, it remains possible to exercise them in a manner that does not infringe the statute or abrogate a right vested in the Minister. The Yilka applicant contends there is no extinguishment, only a situation that is accommodated by the provision in the Yilka Determination Sought that native title rights and interests are exercisable in accordance with and subject to the laws of the state. Further, and in any event, the rights of the Minister to the use and flow and to the control of certain water under the RWIA and any existing right of access to and enjoyment of waterways and the banks and beds of waterways that is confirmed pursuant to the TVA are recorded as ‘other interests’ in Items 7(b) and (d) respectively in Sch 5 of the Yilka Determination Sought.
1403 The Sullivan applicant also notes that s 223 NTA defines native title as including rights and interests both to land and waters. Section 225 NTA similarly refers to the possibility of a determination as including rights and interests to waters. ‘Waters’ is an expression defined in s 253 NTA. The Sullivan applicant says that the State’s submission concerning common law ‘ownership’ principles is irrelevant, as the NTA does not use that term in this context. A determination can include rights to possession, occupation, use and enjoyment of waters as against the world, as sought in the Sullivan Determination Sought.
1404 I agree with the submission for the applicants and find that native title rights and interests can be recognised with regard to water, although their exercise may be limited, for example, by statute.
1405 The State says in its reply submissions that the mere recording of the rights of the Minister to the use and flow and to the control of waters under RWIA as an ‘other interest’ does not reflect the curtailment of native title rights (and other rights) brought about by that enactment. To identify a native title right in terms which encompass a right to water as ‘exclusive possession’ conveys the inference that a right of control exists. For that reason the State submits that it is appropriate that any right in respect of water be expressed in terms which describe the right as diminished by the rights conferred upon the Minister just as all non-native title rights in respect of water are diminished by the same statute. However, I find that recording statutory rights under the RWIA as an ‘other interest’ is sufficient, in light of Order 9 of both the Yilka and Sullivan Determination Sought, which specifies that native title rights and interests yield to the ‘other interests’ to the extent of any inconsistency. The State does not contend, and I do not find, that any rights and interests conferred by the RWIA have an extinguishing effect on native title.
3.2.2 Rights in minerals and petroleum
1406 In relation to minerals and petroleum, by virtue of the vesting powers in s 3 of the Western Australia Constitution Act 1890 (UK), s 117 of the Mining Act 1904, s 9 of the Mining Act 1978 and s 9 of the Petroleum Act 1936 (WA), full beneficial ownership of all the minerals specified and all petroleum was vested in the Crown. Any native title in respect of minerals or petroleum was consequently extinguished. The Yilka applicant does not claim recognition of any native title rights in minerals, petroleum or gas wholly owned by the Crown; as noted in the Yilka Amended Form 1 (at [120]), Yilka Determination Sought (at [7]), and Yilka No 2 Form 1 (at [39]). The same is true of the Sullivan applicant, as per its Amended Form 1 and Determination Sought.
1407 The State says that further, pursuant to a proclamation made under s 115 of the Mining Act 1904 on 12 May 1920 and published in the Gazette on 14 May 1920, the State has full beneficial ownership of ochre for use in the manufacture of porcelain, fine pottery or pigments: see Daniel (at [729]-[732]).
1408 The Gazettal concerning ownership of ochres referred to by the State cannot, in the Yilka applicant’s submission, be regarded as vesting full beneficial ownership of ochres in the Crown in any sense; rather, it is a purposive regulatory act directed at particular uses of ochres, not of ochre itself in situ. The question of whether this Gazettal brought ochre within the definition of ‘minerals’ in the Mining Act 1904 was discussed by Nicholson J in Daniel (at [729]-[732]). His Honour found that ochre to be used for the purpose of the exercise of a native title right (as established in those proceedings) did not constitute a ‘mineral’ for the purposes of the Mining Act 1904 and that consequently s 117 of the Mining Act 1904 had no extinguishing effect in that respect. In any event, the Yilka applicant submits, and I agree, that the question need not be resolved in this case.
3.3 General outline of the tenure granted in the Claim Area
1409 The current and historic grants in the Claim Area include:
(a) roads;
(b) mining interests;
(c) pastoral leases (and improvements);
(d) petroleum interests;
(e) reserves; and
(f) water interests.
1410 Those grants have been categorised by Landgate, following research and mapping (aside from the water interests, which are contained in Mr Connelly’s affidavit). They have been grouped into the 11 indexes contained in LRM4. The grants have been further classified in LRM4 based on whether they are ‘historic’ or ‘current’ grants, the latter referring to grants which were registered with Landgate at the time of searching.
1411 The State grouped the relevant grants according to their purported extinguishing effect, in accordance with the State Extinguishment Submissions, rather than on an historic or current basis. Schedules have been supplied by the State categorising the tenure in the Claim Area into three different schedules which are further divided into separate tables according to the tenure type, and are attached to these reasons as Annexure 10. Schedule 1 contains tenure that the State (in its Extinguishment Submissions) submitted wholly extinguish native title, Sch 2 contains tenure that the State submitted partially extinguish native title rights and interests, and Sch 3 contains grants that the State submitted are valid grants which have no extinguishing effect, but rather are subject to the non-extinguishment principle. Note that these groupings are no longer reflective of the State’s position, following its reply submissions.
1412 The following headings are based on the State’s initial submissions, which group together acts based on tenure type. They are not necessarily reflective of the State’s final position, the applicants’ position, or my conclusions. Rather, they are reflective of, and used to map out, the course of the arguments advanced by the parties.
4. ACTS WHICH WHOLLY EXTINGUISH NATIVE TITLE
1413 By way of preface to this discussion, as has been indicated, the topic of roads was particularly contentious. It is necessary nonetheless to record the manner in which the debate on roads unfolded. The submissions that follow were made prior to the State’s application to re-open to decide issues relating to extinguishment by roads.
1414 In relation to roads, the State’s opening position was that its tenure evidence identifies two particular roads within the Claim Area, which are both current. They were created and dedicated within the Claim Area in accordance with the provisions of Road Districts Act 1919 (WA) and are identified in Sch 1 Table 1 of the State Extinguishment Submissions (although note that the two entries in the column ‘Document ID’ each refer to the other road).
1415 The State argues that throughout the proceedings there has been evidence of other roads in the Claim Area, including roads as identified in diagrams and maps, including plans to which s 5 of the Road Districts Act is said to apply and the Yilka site map. The State also submits that roads in the Claim Area are public works and thereby wholly extinguish native title.
1416 Initially, the evidence led by the State in relation to the existence of any roads in which the State has any interest as road or public work identified only Road 1 (9462) and Road 2 (9463).
1417 With regard to the State’s initial purported generic inclusion of other ‘roads’, which the State contends have extinguished native title, the Yilka applicant steadfastly objected to any generalised submission about, or the making of any generalised finding of, extinguishment for which the specific area is not identified and for which there was no specific evidence as to the status of the area of a road or otherwise. The Yilka applicant says it is unconscionable for the State to suggest that the Claim Area should, in effect, be regarded as open to access by any trafficable route by any person; and that, having failed to satisfy the evidentiary onus it bears, the State has cast an intolerable onus on the native title holders forever after to prove that any given area is not a road in order to enforce their right to control access to their country. The Yilka applicant likewise opposes the State’s suggestion that this should occur in the same way for public works. (Ultimately, the State conceded this position.)
1418 The initial response submissions of the Yilka applicant, therefore, dealt only with the two roads on which there was specific evidence. The summary position it took in relation to Road 1 and Road 2 was that the Yilka applicant:
(a) accepts they are vested roads that extinguished native title;
(b) does not accept that they are common law roads, or public works for the purposes of the NTA;
(c) contends that any extinguishment by either road must be disregarded where s 47A or s 47B NTA applies.
1419 The following is a discussion of the relevant legislation and legal principles pursuant to which the State asserts roads have been constructed or established, and their effect on native title in the Claim Area.
1420 Section 5 of the Road Districts Act as amended by s 2(c) of the Road Districts Act Amendment Act 1932 (WA) defined a road to mean and include:
any thoroughfare or highway which the public are entitled to use and every part thereof and all bridges and culverts and other things appurtenant thereto and used in connection therewith; and includes any land marked as a road upon the plan of any lands publicly exhibited in the public office of the Department of Lands and Surveys, or on any plan deposited in the Office of Titles either prior to or after passing of this Act.
1421 The inclusion in the definition of a ‘road’ of any land marked as a road on upon a plan publicly exhibited in the Department of Lands and Surveys or deposited in the Office of Titles was therefore retrospective, in that it included plans and roads which had been created prior to the passage of the Road Districts Act. That Act, by s 158, provided that ‘all roads and materials thereof, and all things appurtenant thereto’ within a district ‘shall vest in’ the local authority (Road Board) of that district and the authority had ‘the care, control and management thereof’. By s 144 of the Road Districts Act, the Road Board of each district had the power to provide and set out roads within its district. However, s 147 provided that every resolution of the Road Board to open a new road or to divert an existing road was subject to confirmation by the Governor. Pursuant to s 149, upon confirmation by the Governor of a Road Board’s resolution to open a new road, or alter the line of an existing road, the Minister was required to publish a notification of such in the Gazette upon which the road or altered line of road was to be taken to be a road within the meaning of the Road Districts Act. Roads created and dedicated within the Claim Area in accordance with the provisions of that Act have been identified by the State in Sch 1 Table 1.
1422 The Yilka applicant says that in determining whether the Crown has has constituted land as a public road in accordance with a statutory procedure (see Fourmile v Selpam Pty Limited (1998) 80 FCR 151 (at 167)), it is necessary to identify the elements of the procedure and to establish that the procedure was followed. In an appropriate case the presumption of regularity would apply. The Yilka applicant argues that, while the definition of ‘road’ contained in s 5 of the Road Districts Act (as amended by the Road Districts Amendment Act 1932) states that a road includes land marked as a road on a public plan, this is no more than a definition, and provides neither source nor power to mark land as roads on the public plans of the Department. The definition alone cannot mean that if, for example, privately-owned land or land subject to a reserve or pastoral lease was marked as a road on a public plan, that members of the public were immediately entitled to freely use such land as a road, or thereby acquired right or interests in the road. As the definition of ‘road’ does not lay down a procedure for creating a public road, it is necessary to look elsewhere in the Act for the elements of the relevant statutory procedure.
1423 The Road Districts Act is, among other things, ‘An Act relating to Roads outside Municipal Districts’. The Yilka applicant notes that Div (1) of Pt V of the Road Districts Act sets out the procedures for opening roads in a road district. Section 148(1) (as enacted) referred to the taking of any land for a road, which engaged the Public Works Act 1902, rather than any statutory procedures under the Road Districts Act. Relevantly, s 152 of the Road Districts Act (as enacted) provided that ‘[n]o public right-of-way shall be acquired or be deemed to exist over unoccupied Crown land, unless such right-of-way has been officially marked upon some plan in the Department of Lands and Surveys’.
1424 Accordingly, the Yilka applicant says, in relation to unoccupied Crown land, a public right-of-way could not be obtained unless the right-of-way was officially marked on a public plan. That marking does not, however, equate such a right-of-way with the rights of the public in relation to roads, the Yilka applicant says, because s 153 (as enacted), for example, refers to the closure of ‘tracks’ over which a public right-of-way has been acquired, but ‘which has not been declared or notified as a road in the Gazette’.
1425 The Yilka applicant argues that the scheme of the Road Districts Act, evidenced by the definition of ‘road’ and the provisions in Div (1) of Pt V, would appear to be:
(a) a Road Board had the control of roads (as defined in s 5 as amended) in a road district;
(b) to constitute a new road within a road district it was necessary to follow the statutory procedure set out in the Act; and
(c) land marked as road on a public plan was a ‘road’ for the purposes of the Act.
1426 The Yilka applicant asserts that only formal dedication at common law or compliance with the statutory procedure can create a right of use in members of the public. That a road is marked on a public plan is not evidence that the land was previously dedicated at common law or validly constituted in accordance with the statutory procedure laid down in the Road Districts Act. Nor does the depiction of the location of a road on a public plan give rise to any presumption of compliance with any statutory requirement, especially in light of the fact that it was not a requirement of the Road Districts Act.
1427 The State makes no express claim to any road other than to Road 1 and Road 2 having been created by compliance with statutory procedures under the Road Districts Act. The Yilka applicant accepts that there was such compliance in relation to those two roads; but those roads only.
1428 The State says that it remains possible to open a public road in accordance with the rules developed by the common law, despite the existence of of a method for statutorily declaring a public road: see, for example, Permanent Trustee Co of New South Wales v Campbelltown Municipal Council (1960) 2015 CLR 401 (Permanent Trustee v Campbelltown). As was recognised in Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 (A-G (NT) v Minister for Aboriginal Affairs), absent any contrary legislative provisions, it remains possible for a public road to be dedicated in accordance with well-established common law rules (at 541). Thus, in Ngalakan People v Northern Territory (2001) 112 FCR 148, O’Loughlin J summarised the common law test for dedication in these terms (at [32]):
At common law, a road most commonly became a public road by reason of the dedication of the right of passage to the public by the owner of the soil and by reason of an acceptance of the right of way by the public. Usually, that acceptance was established by use: see generally Halsbury's Laws of England 4th ed, vol 21, paras 64-67. “Dedication” in that sense, was taken to mean that the owner so conducted himself as to make an offer of usage to the public which the public then accepted
1429 Windeyer J stated in Permanent Trustee v Campbelltown (at 420) that the creation of a public road at common law required both an intention by the landowner to dedicate the land as a public road and an acceptance by the public of the proffered dedication. Therefore, to establish a common law dedication of a public road, the State suggests, the facts surrounding the road’s creation and history must be considered. The dedication can be made expressly or may be inferred from the conduct of the owner: Council of the City of Shoalhaven v Director General National Parks & Wildlife Service [2004] NSWCA 163 per Bryson JA (at [10]). Whether a road has been dedicated as a public road at common law is a question to be determined on the facts of each case: A-G (NT) v Minister for Aboriginal Affairs (at 542). The following factors are some matter which may, when considered with all the relevant evidence, amount to an unequivocal indication of the intention of the owner of the land to dedicate it to the public as a road:
(a) declaration of an intention to dedicate: A-G (NT) v Minister for Aboriginal Affairs (at 542);
(b) delineation or demarcation of the road on maps or plans as a road set apart from public use: A-G (NT) v Minister for Aboriginal Affairs (at 542);
(c) uninterrupted use of the road by the public: Turner v Walsh (1881) 6 App Cas 636 (at 639 and 641) (however, it is important to note that mere evidence of continual use does not lead to an inference of dedication, but may go to show an intention of the owner to dedicate the road to the public: see Folkestone Corporation v Brockman [1914] AC 338 (at 352 and 362));
(d) the expenditure of money by public bodies in forming or maintaining the land as a road: A-G (NT) v Minister for Aboriginal Affairs (at 542); and
(e) whether the road is part of the general road way systems: Permanent Trustee v Campbelltown (at 415).
1430 The factors listed at (c) and (d) may also be evidence of the acceptance of the land as a road by the public: see Permanent Trustee v Campbelltown (at 422).
1431 In its initial Extinguishment Submissions the State did not identify and include (in Sch 1 Table 1) all common law roads, but submitted that those roads should be dealt with in a determination in much the same way as public works, by the inclusion of a generic exclusion from the area subject to native title of roads, whether or not specifically identified in a schedule to the determination. The view of the Yilka applicant on this submission has been noted above. The Sullivan applicant also disagrees with the State’s suggestion that roads should be dealt with by way of a generic exclusion. I accept this submission. I accept that doing so will be too vague and likely to lead to confusion and uncertainty in the future. The State ultimately reversed is position on this, as noted in the discussion of the re-opening on roads below.
1432 The Yilka applicant does not accept that a road over which the public have a right of way can be constituted according to common law principles by following the statutory provisions of the Road Districts Act, but rather, that reference in the statutory definition of ‘road’ to any ‘thoroughfare or highway the public are entitled to use’ may describe roads dedicated at common law prior to the passing of the Road Districts Act. On this point, I would note that in Fourmile (at 167), it was said that ‘where, as in the Northern Territory, legislation providing for the opening of public roads by the Crown does not preclude the Crown from opening public roads in accordance with the well-established common law rules, the common law methods of opening public roads remain available to the Crown’.
1433 The Yilka applicant, citing Halsbury's Laws of England 4th ed, vol 21, (the equivalent passages to 5th ed, vol 55 (at [111] and [115])) notes that, in relation to the doctrine of dedication and acceptance for the creation of a highway or public road at common law, there is no distinction between privately-owned land and land in common ownership; and the intention of the Crown to dedicate to the public a right of way over Crown land may be inferred as in the case of private owners. In any event, insofar as the State may have intended to rely on common law principles in relation to Road 1 and Road 2, there is no evidence of public acceptance of those roads through public use or public expenditure or otherwise. Neither road is a through road to anywhere; they both terminate in extremely remote areas. The Yilka applicant submits it is proper to infer that, though they may have been used by persons with private interests in those areas, for example, to access pastoral lease or mining interests, they could not have been used as thoroughfares by members of the public. Road 2, for example, terminates somewhere in the vicinity of Point Salvation, near Mantjal (Site 5.3) and Road 1 terminates somewhere ‘near Rutter Soak’ (Site 5.24, Wartu).
1434 Accordingly, the Yilka applicant suggests that, far from there being any evidence that would suggest any common law public roads in Claim Area, the only evidence available (at that stage) suggests to the contrary. Further, the Yilka applicant submits that if either Road 1 or Road 2 was a common law public road, any right of the public to traverse those areas respectively was extinguished by the vesting of Aboriginal reserves (as discussed below), and that any sections of those roads which are not covered by reserves are isolated and cannot be regarded as common law roads.
4.1.3 Validity and effect on native title
1435 The State contends that roads within the Claim Area, including the two roads listed in Sch 1 Table 1 are valid; and that, in particular, roads constructed or established:
(a) prior to 31 October 1975 are valid as there is no question of invalidity by reason of a breach of the RDA;
(b) between 31 October 1975 and 1 January 1994 are past acts as defined in s 228(2) NTA and are validated by s 19 NTA and s 5 TVA;
(c) between 1 January 1994 and 23 December 1996 are intermediate period acts as defined in s 232A(2) NTA. Some or all of the area of each of the roads granted in this period were previously subject to a valid freehold title or lease (other than a mining lease) or a public work as required by s 232A(2)(e) NTA. They were validated by s 22F NTA and s 12A TVA; and
(d) after 23 December 1996 are, to the extent that they affect native title (as that term is defined in s 227 NTA) and would, but for the NTA, as a consequence be valid, validated by the future act provisions of the NTA.
1436 The Yilka applicant accepts following Fourmile (at 169-170) per Drummond J, with whom Burchett J agreed, and (at 187) per Cooper J, that where the Crown, acting under statutory authority, validly constitutes Crown land as a public road open to immediate use by the public, the creation of the enforceable right of free passage over the land in members of the public is wholly inconsistent with any continuing right to exercise and enjoy native title rights and interests in the land comprised in the road.
1437 This will be the case whether or not the action of the Crown is effective to vest in the Crown the full beneficial ownership in the lands constituted as a public road: Fourmile (at 170). However, Drummond J, in Fourmile (at 169) stated that where the Crown ‘merely reserves Crown land from further sale or lease for road purposes’, that does not create rights in third parties which impact on native title.
1438 It is necessary to consider the effect on Road 1 and Road 2 of the creation and vesting of the reserves covering Area 7 and Area 9 (Reserves 22032 and 25050 respectively). Those roads are covered by those reserves, except to the extent that Road 2 extends into the Yamarna Pastoral Lease (Area 11). Those parts of those roads were not excluded from the areas reserved or vested and thereupon were only available for use by the beneficiaries of the reserves, originally ‘natives’ and later ‘Aboriginal inhabitants’, and were otherwise only accessible by a person holding a permit to enter the reserve.
1439 The Yilka applicant says that the creation and/or the vesting of the reserves was inconsistent with any right of the public to access the areas, whether or not via any road over which the public may formally have had a right of way. The right of the public must be taken to have been abrogated: see Akiba HC (at [37]-[38], [74]), where it was explained that Harper v Minister for Sea Fisheries (1989) 168 CLR 341 decided that the legislation in question abrogated a common law public right to take abalone. Further, the Yilka applicant submits that any vesting of the areas in the Mt Margaret Road Board by operation of s 158 of the Road Districts Act or s 18 of the Public Works Act 1902 must be regarded as having been revoked or abrogated by the vesting of the freehold estate in the AAPA.
1440 The Yilka applicant says that any enforceable right of free passage created in members of the public upon land being constituted as a public road in accordance with a statutory procedure or by dedication at common law is a ‘prior interest’ for the purposes of s 47A(2)(b) and s 47B(2) NTA. Any extinguishment must therefore be disregarded for all purposes under the NTA where it is established that when the claim was made the area was occupied by one or more members of the claim group. Similarly the interest of the Mount Margaret Road Board under the former vesting of the roads is also such a ‘prior interest’. The result is no different, the Yilka applicant says, where a road answers the description of a ‘public work’. This will be discussed in detail below.
4.1.4 Extinguishment by roads as ‘public works’
1441 The definition of public works in s 253 NTA expressly includes roads as a category of public work, pursuant to para (a)(ii) of that definition. Accordingly, the State submits that the statutory creation of a road, for example, under the provisions of the Roads Act 1888 (WA), the Roads Act 1902 (WA), the Roads Act 1911 (WA), the Road Districts Act, the Local Government Act 1960 (WA) or the Public Works Act 1902 (WA) amounted to the establishment of the road by or on behalf of the Crown or a local government authority, thus providing a basis for these roads to constitute ‘a public work … attributable to the Crown’. Sundberg J in Neowarra accepted that roads which have been ‘reserved, dedicated or otherwise with some formality classed as a road’ could amount to a public work under para (a) of that definition in s 253 NTA (at [621]). In Daniel, Nicholson J found that the roads under consideration in that case which were created or dedicated pursuant to the Roads Act 1888, Roads Act 1902, Road Districts Act and Local Government Act 1960 constituted public works (at [642]-[643]).
1442 The State notes that public works when commenced to be constructed or established on or before 23 December 1996 are previous exclusive possession acts as defined in s 23B(7) NTA. Further, given that the construction or establishment of those roads was attributable to the State, s 23E NTA and s 12J TVA confirm complete extinguishment. The extinguishment is taken to have happened when the construction or establishment of the relevant road began, as per s 12J(1)(b) TVA.
1443 The States says that the construction or establishment of each road wholly extinguished native title over the entirety of the area of the road and any ‘adjacent land … the use of which is or was necessary for, or incidental to, the construction, establishment or operation’ of the road: s 251D NTA. Thus, the State’s submission is that the extended definition of public work in s 251D NTA applies, in particular, to corridors around major roads. Road corridors of this kind, sometimes referred to as road reserves, are the ‘area required’ for the given road, according to the State. Among other purposes, road corridors are required to prevent soil movement onto the road surface, to provide turning circles; to provide space for drainage channels and offshoot drains, to prevent stock straying onto the road, to provide safe lines of sight; to ensure sufficiently wide verges for safe stopping without obstructing other road users, pedestrian and vehicular traffic, to accommodate foreseeable realignment and/or widening and to include a buffer from the surrounding land. The preservation of native vegetation within road corridors helps prevent soil movement and thus reduces maintenance costs.
1444 Accordingly the State initially submitted that a corridor of 200 metres outside towns or 100 metres within towns is ‘adjacent land … the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work’ within the meaning of s 251D NTA.
1445 The Yilka applicant says that the State’s submission that unspecified ‘roads in the Claim Area are public works and thereby wholly extinguish native title’ is wholly unsupported by evidence and should be rejected as a submission. The State’s submission that the definition of public works in s 253 NTA includes ‘roads’ is a bare assertion as that definition only includes roads that are ‘constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities’, according to the Yilka applicant.
1446 The Yilka applicant asserts that only those roads ‘constructed’ by or on behalf of the Crown or other relevant authority constitute public works for the purposes of s 253 NTA. Although the State relies on Daniel (at [643]), Neowarra (at [62]) (see also Banjima (at [1417])), the Yilka applicant argues that in none of those decisions was there any suggestion that the roads in question had not been ‘constructed’. Nor was there any reliance placed on the word ‘established’ in the absence of any construction. The Yilka applicant argues that the word ‘established’ in the NTA definition of ‘public work’ has a singular meaning not intended to extend to roads. The Yilka applicant refers to the Explanatory Memorandum to the Native Title Bill 1993 (Cth) (at 107) which explained that the use of the word ‘established’ in this context recognises that many stock routes are not normally constructed but are marked out or identified as stock routes. While I can see that this argument may have some attraction and despite the submissions in this and following paragraphs, I consider the weight of authority would support the State’s submission that the relevant roads for which some responsibility has been taken constitute public works for the purposes of s 253 NTA. Whether s 47A NTA applies is of course another question.
1447 The Yilka applicant submits that those who drafted the Native Title Bill and who prepared the Explanatory Memorandum must be taken to have known that roads could be constituted in accordance with a statutory procedure or dedicated at common law, and it would have been a simple matter to mention roads as well as stock routes if the term was intended to extend to roads established at law without involving construction. That it was not intended is made plain by the reference to ‘road’ in conjunction with ‘railway’ and ‘bridge’ in the same paragraph of the definition. The subparagraph, the Yilka applicant says, is clearly referring to physical infrastructure, to things that are constructed, and not to roads merely marked out or identified on a plan or map. A public road that is effectively constituted by such means, that is, by statutory procedure or common law, will create rights in third parties that are inconsistent with native title rights and interests, whether formed or constructed or not and it is unnecessary, and not intended, to bring such roads within the definition of public work to effect extinguishment. A clear indication that the word ‘established’ is intended to have a narrow compass, in the terms set out in the Explanatory Memorandum, is that it is used in the definition of public ‘work’. Something which is not constructed is not a ‘work’.
1448 The Yilka applicant submits that ‘construct’ means to build or or erect by putting together the constituent parts of a work, such as a building, a bridge or a road: see the Macquarie Dictionary (rev 3rd ed) and the New Shorter Oxford English Dictionary (2nd edn). The argument made by the Yilka applicant is that roads created over time by public use or constructed by a private landowner are not transformed into public works because some works are performed on them at a later time by or on behalf of the Crown.
1449 The Yilka applicant further relies on the observation of Olney J in Hayes v Northern Territory (1999) 97 FCR 32, where his Honour said (at 115):
The [NTA] definition of public work includes a road that is constructed or established by or on behalf of the Crown, in any capacity. It is patent that not all “roads” under the Control of Roads Act will be public works under the [NTA]. For example, land which has been left as a road in a subdivision of Crown land is a road under the Control of Roads Act (s 7(c)(iii)) but unless and until a road is constructed on that land by or on behalf of the Crown or other relevant authority, the land will not be a public work… Evidence of the construction of a road by or on behalf of the appropriate authority is needed
1450 I would note that this statement was made in relation to areas, which were previously roads and had been closed; in that case, evidence of road closure was insufficient to show ‘construction’ of the roads.
1451 The Yilka applicant contends that no evidence has been adduced by the State of any construction of Road 1 or Road 2 by or behalf of the Crown, a local government body or statutory authority.
1452 The State, in including roads in the definition of public works, has sought to bring into operation s 251D NTA, thereby extinguishing native title over road reserves. In this instance, the submission for the Yilka applicant is that neither road in question has been shown to be a public work, so there is no call for consideration of the application of s 251D NTA. Even if those roads do constitute public works, the State has not called any evidence that would enable the application of s 251D to be determined. There is no reason to suggest that any relevant adjacent area for the purposes of s 251D would extend beyond the width of the road as declared, namely, a ‘strip of land one chain wide’. The ‘chain’ referred to is presumably the imperial unit of measurement equating to 66 feet or 20.1168 metres.: see Weights and Measures Act 1915 (WA) s 16 and Sch B. Absent evidence of any construction of either road, such a width must be regarded as sufficient for any construction and for its establishment and operation.
1453 The Yilka applicant says that if Road 1 and/or Road 2 are public works within the meaning of the NTA, it is the Yilka applicant’s position that they nevertheless involve the ‘creation of any other prior interest in relation to the area’ which must be disregarded under s 47A(2)(b) NTA.
1454 The definition of ‘interest’ in s 253 NTA is ‘very broad’: Erubam Le (Darnley Islanders) (No 1) v Queensland (2003) 134 FCR 155 (at [88]). The Yilka applicant says the establishment and vesting of a road clearly enough involve the creation of interests in the body in whom it is vested and in the public respectively. In Fourmile (at 170), Drummond J held that constituting land as a public road ‘creates in third parties (members of the public) the enforceable right of free passage over the lands and denies to all persons the right to use the land for any other purpose than free passage or a purpose incidental thereto’, following Dymond v Pearce [1972] 1 QB 496 (at 502 and 508). The more difficult question is whether, on the assumption that a road about which there is no evidence of construction is a public work, the interests of the Crown in the public work is a ‘prior interest’ within the meaning of s 47A(2) which must be disregarded.
1455 The Yilka applicant attempts to distinguish the present case from Erubam Le, which the State relies on as authority for the proposition that public works do not constitute ‘the creation of prior interests’ under s 47A and s 47B (see Pt 4.1.7 and Pt 7.2 below). In that case, the Full Court made the following remarks as to the definition of the word ‘interest’ as used in the phrase ‘the creation of any other prior interest’ in s 47A(2)(b) (at [89]):
Taken in isolation, the definition of “interest” extending, as it does, beyond legal and equitable interests to “any other right” in connection with land, might extend to the right that the owner of land has to deal with things that have become parts of the land such as dams, pumps, houses, pipes and other such things which, in this case, are in the nature of public works. It seems to us however that in the context of the [NTA] such a consequential or derivative interest cannot fall within the definition, wide though it is, of “interest” and it certainly sits uncomfortably with the notion of “the creation of any other prior interest” for the purposes of s 47A(2)(b).
1456 It was held that in any case the extinguishment brought about by certain public works (being a pump, windmill, dam, reservoir, pipes, state schools and residential house: see at [79]), was not required by s 47A to be disregarded because it could not be said that the construction or establishment of the public works was properly to be characterised as ‘the creation of a prior interest in the land’: at ([90]). The Yilka applicant contends that in the present proceedings, the establishment, though apparently without construction, and vesting of a road, even if it is a public work, is of a different character than the constructed and not separately vested works considered in Erabum Le. Thus, the acts in this case do not involve the creation of a prior interest in members of the public and in the relevant Road Board. As the acts do not involve works, there is nothing else to protect by failing to disregard extinguishment. To refuse the application of s 47A in the circumstances would lack utility and be contrary to the beneficial intent of the provision.
1457 Further, the Yilka applicant says, that read with s 47A(3)(a)(iii) which preserves the interests of the Crown in any capacity in any public works, the intention of the parliament in s 47A(2)(b) NTA was that public works fall within the category of interests in respect of which extinguishment is to be disregarded. Otherwise, s 47(3)(a)(iii) would have no work to do.
4.1.5 Extinguishment by operation of the Public Works Act 1902
1458 The State says that, further or alternatively, those roads listed in Sch 1 Table 1 which were set aside, taken or resumed pursuant to the provisions of the Public Works Act 1902, prior to 23 December 1996, were previous exclusive possession acts on the basis that, by reason of s 23B(3) NTA, they were grants of freehold estate for the purpose of s 23B(2)(c)(ii) NTA. The majority High Court in Ward HC (at [280]) held that a vesting in the Crown of an estate in fee simple by the operation of s 17 and s 18 of the Public Works Act 1902, (which were the relevant provisions at the time of the resumption in that case) had the effect of wholly extinguishing native title. That extinguishment was confirmed by the operation of the s 23B and s 23E NTA and s 12I TVA.
1459 The Yilka applicant agrees with the State to the extent that the declarations under the Road Districts Act relating to Road 1 and Road 2 refer to an act under s 17 of the Public Works Act 1902, and that the vesting that follows, by operation of s 18 of the Public Works Act 1902, may well have extinguished native title as a previous exclusive possession act under s 23B(2)(c)(ii) and s 23B(3) without it constituting a public work (for the purpose of the NTA) under s 23B(7). However, the Yilka applicant maintains that such vesting is a prior interest for the purposes of s 47A and s 47B NTA and the extinguishment is to be disregarded where either section applies.
1460 It is contended for the Yilka applicant that any extinguishment would have been limited to the original alignment of the roads as created and as shown on the respective plans included in the Tenure DVD, LRM4. In relation to Road 2, its alignment as created does not correspond to the only evidence of its present alignment. The only evidence of the present alignment of Road 1 bears little resemblance to the alignment of the road as created. This is discussed in detail in the area by area analysis below at Pt 8.13 and Pt 8.14. The vesting of the area under s 18 of the Public Works Act 1902 does not make the area a public work for the purposes of the NTA, even if it is a public work as provided in item (20) of the definition of ‘public work’ in s 2 of the Public Works Act 1902 (see also the definition of ‘road’ in s 84 of the Public Works Act 1902).
4.1.6 Common law extinguishment
1461 The State submits that, regardless of whether or not the roads listed in Sch 1 Table 1 were public works or otherwise previous exclusive possession acts, the conferral of rights in the public upon the establishment of a road in accordance with the statutory procedures or by operation of the common law (as discussed above) is inconsistent with the continuation of native title rights in the land on which the road was established. In Fourmile, it was held (at 169-170) that dedication of a public road by the Crown under legislative authority will be sufficient to extinguish native title, as it:
creates in third parties (members of the public) the enforceable right of free passage over the lands and denies to all persons the right to use the land for any purpose other than free passage or a purpose incidental thereto.
Therefore, the State submits, in respect of roads constructed or established prior to 31 October 1975, native title will have been wholly extinguished by the relevant statutory or common law dedication.
1462 While the Yilka applicant accepts that the constitution of a public road extinguishes native title at common law, it maintains that any rights of the public, though subsequently abrogated, would constitute ‘prior interests’, and that any extinguishment by these must be disregarded under s 47A(2)(b).
4.1.7 State’s reply submissions on extinguishment
1463 The State makes extensive submissions in relation to roads in its reply submissions on extinguishment, prior to filing submissions in support of an interlocutory application to reopen its case to adduce further evidence in relation to roads. Those former submissions are discussed here.
1464 The State, first, makes the point that roads have been expressly excluded from the Yilka claim (and the Sullivan claim) and cannot now be included in either claim. The State argues that the Yilka Form 1 filed on 15 December 2008 (and the Yilka Amended Form 1 filed on 10 June 2011) expressly exclude roads from the Claim Area, by way of general exclusion where 12J applies (in relation to public works) and by specific reference to areas where there has been ‘an existing dedicated public road’. The Yilka Form 1 and the Yilka Amended Form 1 refer to the inclusion of one road in the area claimed; namely, the Great Central Highway (Laverton-Warburton Road), which, never having been gazetted as a public road, was indistinguishable from the underlying reserves (on the Yilka applicant’s case). The State says that this exclusion of roads from the claim area, subject to one identified exception, along with the naming of particular roads on the map forming part of the application, made it tolerably clear that the Yilka Form 1 was not intended to include roads generally. The Yilka Amended Form 1 in Sch B Pt C referred to the determination sought annexed to the Yilka applicant’s POC filed 24 January 2011 which details particular areas not covered by the application. The only excluded areas listed there were five water reserves (Areas 7, 8, 9, 10 and 15). The State says that the Yilka Amended Form 1 could not have resulted in the inclusion of a road that was not covered by the original application due to the operation of s 64(1) NTA, and neither could the Yilka POC expand the claim made in the application (Yilka Form 1), given that he latter document is dominant over the former as per Harrington-Smith on behalf of the Wongatha People v Western Australia (No 5) [2003] FCA 218.
1465 The Yilka No 2 Form 1 did not encompass any roads and, to avoid doubt, the Yilka No 2 Form 1 also specifically excluded from the areas claimed ‘any areas where native title rights and interests have otherwise been wholly extinguished, including any … public works … or existing dedicated public roads’. The map forming attachment C to the Yilka No 2 Form 1 disclosed three relatively small areas the subject of the Yilka No 2 claim. Two of those areas, Pt B and Pt C can be seen to comprise a rectangle severed by and clearly excluding Road 9463 (Road 2).
1466 The Sullivan Form 1 includes in ‘[a]reas of land and waters … not covered by the Application’ areas to which previous exclusive possession acts under s 23B(7) NTA (which refers to public works) were done. Attachment B specifically identifies the areas excluded from within the external boundaries as the five water reserves (Areas 7, 8, 9, 10 and 15). The State contends that roads have not formed part of the area claimed by either of the applicants.
1467 The State disagrees with the Yilka applicant’s contention that the only roads in existence are those identified in the affidavit of Mr Connolly, and submits that the State may rely on the evidence of witnesses for the applicants in discharging its evidentiary onus. The State notes that the following ‘major roads’ and ‘tracks’ were identified on the map at Attachment C of the Yilka Form 1 (and Yilka Amended Form 1):
(a) Great Central Road,
(b) Cosmo Bypass Road,
(c) Lake Wells Road
(d) Cosmo Newberry Road,
(e) White Cliffs-Yamarna Road
(f) Mt Shenton-Yamarna Road,
(g) Minnie Creek Road,
(h) Anne Beadell Highway, and
(i) Point Sunday Road.
1468 In the case of roads, the State says that the content of the application and the applicants’ evidence goes a considerable distance towards establishing or supporting the inference that many roads within the outer boundary of the Claim Area were established before 23 December 1996. Some of the detail in support of that is described by the State in its reply submissions as follows:
1469 The Yilka site map tendered by the Yilka applicant, is a map which identifies, by name, the nine roads within the Claim Area referred to above. The map is entitled ‘YILKA SITES AND REGISTER MAP: Including Tenure and Topographic Features’. The markings on the map were not at any time the subject of qualification, correction or rejection (at least until the filing of Yilka applicant's extinguishment submissions which refer in one instance to ‘the area marked on [the Yilka site map] as the “Great Central Road”’). Senior counsel referred to the Great Central Road from Laverton to Warburton in opening. The State says that witnesses were asked questions by the Yilka applicant's counsel which presupposed the existence of roads, and those witnesses referred to those roads in answers. The State also says that the Court travelled upon some of the roads that the Yilka applicant says now should be inferred not to exist and that one such road delivered the purchasers of petrol to the Cosmo community and in part facilitated its re-establishment in the late 1980s. It was never suggested that the references made by the Yilka applicant and witnesses to roads were fictitious or misconceived. The State at this point relied primarily on evidence as to the existence of the roads as used by the Yilka applicant.
1470 The Great Central Road and the White Cliffs-Yamarna Road are shown by the legend to the map to be ‘principal roads’. The Mt Shenton-Yamarna Road and the Cosmo Newberry Road are shown as a ‘secondary road’. The other roads identified above and other roads or tracks are shown as minor roads or vehicle tracks. The Yilka applicant's Exhs A13A, A17 and S53 also show roads.
1471 The States notes that the evidence of the witnesses called by the Yilka applicant is replete with references to the roads within the outer boundary of the claim area. Some, but far from all, of the references made by the applicants' witnesses in their affidavit evidence and examination in chief to roads within the Claim Area are as follows.
(a) Mrs Murray mentioned the existence of the road between Laverton and Warburton, which she referred to as a ‘main road’, at the time when she was living with her husband at Mt Margaret and in the 1960s. Mrs Murray also refers to the road from Yamarna to White Cliffs, saying that years ago, there used to be a little petrol station at Yamarna Station and that quite a lot of people travelling between Laverton and Warburton used the road during that time.
(b) Ms Ross gave evidence of using a road (which she referred to as ‘the old Lake Wells road’) when travelling from Cosmo to Mulga Queen when she was young, and of walking near the Laverton Road near Pannikin Hill before her son Lyall was born.
(c) HM described the Great Central Road as the ‘main road’ and made reference to the White Cliffs-Yamarna Road, to travelling as a kid on the Anne Beadell Highway to Lake Yeo Homestead, to travelling in the 1980s on 'the old Warburton Road' (which from the waypoints identified may be Road 1), and to re-establishing the Cosmo Newberry Community in the late 1980s and selling petrol to people travelling on the Great Central Road. HM referred to the Cosmo Newberry Community as a way-point on the road from Warburton to Laverton, and described the Great Central Road as going right through Ngiyarri, and through Ngatjun, between Cosmo and Laverton. HM also referred to the old road passing Tjunmu (possibly a reference to the Cosmo Newberry Road) as the ‘first Laverton to Warburton road’. The Yilka Extinguishment Submissions mention some of HM's evidence concerning roads from his affidavit (at [390]-[397]), which has been set out below in Pt 7.1.2.
(d) Rhys Winter gave evidence of travelling the ‘old Warburton Road’, the Great Central Road and the road to Hunters Waterfall in around 1965. He also gave evidence of grading the Great Central Road right up to Kanpa and part of the White Cliffs to Yamarna Road as part of ‘a job at the Shire on the grader’, in the 1980s (he also graded roads for the Cosmo Newberry Community in the 1990s).
(e) Mr Smythe (born 1956) remembered as a little boy walking from Warburton, down ‘the old road from Warburton to Cosmo’ to Cyril Well, where they came across Mrs Murray's late husband there who took them to Cosmo on the back of a truck.
(f) Victor Fraser gave evidence of a road from Cosmo to Warburton which passed close to Minnie Creek at the time he was born, of the location of his birthplace relative to the Minnie Creek Road, the Great Central Road and the Point Sunday Road, and of his use of the Great Central Road and the White Cliffs-Yamarna Road over the years. Mr Fraser's evidence in chief included evidence that he had seen Mervyn Sullivan grading the road from Warburton to Laverton with his father a long time ago.
(g) Warwick Simms was asked by Senior counsel for the Yilka applicant where he would come into his father's country if he was coming from Warburton ‘along that central road’, how far along the road from the Cosmo Newberry Community to Mulga Queen his ngurra went, whether his father's country went up the road toward Lake Wells and how far his ngurra went down the road towards Laverton.
(h) ME gave evidence of hunting around the Lake Wells Road, the ‘main road’ to Laverton (the Great Central Road), and the road which goes out past Pilki. He also mentioned that when people travel between Warburton and Laverton they often use ‘the road that goes past old Minnie Creek Station and Yamarna’.
(i) Westside gave direct evidence of many roads in the Claim Area.
(j) Jake Westlake (born 1965) gave evidence of going hunting and camping when he was a little one, ‘just off the Cosmo to Laverton Road’, and of hunting with his deceased uncle at ‘Sam's Bore on the old Warburton Road’.
(k) Hayley Westlake (born 1966) remembered as a young girl camping near the road to Laverton and referred to various other roads within the outer boundary of the Yilka claim area.
(l) HJ gave evidence of a road ‘from Point Sunday into Minnie Creek’, which he said he did not use, of ‘the Point Sunday Road that goes up onto the Anne Beadell Highway and back into Yamarna’, of the Great Central Road, and of ‘back roads’.
1472 The State says that it is not the case that any submission about roads other than the two roads identified in Gazette entries ‘must fail for want of any evidence’, as the Yilka applicant contends. It is relevant to note here that further evidence was brought following the State’s successful application to re-open its case.
1473 The State contends, in response to the Yilka Extinguishment Submissions:
(a) The definition of public work in s 253 NTA does not stipulate any formal meaning of or requirements as to what constitutes a road. Whilst a ‘road’ under state legislation might reasonably be inferred to be included within the definition of public work, the definition should not be taken to be so limited.
(b) The consideration given by the Yilka applicant to the definition of a ‘road’ in the Road Districts Act inverts the process of identification of roads which the Road Districts Act carries into effect. The relevant scheme is that an area which is marked as a ‘road’ on an official plan is to be taken as determinative of the establishment of such a road. This scheme is not one in which the custodians of public records have the capacity to make arbitrary notations which lead to the creation of roads but one in which the creation of roads leads to notations and the legitimacy of the notation is given effect. Put another way, the existence of markings on a plan should be taken, without more, as evidencing dedication. It is not necessary nor appropriate to delve into the elements of the procedure by which the road came to be established and marked on a plan, or to establish that the procedure was followed. The plan in itself is sufficient.
(c) The State agrees with the Yilka applicant's submission that, in the context of creation of roads at common law, no distinction is made between privately owned land and land in Crown ownership.
(d) The State notes the Yilka applicant's agreement that the creation of a road is inconsistent with any continuing native title rights and interests in the land comprised in the road. As to the Yilka applicant's submission to the effect that the vesting of those parts of roads passing through what are now reserves for the use and benefit of Aboriginal people have been ‘overtaken by the vesting of reserves’ (see also Pt 8 below) the State says:
(i) even if it is correct that the consequences of the earlier act (the construction or establishment of the road) is wholly or partly revoked by a later dealing with the land, the later dealing does not undo the extinguishing effect of the earlier act,
(ii) even if the effect of the later dealing is to invoke the application of legislation which regulates access by some people, it does not follow that such regulation excludes access by all persons other than native title holders, and it does not follow that regulation of access is incompatible with the concurrent existence of a section of road within a reserve.
(e) The construction of the statutory definition of public work contained in s 253 NTA suggested in the Yilka applicant's extinguishment submissions, namely that the words ‘or established’ should not be taken as referring to a road, is implausible and contrary to the principle:
(i) it is inappropriate to treat the example cited in the Explanatory Memorandum as if it were a part of the statute itself and as if the illustration given is to be taken as exhaustive, and
(ii) the structure of the definition of public work, which incorporates in (a) things constructed or established and in (b) things constructed, specifically enabled the legislature, if it had been disposed to do so, to confine the range of things ‘established’ which fall within the definition. The legislature did not do so.
(f) The Yilka applicant’s proposition that ‘roads created over time by public use or constructed by a private land owner are not transformed into public works because some works are performed on them at a later time by or on behalf of the Crown’ is not accepted. Clearly, roads come into existence frequently at least in part as a consequence of such a history. The identification of roads in public plans and the according, by operation of statute, of the status of a ‘road’ to areas so identified is, along with with the physical development of the road, part of the process of establishment by the Crown. Importantly, s 23B(7) NTA directs attention to the time of commencement of construction or establishment.
(g) The decision of the Full Court in Erubam Le is authority for the proposition that s 47A NTA does not provide for the extinguishing effect of public works to be disregarded.
1474 The State asserts that extinguishment brought about by the construction or establishment of a road is not dependent upon there being any or any accurate identification of the alignment of the road in any plan, contrary to the Yilka applicant’s suggestion.
1475 The State contends that it is not correct to say that no evidence has been led of the construction of Road 1 or Road 2. The documents included in LRM4 included sheets of a ‘Plan of Traverse’, bearing dates in January and February 1930. The State says that the plans include, in relation to Road 1 and Road 2, notations ‘cleared by Main Roads Board’, ‘being cleared by Main Roads Board’ and ‘recently cleared by Main Roads Board’. However, it appears that notations of this kind have only been made in relation to Road 2, where it is noted ‘road recently cleared by Main Roads Board’ along the length of this road. In regards to Road 1, the only similar notation appears to simply say ‘main track’.
1476 The ‘Main Roads Board’ referred to in these notations is presumably a reference to the ‘Mains Roads Board’ constituted under Main Roads Act 1925 (WA). It is apparent that Roads 1 and 2 were constructed and established by the Crown, according to the State.
1477 The State contends that there is reason to suggest that the relevant ‘adjacent area’ for the purpose of s 251D NTA extends beyond the strip of land one chain (22 yards or 66 feet) wide. The Yilka site map identifies five gravel pits along the course of the Great Central Road. The State submits that these areas at least fall within the scope of s 251D NTA.
1478 The State points to up to 11 reserves that have been granted in the Claim Area. Only those reserves that have been vested and are asserted to wholly extinguish native title rights and interests are dealt with at this juncture (there are also four vested reserves for the use and benefit of Aboriginal peoples within the Claim Area, which the State admits have no effect on native title, pursuant to s 23B(9) NTA). Current and historical reserves are identified in the various spreadsheets round in LRM4, the Tenure DVD. Reserves which wholly extinguish native title are listed in Sch 1 Table 2. There are five current vested reserves that the State asserts wholly extinguish native title rights and interests: Reserve 18594, Reserve 18595, Reserve 18596, Reserve 18597 and Reserve 18714. All five of these Reserves were granted for the purpose of water supply, and are currently vested in the Waters and Rivers Commission. They were vested in the Minister for Water Supply, Sewerage and Drainage pursuant to s 42 of the Land Act 1898, on 16 May 1924 (in relation to Reserve 18594, Reserve 18595, Reserve 18596 and Reserve 18597) and 5 September 1924 (in relation to Reserve 18714).
1479 As noted by the State, reserves in Western Australia are frequently vested in a person or body, and each legislative provision facilitating the vesting of reserves has been to the effect that the Governor may by order direct that a reserve ‘shall vest in and be held by’ a corporation or person ‘in trust’ for a specified purpose.
1480 The State submits that a vesting of a reserve which occurred prior to 31 October 1975 is valid as no question of invalidity by reason of a breach of the RDA arises.
1481 Section 42 of the Land Act 1898 provides as follows:
THE Governor may from time to time, by Order in Council to be notified in the Government Gazette, direct that any reserve shall vest in and be held by any municipality, road board, or other person or persons, to be named in the order, in trust for the like or other public purposes, to be specified in such order and with power of leasing for any term not exceeding twenty-one years from the date of the lease, or may lease on such terms as he may think fit, and may lease for nine hundred and ninety-nine years in the form in the Thirty-third Schedule, or to the like effect, or grant the fee simple of any reserve to secure the use thereof for the purpose for which such reserve was made.
1482 In Ward HC (at [240], [244], [249] and [256]), the majority held that the vesting of a reserve under s 33 of the Land Act 1933 vested the legal estate in fee simple to the land in the person or body named, to be held by that person or body on trust for the stated purpose, and thereby vested exclusive possession rights in that person or body, which are inconsistent with the continued existence of any native title rights or interests to the land. Vestings of this kind, the State says, are, for the most part, by reason of s 23B(3) NTA, taken to be a freehold estate and, thus, are previous exclusive possession acts within the meaning of s 23B(2)(c)(ii) NTA. As they are also relevant acts as defined in s 12I(1)(a) TVA, s 23E NTA and s 12I(1a) TVA confirm that the vesting wholly extinguished native title over the area of the relevant reserve. The Yilka applicant, in agreement with the State on this point, notes that although the reserves were vested in the Crown, the exclusion in s 23B(9C) does not apply because native title was extinguished ‘apart from’ the NTA, given that the vestings took place prior to 31 October 1975: s 23B(9C)(a) NTA; see also Ward HC (at [249]). The State therefore submits, and the Yilka applicant agrees, that the five vested water reserves identified in Sch 1 Table 2 (and referred to by the Yilka applicant as Areas 1-5) wholly extinguish native title over the land and waters the subject of these reserves.
1483 The State initially submitted that the gold mining leases wholly extinguished native title at common law; although by its reply submissions it accepted that the effect of such leases was limited to the extinguishment of a right to control access to and use of the land, and that native title rights might otherwise coexist with the gold mining leases. Nonetheless, again to explain the underlying reason, I have outlined the State’s initial submissions and the response submissions by the applicants. The State’s tenure evidence identifies 86 gold mining leases within the Claim Area. These leases were granted within the Claim Area in accordance with the provisions of the Goldfields Act 1886 (WA) and the Mining Act 1904. Those gold mining leases which the State initially submitted wholly extinguish native title are identified in Sch 1 Table 3, being those gold mining leases granted before 31 October 1975. A list of the historical gold mining leases is also set out in Tenure DVD, LRM4. Historical Gold Mining Lease 3800616 was granted under s 10(1) of the the Goldfields Act 1886 (as amended by s 3 of the Goldfields Act 1886 Amendment Act 1894 (WA)), with the remaining gold mining leases having been granted pursuant to s 42 of the Mining Act 1904. The former of these sections provided that the relevant official:
… may grant to any person … a lease of any Crown lands … for any or all of the undermentioned purposes, that is say –
(a) For mining purposes; or
(b) For cutting and constructing thereon water races, drains, dams, reservoirs, roads, or tramways to be used in connection with such mining; or
(c) For erecting thereon any buildings or machinery to be used for mining purposes; or
(d) For pumping or raising water from any land mined or intended to be mined upon; or
(e) for residence thereon in connection with any or all such purposes.
1484 Section 42 of the Mining Act 1904 was in much the same terms, although subs (1), the equivalent of s 10(2)(a) of the Goldfields Act 1886 (as amended) was in slightly different terms, being ‘[f]or mining for gold, and for all purposes necessary to effectually carry on such mining operations therein or thereon’.
1485 Further, s 47 of the Mining Act 1904 provided that the lessee of a gold mining lease ‘shall have the exclusive right of mining for gold and other minerals in and on the land demised and every part thereof…’ Pursuant to s 10(3) of the Goldfields Act 1886 (as amended) and s 45 of the Mining Act 1904, the term of a gold mining lease was not to exceed 21 years, with a right to renew for a further 21 years.
1486 There was a provision in the Goldfields Act 1886 that every gold mining lease was to contain a condition that if the lessee failed at any time to ‘to use the land bona fide for the purpose for which it shall be demised’ the lease would be voidable at the will of the Governor: s 12. Similarly, under the Mining Act 1904, gold mining leases were subject to covenants including to ‘use the land continuously and bona fide exclusively for purposes for which it is demised’: s 79 (as passed).
1487 There was provision for the ejectment of trespassers on a gold mining lease and s 14 of the Goldfields Act 1886 provided that ‘entry upon, occupation of or interference with’ any land subject to an application for a gold mining lease will, at any time after lodgement of the application (and unless the application is refused), be deemed to be a trespass or encroachment. The applicant for a gold mining lease could, accordingly, take proceedings for trespass or encroachment, including seeking damages and the recovery of any gold taken. Section 67 of the Mining Act 1904 (as passed) provided that an applicant for a gold mining lease could take possession of and hold the land applied for pending the application. However, before the application was approved, any holder of a miner’s right could enter upon the gold mining lease, but only for the purpose of searching for, or obtaining, alluvial gold or alluvial minerals.
1488 Section 68 of the Mining Act 1904 (as passed) provided:
Except as provided by section sixty-seven, the entry upon, occupation of, or interference with any land of which a lease has been applied for, by any person who shall not, prior to such application, have been in the lawful occupation of such land, at any time after the lodging of such application, and unless and until such application is refused, or unless such entry, occupation or interference is authorised by the Governor, shall be deemed a trespass.
1489 The purpose of s 14 of the Goldfields Act 1886 and s 68 of the Mining Act 1904, so the State contends, was to extend the trespass back to the date of the application for the gold mining lease. Therefore, the State asserts, those provisions assume that the right to use in trespass continues after and because of the grant of the relevant gold mining lease.
1490 The gold mining leases numbered 1-58, listed in Sch 1 Table 3 produced by the State, the State says, were granted prior to 31 October 1975 and, accordingly, no question of invalidity due to breach of the RDA arises. (It should be noted that those numbered 52-57 were in fact granted on 1 January 1976, and so presumably should have been included in Sch 3 Table 1.) As the grant of a gold mining lease in each instance was not within the definition of a past act or an intermediate period act (as it was not invalidated by the RDA), and nor was it a previous exclusive possession act (being a mining lease), nor a previous non-exclusive possession act (not being the grant of a non-exclusive agricultural or pastoral lease), any extinguishing effect of the grants remains to be determined in accordance with the common law. The State initially submitted that all native title rights and interests were extinguished in respect of the land and waters the subject of the grant of each of the gold mining leases listed in Sch 1 Table 3 because the grant of each of the gold mining leases conferred on the holder a right of exclusive possession.
1491 The State referred to Brown HC, which followed from the decision of Brown (on behalf of the Ngarla People) v Western Australia (2012) 208 FCR 505 (Brown FC) where the Full Federal Court found that the grant of two mineral leases under the Mining Act 1904 and the Iron Ore (Mt Goldsworthy) Agreement Act 1964 (WA) did not confer a right to exclusive possession and therefore did not extinguish native title rights and interests. In Brown HC, the relevant mining leases were not affected by the RDA because they were issued before that Act became law and were not ‘past acts’ as far as the NTA is concerned; therefore the Court only considered the extinguishing effect of these grants under the common law: (at [31]).
1492 The Court in Brown HC noted that neither the instrument itself nor the State Agreement provided expressly that the ‘joint venturers had the right to exclude any and everyone from the land for any reason or for no reason at all (at [45]). The State Agreement in fact expressly provided for the State and third parties to be allowed access over the land, which precluded construing the leases as impliedly providing a right of exclusive possession (at [45]). The Court, in discussing the rights conferred on the joint venturers, including the right to prevent anyone else from using the land for mining purposes and to use the land for purposes associated with iron ore extraction as described in the State Agreement (such as building a town, roads and railways), said (at [46]) that:
It may be accepted that the grant of these rights would be inconsistent with a native title right of the kind which was in issue in Ward: a native title right to control access to land (for any purpose or no purpose).
1493 The State initially contended that the relevant grants in the Claim Area are not of a bespoke nature as considered in Brown HC, in that they do not contain provisions providing access to the State and third parties which preclude the leases from being construed as providing a right of exclusive possession.
1494 The alternative submission for the State was that the gold mining leases granted in the Claim Area have the extinguishing effect as found by Nicholson J in Daniel, who considered the nature of the rights conferred by gold mining leases granted under the Goldfields Act 1886, the Goldfields Act 1895 and the Mining Act 1904. In respect of gold mining leases granted under the provisions of the Goldfields Act 1886 and the Goldfields Act 1895, his Honour held (at [741]) that any native title right to control access to the lease area would have been extinguished and that whether other native title rights survived the grant is to be determined in light of the findings of the precise content of those rights and interests. In that case, his Honour found that the following non-exclusive native title rights had been extinguished due to inconsistency (at [741]):
(a) access in terms of remaining;
(b) ritual and ceremony;
(c) camping in terms of living on the land; and
(d) cooking and lighting fires.
1495 It is also relevant to note that Nicholson J listed native title rights which he found were not extinguished (at [741]), namely:
(a) access in terms of entering and travelling;
(b) hunting and foraging;
(c) camping in terms not involving living on the land;
(d) bush medicine and tucker;
(e) take fauna, flora and ochre;
(f) take and use water; and
(g) protect and care for sites and objects.
1496 His Honour found that in respect of gold mining leases granted under the Mining Act 1904, they could not ‘be distinguished from the mining leases dealt with in [Ward HC]’; and that any native title right to ask permission to use or to have access to the lease area would have been extinguished if it had existed (at [768]). The gold mining leases granted under the Mining Act 1904 were found to have the same effect of extinguishing and non-extinguishing as gold mining leases under the Goldfields Act 1886 and the Goldfields Act 1895 (at [768]). Barker J in Banjima (at [1573]-[1575]) found that mineral leases under the Mining Act 1904 effected no extinguishment of native title rights and interests save for the right to control access, and that usufructuary and ceremonial rights were not extinguished.
1497 The State initially asserted that there is a greater extinguishing effect in relation to the gold mining leases under consideration here than that found by Barker J in Banjima and Nicholson J in Daniel, relying on the trespass provisions outlined above which, it contends, granted exclusive possession rights to lease holders.
1498 The Yilka applicant rejected the State’s original position in relation to gold mining leases. The contention that the leases under the Goldfields Act 1886 and Mining Act 1904 wholly extinguish native title can no longer be sustained, the Yilka applicant says, in the face of the High Court decision in Brown HC. There, the notion of ‘exclusive possession’ that is wholly inconsistent with any native title was described as a ‘right to exclude any and everyone from the land for any reason or no reason’. This expression is used several times, for example (at [52]). The High Court unanimously rejected the contention of the State in that case that the mineral leases, which in that case were Mining Act 1904 leases issued pursuant to State agreement legislation, gave the joint venturers a right of exclusive possession, saying (at [57]):
The mineral leases did not give the joint venturers the right to exclude any and everyone from any and all parts of the land for any reason or no reason. The joint venturers were given more limited rights: to carry out mining and associated works anywhere on the land without interference by others. Those more limited rights were not, and are not, inconsistent with the coexistence of the claimed native title rights and interests over the land. (No party submitted that any distinction should be drawn between the several native title rights and interests that were claimed.) That the rights were not inconsistent can readily be demonstrated by considering the position which would have obtained on the day following the grant of the first of the mineral leases. On that day, the native title holders could have exercised all of the rights that now are claimed anywhere on the land without any breach of any right which had been granted to the joint venturers. That being so, there was not then, and is not now, any inconsistency between the rights granted to the joint venturers and the claimed native title rights and interests.
1499 The gold mining leases here, according to the Yilka applicant, cannot rise above the argument so roundly rejected in Brown HC. Whatever the actual language of the grants of the gold mining leases, they were granted for, and the right to exclude was exercisable for, particular purposes, as set out in s 10(1) of the Goldfields Act 1886 (as amended) and s 42 of the Mining Act 1904. Any right to exclude could not have been exercised for ‘any reason or no reason’, but only for the reason of protecting the granted right to mine.
1500 Additionally, s 68 of the Mining Act 1904 lists exceptions from the deeming of entrants as trespassers. The exception is in favour of any person who was, prior to the application, in lawful occupation of the land. It is not as easy to distinguish Brown HC as the State suggested. Marshall ACJ in Graham on behalf of the Ngadju People v Western Australia [2014] FCA 516 (at [7] and [19]) followed Brown HC in relation to Mining Act 1904 mineral leases prior to 1968. His Honour also held (at [82]) that gold mining leases did not wholly extinguish native title, citing Banjima (at [1574]-1575]). Although his Honour did not refer to Brown HC to support that ruling, he could well have done. Therefore, the mining leases granted under these acts did not confer exclusive possession rights and cannot be found to have wholly extinguished native title.
1501 The Sullivan applicant accepted the State’s submissions that the grant of the gold mining leases does not fall within the definition of a past act, previous exclusive possession act, nor a previous non-exclusive possession act. Accordingly, any extinguishing effect must be determined at common law. The Sullivan applicant disagreed with the State’s submission that gold mining leases granted under the Mining Act 1904 and Goldfields Act 1886 conferred a right of exclusive possession, given that none of the provisions of these Acts referred to by the State confer such a right. The Sullivan applicant made the point that, contrary to the State’s submission, Nicholson J did consider the ‘trespass provisions’ of the Goldfields Act 1886 in Daniel at (at [737]) where his Honour set out s 14 in full and noted ‘the applicant could take proceedings for trespass or encroachment, and for damages’. Nevertheless, his Honour declined to find that native title had been completely extinguished. Further, and importantly, Barker J in Banjima (at [1535]-[1536]), referred to the High Court's decision in TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576, which noted (at [28]-[33]) that mining tenements granted under the Mining Act 1904 are chattel interests, not interests in land; and (at [34]) that any occupation and/or possession arising under a mining lease is ‘directed at preventing others from carrying out mining and related activities’ and did not confer exclusive possession for other purposes. This latter point was made in Ward HC with respect to mining leases under the Mining Act 1978 where Gleeson CJ, Gaudron, Gummow and Hayne JJ said (at [308]) (footnotes omitted):
The grant of exclusive possession for mining purposes is directed at preventing others from carrying out mining and related activities on the relevant land. Although the lessee could prevent anyone else seeking to use the land for mining purposes, it does not follow that all others were necessarily excluded from all parts of the lease area. In understanding what “mining purposes” are, some assistance may be provided by the authorities construing the term “mining operations” as it appeared in legislation giving favourable treatment to taxpayers engaged in that activity. The term embraces operations pertaining to mining beyond the extraction of minerals from the soil and “is a very large expression”. Further, account must also be taken of the fact that a grant of a right (in this case to mine) encompasses those rights necessary for its meaningful exercise. The holder of a mining lease having a right to exclude for the specified purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity. Just as the erection by a pastoral lease holder of some shed or other structure on the land may prevent native title holders gathering certain foods in that place, so too the use of land for mining purposes may prevent the exercise of native title rights and interests on some parts (even, in some cases, perhaps the whole) of the leased area. That is not to say, however, that the grant of a mining lease is necessarily inconsistent with all native title.
1502 In response to the State’s attempt to distinguish the gold mining leases under consideration here from the mineral leases considered in Brown, the Sullivan applicant noted that rights to access in respect of gold mining leases are provided for in the Mining Act 1904, for the purpose of erecting electric lines and tramways under s 278. That section provides for persons, with the approval and consent of the Minister, to enter a mining tenement to carry out certain activities.
1503 The Sullivan applicant submitted correctly, in my view, that the ‘trespass provisions’ referred to by the State do not provide the holders of gold mining leases with the right of exclusive possession, or if the right of exclusive possession is held, it is for mining purposes only, as suggested by Barker J in Banjima and by the High Court in Ward HC and in TEC Desert. Accordingly the grant of gold mining leases does not extinguish native title rights and interests, save for the right to exclude others. Further, any such extinguishment is subject to the application of s 47A and s 47B NTA.
1504 The State’s alternative submissions, that certain non-exclusive rights have been extinguished following Daniel, should not be upheld according to the Sullivan applicant. In Banjima, Barker J (at [1574]-[1578]) held that only the exclusive native title right was extinguished by mineral leases, following Brown (on behalf of the Ngarla People) v Western Australia (No 2) [2013] FCAFC 18. Similarly, Sundberg J in Neowarra found (at [601]-[602]) that only the right to exclude others was inconsistent with the grant of gold mining leases under the Mining Act 1904.
1505 The Sullivan applicant submits, and I accept, that the approach as taken in Banjima and Neowarra should be followed.
1506 As noted the State now accepts that, as a consequence of the decision of the High Court in Brown HC, submissions previously made for the State to the effect that gold mining leases and mineral leases extinguish all native title cannot be maintained. The State, in its reply submissions, accepts that, except to the extent that such a right was not already extinguished as a result of an earlier act, the granting of gold mining leases extinguished any right of exclusive possession but did not otherwise extinguish native title.
1507 The State similarly helpfully, adjusted its initial position as to mineral leases. Again, I consider it relevant to discuss the exchanges to illuminate the reasoning process. The State’s tenure evidence identifies two mineral leases within the Claim Area, both granted on 1 January 1929, and listed in Sch 1 Table 4. They were granted within the Claim Area in accordance with the provisions of the Mining Act 1904. Mineral leases could be granted under s 48 of the Mining Act 1904. Section 51 of the Mining Act 1904 provided that every mineral lease ‘shall be granted for the working of some mineral or combination of minerals to be specified therein’. Section 50(1)(b) of the Mining Act 1904 provided that the maximum area of a mineral lease for minerals other than coal was generally 48 acres. Section 53 stipulated that the term of a mineral lease should not exceed 21 years, with a right to renew for a further 21 years. The State relies upon the same provisions of s 67 and s 68 of the Mining Act 1904, in relation to trespass.
1508 In terms of their validity and effect on native title, as the grant of the mineral leases was not within the definition of a past act or intermediate period act (not being invalidated by the RDA) and was also not a previous exclusive possession act (being a mining lease) nor a previous non-exclusive possession act (not being the grant of a non-exclusive agricultural or pastoral lease), any extinguishing effect of the grants remains to be determined in accordance with the common law. The initial submission for the State was that all native title rights and interests were extinguished in respect of the land and waters the subject of the grant of each of the two mineral leases by reason that those grants conferred on the holder a right of exclusive possession.
1509 The State’s initial argument was that, as with its submissions in relation to gold mining leases, the relevant grants were not of a bespoke nature as considered by the High Court in Brown HC as they did not contain provisions providing access to the State and third parties which precluded the leases from being construed as providing a right of exclusive possession.
1510 The alternative submission for the State was that the Court should find that the mineral leases granted in the Claim Area had the same extinguishing effect as found by Nicholson J in Daniel. As outlined above, in relation to gold mining leases, his Honour held (at [741] and [768]) that any native title right to be asked permission to use or have access to the lease area would have been extinguished (if it had existed). Further, any native title rights consisting of or comprising:
(a) access in terms of remaining;
(b) ritual and ceremony;
(c) camping in terms of living on the land; and
(d) cooking and lighting fires,
would also have been extinguished. Nicholson J found that mineral leases granted under the Mining Act 1904, had the same effect of extinguishing and non-extinguishing as gold mining leases under the Goldfields Act 1886 and the Goldfields Act 1895 (at [789]).
1511 The same submissions were repeated concerning the findings and conclusions of Barker J in Banjima and Nicholson J in Daniel, and again the State asserted a greater extinguishing effect of the mineral leases under consideration here, principally by relying on the trespass provisions in s 67 and s 68 of the Mining Act 1904, which it says grants rights in the nature of exclusive possession.
1512 According to the Yilka applicant, Brown HC is also a complete answer to the State’s submissions in relation to mineral leases. Marshall ACJ in Ngadju concluded (at [83]):
As a consequence of the High Court's judgment in [Brown HC] it is now beyond doubt that mineral leases granted either under the Mineral Lands Act 1892 (WA) or the [Mining Act 1904] do not extinguish native title.
1513 It should be noted that the decision of the Full Federal Court in Western Australia v Graham on behalf of the Ngadju People [2016] FCAFC 47 did not overturn this conclusion and, indeed, it was common ground between the parties in those appeal proceedings that the mining leases did not confer any right of exclusive possession (as noted at [140]).
1514 The Sullivan applicant submitted, in relation to mineral leases granted under the Mining Act 1904 that, as noted by Barker J in Banjima and discussed above in relation to gold mining leases, any exclusive possession was for a particular purpose, and was not inconsistent with all native title rights and interests. There is no basis for the State’s submission that a mineral lease came with a right to exclusive possession under the Mining Act 1904.
1515 I would follow the reasoning adopted by Barker J in Banjima (at [1561]-[1575]), where his Honour said:
1561 Mineral leases: Mineral leases ML47/509 and ML47/510 were each granted on or around 1 January 1974.
1562 Mineral leases could be granted under s 48 Mining Act 1904, which provided as follows as at January 1974:
The Governor may, subject to this Act and the regulations, grant to any person a lease of any Crown land, not exempted by the next following section, for any or all of the undermentioned purposes, that is to say-
(1) for mining, and for all purposes necessary to effectually carry on mining operations therein or thereon for any mineral other than gold;
(2) for cutting and constructing thereon water races, drains, dams, reservoirs, tramways and roads to be used in connection with such mining;
(3) for erecting thereon any buildings and machinery to be used in connection with such mining;
(4) for boring or sinking for, pumping, or raising water;
(5) for residence thereon in connection with any or all such purposes
(Emphasis added)
1563 The maximum area of a mineral lease for minerals other than coal or gold was generally 300 acres: s 50(1)(b) Mining Act 1904; reg 98(f) Mining Regulations 1925.
1564 Section 51 stated:
Every mineral lease shall be granted for the working of some mineral or combination of minerals to be specified therein, and every such lease shall, subject as hereinafter provided, contain a reservation of all gold found in the land.
1565 General provisions as to leases were contained in the ss 66-116 Mining Act 1904. Among these provisions was s 80(1)(b), which stated:
Every lease shall contain and be subject to the prescribed covenants by the lessee and conditions, and particularly–
…
(b) a covenant to use the land continuously and bona fide exclusively for purposes for which it is demised, and in accordance with the regulations;
1566 Unless exempt from labour conditions, every lease other than a gold mining lease was required to be worked every working day by at least two men: reg 111 Mining Regulations 1925. Failure to do so rendered the lease liable to forfeiture: reg 114 Mining Regulations 1925.
1567 Nicholson J considered the nature of the rights conferred by mineral leases granted under the Mining Act 1904 in [Daniel] (at [787]-[789]) and held that “[t]here is nothing to distinguish these leases from the mining leases considered in Ward HC at 90-94, at [282] [296]; 96-98, [306]-[309]; 105, [341]; and 133, [468]. Any native title right to be asked permission to use or have access to the lease area would have been extinguished if it had existed”. The mineral leases had the same effect of extinguishing and non-extinguishing on non-exclusive native title rights as gold mining leases under the Goldfields Acts 1886 and 1895 (WA).
1568 The State submits Nicholson J should not be followed in relation to mineral leases for the following reasons. First, mineral leases granted under the Mining Act 1904 are different from mining leases granted under the Mining Act 1978 in the following ways:
(1) They could be granted for purposes broader than mining leases. For example, a mineral lease could include a right to construct a residence: s 48(5) Mining Act 1904.
(2) Mineral leases were only about one tenth of the size of a mining lease. While the maximum size of an ordinary mineral lease was 300 acres (or about 121 ha or 1.2 square km), a mining lease until 10 February 2006 (upon commencement of s 28 Mining Amendment Act 2004 (WA)) could cover 10 square km (s 37 Mining Act 1978) or 1000 ha or 2471 acres. There is now no statutory limit on the size of a mining lease, though the area granted may be less than the area applied for: s 73(1) Mining Act 1978.
(3) Mineral leases were required to be worked every working day by at least two men. Mining leases, by contrast, are subject only to expenditure conditions: s 82(1)(c) Mining Act 1978.
1569 The High Court in Ward HC did not consider the grant of mineral leases under the Mining Act 1904.
1570 Secondly, the State submits, the High Court in Ward HC did not explain in any detail at all the precise nature of the inconsistency between the grant of a mining lease under the Mining Act 1978 and native title rights and interests. The Court only said that the grant of a mining lease was inconsistent with at least a native title right to control access. Accordingly:
(1) There is no authority, in Ward HC or elsewhere, for the proposition that, at common law, other than the right to control access, all of the rights granted to mining lessees can co-exist with, and do not extinguish, native title rights.
(2) There is no authority in Ward HC for the proposition that the grant of a mining lease necessarily does not wholly extinguish native title. In effect, the Ward HC majority concluded that “a mining lease might not wholly extinguish native title (but, on the facts, we can’t say)”.
(3) The position in Ward HC in relation to general mining leases should be considered the “minimum” amount of extinguishment, not the total amount possible.
(4) Conclusions reached by other single judges of the Federal Court can only be persuasive where it can be demonstrated that they concern a grant of the same type of tenure and that they were reached following a consideration of evidence of the rights granted and submissions about their effect (that is, that the “inconsistency of incidents” test was meaningfully applied).
1571 Each of the mineral leases was granted over an area of 50 ha, or half a square km. This area was required to be worked continuously for mining, which included “all purposes necessary to effectually carry on mining operations”: s 48(1) Mining Act 1904. “Mining operations” was not defined in the Mining Act 1904, but is defined in the Mining Act 1978 (at s 8(1)) to include, effectively, the removal and processing of minerals.
1572 The holder of the mineral leases was required to carry out these purposes over the area of leases. Such purposes are inconsistent with any native title rights. Accordingly, native title was extinguished over the whole of the area of the leases.
1573 Alternatively, the State submits the mineral leases extinguished those non-exclusive native title rights found by Nicholson J (at [741] and [789]) to have been extinguished by gold mining leases; in other words, any native title rights consisting of or comprising:
(1) access in terms of remaining;
(2) ritual and ceremony;
(3) camping in terms of living on the land; and
(4) cooking and lighting.
1574 In my view, Nicholson J was right, with respect, to find as he did that such mineral leases did not necessarily extinguish native title, save for the right to control access, and I find to the same effect. There is no basis to distinguish the findings in Ward HC, as suggested by the State.
1575 Further, on the approach of Brown FC, I reject the State’s submission that any particular usufructuary or ceremonial rights were extinguished. The rights granted by the mineral leases prevailed over, but did not extinguish, such rights.
1516 By its reply submissions, the State does not press its former submissions that mineral leases under the Mining Act 1904 wholly extinguish native title at common law. The State concedes, following Brown HC, that the effect of such leases was limited to the extinguishment of a right to control access to and use of the land, but otherwise native title rights might coexist with the relevant tenements.
1517 The State says that it has attempted to identify as many acts affecting the Claim Area as possible which fall under the definition of public works in s 253 NTA (see also s 251D NTA). Public works are capable of wholly extinguishing native title, as previous exclusive possession acts: ss 23B(7), 23C(2) and 23E NTA. This has been discussed above at Pt 2.4. The State submits that there are so many such acts, which are varied in their form, that it is difficult to comprehensively identify them all. Further, the State contends that any determination that fails to properly recognise the impact of acts and events of the past may be problematic. For example, land may become landlocked, and utilities and services used by the public may become unavailable.
1518 The State, therefore, seeks a form of determination, which, whilst referring where possible to various schedules which identify particular acts which are known to fall into particular categories and carry particular consequences, also includes generic reference to the consequences of acts of particular kinds.
1519 No specific public works have been referred to by the State. It is not possible, therefore, to make any specific finding as to the extinguishing effect of any work that has not been identified and about which there is no evidence. The State’s request for the inclusion of a generic reference to the consequences of acts of particular kinds should be rejected, according to the Yilka applicant. There should be no general exclusion of previous exclusive possession acts consisting of constructing or establishing public works from any determination of native title.
1520 Extinguishment of native title is a serious matter, not to be dealt with generically without any evidence. To deal with it generically would leave open the suggestion that there could be a public work which has extinguished native title on any part of the claim area, so that the determination would not satisfy the requirement of s 225 NTA that a determination be ‘a determination of whether or not native title exists in relation to a particular area’. Such a requirement cannot possibly be met by a determination both that native title exists over the area but that it may not exist at any, as yet unspecified, particular part of the area.
1521 Further, the Yilka applicant submits that at a pragmatic level, such a form of determination would be conducive to uncertainty and future disputation as to whether or not native title has been extinguished over particular land within the Claim Area. As discussed above, it is for the non-native title respondents to identify any evidence they wish to rely on as extinguishing native title. A determination of native title should do no more than reflect proper conclusions that can be drawn from the evidence. It would be contrary to the rule of law to find extinguishment against a party who has not had the opportunity to rebut any evidence against it or to answer any specific allegation made.
1522 By its reply submissions, the State repeats that it is not in a position to identify particular public works, apart from roads, within the external boundary of the Claim Area. It was apparent from the Yilka site map that wells and bores, including the Government Bore, exist within the external boundary of the Claim Area, but the State was unable to identify evidence as to the construction or establishment of the those features.
1523 I accept the submission for the Yilka applicant, and conclude that I am unable to make any findings as to the extinguishing effect of unidentified public works about which no evidence has been brought.
5. ACTS WHICH PARTIALLY EXTINGUISH NATIVE TITLE
1524 The next grouping of acts is those which the State submits partially extinguish native title. The State has granted the following types of tenure over the Claim Area which, it submits, have partially extinguished native title:
(a) mineral claims;
(b) pastoral leases;
(c) pastoral improvements;
(d) petroleum interests;
(e) reserves; and
(f) temporary reserves.
1525 It should be noted also that gold mining leases and mineral leases which are discussed in Pt 4 above given that the State initially submitted that they wholly extinguish native title, also have the effect of partially extinguishing native title (where granted before 31 October 1975).
1526 The State’s tenure evidence identifies 235 mineral claims within the Claim Area, granted between 3 August 1970 and 10 April 1981 in accordance with the provisions of the Mining Act 1904. Of those mineral claims, 173 are asserted by the State to have an extinguishing effect on native title and are listed in Sch 2 Table 1. The remaining mineral claims (listed in Sch 3 Table 1) were granted after 31 October 1975 and, therefore, the State says, that the non-extinguishment principle applies.
1527 Mineral claims were governed by Pt III Div 2 of the Mining Regulations 1925. Under reg 55(1) of the Regulations, the holder of a current miner’s right was entitled to take possession of and hold any number of claims (referred to as Mineral Claims), for mining specified minerals. A mineral claim could not exceed 300 acres: reg 55(2). The holder was subject to certain qualifications; for example, pursuant to reg 50, claims had to be continuously and efficiently worked every working day, unless an exemption had been granted. The holder of the mineral claim was also authorised, as the holder of a miner’s right to, except, as against His Majesty, do those things listed in s 26 of the Mining Act 1904.
1528 There is no question of invalidity by reason of a breach of the RDA in relation to those mineral claims which were granted prior to 31 October 1975. As the grant of the mineral claims was not within the definition of a past act or an intermediate period act (not being invalidated by the RDA), and also not a previous exclusive possession act (being a mining lease) nor a previous non-exclusive possession act (not being the grant of a non-exclusive agricultural or pastoral lease), any extinguishing effect of the grants remains to be determined in accordance with the common law. The State again refers to the decisions of Nicholson J in Daniel and Barker J in Banjima. As to the former, Nicholson J concluded (at [786]) that:
Each registered mineral claim was inconsistent with the maintenance of any exclusive native title rights to possession or occupation of the area, and any exclusive rights to use the resources of the area and, accordingly extinguished native title to that extent if it had existed in that respect.
His Honour found (at [786]) that mineral claims had the same extinguishing and non-extinguishing effect as discussed in relation to gold mining leases under the Goldfields Act 1886 and Goldfields Act 1895.
1529 Barker J in Banjima did not fully accept the reasoning of Nicholson J in regard to the extinguishing effect of mineral claims. His Honour stated (at [1560]):
I find, consistent with Ward HC, that the right of exclusive possession, that is, to control access, as a native title right was removed, if it still subsisted. However, I do not accept the reasoning, with respect to Nicholson J in [Daniel] that native title rights in terms of remaining, ritual and ceremony, camping in terms of living on the land, and cooking and lighting were necessarily extinguished. Having regard to the decision in Brown FC the rights conferred on the holder of a relevant mineral claim would prevail over, but not extinguish such rights.
(emphasis added)
1530 The Sullivan applicant submits, and I agree, that this reasoning should be followed. The State’s initial submission was that even having regard to the decision of the Full Court in Brown FC, an analysis is required to determine whether the rights granted are inconsistent with the native title rights and interests. This is supported by the High Court’s approach in Brown HC (at [33]) where the Court noted that it was necessary, as the plurality in Ward HC held, to ask whether the rights granted are inconsistent with the alleged native title rights and interests, which is an objective enquiry requiring identification of and comparison between the two sets of rights. However, as the Sullivan applicant notes, the State has not provided any such analysis.
1531 The State’s initial submission was that the Court should adopt the application of the inconsistent rights identified by Nicholson J in Daniel (at [741] and [786]) in relation to the grant of each of the mineral claims comprising:
(a) access in terms of remaining;
(b) ritual and ceremony;
(c) camping in terms of living on the land; and
(d) cooking and lighting fire
in respect of the land and waters the subject of the grant.
1532 The State notes the specific rights claimed in the Sullivan Determination Sought where there has been partial extinguishment, namely:
(a) the rights to access, to remain in and to use that part for any purpose;
(b) the rights to access resources and to take for any purpose resources in that part;
(c) the right to engage in spiritual and cultural activities on that part;
(d) the right to maintain and protect places and objects of significance in or on that part; and
(e) the right to protect resources and the habitat of living resources in that part
The Yilka applicant only claims rights (a), (b) and (d), (renumbered (a), (b) and (c) and each phrased as a singular right in the Yilka Determination Sought. The State submitted that these rights claimed as part of (a) and (c) (based on the numbering in the Sullivan Determination Sought) have been extinguished on the basis of the judgment of Nicholson J in Daniel (at [786]) ,and that the rights claimed pursuant to subpara (b) would also be extinguished to some extent where inconsistent with mining.
1533 In dealing with mineral claims, it is necessary to be conscious of what Marshall ACJ recently held in Ngadju (at [100]), applying Barker J’s reasoning in Banjima (at [1552]-[1560]), that mineral claims under the Mining Regulations 1925 did not extinguish native title rights other than exclusivity rights.
1534 This approach correctly follows Brown HC and has the consequence that the State’s original submissions on this topic, which advocate for extinguishment of certain non-exclusive rights, should not be accepted. Those submissions do not take into account that under Order 4 of the Yilka Determination Sought, in areas where there has been partial extinguishment (which is not to be disregarded), the right mentioned in the Yilka POC (at [82(a)]), namely, the right to control access to and use by others of the area will have been extinguished. The partial extinguishment referred to in Order 4 is not a generic reference to the partial extinguishment of each or any of the rights referred to in Yilka POC (at [82(b)-(d)]), which are those reflected in Order 4(a)-(c). The case of the Yilka applicant is that each of those rights is not to be regarded as a bundle of lesser rights or incidents that may be extinguished separately.
1535 The State’s reliance on Sundberg J’s findings in Neowarra as to the extinguishment of non-exclusive rights would suggest that ‘access in terms of remaining’ should be extinguished out of the right of access claimed by the Yilka applicant in Order 4(a) of the Yilka Determination Sought (and similarly out of that right as claimed by the Sullivan applicant), which the Yilka applicant contends is not possible, on the basis that rights are indivisible for extinguishment purposes. None of the rights mentioned by the State, being those identified by Nicholson J in Daniel, are rights claimed as traditional or native title rights in this case although each of the activities referred to in the descriptions of those rights is an activity that may be done as of right in exercise of the right to access, remain on and use, which is claimed in Order 4(a) of the Yilka (and the Sullivan) Determination Sought.
1536 The right to access and take resources for any purpose cannot be wholly extinguished, the Yilka applicant says, because when a mineral claim was granted, it was possible without abrogating the right of the holder of the claim to take some resources from some part of the mineral claim area for some purpose without abrogating a right of the holder.
1537 On the basis that inconsistency of incidents or activities is not sufficient to extinguish a native title right, following Brown HC and Akiba HC, it is not possible to conclude that any right held by the holder of the mineral claim is relevantly inconsistent with, so as to extinguish, the claimed right of access or the right to access and take resources for any purpose. Rather, the grants of valid, pre-1975 mineral claims extinguished the exclusive right but not any (or any part) of the non-exclusive rights claimed. They had no greater effect on native title than valid, pre-1975 pastoral leases or other mining tenements.
1538 The State, in its reply submission on extinguishment, revised its position to align with that in regards to gold mining leases and mineral leases; namely, that, to the extent that exclusivity is not otherwise extinguished, the mineral claims extinguish the right of exclusive possession and are exercisable notwithstanding, but do not extinguish, other native title rights.
1539 The parties are in agreement as to the extinguishing effect of pastoral leases. The State has identified 78 pastoral leases within the Claim Area, which are listed in Sch 2 Table 2. The earliest date of issue of these leases appears to be 6 December 1902, and the most recent of these was registered on 17 June 1968. They were granted within the Claim Area in accordance with ss 94, 97 and 102 of the Land Act 1898 and s 95 and s 114 of the Land Act 1933.
1540 The State submits that the pastoral leases extinguish the native title right to exclusivity, namely, the right to control access. To the extent there is inconsistency between the rights under any pastoral lease and non-exclusive native title rights and interests, the rights under the lease prevail over, but do not extinguish, native title rights and interests: following Ward HC (at [170]-[195]) and Banjima (at [1833]-[1842] and [1874]).
1541 The Yilka applicant notes that while significant portions of the Claim Area have been covered by historic pastoral leases at various times, it appears that, in general terms, the following portions have not been covered: Area 1, Reserve 18594; Area 2, Reserve 18595; Area 6, Reserve 20396 (in part); Area 9, Reserve 20505 (in part); and Area 10, Reserve 25051 (in part).
1542 None of the leases were granted after 31 October 1975, so no questions arise concerning invalidity due to the existence of native title.
1543 However, consideration of validity ‘apart from’ the NTA may be required in relation to any pastoral lease that forms a critical foundation for extinguishment purposes to the tenure history of any particular area. (It appears that in fact, the validity or otherwise of the historic pastoral leases is immaterial as the entire Claim Area was covered in the 1920s by a petroleum interest that would have had the same extinguishing effect as a pastoral lease, rendering the questions relating to the validity of the pastoral leases solely academic.) The Yilka applicant makes the following submissions regarding the validity of certain categories of the relevant pastoral lease.
5.2.1.1 Leases granted under the Land Act 1898
1544 The first category is those pastoral leases granted under the Land Act 1898. The Yilka applicant submits that in Neowarra, Sundberg J (at 453]-[456]) considered whether documents produced in evidence in that case were sufficient to establish the existence of a valid pastoral lease in the absence of the lease instrument. Where the document relied upon was an extract from the register of pastoral leases, his Honour held that the following evidence was sufficient to establish the existence of a valid lease:
(a) register extract records issue of lease or that the lease was ‘handed to’ the applicant or the applicant’s agent;
(b) register extracts contains no notation that lease was issued, but records the lease approved and Gazettal;
(c) register extract contains no notation that the lease was issued, but records that the lease was approved, that rent was paid, and that the lease was later cancelled, sometimes with a note of the Gazette in which the cancellation was notified; or
(d) register extract contains no notation that the lease was issued, but records that the lease was approved, rent was paid at inception of the lease, and non-payment in a later year.
1545 Sundberg J was not satisfied that a lease had come into existence where the register extract contained no notation that the lease was issued, approved or Gazetted, and was marked as cancelled.
1546 There is a paucity of requisite evidence in this case in relation to a number of leases, according to the Yilka applicant. Specifically, the Yilka applicant says, in relation to Pastoral Leases 2909/97, 2914/97, 2915/97, 2916/97, 2917/97, 2960/97, 3131/97, 3292/97, 3337/97, 3352/97, 3389/97, 3411/97, 3454/97, 3520/97 and 3630/97, that the register extract is the only evidence provided and they contain:
(a) a notation that the application was approved (and sent to treasury and returned);
(b) no record of gazettal;
(c) no notation that rent was paid;
(d) no notation that lease instrument was issued;
(e) no recorded Crown Lease No.;
(f) the notation ‘Cancelled’ (after approval and commencement dates).
1547 I note that, while it is the case in relation to each of these leases that there is no notation that rent has been paid, there is an amount specified in terms of the ‘annual rent’ for the first term.
1548 The Yilka applicant submits that this information is insufficient to establish that these leases validly came into existence.
5.2.1.2 Leases signed before the application approved
1549 Nicholson J in Daniel made the following observations (at [594]-[595]) referring to s 91(2) and s 13 of the Land Act 1933:
594 The 19th Schedule is a draft of a pastoral lease outlining the terms and conditions. It concludes ‘In witness whereof We have caused Our Minister for Lands to affix hereto his Seal and set his hand the ………day of ……. 19……’. It is plain that the intent of the legislation is that the application should precede the issue of the lease, and that the lease shall issue upon the date set down when the Minister or authorised officer signs it. These leases the subject of these objections were issued contrary to these statutory provisions.
595 In my view these leases were not validly granted. Elsewhere I have stated why I consider that registration of them under the Transfer of Land Act 1893 (WA) cannot, even given the effect of s 68 of that Act, cure that position. They are therefore not ‘valid’ for the purpose of the application of the provisions of the NTA.
1550 Section 91 and s 13 of the Lank Act 1933 correspond with s 92 and s 13 of the Land Act 1898.
1551 Section 92 of the Land Act 1898 provides that application for a pastoral lease shall be made in the form or to the effect of the twenty-third Schedule and on approval of an application, a lease shall be issued in the form of the twenty-fourth Schedule. That latter schedule contains the same wording as that of Sch 19 to the Land Act 1933 which was set out by Nicholson J (at [594]). Pastoral Leases 3402/97, 3455/97 and 3460/97, granted under the Land Act 1898, were signed before the application was approved and, therefore, were not validly granted, according to the Yilka applicant.
1552 In relation to PL 3402/97, information provided by the State during trial of the Wongatha claim included the register on which pastoral lease transactions were recorded. That register indicated that the application for this pastoral lease was approved on 28 August 1925, but that the lease instrument had been signed earlier, demonstrating the purported issue of the lease before the approval of the application for it. The material produced by the State in evidence in this proceeding does not include the register, but does include a very poor copy of the lease instrument in which the handwritten material is largely illegible. However, it can be made out that the lease is dated in July (as signed by the Minister) and the rent computed also from a date in July, probably 1 July 1925.
1553 Similarly, in relation to PL 3455/97, the register provided by the State as evidence in the Wongatha claim, indicated the application for this pastoral lease was approved on 2 September 1926, but that the lease instrument had been signed earlier, demonstrating that the purported issue of the lease before the approval of the application for it. The lease instrument, a copy of which was produced by the State in evidence in the present proceedings, is dated as signed by the Minister on 2 July 1926. The same consequence follows. Again, in relation to PL 3460/97, evidence from the Wongatha claim showed approval on 24 November 1926, whereas the copy of the lese instrument produced in these proceedings shows that it was signed by the Minister on 1 October 1926.
5.2.1.3 Leases granted under the Land Act 1933
1554 The Land Act 1933 contains corresponding provisions (ss 7, 13 and 91) to the Land Act 1898 ss 4, 13 and 92. In relation to PL 395/352, there is insufficient information in the register extract to establish the validity of the lease. The Register extract contains
(a) a notation that the application was approved;
(b) no notation that rent paid;
(c) no notation that lease issued;
(d) no Crown Lease No. recorded; and
(e) the annotation ‘Cancelled’ after date of approval and commencement.
1555 Again, it should be noted that there has been an amount entered for the rental per 1000 acres, although payment or otherwise of that amount does not appear to have been noted.
1556 In light of the observation at Pt 5.2.1, it is not necessary to decide the validity or otherwise of the pastoral leases discussed in Pts 5.2.1.1-5.2.1.3.
1557 The Yilka applicant does accept the the proposition advanced by the State that a valid or validated pastoral lease, so far as it covers any area not previously covered by any other granted right, extinguishes the exclusive right claimed. The Yilka applicant emphasises, and I accept, that the claimed non-exclusive rights are not inconsistent with the rights conferred by a pastoral lease, following Akiba HC and Brown HC. A pastoral lease will extinguish an exclusive right but not any, or any part of any, claimed non-exclusive right.
1558 It follows that the extinguishing effect of a pastoral lease is no greater and no less than the extinguishing effect of a mining or petroleum interest. Although much of the Claim Area has been covered by pastoral leases at one time or another, the only current pastoral lease (as at the time of submissions in mid-2014) is that in relation to Area 11 (the Yamarna Pastoral Lease). Extinguishment by a former pastoral lease will be disregarded where either of s 47A or s 47B NTA apply.
5.2.3 NTA and TVA extinguishment categories
1559 All validly granted pastoral leases were pastoral leases, as defined in s 248 NTA, and non-exclusive pastoral leases within s 248B NTA. No pastoral lease was granted over any part of the Claim Area after 31 October 1975. The only current pastoral lease, the Yamarna Pastoral Lease, (PL 3114/854), was granted in 1968. Neither that lease nor any of the earlier leases were past acts under the definition in s 228 NTA. Therefore Pt 2 of the TVA, dealing with the validation of past acts, has no application to the pastoral leases under consideration in these proceedings.
1560 Valid non-exclusive pastoral leases granted before 23 December 1996 are previous non-exclusive possession acts as defined in s 23F NTA, and s 12M TVA applies.
1561 In the case of valid pastoral leases granted before 31 October 1975, whether or not current, s 12M(1)(b)(i) TVA applies and any extinguishment arises if ‘apart from’ the Act, the native title rights are extinguished. That is, native title rights are extinguished if they would be at common law, and the test which must be applied is the test of inconsistency.
1562 As pastoral leases granted under the Land Regulations and the Land Acts have the same extinguishing effect, a later pastoral lease granted over land previously the subject of such a lease will not extinguish native title. Such a lease would not be a past act, even if granted after 31 October 1975, but will still be a previous non-exclusive possession act. Section 12M(1(b) TVA does not apply, but if the lease remains current it will be an ‘other interest’ and its effect on native title is determined by s 12M(1)(a) TVA. The effect of that provision is covered by Order 9 of both the Yilka (and the Sullivan) Determination Sought.
1563 Pastoral improvements have been constructed on the Pastoral Lease 3114/854 (Yamarna Pastoral Lease), which was granted on 17 June 1968 pursuant to s 114 of the Land Act 1933. Those pastoral improvements are: an airstrip, bores, water tanks and wells.
1564 There is agreement between the parties as to the validity and effect on native title of these pastoral improvements. The State points out that the High Court in Brown HC (at [60]) held that the decision of the Full Court in De Rose v South Australia (No 2) (2005) 145 FCR 290 (De Rose No 2) proceeded on a misunderstanding of what was decided in Ward HC. Their Honours held that it is not permissible to defer consideration of extinguishment until the manner of the exercise of the allegedly inconsistent rights is known (at [60]). The nature and content of the rights must be examined at the time of the grant and it must be determined at that time whether or not they are inconsistent with native title rights and interests, rather than at some later time contingent on the performance of some later act (at [37] and [60]-[62]). The High Court stated (at [62]) that the decision in De Rose No 2 incorrectly assumed that the permitted construction of an improvement on land held under a lease which did not give rise to a right of exclusive possession necessarily affected the existence of native title rights and interests, rather than the manner of their exercise. The State submits that, to the extent of any inconsistency, pastoral improvements validly affect native title, but do not extinguish those rights.
1565 The Yilka applicant agrees that the effect of the ruling in Brown HC is that pastoral lease improvements do not extinguish native title. The Yilka applicant says, therefore, and I accept, that there need be no specific mention of any such improvements made on the Yarmana Pastoral Lease in the determination of native title; rather, they are adequately dealt with in Order 9 of the Yilka (and the Sullivan) Determination Sought.
1566 Again, there is general agreement between the parties as to the extinguishing effect of the petroleum interests. There are four grants in relation to petroleum interests in the Claim Area identified in the State’s tenure evidence. Three of these, listed in Sch 2 Table 3, are asserted to have an extinguishing effect on native title. Two of them, petroleum interests OPA 51H and OPA 116, cover the whole Claim Area.
1567 The state says that oil prospecting areas OPA 51H and OPA 116H were granted pursuant to s 4 of the Mining Act Amendment Act 1920 (WA). Permit to explore PE 157H was granted pursuant to the Petroleum Act 1936.
1568 Section 4 of the the Mining Act Amendment Act provided as follows:
(1) The Minister is hereby empowered, by his officers, agents, or workmen, to search for mineral oil, and conduct all operations deemed necessary for obtaining, refining, and disposing of mineral oil. For this purpose the Minister may enter upon and occupy, either temporarily or permanently -
(a) Any vacant Crown land ; or
(b) Any land in the grant or subsisting lease of which from the Crown, whether issued before or after the passing of this Act, mineral oil has been reserved, or held under lease, license, or permit for pastoral or timber purposes only, without making any compensation, except for deprivation of the possession of so much of the surface, including any improvements thereon, as is required for the working of the mine and surface rights of way thereto or therefrom ; or
(c) Any mining tenement held for the purpose of mining gold or other mineral, including coal, subject to the payment of compensation for any interference with the operations of the holder thereof.
(2) Subject to section four of the Western Australia Constitution Act, 1890 (Imperial), the Minister may, by himself and any person acting with his authority, for the purpose of searching for mineral oil, enter upon any other land alienated from the Crown for an estate in fee-simple before the passing of this Act or held under subsisting lease from the Crown issued before the passing of this Act, and conduct all operations deemed necessary for that purpose, subject to the payment of compensation : Provided that the owner or lessee may require the land to be resumed under and subject to the next following section.
(3) For the purpose of determining the compensation to be paid under this section, the provisions of the Public Works Act, 1902, shall be applicable.
1569 The State contends that the power of entry and occupation vested in the Minister through s 4(1)(a) of the legislation, which was substantially re-enacted by s 11(1)(a) of the Petroleum Act 1936, is no less substantial than the rights that might have been conferred on third parties by the grant of licences (as discussed below). The legislature, in effect, created a scheme under which the Minister could undertake petroleum exploration himself or herself, or licence others to do so. Where rights were to be conferred on a party other than the Minister, the further step of a grant of a licence was required, but the Minister’s rights required no more than the legislative imprimatur provided by s 4(1)(a). The State submits that this conferral of rights was inconsistent with the applicants’ exclusive possession (right to control), and had the effect, without more, of extinguishing any native title right to control access to or exclusively possess or occupy any vacant Crown land within the Claim Area. The effect of s 4(1)(a) was to create rights in the Minister which were inconsistent with a continued right to enjoy native title of an exclusive nature or which permit control of access to or use of land, according to the State.
1570 Additionally, the State points to s 6 of the Mining Act Amendment Act, which provided for the grant of petroleum licences to third parties. This section reads as follows:
(1) The Minister may, subject to this Act and the regulations, grant to any person who desires to prospect Crown land for mineral oil a license to occupy the land described therein for a period of not exceeding ten years.
(2) Every such license shall, subject to this Act and the regulations, confer on the licensee the exclusive right to bore and search for mineral oil on the land therein defined.
(3) The fee payable for such license shall be Five pounds per annum, payable yearly in advance.
(4) If any such Crown land is held under lease or permit for pastoral or timber purposes, the privileges conferred by a license shall be exercised by the licensee subject to the rights of the lessee or permit holder, and to such regulations as may be prescribed.
1571 Moreover, s 7(1) of the the Mining Act Amendment Act provided that the licensee shall within thirty days, or such further time as the Minister may in his or her discretion allow, after the grant of the licence, commence and thereafter continue to search for mineral oil upon the land held under license.
1572 It follows, so the State submits, that the petroleum interests listed in Sch 2 Table 3 have extinguished any exclusivity of native title rights, including any unqualified right to control access. The State submits that the Court should adopt this conclusion in the same manner as the approach taken in Banjima by Barker J (at [1939]-[1948]) and Daniel per Nicholson J (at [850]-[852]).
1573 Specifically, as petroleum interest OPA 51H covers the whole Claim Area, the State says that this grant extinguishes any exclusivity of native title rights across the entire Claim Area.
1574 The Yilka applicant accepts that a pre-1975 petroleum interest validly issued under s 6 of the Mining Act Amendment Act, where it has any extinguishing effect on native title, is effective to extinguish any native title right to control access, that is, the exclusive right claimed. It is unnecessary to determine any question about the effect of s 4 of the Mining Act Amendment Act as contended for by the State, given that there were subsequent grants under s 6 of that Act to third parties of licences which affected the entire Claim Area. Although not mentioned by the parties, and not materially relevant, it also appears that PE 157H would have extinguished the exclusive native title right (had the previous interest not already had that effect): see Banjima (at [1949]-[1954]).
1575 In relation to the detail, interest OPA 51H, being Oil Licence 035 which, according to the Register entry in LRM4 was granted to Mr William Donald McCoy from 14 November 1921 and issued on 6 December 1921, appeared to be valid, though the copy of the register entry in evidence is, in part, illegible. Following the surrender of that interest, the subsequent grant of OPA 116H, under licence issued to Mr George Michael O'Halloran on 21 September 1923, also extended to the whole Claim Area.
1576 So far as either licence was issued over areas not then previously the subject of the grant of a valid pastoral lease, and there were many such pastoral leases over many parts of the Claim Area which predated these licences, the Yilka applicant accepts that it would have extinguished any native title right to control access to the area that is now the Yilka claim area. This is consistent with the conclusion reached by Barker J in Banjima (at [1939]-[1948]), following Nicholson J in Daniel (from [850]-[852]). Therefore, the Yilka applicant’s position is that the licences were capable of extinguishing, and did in some areas extinguish, the exclusive right but not any, or any part of any, of the non-exclusive rights.
1577 As the applicants submit, however, any extinguishment effected by OPA 51H is to be disregarded where s 47A or s 47B NTA applies, which is potentially the situation, according to both applicants, in relation to much of the Claim Area.
1578 The State’s tenure evidence identifies two reserves within the Claim Area which it says partially extinguish native title rights and interests, being historical Reserve No 17570 (Common) which was cancelled on the setting apart of land for Reserve 22032 (Natives) over Area 7and the current Stock Route No 24980 over Area 8. Those reserves were granted on 22 October 1920 and 6 June 1958 in accordance with the provisions of the Land Act 1898 and the Land Act 1933 respectively, but have not been vested in any person or body. They are identified in Sch 2 Table 4.
1579 Given that those reserves were created before 31 October 1975, there is no question of invalidity by reason of a breach of the RDA. The State relies upon the observations of the High Court in Ward HC that reservation of land under the relevant Western Australian provisions, including the Land Regulations, Land Act 1898 and Land Act 1933, inhibited the Crown's future action in relation to that land (at [218]). The effect on native title was explained in Ward HC as follows (at [219]):
[B]y designating land as a reserve for a public purpose, even a purpose as broadly described as “public utility”, the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.
1580 Further (at [220]-[221]), the High Court explained:
Whether a right in native title holders to use the land continued unextinguished depends upon other considerations, particularly what, if any, rights in others were created by the reservation or later asserted by the executive.
The designation of land as a reserve for certain purposes did not, without more, create any right in the public or any section of the public which, by reason of inconsistency and apart from the State Validation Act, extinguished native title rights and interests.
1581 It follows, the State submits, that the setting aside or creation of the reserves identified in Sch 2 Table 4 would have extinguished any right to control access to the reserves or make binding decisions about the use to which they were put.
1582 I agree with the position of the applicants that any partial extinguishment of native title by the creation of reserves at Sch 2 Table 4 of the State’s submissions is subject to consideration of s 47A and s 47B NTA. In relation to these two unvested reserves, the Sullivan applicant submits that the State goes too far in suggesting that they extinguish the right to make binding decisions about the use to which they are put. Given the nature of the purposes of the reserves, at the most they would limit the ability to make binding decisions about the use to which third parties could put the reserves, according to the Sullivan applicant.
1583 In general terms, the Yilka applicant accepts that, apart from any prior extinguishment, those reserves extinguished the exclusive native title right, but not any, or part of any, of the non-exclusive rights. I agree with this submission.
1584 Turning firstly to Reserve 24980, this land was set apart was set apart as a public reserve for the purpose of the ‘Warburton Range Stock Route’ by a notice published in the Gazette on 6 June 1958. The stock route, a strip of land one mile wide, was created over part of PL 395/1031 and land which at the time was vacant Crown land. The stock route currently traverses the north-western corner of the Yamarna Pastoral Lease (Area 11) and the south-eastern corner of Aboriginal Reserve 25051 (Area 10).
1585 Section 29(1)(m) of the Land Act 1933 provided that the Governor may reserve to His Majesty ‘any lands vested in the Crown’, for the purpose of stock routes. Section 3 of the Land Act 1933 provided that ‘Crown Lands’ were ‘all lands of the Crown vested in His Majesty’, subject to a number of exceptions. Land subject to a pastoral lease was Crown land for the purposes of the Land Act 1933: see Ward HC (at [174]) in relation to the comparable definition of Crown lands in the Land Act 1898. The plan appended to the current Yamarna Pastoral Lease appears to indicate that the stock route is excluded from the land comprised in the lease. The Warburton Range Stock Route Reserve was expressly excluded from the description of the area and boundaries of Aboriginal Reserve 25051 published in the Gazette on 11 July 1958. The reserve was created prior to 31 October 1975, is current and has not been vested in any person.
1586 At the time when the land was reserved, the whole of that part of the stock route within PL 3114/854 had been included in earlier pastoral leases, for example, PL 395/1031. No part of that portion of the stock route included in Aboriginal Reserve No 25051 had previously been included in a pastoral lease but had been the subject of petroleum interest OPA 51H.
1587 In Ward HC, the majority held that the designation of land as a reserve for certain purposes did not, without more, create any right in the public or a section of the public (at [221]). In the case of land that was, or had been, held under a pastoral lease any native title right to control the use of or access to the land would have been extinguished by the grant of the pastoral lease, and a subsequent reservation of the land could not affect that right: Ward HC (at [222]). Reservation of land that had not earlier been held under pastoral lease was inconsistent with the continued existence of the native title right to control the use of or access to the land, and reserving land before 31 October 1975 extinguished that right, but did not otherwise extinguish native title: Ward HC (at [222]).
1588 It is common ground that the extinguishing effect of the petroleum interests is the same as the extinguishing effect of a pastoral lease. It follows that there was no extinguishment of native title by the creation of Reserve 24980, as it had already been extinguished to the extent that the creation of that reserve otherwise would have done so. The Yilka applicant concedes that s 47A and s 47B have no application in respect of the land comprised in Reserve 24980, and therefore there is extinguishment of the exclusive native title right, but not of the non-exclusive native title rights claimed, in relation to that area.
1589 As to Reserve 17570 (Common), this land was set apart as a public reserve for the purpose of ‘common’ by a notice published in the Gazette on 22 October 1920. This Reserve was cancelled by the notice which set apart land for the purpose of ‘Natives’, Reserve 22032, on 25 August 1939. At the time when the reserve was created, most of the land appears to have been covered by pastoral leases. (I note that the Yilka applicant submitted that it was previously entirely covered by a petroleum interest and not by any pastoral leases; however, I doubt whether this is accurate.)
1590 The Land Act 1898 provided that the Governor may reserve to her Majesty ‘any lands vested in the Crown’, for the purpose of commons: s 39(14). A description of the reserve and the purpose for which it was made was published in the Gazette and that notice set out details of the relevant public plan pursuant to s 40 of the Land Act 1898. The reserve was created prior to 31 October 1975 and was not vested in any person.
1591 Reservation of land that had earlier been held under pastoral leases did not have any additional effect on native title. In relation to any part of the area of the reserve not the subject of an earlier grant of a pastoral lease, the creation of Reserve 17570 extinguished the right to control the use of or access to the land (the exclusive right), but did not otherwise extinguish native title: Ward HC (at [222]). In any event, the Yilka applicant submits and the State has not disputed, that s 47A applies to the area of Reserve No 22032, and that Reserve 17570 is a prior interest. Any extinguishment arising from the creation of the reserve must therefore be disregarded for all purposes under the NTA.
1592 Additionally, the State identifies seven temporary (unvested) reserves in the Claim Area, which are set out in Sch 2 Table 5. These include two temporary reserves which were granted on 20 February 1935 and on 2 June 1960 pursuant to s 276 of the Mining Act 1904. Section 276 of the Mining Act 1904 provides as follows:
The Minister, and, pending a recommendation to the Minister, a Warden, may temporarily reserve any Crown land from occupation, and the Minister may at any time cancel such reservation: Provided that if such reservation is not confirmed by the Governor within twelve months, the land shall cease to be reserved.
The Minister may, with the approval of the Governor, authorise any person to temporarily occupy any such reserve on such terms as he may think fit.
1593 The effect of this section was to temporarily reserve Crown land from occupation for the purposes of the Mining Act 1904: Moses FC (at [172]). Such a reservation prevented occupation of the reserved area: Moses FC (at [174]), which may otherwise have been permissible pursuant to a miner’s right.
1594 Section 297 of the Mining Act 1904 (as s 276 was then numbered) was made subject to s 297A by s 2 of the Mining Act Amendment Act 1937 (WA) which provided as follows:
(1) Any right of occupancy granted under the preceding section shall not exceed three hundred acres in area and may be granted for a fixed period not exceeding one year.
(2) A right of occupancy not exceeding three hundred acres in area may be granted for a fixed period in excess of one year, but in that event the Minister shall cause the terms and conditions relating thereto to be laid on the Table of each House of Parliament within fourteen days of the granting thereof.
(3) Any such right of occupancy granted for any fixed period may be renewed from time to time for any term not exceeding twelve months on each occasion of renewal, but if any such renewal is granted then the provisions of subsection (2) of this section shall apply, and the terms and conditions of renewal shall be tabled in each House of Parliament accordingly.
(4) The provisions of section thirty-six of the Interpretation Act, 1918, relating to the disallowance of regulations by either House shall apply to all intents and purposes as if the terms and conditions of the right of occupancy as tabled under this section were regulations tabled under that section.
(emphasis added)
1595 Section 297A was renumbered as s 277 in the 1946 reprint of the Mining Act 1904, and was subsequently repealed and replaced in 1957 pursuant to the Mining Act Amendment Act 1957 (WA). From then, the 300 acre restriction for rights of occupancy applied only with respect to prospecting for gold, other than for ‘deep alluvial gold’. As replaced in 1957, s 277 provided:
(1) In this section -
"deep alluvial gold" means alluvial gold below a depth of thirty feet from the natural surface of the ground
(2) A right of occupancy granted under the preceding section for the purpose of prospecting for gold, other than for deep alluvial gold, shall not exceed three hundred acres in area.
(3) A right of occupancy may be granted for a fixed period in excess of one year, but in that event the Minister shall cause the terms and conditions relating thereto to be laid on the Table of each House of Parliament within fourteen days of the granting.
(4) A right of occupancy granted for any fixed period may be reviewed from time to time for any term not exceeding twelve months on each occasion of renewal, but if any such renewal is granted then the provisions of subsection (3) of this section shall apply, and the terms and conditions of such renewal shall be tabled in each House of Parliament accordingly.
(5) The provisions of section thirty-six of the Interpretation Act, 1918, relating to the disallowance of regulations by either House shall apply to all intents and purposes as if the terms and conditions of the right of occupancy as tabled under this section were regulations tabled under that section.
1596 There is no question of invalidity under the RDA by virtue of the date of the granting of the temporary reserves being prior to 31 October 1975. As the grant of the temporary reserves was not within the definition of past act or intermediate period act (not being invalidated by the RDA) and is not a previous exclusive possession act (as it does not fall within the types of interest listed in s 23B(2)(c)), nor a previous non-exclusive possession act (not being the grant of a non-exclusive agricultural or pastoral lease), any extinguishing effect of the grants remains to be determined in accordance with the common law. The State relies upon the observations of Sundberg J in Neowarra, where his Honour said (at [606]-[607]):
606 On 1 November 1972 TR70/5610 was granted for a period expiring on 30 June 1973. It conferred on the grantee the sole right to search and prospect for bauxite over certain areas under s 276 of the [Mining Act 1904]. TR70/5610 has been extended from time to time. The area of TR70/5610 has been the subject of exploration and associated activities by the Joint Venturers and their predecessors in title, including exploration drilling, small scale bulk sampling and trial mining, clearing of areas for the purposes of bauxite stockpiles and rehabilitation. An airstrip was constructed pursuant to the Mitchell Plateau Agreement, which is capable of landing large cargo planes. It is used in connection with the Joint Venturers' exploration operations. An access road has been constructed from the airstrip to the Gibb River/Kalumburu Road in accordance with the Mitchell Plateau Agreement. The access road is about seventy five kilometres long and is part of the Mitchell Plateau access road. Under the Mitchell Plateau Agreement the Joint Venturers are obliged to maintain that part of the Mitchell Plateau access road from the airstrip to the Gibb River/Kalumburu Road. There are other roads and tracks in and around TR70/5610 that were constructed by the Joint Venturers' predecessors and are used and maintained for the purposes of the exploration operations on TR70/5610.
607 TR70/5610 covers nearly all of Area 82 on Exh R. The whole of the area was the subject of earlier pastoral leases, the effect of which was to extinguish native title rights and interests to the extent that they stipulate for control over access to or use of the land and waters of the area. The position would be the same as a result of TR70/5610 in relation to that part of Area 82 covered by it if the pastoral leases had not already had their extinguishing operation. The pastoral leases were not inconsistent with the carrying out of the activities or the exercise of the right referred to in [523]. Nor is TR70/5610.
(emphasis added)
1597 Justice Barker, in Banjima (at [1896]-[1904]), held that temporary reserves under the Mining Act 1904 had no extinguishing effect on native title rights and interests, except in relation to the right to control access. The State submits the Court should follow Sundberg J in Neowarra, and find that the grant of each of the temporary reserves listed in Sch 2 Table 5 extinguished any exclusive native title rights over the land and waters the subject of the grant. The State initially submitted that, further, the grant of a right of occupancy is inconsistent with any native title rights to occupy, reside or dwell, and accordingly, such rights were also extinguished in respect of the land and waters the subject of the grants.
1598 The Yilka applicant accepts that where such a reserve has any extinguishing effect, for example because it was granted prior to 1975 at a time before any other grant had extinguished native title to any extent and where that extinguishment cannot be disregarded by operation of s 47A or s 47B NTA, that effect extends to the exclusive right claimed, but not to any, or any part of, the non-exclusive rights. The Yilka applicant accepts the State’s contention that any extinguishment is to be determined on common law principles, meaning that Akiba HC and Brown HC will be the relevant leading authorities.
1599 Where the parties disagree is in relation to the State’s submission which, in effect, contends for partial extinguishment, in the case of the Mining Act 1904 interests, of the claimed non-exclusive right to access, remain on and use an area. The State contends that the grant of a right of occupancy is inconsistent with any native title rights to occupy, reside or dwell and accordingly such rights were also extinguished.
1600 The Yilka applicant says this submission must fail because the rights said to be extinguished have not been claimed. Rather, what is said by the State to be extinguished is simply a manner in which the claimed right might be excised. This is consistent with the Yilka applicant’s central submission and follows Brown HC, in that there is no basis for contending for extinguishment other than of a right itself. There is no necessary inconsistency between the claimed right to access, remain on and use an area and a statutory right of occupancy for mining purposes because it is possible to exercise the claimed right at some time, on some part of the reserved area without abrogating the granted right. It does not establish necessary inconsistency that there may be times or places when to dwell on the area in exercise of the claimed right would interfere with the exercise of the granted right. The granted right prevails, but it does not extinguish the native title right to access, remain on and use an area. This accords, I consider, with the conclusion reached by Barker J in Banjima (at [1904]) that the grant of a right of occupancy under the Mining Act 1904 may co-exist with any native title rights to occupy, reside or dwell, and that the statutory rights will merely prevail over such native title rights to the extent of any inconsistency of exercise.
1601 In any event, the case authorities relied on by the State are clear that the effect on native title of a grant of a temporary reserve under the Mining Act 1904 is no greater than the extinguishing effect of the grant of a pastoral lease and does not extend beyond the right to control access. This is likewise applicable to the Land Act reserves, as the State accepts.
1602 In relation to the Mining Act 1904 temporary reserves, which were located in the vicinity of Cosmo Hill in what is now Area 7 (Reserve 22032), these were preceded over the same area by OPA 51H, and also by Pastoral Leases 2981/97 and 1047/102. The most likely scenario is therefore that the temporary reserves had no extinguishing effect on native title. In any event, as they are no longer current and the area was subsequently incorporated into and covered by Reserve 22032, the application of s 47A NTA will render any questions about the extinguishing effect of those temporary reserves purely academic.
1603 In relation to the temporary reserves created under the Mining Act 1904, the State's position, now revised, is that only the exclusivity of other native title rights was extinguished.
1604 The State asserts that the setting aside of the remaining five temporary reserves pursuant to s 45 of the Land Act 1898 and/or s 36 of the Land Act 1933 have the same extinguishing effect as it submits in relation to unvested reserves (see Pt 5.5), namely, that any right to control access to the reserves or make binding decisions about the use to which they are put have been extinguished. Again, I find that these temporary reserves only extinguished the exclusive native title right.
6. ACTS WHICH HAVE NO EXTINGUISHING EFFECT
1605 Grants which are valid but which have no extinguishing effect have been included by the State in various tables in Sch 3 for the Court to record as ‘other interests’ in any determination made.
1606 These include, firstly, a number of acts done prior to 23 December 1996 which have no extinguishing effect, being some types of mining tenements and reserves for the use and benefit of Aboriginal peoples.
1607 The State has granted the following types of mining tenements over the Claim Area which, in its submission, do not affect native title, but are subject to the non-extinguishment principle:
(a) exploration licences;
(b) gold mining leases;
(c) mineral claims
(d) mining leases; and
(e) prospecting licences.
1608 The State says that the mining tenements listed in Sch 3 Table 1 are either category C past acts or valid future acts, and should be recorded as other interests.
1609 There are also four reserves in the Claim Area granted between 1930 and 1958 where the purpose was for the ‘Use and Benefit of Aborigines’. Pursuant to s 23B(9) NTA, these grants do not constitute previous exclusive possession acts. The State says that these grants do not have an extinguishing effect, and should be recorded as other interests and are subject to the non-extinguishment principle.
1610 The State also identifies acts done after 23 December 1996 which it says are valid but have no extinguishing effect. These acts are: a number of mining tenements granted after 23 December 1996, a ground water licence granted on 30 September 2010, and a petroleum exploration permit granted on 8 March 2010.
1611 The Yilka applicant contends that the State has overreached the ‘other interest’ requirements of s 225 NTA by suggesting that non-current interests be recorded as ‘other interests’. The Yilka applicant accepts that interests current at the date of the determination should be so recorded but not otherwise.
1612 The State has accepted, in its reply submissions, that ‘other interests’ should identify interests extant at the time of the determination.
1613 Ordinarily, for the purposes of a complete analysis of the application of the TVA and the NTA, it is necessary to distinguish between historical mining tenements and current tenements granted:
(a) after 31 October 1975 and before 1 January 1994;
(b) between 1 January 1994 and 23 December 1996;
(c) after 23 December 1996 and before 30 September 1998 and after 30 September 1998.
1614 However, for present purposes, given the coverage of the Claim Area by tenures that are accepted as valid and as extinguishing native title to the extent of the exclusive right, it is appropriate to regard the situation generally as one in which all post 23 December 1996, if not also post 1 January 1994, and even post 31 December 1975 grants of rights will be valid or validated and not extinguish native title, and further that all such grants as remain current should be recorded as 'other interests' for the purposes of the determination of native title. Any particular exceptions will be discussed in the area by area analysis in Pt 8 below. This approach is common ground.
1615 Relevant current interests identified in the State’s submissions have been added to the Yilka Determination Sought. The Yilka applicant makes the following submissions in relation to the particular types of act mentioned by the State on this topic.
1616 The State accepts that ‘other interests’ should identify interests extant at the time of the determination.
1617 The State submits that the reserves for the use and benefit of Aborigines (Areas 6, 7, 9 and 10) should be recorded as ‘other interests’ and are subject to the non-extinguishment principle. However, the State’s reasoning ignores the vesting of the reserves which, until it is determined that extinguishment is to be disregarded, wholly extinguished the native title rights.
1618 There are four Aboriginal reserves within the Claim Area, each area being originally set apart as a public reserve under s 29 of the Land Act 1933 and later vested in the Aboriginal Lands Trust under s 33 of the Land Act 1933. All four reserves are current.
1619 The Yilka applicant does not seek to challenge the validity of the vestings and makes no submissions about the effect of a vesting in the Aboriginal Affairs Planning Authority (AAPA) under s 27 of the Aboriginal Affairs Planning Authority Act 1972 (WA) (AAPA Act). Those reserves would be previous exclusive possession acts, but for the exclusion in s 23B(9)(b) NTA which applies in relation to the Aboriginal reserves as the vestings were ‘to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples’. Therefore neither s 23E NTA nor s 12I TVA are engaged. Nonetheless, as the vestings are valid, having taken place before 31 October 1975, they are effective at common law to extinguish native title in the land and waters comprised in the reserves.
1620 In Neowarra (at [582]), Sundberg J followed the reasoning in Ward HC (at 258]), and noted that native title was wholly extinguished by the vesting of a reserve in the Aboriginal Lands Trust, unless s 47A requires that extinguishment to be disregarded.
1621 As to these reserves, the Yilka applicant says that, subject to the areas being relevantly occupied at the time when the application was made, reserves vested in the Aboriginal Lands Trust under s 33 of the Land Act 1933 satisfy the requirements in s 47A(1)(b) NTA: see Neowarra (at [680]). More specifically, in Daniel (at [954]), Nicholson J held that reserves vested in the Aboriginal Lands Trust or the Minister for Aboriginal Welfare satisfied the requirements in s 47A(1)(b)(ii).
1622 Section 47A(2)(a) would require the extinguishing effect of the vesting of the respective reserves in the Aboriginal Lands Trust under s 33 of the Land Act 1933 to be disregarded.
1623 Section 47A(2)(b) would require the extinguishing effect, if any, of the creation of the following ‘prior interests’ to be disregarded:
(a) the creation of Reserve No 17570 for the purpose of a ‘Common’ over land now comprised in Reserve No 22032;
(b) historical pastoral leases;
(c) historical gold mining leases;
(d) the creation of Reserves 20396, 25050, 22032 and 25051;
(e) the vesting of the respective reserves in the AAPA;
(f) historical and current exploration and prospecting licences;
(g) any public roads that are not public works; and
(h) any public works.
1624 For the State, it is accepted subject to the areas being relevantly occupied at the time the application was made, the extinguishing effect of those interests in (a)-(g) is to be disregarded – however, it is not accepted that the extinguishing effect of public works is to be disregarded.
1625 In relation to water interests, Ground Water Licence GWL169756, is the only water interest said to exist in the Claim Area, according to the affidavit of Mr Connolly. It is subject to the non-extinguishment principle and should be recorded, the Yilka applicant says, as an 'other interest'. It has accordingly been listed as such in the Yilka Determination Sought.
1626 There are no surface water areas proclaimed under s 6 of the RWIA within the Claim Area. There are no irrigation districts proclaimed under s 28 of the RWIA within the Claim Area. There is a proclamation under s 26B covering a wide area that includes the Claim Area, but it merely applies what is clearly a regulatory regime in relation to non-artesian wells in the area. The term ‘non-artesian well’ is defined in s 2 of the RWIA as:
a well, including all associated works, from which water does not flow, and has not flowed, naturally to the surface, but has to be raised, or has been raised, by pumping or other artificial means.
1627 The Yilka applicant says that the legislative regime includes provisions for licences to be issued (under s 26D of the RWIA), although there are none affecting the Claim Area, and exemptions to be declared. Current exemptions, under s 26C of the RWIA, relate to use of water at the site of construction activity, the use of water for firefighting and domestic stock, and the taking of water for testing.
1628 As it is presently framed, item 7(b) in Sch 5 of the Yilka Determination Sought (and item 4(b) in Sch 5 of Sullivan Determination Sought) adequately identifies as an ‘other interest’:
rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA) and the Aboriginal Communities Act 1979 (WA).
1629 It is common ground that EP 468 should be recorded in any determination made as an 'other interest' and that it is subject to the non-extinguishment principle in s 238 NTA. It is currently listed as such in Sch 5 of the Yilka Determination Sought.
1630 EP 468 covers approximately half of the Claim Area in the east, including the areas covered and surrounded by the Yamarna Pastoral Lease (Area 11) the Stock Route Reserve 24980 (Area 8) and Reserve 20396 (Area 6) as well as part of each of the areas covered by Reserve 25050 (Area 9) Reserve 22032 (Area 7) and Reserve 25051 (Area 10) and areas surrounded by those parts.
7. AREAS WHERE EXTINGUISHMENT IS TO BE DISREGARDED
1631 The State, in its opening submission, foreshadows that the Yilka and Sullivan applicants may seek to disregard extinguishment occasioned by the grant of non-native title rights and interests in reliance on s 47, s 47A and/or s 47B NTA. The applicants indeed seek to rely on s 47A and s 47B, but not s 47 NTA. The State says that the applicants bear the onus of proof in relation to those areas. In its opening submissions on extinguishment, therefore, the State deals only with the general legal principles on that issue.
1632 These sections provide:
47A Reserves etc. covered by claimant applications
When section applies
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made:
(i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or
(ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and
(c) when the application is made, one or more members of the native title claim group occupy the area.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:
(a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);
(b) the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).
Effect of determination
(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the grant or vesting or of the creation of the trust or reservation; or
(ii) the validity of the creation of any other prior interest in relation to the area; or
(iii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.
Exclusion of Crown ownership of natural resources
(4) For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.
47B Vacant Crown land covered by claimant applications
When section applies
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not:
(i) covered by a freehold estate or a lease; or
(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii) subject to a resumption process (see paragraph (5)(b)); and
(c) when the application is made, one or more members of the native title claim group occupy the area.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.
Effect of determination
(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the creation of any prior interest in relation to the area; or
(ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the creation of any prior interest in relation to the area.
Renewals and extensions of leases
(4) For the purposes of paragraph (1)(b), if, after a lease covering an area expires or is terminated, the lease is bona fide renewed, or its term is bona fide extended, the area is taken to be covered by the lease during the period between the expiry or termination and the renewal or extension.
Defined expressions
(5) For the purposes of this section:
(a) the creation of a prior interest in relation to an area does not include the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity; and
(b) an area is subject to a resumption process at a particular time (the test time) if:
(i) all interests last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and
(ii) when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and
(iii) the Crown still had a bona fide intention of that kind in relation to the area at the test time.
1633 If the conditions of s 47A(1) NTA have been met, s 47(2) NTA applies to require the disregarding of any extinguishment brought about by the grant, vesting, holding or reservation mentioned in subs 47A(1)(b)(i) and (ii), or the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in s 47A(1)(b)(ii), the grant of a freehold estate for the provision of services. Section 47A(3) NTA further provides that if a determination is made that the native title claim group hold the native title rights and interests claimed, the determination does not affect: the validity of the grant or vesting or of the creation of the trust or reservation; the validity of the creation of any other prior interest in relation to the area; or any interest of the Crown, of any statutory authority, in any public works on the area. Further, the non-extinguishment principle, as per s 238 NTA, applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.
1634 Similarly, in regard to s 47B NTA, if the conditions in s 47B(1) have been met, s 47B(2) applies, which requires that any extinguishment brought about by the creation of any prior interest in the area must be disregarded. Section 47B(3) provides that if the determination on the application is that the native title claim group hold the native title rights and interests claimed, the determination does not affect the validity of the creation of any prior interest in the claim area or any interest in the Crown or of any statutory authority in any public works on the area. Again, the non-extinguishment principle applies: s 47B(3)(b). The State submits that public works cannot properly be characterised as ‘the creation of a prior interest’ and therefore any extinguishment brought about by the acts of constructing or establishing the public works is not required to be disregarded under s 47A(2)(b): Erubam Le (at [87]-[90]). The State suggests that the same would apply in relation to s 47B(2).
1635 In relation to all these provisions, the State makes the point that an application is ‘made’ at the time of filing of the initiating application in the Federal Court of Australia: Rubibi Community v Western Australia (No 4) (2004) 138 FCR 536 (Rubibi (No 4)) (at [28] and [37]). This is so even if multiple applications are later merged or amended by order of the Court. As a result, in order for these provisions to operate with respect to the application, it must be shown that the necessary conditions in s 47A(1)(b) and (c) and s 47B(2)(b) and (c) were met as at the date the application was filed and not, for example, on the date of any of the combination of those claims: Anaconda Nickel Ltd v Western Australia (2000) 165 FLR 116. Although the Yilka Form 1 has been amended, it must be shown, the parties agree, that all of the necessary conditions existed as at the date of filing of the initial application, being 15 December 2008. The relevant date for the Yilka No 2 claim is 6 August 2013, being the Yilka No 2 Form 1. Similarly, the relevant date for the Sullivan claim is 7 December 2011.
1636 The State refers to the requirements s 47A(1)(c) and s 47B(1)(c) NTA that when a claimant application is made in relation to an area, ‘one or more members of the native title claim group occupy the area’. In Moses FC, the Full Court (at [215]) said:
In considering the respective contentions, and in the light of the authorities which have been discussed, we propose to apply the following general approach. It is largely a matter of common sense, but is founded upon the words of ss 47A and 47B in their context and as considered in the authorities:
(1) to “occupy” an area for the purposes of ss 47A and 47B of the NTA involves the exercise of some physical activity or activities in relation to the area;
(2) to “occupy” an area does not require the performance of an activity or activities on every part of the land;
(3) to “occupy” an area does not necessarily involve consistently or repeatedly performing the activity or activities over part of the area;
(4) to “occupy” an area does not require constant performance of the activity or activities over parts of the area; it is possible to conclude that an area is occupied where there are spasmodic or occasional physical activities carried on over the area;
(5) to occupy an area at a particular time does not necessarily require contemporaneous activity on that area at the particular time; it is possible to conclude that an area of land is occupied in circumstances where at the time the application is made there is no immediately contemporaneous activity being carried on in the area;
(6) the fact of occupation does not necessarily entail a frequent physical presence in the area; for example, the storage of sacred objects on the area or the holding, from time to time, of traditional ceremonies on the area may constitute occupation for the purposes of the NTA: see, eg Rubibi Community v Western Australia (2001) 112 FCR 409 at [182];
(7) evidence to establish occupation need not necessarily be confined to evidence of activities occurring on the particular area; it may be possible to establish that a particular area is occupied by reference to occupation of a wider area which includes the particular area: Risk [2006] FCA 404 at 890;
(8) occupation need not be “traditional”: Rubibi (No 7) [2006] FCA 459 at [84];
(9) whether occupation has been made out in a particular case is always a question of fact and degree.
1637 The Court went on to discuss the meaning of the word ‘occupy’ in general and in the native title context (at [216]):
The word “occupy” is not defined in the NTA. It has a common meaning of being established in a place. In contemporary society, a person may occupy all of a house even though that person does not regularly enter every room and may never have entered a particular room or a particular part of a room; a pastoralist may occupy all of the area of a pastoral lease even though that person does not regularly visit every part of the area of the pastoral lease and may never have visited parts of it or have used parts of it for pastoral purposes: see eg per Lord Denning in Newcastle City Council v Royal Newcastle Hospital (1959) 100 CLR 1 at 4. In ss 47A and 47B, as the authorities point out, the context requires that the word “occupy” denotes some physical presence or activity by one or more members of the claim group from time to time, not necessarily continuously, and a presence or activity in the area so that as a matter of practicality that presence or activity involves the assertion of being established over the area itself. The occupation must be contemporaneous rather than historical. If the native title rights and interests over the area were exclusive, so there was a right to control access to the area, the exercise of the right to exclude strangers from the area would indicate its occupation. To occupy an area under the NTA, given its purposes and context, involves the exercise of possessory rights over the area, but the exercise of those rights does not require their continuous exercise, or their exercise at the precise time of the application because the occupation of which ss 47A and 47B speak is a state of affairs which must exist rather than the precise activity which illustrates the existence of the state of affairs.
1638 The State submits that there is no special rule for native title insofar as ‘occupation’ is concerned in relation to these provisions. According to the State, this passage shows that the Full Court in Moses FC considered that contemporaneous physical presence or activity is required to to establish occupation, but that this is not enough. Rather, the physical presence or activity must amount to an assertion of being ‘established’ over the relevant area. Occupation involves an exercise of possessory rights. The State says that this is an important qualification of the principle that occupation need not be ‘traditional’, and explains why traditional use may be more likely to constitute occupation: see Rubibi Community v Western Australia (No 7) [2006] FCA 459 (Rubibi (No 7)) (at [84]).
1639 The ‘area’ referred to in s 47B(1)(c) NTA is the ‘particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished’: Neowarra (at [721]). The State asserts that his directs attention to particular lots and parcels of land said by the applicants to be areas where s 47A and/or s 47B could potentially apply. Merkel J in Rubibi (No 7) (at [72], quoted in Moses FC (at [214])) said that ‘the occupation that must be established for the purposes of s 47B(1)(c) NTA must also be an occupation in respect of the whole, rather than merely a part, of the particular area in respect of which, but for s 47B, native title rights would have been extinguished’. The State submits that a conclusion that any of these areas is ‘occupied’ must be based on evidence of physical presence or activities amounting to an assertion of being established over these particular areas. Where the evidence relied on relates to a ‘wider area which includes the particular area’ the State submits that the Court must nonetheless be satisfied that the claimants occupied the particular area at the relevant time, having regard to the nature and location of the particular parcel of land. The State refers to Moses FC (at [231]-[234]), where it was found that the use of a town did not of itself suggest occupation of the surrounding areas, and that mere travel along a road available to the public is not sufficient to establish occupation of an area adjacent to that road for the purposes of s 47B(1)(c) NTA. The State therefore suggests that it is necessary, in the present proceedings, to take into account the topography, nearby tenure and tenure history of the relevant areas to determine whether it can be inferred that the wider area as a whole was ‘occupied’.
1640 Other considerations relating to the principle of ‘occupation’ include the following:
(a) Occupation cannot simply be equated with connection: Moses FC (at [210]). Thus, the State contends that evidence of a traditional association to country is relevant to the consideration of the occupation requirement under s 47A and s 47B, but something more is required.
(b) Occupation requires something more than mere use or visitation to the area: Moses FC (at [222]) citing the comments of Merkel J in Rubibi (No 7) (at [78]). In particular, mere travel along a road available to the public is not sufficient to establish occupation of an area adjacent to that road for the purposes of s 47B: Moses FC (at [234]), adopting the view of Sundberg J in Neowarra. Similarly, in Western Australia v Sebastian (2008) 173 FCR 1, it was found that the claimants had not established occupation in relation to particular areas where the evidence was merely that they had walked across the land.
(c) Although there is ‘no proper basis for reading a requirement for traditional occupation into ss 47A and 47B’ (Sebastian (at [287])), use of the land in accordance with traditional laws and customs may be more likely to constitute occupation than ‘random or coincidental use’: Rubibi (No 7) (at [84]).
1641 In response to the State’s submissions on this topic, the Yilka applicant accepts it bears the ultimate onus of proof as to the application of s 47A and s 47B NTA, provided that the State has satisfied its evidentiary onus of proof of all relevant tenure material.
1642 In this regard, the Yilka applicant relies on the assumption that the State has led all of the available evidence relevant to the ascertainment of the tenure status of each part of the Yilka claim area as at the date on which the Yilka No 1 and the Yilka No 2 claims were respectively made; that is, the State has led all of the evidence that is available and relevant to the requirements set out in s 47A(1)(b) and s 47B(1)(b) NTA.
1643 It should be noted that in Banjima, the State contended that for overlapping claims to be brought following a change in tenure, and for them to have the effect of of triggering the application of s 47A or s 47B, was contrary to the intent of the NTA and would amount to an abuse of process: Banjima (at [1136]-[1137]). Barker J rejected that submission and found that s 47A and s 47B NTA could apply to overlapping claims filed for the purposes of invoking these sections (at [1141]). I respectfully agree.
1644 The remainder of Pt 7 will discuss the detailed submissions on this topic by the applicants and the State’s reply to those submissions.
1645 In relation to the State’s submissions concerning the principles applicable to ‘occupation’ for s 47A(1)(c) and s 47B(1)(c), including as to the meaning of ‘area’ in relation to that requirement, the Yilka applicant says that the Court should follow the observations of Barker J in Banjima (at [1211]-[1215]) where his Honour said:
1211 In Hayes Olney J observed (at [162]) that occupancy of land for the purposes of s 47B “should be understood in the sense that the indigenous people have traditionally occupied land”. His Honour there expressed the view that the use of particular land by members of a claimant group which is not random or coincidental, but in accordance with the traditional way of life, habits, customs and usages of the community, is sufficient to indicate occupation of the land. Those views have been approved in a number of cases including Griffiths FC at [662] and [703]; Risk at [888]; Rubibi (No 7) at [81].
1212 In Ward FC, the majority said that a broad view should be taken of the word “occupy” in s 47A(1)(c). That view was adopted and expanded upon in Alyawarr FC in relation to s 47B(1)(c) (at [193]-[195]) where the Full Court also referred to what was said by Merkel J in Rubibi Community v Western Australia [2001] FCA 607; (2001) 112 FCR 409 (Rubibi), by Black CJ in Passi v Queensland [2001] FCA 697 and by Toohey J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 188 concerning presence on land not having to be possession at law to amount to occupancy.
1213 In Moses FC, the Full Court (at [210]) said that whether an area is “occupied” by one or more members of the claim group is a factual inquiry which must be considered in the context of each individual case. However, occupation cannot be simply equated with connection, as explained Risk at [890] by Mansfield J and in Rubibi (No 7) at [83] by Merkel J.
1214 The Full Court (at [215]), in the light of the authorities mentioned, adopted the following general approach to the question of occupation under s 47A and s 47B:
• To “occupy” an area involves the exercise of some physical activity or activities in relation to the area.
• To occupy an area does not require the performance of an activity or activities on every part of the land.
• To occupy an area does not necessarily involve consistently or repeatedly performing the activity or activities over part of the area.
• To occupy an area does not require constant performance of the activity or activities over parts of the area and it is possible to conclude that an area is occupied where there are spasmodic or occasional physical activities carried on over the area.
• To occupy an area at a particular time does not necessarily require contemporaneous activity on the area at the particular time and it is possible to conclude that an area is occupied in circumstances where at the time the application is made there is no immediate contemporaneous activity being carried on in the area.
• The fact of occupation does not necessarily entail a frequent physical presence in the area; for example, a storage of sacred objects on the area or the holding from time to time of traditional ceremonies may constitute occupation.
• Evidence to establish occupation need not necessarily be confined to evidence of activities occurring on the particular area and it may be possible to establish that a particular area is occupied by reference to occupation of a wider area which includes the particular area.
• Occupation need not be “traditional”.
• Whether occupation has been made out is always a question of fact and degree.
1215 At [216], the Full Court discussed the general law concept of occupation by reference to Newcastle City Council v Royal Newcastle Hospital (1959) 100 CLR 1 at 4 and confirmed that the word “occupy” denotes some physical presence or activity by one or more members of the claim group from time to time, not necessarily continuously, “and a presence or activity in the area so that as a matter of practicality that presence or activity involves the assertion of being established over the area itself”. The occupation must be contemporaneous rather than historical. If the native title rights and interests were exclusive, so there was a right to control the access to the area, the exercise of the right to exclude strangers would indicate its occupation. To occupy an area under the NTA, the Court said, given its purpose and content, involves the exercise of possessory rights over the area. Continuous exercise of rights, however, is not required or their exercise at the precise time of the application because the occupation is a “state of affairs which must exist rather than the precise activity which illustrates the existence of the state of affairs”.
1646 The Yilka applicant also relies upon Sebastian and Moses FC, though it does not wholly accept the characterisation of the effect of the authorities as represented by the State in its submissions. In particular, the Yilka applicant notes that the State emphasises the phrase from Moses FC relating to ‘the assertion of being established over the area’, and contends that the phrase preceding those words ‘as a matter of practicality’, is also worthy of the emphasis: see Barker J in Banjima (at [1229]). The Yilka applicant also disagrees that there is no special rule for native title as to the meaning of occupation: for example, in Moses FC (at [216]) the Full Court used the phrase ‘To occupy an area under the NTA, given its purpose and context…’ The case authorities noted in Banjima (at [1211]) as set out above are also relevant in response to this assertion by the State.
1647 A broad meaning should be taken of the word ‘occupy’: Ward FC (at [449]). Whether occupation has been made out is a question of fact and degree to be determined on the balance of probabilities.
1648 The Yilka applicant accepts that the ‘area’ in s 47A(1)(c) and s 47B(1)(c) must be the same area as in s 47A(1)(b) and s 47B(1)(b) respectively: Moses FC (at [214]). However in the unusual context of the present claim, the areas in relation to which it is said that, but for s 47A, native title rights would be extinguished, are all adjoining, all reserved for the same purpose, all vested in the same body, all created and vested at roughly the same time and all claimed in the one claim. In a real sense they have been dealt with by the Crown as a single area and are claimed as a single area. The Yilka applicant contends that they are to be regarded as a single area for the purposes of the application of the ‘occupation’ requirement of s 47A(1)(c).
1649 In any event, in considering the application of s 47A and s 47B it is important to distinguish between a particular current tenure area and the area which it is relevant to consider for the purpose of determining whether the particular tenure area was occupied at the relevant time.
1650 As noted by Olney J in Hayes (at [162]), and as subsequently approved in Moses FC (at [207]), an 'indigenous facts approach' will be relevant. Do the people live on the Claim Area, regard it all as their ngurra, their home - not just in the sense of their having rights to use it, but in the sense of the whole area being occupied by them as a fact? Do they use it in a manner that takes account of the relative 'usefulness' of the various geographical parts of the claim area, not randomly and not always in every part frequently, but certainly in accordance with the traditional way of life, habits, customs and usages of the community? Those witnesses, including HM, would regard their presence and use of the claim area as occupation as a fact, not merely as of right; and as occupation of the whole area, not just of those parts most frequently visited.
1651 It is clear that such occupation as a fact, in years past, was sparse and extremely variable, dependent upon seasonal conditions, the presence of resources and the nature of the landscape in each part of the Claim Area. Any proper consideration of occupation in fact must take such matters into account.
1652 I accept the Yilka applicant contention that any principle suggested in Moses FC (at [216]) that there must be a presence or activity in the area (will need to be viewed in the context of the area’s features). So as a matter of practicality ‘presence or activity involves the assertion of being established over the area itself’ must take into account - where it be the fact - that areas remote from reliable water sources (from rockholes and soaks such as are present through the central and western portions of the claim area), where water may be accessible only for a short period after significant rainfall (such as through the far northern and south eastern portions of the claim area) may only be utilised infrequently and intermittently but nevertheless are properly regarded as occupied for the purposes of the 'occupation requirement' of s 47A and s 47B. Were it otherwise, it would be tantamount to establishing a principle that precluded the application of those beneficial sections to such remote, frequently barren areas notwithstanding that under traditional laws and customs they might readily be regarded as occupied in fact. The Yilka applicant claims that it should not be construed that Parliament intended that outcome.
1653 The Sullivan applicant submits, and I accept, with the qualification just mentioned, that the nine principles set out by the Full Court in Moses FC (at [215]) and set out above are the appropriate principles to be applied in considering the question of occupation for the purposes of s 47A and s 47B NTA. In particular, principle (2) and principle (7), relating to how the occupation of a part of an area should be considered, should, in my respectful view, be preferred to the approach taken by Merkel J in Rubibi (No 7) (at [72]).
7.1.2 The occupation evidence in relation to the Yilka claim area
1654 The evidence relating to ‘occupation’ brought for the Yilka applicant is discussed here – see Pt 7.5 and Pt 7.6 for evidence brought for the Sullivan applicant as to ‘occupation’ of areas under s 47A and s 47B respectively. Relying on the submissions discussed above regarding the proper construction and application of the requirements of s 47A(1)(c) and s 47B(1)(c), the Yilka applicant says that the evidence referred to below is sufficient to establish on the balance of probabilities that the areas referred to were occupied by one or more members of the claim group when the Yilka No 1 and Yilka No 2 claims were respectively made. The Yilka applicant refers to the evidence of HM as regards occupation of the Yilka claim areas at the time when each of the claims was made, evidence given by the claimants as to their use of the claim area as a whole, and evidence which is specific to each of the areas to which the Yilka applicant asserts s 47A and s 47B apply. This evidence is discussed in turn below.
1655 In relation to his occupation of the Yilka No 1 claim area when the Yilka No 1 claim was made, HM gave the following written evidence (none of which was ultimately required to be led orally):
390. Around the end of 2008 when the claim was made, the part of the claim shown as UCL 5 together with the White Cliffs to Yamarna Road to my knowledge was regularly used for access to hunting areas of the country, particularly east of Mt Sefton. I would have done on road and off road kangaroo hunting all along there to Yamarna because it is something I do regularly even though not as often as I hunt in some other areas.
391. We did a clearance survey for a mining company exploration proposal along the Anne Beadell Highway from Yamarna out to the corner with Point Sunday Road and back around about then as well. That work also involved travel along a track running south of the Anne Beadell Highway right down past Mt Fleming and Minnie Hill down to the road that parallels the southern boundary of the claim area. It was rough country but we went right through. On the first day we went half way and the next day we went right through.
392. We don’t go out that way all that often because the access is difficult, the track overgrown and there’s not a lot of water or animals out in the far south east of the claim area but we do go for a ride out that way every now and then to check up and hunt along the way. The track I refer to as overgrown, is the track shown on the site map going east from about Mt Fleming.
393. The roads out to Point Sunday are fairly regularly used for driving and hunting. I use them. That would have been the same around the end of 2008.
394. We use the track up through Yilurn (Site 4.2) and past Mapa (Site 7.1) and east back to where it meets the Great Central Road all the time. I use that road a lot and have always used it a lot since we put it in, well before 2008. That would be a weekly thing.
395. The rest of the area, generally west of Yilurn (Site 4.2), Cyril Well (Site 8.3), Ngarrutji (Site 5.7), Palkapiti (Site 5.9) and Mantjal (Site 5.3) are regularly used even more intensely by me and the other traditional owners living at Cosmo for hunting, as well as for all the other work I have mentioned that we do of checking up the soaks, rockholes and windmills to make sure the water is there for the animals; the work we do maintaining our access tracks; and for clearance, and rehabilitation and other contract work with mining companies. All that area is the best watered part of our country and the best hunting areas, as I have showed on the maps in Annexures 2A and 2B. Most of the roads in that area, and also the road into the Minnie Creek area, are roads that we have made and maintain for hunting and for visiting and looking after country.
396. I haven’t lived anywhere apart from Cosmo since 1989. Even when it is hot or cold I still go and visit the sites; and I have told other traditional owners to do that in my capacity as head of the CDEP program; and I have seen other traditional owners visiting sites at other times. We still have to eat meat so we go out all the time hunting as well. You get used to the heat so we access country all year round, despite the heat. I go to Yamarna during summer; I have worked out there with other traditional owners during summer. For example we’ve done all the gridlines out there. When we were doing that we worked over December, knocked off from Christmas and went back at the end of January and start work again. I do all that as a traditional owner, looking after country and using my country to provide my meat, make a living and survive.
397. Under our CDEP, ever since it started, I, my cousins, brothers and other workers have looked after the soaks and rockholes. Being the Project Officer, I would travel around with the young men to make sure those soaks and rockholes were kept clean and that the windmills were kept functioning for the benefit of our wildlife. We also travel around (where there were no windmills or rockholes or soaks) checking for trespassers.
1656 The area referred to by HM as ‘UCL 5’ is the area referred to by the Yilka applicant as Area 15 and Area 16. The ‘White Cliffs to Yarmana Road’ mentioned by HM is an area the alignment of which might generally, although not precisely and not necessarily at all, correspond to the area referred to as Road 2.
1657 HM also gave affidavit evidence on 8 September 2013 regarding occupation at the time of filing of the Yilka No 2 application, in particular in relation to the three areas of UCL (Areas 15, 16 and 17) over which the Yilka No 2 claim was made, with the intention of attracting the operation of s 47B NTA. Particular paragraphs of this affidavit (Exh A36) are referred to in the second table below.
1658 For example, in relation to Area 17 (UCL 6), HM said that it is located next to a Claypan, Ngatjun (Site 5.8), and that within it is a well which is referred to as Claypan Well, where there is a windmill. He said that he goes out to look after these areas and has told other traditional owners to visit these sites in his capacity as head of the CDEP program. HM also gave evidence that he regularly (including at the time of filing of the Yilka No 2 Form 1 in August 2013) hunts and checks for strangers or maliki in the vicinity of Area 15 and Area 16 (UCL 4 and UCL 5 respectively), which are located near Mt Sefton and Swincer Creek.
1659 There are approximately 100 people living in the Cosmo Newberry Community, according to HM’s evidence, and a large proportion of them are Yilka claimants. Many of the witnesses gave evidence about their residing permanently in the Cosmo Newberry Community and of their activities in the community and the general region of the community. Many claimants and claimant families are, and were in 2008 when the Yilka claim was made, established in, by regular and active use for the purposes of their daily lives and the fulfilment of their traditional responsibilities, at least the better watered country in the central claim area focused on but extending beyond Area 7 (Reserve 22032).
1660 There is evidence of active use over time of the broader regions of the whole of the claim area commensurate with it being regarded as part of their ngurra, their right and their responsibility; and commensurate with the present utility and accessibility of the various regions. The Yilka applicant refers to a great deal of general evidence of occupation and use of not only the central claim area but their ngurra, their country, in general, given by 14 witnesses (including some who were present at the site visits, but did not give written evidence). That evidence is identified by reference to transcript page numbers, exhibit numbers and paragraph numbers in the tables set out below in this Part. I have not (nor did the Yilka applicant) set out in extended form all this material as most of it has been the topic of previous discussion. The question I have turned my mind to in each instance is the extent to which such evidence may support the 9 principles discussed in Moses FC (at [215]).
7.1.2.1 Occupation evidence: Yilka claim generally
Jake Westlake Exhibit A16 [33], [142], [149], [172], [182]-[183], [203], T125.46-126.39, T153.31-155.10, T207.09-209.12, T210.16·210.47, T1264.01-1265.07;
Hayley Westlake Exhibit A18 [16], [19], [45], [66], [87], [89], [92]-[94], [142], [146], [148]-[152], [161), [188], [231]-[232], [234], T130.26-130.38, T131.07-131.42, T132.33-132.45, T167.35-170.01, T220.01-220.11, T1314.37-1315.03, T1316.20-1316.30, T1320.14-1321.06, T1321.41-1322.21;
[HJ] Ex A24 [22], [24], [61], [65], [76], [84], [87]-[89], [125]-[128], [134]-[135], [172], T135.12-135.46, T136.21-137.30, T184.05-185.12, T187.38-189.29, T254.15-255.28, T255.30-256.12, T257.04-257.08, T258.16-258.28, T263.25-264.45, T370.28-371.44, T372.31-373.07, T1583.23-1583.33, T1605.10-1605.17;
Rhys Winter T141.13-141.44, T156.13-156.42, T244.44-245.13, T249.47-250.39, T329.25-332.24, Ex A13 [253], [272-[275];
Ruth Murray T144.12-146.22, T273.31-274.33;
[Ms Ross] Ex A15 [16]-[18], [20], [218], [260]-[261], [265]-[266), T149.16-149.24;
[HM] Ex A20 [78], [146], [153], [166]-[168], [312]-[313], [329)-[358], [360]-[362], [381], [393]-[397], T159.29-159.42, T160.45-161.37, T163.39-163.45, T164.14-164.45, T237.19-238.27, T240.15-240.22, T290.18-292.44, T326.39-327.01, T1344.13-1345.17, T1489.13-1491.31, T1492.19-1494.23;
Kassey Murray T173.34-173.38, T277.36-278.13;
Enza Westlake T175.01-175.45;
Gavin Murray T229.08-229.30, T230.13-230.38, T231.28-233.03, T284.26-285.11, T320.25-321.30;
[Mrs] Murray Ex A3 [308],
[Westside] Ex A14 [5], [29], [32], [34], [67]-[71], [73], [120], [153]-[164], [166], [181], T1073.07-1074.39, T1080.44-1081.14;
[ME] Ex A29 [167]-[168]. [208];
Victor Fraser Ex A33 [61].
1661 Evidence was also given of specific activities in and use of more particular areas of the Yilka claim area over time which clearly includes when the Yilka No 1 application was made and when the Yilka No 2 application was made.
7.1.2.2 Occupation evidence: Yilka claim s 47A
1662 The following table sets out references to the evidence adduced in relation to occupation of the Claim Area, although which is more particularly loosely associated with the western, eastern, southern and northern regions of the Yilka claim area. This correlates approximately with the s 47A areas regarded separately - the four Aboriginal Use and Benefit Reserves: Reserve 22032 (Area 7), Reserve 20396 (Area 6), Reserve 25050 (Area 9) and Reserve 25051 (Area 10) respectively.
Region/Area | Evidence |
Eastern - Area 6 (Reserve 20396) | [HM] Exh A20 [357], [391]-[393]; [HJ] T1605.10-1605.17; Rhys Winter Exh A13 [237]-[238], [272], [274]; [Westside] Exh A14 [156]; [HM] T1287.18-1287.36 |
Western - Area 7 (Reserve 22032) | Jake Westlake T125.46-126.39; T153.31-155.10, T207.09-209.12, T210.16-210.47, Exh A16 [33], [203], see [165], [172], [182]-[183]; Hayley Westlake Exh A18 [16], [19], [148]-[152], [234], T130.26-130.38, T131.07-131.42, T132.33-132.45, T167.35-170.01, T220.01-220.11; [HJ] Exh A24 [125]-[127], [134]-[135], T135.12-135.46, T184.05-185.12, T187.38-189.29, T254.15-255.28, T254.15-255.28, T258.16-258.28, T263.25-264.45, T370.28-371.44, T372.31-373.07; Rhys Winter Exh A13 [113], [218], [223]-[225], [228], [230], [273], T141.13-141.44, T156.13-156.42, T244.44-245.13, T249.47-250.39, T329.25-332.24, T370.28-371.44; Ruth Murray T144.12-146.22; Mrs [Ms] Ross (deceased) Exh A15 [261], [265]-[266], T149.16-149.24; [HM] Exh A20 [78], [393]-[397], T159.29-159.42, T160.45-161.37, T163.39-163.45, T164.14-164.45, T237.19-238.27, T240.15-240.22, T290.18-292.44; Kassey Murray T173.34-173.38, T277.36-278.13; Enza Westlake T175.01-175.45; [GM] T229.08-229.30, T230.13-230.38, T231.28-233.03, T284.26-285.11, T320.25-321.30; [Mrs] Murray Exh A3 [308]; [Westside] Exh A14 [5], [29], [32], [73], [154]-[156], [158], [160]-[161], [163]-[164], T1073.07-1074.39, T1080.44-1081.14. |
Southern - Area 9 (Reserve 25050) | Hayley Westlake Exh A18 [66], [234]; [HJ] Exh A24 [126], T1551.29-1554.11; Rhys Winter Exh A13 [223], [272], [275]; [HM] T1344.13-1345.17; [GM] T284.26-285.11; [Westside] Exh A14 [156], [159], [162], T1073.07-1074.39 |
Northern - Area 10 Reserve 25051 | [HM] Exh A20 [389], [394]; Hayley Westlake Exh A18 [151], [234]; ]; [HJ] Exh A24 [125]; [HM] T1344.13-1345.17, T1492.19-1494.23, T1496.36-1498.04; Rhys Winter Exh A13 [232], [272], [273]; [Westside] Exh A14 [157]-[158], [163]; [ME] Exh A29 [167] |
1663 The Yilka applicant notes that some parts of the Aboriginal Use and Benefit Reserves, in particular the north-eastern corner of Reserve 25051, the southern part of Reserve 25050 and the eastern and southern part of the Reserve 20396, are particularly harsh country. HM provided an account of the accessibility, terrain, vegetation and the scarcity of resources in the area of Reserve 20396 and Reserve 25050. Relevant ‘occupation’ for purposes of s 47A(1)(c) and s 47B(1)(c) of particularly harsh areas should be understood in the context of the environment and circumstances in which persons may use those areas. Thus, ‘occupation’ is to be reckoned on the reasonable assumption that use of such areas is ordinarily infrequent. HM gave evidence about the work undertaken by the community to ensure that access to even these parts of the country is possible, and the difficulties in regularly accessing the area. The Yilka applicant contends that this shows that HM regards himself to be ‘established’ in those areas.
7.1.2.3 Occupation evidence: Yilka claim s 47B
1664 As to the small UCL areas - the areas for which the Yilka applicant relies on s 47B NTA as identified in the Yilka Tenure Map (Annexure 9) and as mentioned in Order 10 and Sch 7 of the Yilka Determination Sought (Annexure 2) - the Yilka applicant relies on the particular evidence referred to in the table below as well as the evidence above that relates to the region or Area in which the UCL area is located and other close-by areas (as noted in the right hand column).
Area | Evidence | See also |
Area 12 | [Westside] Exh A14 [157], [166]; Rhys Winter Exh A13 [275]; [ME] Exh A29 [167]-[168]; Victor Fraser Exh A33 [61] | Occupation evidence for Areas 6, 7, 9 |
Area 13 | [HM] Exh A20 [357], [391]-[393], T1344.13-1345.17; Rhys Winter ExhA13 [274]; [HJ] T1605.10-1605.19 | Occupation evidence for Areas 6, 7, 9, 14 |
Area 14 | [HM] Exh A20 [357], [391]-[393], T1344.13-1345.17; Rhys Winter Exh A13 [238], [274]; [HJ] T1605.10-1605.19 | Occupation evidence for Areas 6, 9, 10, 13 |
Areas 15 and 16 | When Yilka No 2 Claim was made: [HM] Exh A36 [7], [13]-[14], [17] When Yilka Claim was made: [HM] Exh A20 [390]; [HJ] T1551.29-1552.24. | Occupation evidence for Areas 6, 7, 9 |
Area 17 | When Yilka No 2 Claim was made: [HM] Exh A36 [6], [8], [15]. When Yilka Claim was made: [HM] T1344.13-1345.17; [Westside] Exh A14 [159], T1073.07-1074.39; Hayley Westlake T131.01-131.23; Rhys Winter Exh A13 [219] | Occupation evidence for Area 7 |
(See also the relevant parts of Pt 8 which describe each of these areas.)
7.2 Extinguishment to be disregarded
1665 As noted by the State, what must be disregarded, were s 47A applies, is any extinguishment by the granting or vesting under the current tenure and the creation of any other prior interest in relation to the area: s 47A. ‘Interest’ is given an extended meaning in s 253 NTA. The exception mentioned in s 47A(2)(b), being the grant of a freehold estate for the provision of services, does not apply here. What must be disregarded, where s 47B applies, is any extinguishment by the creation of any prior interest in relation to the area. The ‘creation of a prior interest’ is qualified in s 47B(5)(a) as follows:
the creation of a prior interest in relation to an area does not include the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.
1666 If the status of the land has changed since the applications were made so that it now has some status other than UCL, that change of status will be invalid unless it has been accompanied by compliance with the future act provisions of the NTA. At least, the change in status cannot affect the application of s 47B.
1667 Both s 47A and s 47B NTA require any extinguishment by the creation of a ‘prior’ interest to be disregarded. There are three points in time which might be relevant, namely, the date of:
(a) the application;
(b) commencement of the relevant section – 30 September 1998; and
(c) the determination.
1668 The Yilka applicant says that the date of commencement of the section would be unlikely to be relevant for these purposes, particularly when it is considered that both sections have been held to apply to native title claims lodged prior to the date of commencement on 30 September 1998: see Ward FC (at [366]).
1669 The ordinary meaning of ‘prior’, in this context, is that it refers to an interest created before the date of the application, the relevant time for the engagement of the respective sections. The Yilka applicant contends that it is not the case that the interest must have existed and ended prior to the application being made, particularly in relation to s 47A(2). That is because, firstly, s 47A(2)(a) must necessarily apply to existing interests in the land. Secondly, s 47A(3)(b) refers, without any temporal qualifications, to the creation of a prior interest, that is to say, the time when the extinguishment, which is to be disregarded, occurs. Thirdly, the operation of the respective sections does not affect the validity of the creation of any prior interest and the non-extinguishment principle applies: s 47A(3) and s 47B(3).
1670 In considering the extinguishing effect of acts taking place after the date when the application was made, the Full Court in Erubam Le appears to have taken the view, without deciding, that the application of s 47A(2) NTA may not be limited to acts that take place prior to the date when the application was made. If that is correct, at least in relation to s 47A(2)(b), ‘prior’ may well mean prior to the determination. The Yilka applicant says that there are good reasons for believing that this is correct. As extinguishment must be disregarded ‘For all purposes under this Act’, it cannot be the case that any extinguishment of native title rights and interests arising from the creation of an interest after the date when the application was made (for example, certain past acts and category A or category B intermediate period acts) is simply to be ignored. It is noted, however, that the ‘prior interest’ must have extinguished native title rights and interests and it is unlikely that s 47A or s 47B have any application in relation to valid future acts. A ‘prior interest’ may include:
(a) an interest that existed before, but had not necessarily ended, prior to the date when the application was made; and
(b) an interest created after the date when the application was made and prior to the determination.
1671 The State contends, in reliance on Erubam Le, that extinguishment to be disregarded under s 47A(2) and s 47B(2) does not include prior extinguishment by public works. However, the Yilka applicant firmly resists recognition, which the State seeks, of extinguishment by unidentified public works. The Yilka applicant further argues (as discussed in detail at Pt 4.1.4) that roads are not public works for the purposes of the NTA, but that if they are, their extinguishing effect should be disregarded.
1672 Alternatively, if there is to be generic extinguishment by public works, the Yilka applicant reserves the right if necessary to contend that Erubam Le was not correctly decided on that point and, that even if it was correctly decided, it is not authority for the proposition that an unidentified public work about which there is no evidence should not only be held to extinguish native title, but that its extinguishment should be preserved rather than disregarded. Given my conclusion that there cannot be extinguishment by unidentified public works (see Pt 4.5), I do not find it necessary to decide this question.
1673 The State does not make submissions as to the relevant date for the ascertainment of a ‘prior interest’ given that it is not apparent that any acts in the period since 15 December 2008 could have created ‘prior interests’. I would agree and therefore do not find it necessary to decide this point.
1674 The State reasserts its position that Erubam Le was correctly decided and that roads within the outer boundary constitute ‘public works’ to which that decision has application, meaning that extinguishment of native title cannot be disregarded in relation to these roads. This will be discussed further below.
7.3 Areas to which s 47A applies in the Yilka claim
1675 The Yilka applicant argues that Areas 6, 7, 9 and 10 are areas to which s 47A NTA applies, and that each area was occupied by one or more persons in the Yilka claim group at the time that Yilka claim was made. In general terms, s 47A applies to freehold, leasehold and reserves held for the benefit of Aboriginal peoples or Torres Strait Islanders. The four land parcels in question here are collectively designated and known as the Cosmo Newberry Reserves. Individually, they are described in the Yilka Amended Form 1 as Reserves 22032, 20396, 25050 and 25051. They are all linked to each other by common boundaries with at least one other reserve parcel. They surround the Yamarna Pastoral Lease but do not entirely enclose it, as Lake Yeo Reserve (Reserve 36271), which is not claimed, adjoins the most eastern boundary of Yamarna. The location of the reserves is shown in the map at Attachment C of the Yilka amended Form 1, and in the Yilka Tenure Map.
1676 The application of s 47A to these reserves was claimed in the Yilka Form 1 (and in the Yilka Amended Form 1). The Yilka applicant says there can be no question that their status meets the requirements of one or both of the limbs of s 47A(1)(b). It is also contended that Area 17, Road 1 and Road 2 are areas to which s 47A applies. The details are provided in the consideration of those areas in the area by area analysis in Pt 8. The Yilka applicant says that alternatively, Area 17 is an area to which s 47B applies.
1677 The State accepts that subject to ‘occupation’ being established and subject to the exclusion of roads, the areas referred to by the Yilka applicant as Areas 6, 7, 9 and 10 are amenable to the application of s 47A NTA. The State does not accept that s 47A NTA could apply to Area 17 (which it says is part of the Great Central Road) or roads within the outer boundary of the Claim Area. Roads are addressed separately below.
7.4 Areas to which s 47B applies in the Yilka claim
1678 On this topic the Yilka applicant submits in general terms that s 47B applies to an area that is currently UCL and permits prior extinguishment to be disregarded. Section 47B(1)(b) sets out the 'current tenure requirement'. The requirement is that at the date when the native title determination application was made the area was not covered by a freehold estate or lease, or by a reservation, proclamation, dedication, condition, permission or authority, and was not subject to a resumption process.
1679 There are five small pockets of UCL that are claimed in the proceeding (Areas 12-16) and one more area (Area 17) that may be either UCL or part of Reserve 22032.
1680 Areas 15, 16 and 17 are claimed as part of the Yilka No 2 application. The Yilka applicant contends that the whole of each Areas 13-16 is an area to which s 47B NTA applies and an area which was occupied by one or more persons in the Yilka claim group when the Yilka claim was made. It is also contended that part of Area 12 is such an area and that Area 17 is either an area to which s 47B applies or an area to which s 47A applies. The Yilka applicant contends that s 47B applies to each of Area 15 and Area 16 and that each area was occupied by one or more persons in the Yilka claim group when the Yilka No 2 claim was made. The Yilka applicant further contends that Area 17 may also be such an area if it is not an area to which s 47A applies.
1681 The application of s 47B to these areas is asserted in Yilka Amended Form 1 and Yilka No 2 Form 1.
1682 As discussed above, Barker J in Banjima (at 1141]) found that it was possible to bring an overlapping claim following a change in tenure for the purpose of triggering the application of s 47B. The relevant change in tenure was the surrender on 9 April 2009 of Exploration Licence E38/1835, which left Area 15, Area 16 and part of Road 2 unaffected by any current tenure.
1683 Barker J in Banjima also discussed (at [1157]-[1207]) whether s 47B applied to areas subject to prospecting and exploration licences. His Honour held (at [1208]) that land covered by those licences was not made exempt from the application of s 47B NTA, as the grant of a prospecting or exploration licence is not a tenement ‘under which’ the relevant area ‘is to be used’ for a particular purpose within the meaning of s 47B(1)(b)(ii), but rather, it ‘merely facilitates that activity [of prospecting or exploration], if the holder wishes to pursue it’: Banjima (at [1203]-[1204]). Therefore, following this reasoning, the Yilka applicant submits that it would not have been necessary to make the Yilka No 2 claim to attract the operation of s 47B.
1684 For the proposition that s 47B applies to Areas 15 and 16, the Yilka applicant relies on the authority of Banjima, as well as on the Yilka No 2 claim having been made over those areas. For the proposition that s 47B applies to the part of Area 12 covered by Exploration or Prospecting Licences when the Yilka claim was made, the Yilka applicant also relies on Banjima.
1685 The tenure material going to any question of the status of each area for s 47B(1)(b) purposes will be considered further in the relevant part of the area by area analysis in Pt 8.
1686 The State accepts that, subject to ‘occupation’ being established and subject to the exclusion of roads, the areas referred to by the Yilka applicant as Areas 12-16 are amenable to the application of s 47B NTA. It does not accept that that provision applies to Area 17 or to roads within the outer boundary of the Claim Area.
7.5 Application of s 47A to the Sullivan claim area
1687 The Sullivan applicant contends that the evidence supports the application of s 47A NTA to the Crown reserves listed in Sch 3, Table 2, namely:
(a) Reserve 20396 (Area 6)
(b) Reserve 22032 (Area 7)
(c) Reserve 25050 (Area 9)
(d) Reserve 25051 (Area 10)
1688 As noted, the State says that, subject to satisfaction of the ‘occupation’ requirement, s 47A NTA may apply to these areas, with the exception of roads within the outer boundary of the Claim Area. The areas covered by each of these Reserves were, at the date of filing of the Sullivan Form 1 (7 December 2011) held and reserved expressly for the benefit of Aboriginal peoples, thus satisfying the requirement of s 47A(1)(b) NTA. The Sullivan applicant submits that s 47A(1)(c) has been made out in that, at the time of the Sullivan application, one or more members of the Sullivan claim group occupied the areas covered by these reserves, to the extent that such reserves fall within the Sullivan claim as amended. As a consequence of the application of s 47A to the areas covered by these reserves, prior extinguishment within the reserves must be disregarded in accordance with s 47A(2) and s 47A(3).
1689 As noted by the Sullivan applicant, these four reserves comprise what is collectively referred to as the Cosmo Newberry Reserves. I accept that the evidence of the witnesses for the Sullivan applicant contains numerous references to members of the Sullivan Edwards families engaging in activities within these reserves consistent with, and providing proof of, their longstanding occupation of the relevant areas within these reserves, from well before the filing of the Sullivan Form 1 application through to the present day, allowing the inference to be drawn that one or more of them occupied the reserves in December 2011.
1690 The Sullivan applicant refers to the following evidence in support of this contention (note that the Sullivan applicant asserts that reference to ‘Cosmo’, ‘the Cosmo area’, ‘the claim area’ and similar expressions generally refer to all or most of the land throughout the Cosmo Newberry Reserves):
1691 Patrick Edwards:
a. I also learnt about this country [the Cosmo area] by hunting there and camping there and also because I went through law.
b. I've shown my sons all the rockholes in the Cosmo area, I've been showing them how to clean the rockholes too. We've been doing that together. I've taught them to survive in the bush, how to hunt, how to find their way around.
c. The Sullivans they know that country [the claim area], they have been brought up there and so was their mother. Their mother and my mother were sisters and they walked around the country with their mother, my kaparli. It was their kaparli's country and so it's their country too. They have been living off the land, camping in the bush, not just living in the community. They respect the country and help look after it, they teach their kids and grandkids about it too.
d. I will give a few examples of places that I go to and know about in the Cosmo area. I never get lost because I know all the yabu (hills) and all the kapi (water) places. I always know where I am. I've lived off the land and travelled right through the claim area, cutting across country away from roads. I can do this because I know it really well and I have been taught the old knowledge about how to survive in the bush. I've spent many, many months out bush in the Cosmo area over the years. The places I list below aren't the only places I know - I know all that country out there. I don't know all the names of the places but I know the places and I know the country in between.
e. I always clean out rockholes. I never stop at a rockhole without cleaning it out. I was taught to do this from the time I was little. It's a cultural practice that is about looking after the country and surviving…I teach this to my children too.
f. I know a lot more about the country than a lot of the people who live at the community and haven't been traveling and camping and hunting through that country like me and my family. I know that country right through, like the back of my hand.
g. I stop at the rockholes and other kapi places in the Cosmo area and over the years I have shown them to my children so that if they ever get lost they will know where to find water. I also know how to find hidden water, where you can dig and find water. I know the signs and what to look for and I've also passed this knowledge on to my children, just like it was passed on to me by my elders.
1692 Mervyn Sullivan:
a. We have three children: Jessica (born in Alice Springs), Roderick (born in Laverton) and Roberta (born in Kalgoorlie). Those three grew up in Cosmo Newbery. They went to school there and they still come back and stay with me there today.
b. On my ngurra I can live there, I can camp there, go hunting, I don't have to ask anyone permission. It is my backyard, I can go anywhere but like I said I can't go to those men's places. But traditional way my ngurra is a much bigger backyard than what I have at my house at Cosmo…I can feel the koordi (spirit) inside me when I'm on my ngurra. I feel good and safe there. I teach my children and grandchildren those things about ngurra. They know where to go, where not to go. They know there are places they can't talk about. Plenty of times my kids have been to places on my country. And I tell them it's their country too and I teach them what I know about the culture, about how to survive in the bush and about the places in the Cosmo area. We travel for bush tucker. I teach them what it means to have a ngurra traditional way. Even two of my little kaparli (grandkids) they know about bush tucker. Tillisha and Cheyenne both live in Cosmo and they are mad about honey ants and digging maku. They go out most weekends and they bring back bush tucker like sand goannas.
c. Looking after country is a big issue. It comes from your heart and comes from the Tjukurrpa too. The place you look after is your ngurra. I'm not talking about just one place, but all those places inside your boundary. You have to clean your ngurra and one thing that means is you have to keep the rockholes free from dead animals and sand. Sometimes you don't need to clean the rockholes because a big rain might come through and clean it for you. I remember that happened once at a big rockhole near Wartu or Rutter's Grave.
d. To explain more about my Ngurra I have drawn a rough map showing places on my Ngurra in our claim area over Cosmo, and some places in my Ngurra close to the claim area…I wrote the numbers on the map and I list these numbers below, with the name of the place for each number and some of the things I know about these places…It is just a rough map to show some of the places in my Ngurra that I know and roughly where they are in relation to each other. I know where all these places are and I can find my way there without any map, because I know the country very well. I know the landmarks, like the hills and the creeks so I always know where I'm going. I learnt about these places from my mother and other old people.
e. When I think about the places that I have a right to go to, without asking anyone, I think about the Cosmo area, which is my Ngurra. I also have a right to make decisions about those places along with the other traditional owners of this country. And I have responsibility to help take care of this country. And by that I mean those places I put on the map and the places in between. Of course I have to stay away from wati places, but except for that I have never asked permission from anybody to go on my country.
1693 Celia Sullivan:
a. Ngurra is for me like my own backyard, homeland. When you go out there you've got spirit - kuurti - inside you. You're happy to go out there and camp. The kuurti of the old people are in the country and sometimes they come along and show themselves to you when you are asleep. I've had those types of dreams. Because they know me and they know my family they don't harm us, they look after us. But if the spirits don't know you they can hurt you, they can make you sick.
b. We've got plenty of food on our ngurra. We can live off the land free. It gives me a feeling. It's a spirit feeling of family who've been there before you. That's how I feel about my mother's and my kaparli's country in that Cosmo area. There's something else about country. I pass on the knowledge that I have. I take my nephews and nieces and grandchildren out there. I show them the land and how to look after it.
c. When it comes to speaking for our country, traditional knowledge of the country passed down from the older generations is really important. I can explain it like this. I've got grandkids and my brother has grandkids and we take them out bush and show them the country, the names of the places, the yabu (hills), the kapi (water places), the landmarks. Ten years down the track I might not be here anymore and somebody might say to my grandkid: "You are the grandchild of Celia Sullivan, can you say anything about this country?" That grandkid will say: "Yes, I grew up in that land and I can speak for that land because I've been there and been shown all those things by my thamu and kaparli".
1694 Irwin Sullivan
a. I will mention some of the places on my ngurra that I have been to and learnt about from my mother…There's Bullrush, Tjiwartun, Puntitjarra, Wurnta (a place east of the Cosmo community where I have hunted and camped). There's Mitika and Mt Venn, which are other places I've hunted and camped at. There's Rutter's Grave, Mt Shenton, Mt Scott, Tatjarn, Brown's Camp, Thatcher's Soak, Pt. Salvation and Marntjal, Pirlpirr, Pt. Sunday and Lake Yeo, which is to the east of our claim over Cosmo. I know all the rockholes and other kapi places along the old yiwarra. That's where the old camel road to Warburton went through. It's a different route to the road that goes through now. When I was young I got to know all the hills and landmarks in that country so I wouldn't get lost. I also learnt how to navigate by the stars. I learnt this from my mother and other old people like uncle Charlie and Auntie [Mrs Wingrove].
b. I've done a lot of hunting in the Cosmo area. And I have learnt all the right ways to cook in Wangkayi culture. I know how to cook marlu, ngintarka (goanna), liru (snake) and maku (bardi) and porcupine and other things.
1695 Doreen Harris confirmed the longstanding use and occupation of the country by members of the Sullivan family, stating:
Mrs Sullivan's children … know the country [Cosmo] too, they have lived there and travelled around the country, hunting and camping and living off the land and passing on their knowledge to the next generations. They know about the rockholes, the tjukurrpa and the koordi. They have learnt about these things from their mother and other old people.
1696 In the Sullivan Connection Submissions, the Sullivan applicant contended, and I accepted, that the Sullivan Edwards Aboriginal witnesses all expressed the view that Kitty and her now deceased children Mrs Sullivan, Charlie and Mrs Wingrove lived on and used the land that is now subject to these reserves as their ngurra. This included, inter alia, their occupation of the land by way of numerous physical activities on the land including but not limited to living on the land, raising children on the land, utilising the resources of the land in order to sustain themselves and their families, walking around the land from rockhole to rockhole and observing cultural and religious practices on the land. Whilst this earlier relationship with, and occupation of, the land does not alone meet the requirement of occupation at the time of the filing of the Sullivan Form 1, it is important to take it into account for two reasons:
(a) It establishes the necessary ‘connection’ required under s 47A (and s 47B) (although note that this requirement is already covered extensively in Ch 2 above);
(b) It provides important historical and cultural context for understanding the nature of the relationship of Sullivan claimants to the Cosmo Newberry Reserves at the relevant time - December 2011. The evidence reveals that the Sullivan Edwards witnesses regard the reserves as part of their own (and their family's) ngurra and regard their own activities on the reserves as exercising their traditional rights to the country, including their traditional right to occupy the country. The evidence they gave of living on, camping, hunting, gathering bush foods, teaching children, visiting and caring for rockholes, and various other physical activities on the reserves is consistent with ‘[t]he use of traditional country by members of the relevant group which is neither random nor co-incidental but in accordance with the way of life, habits, customs and usages of the group … sufficient to indicate occupation of the land’: Hayes (at [162]), referred to in Banjima (at [1211]). Conversely, the Sullivan applicant submits, this evidence is inconsistent with some form of casual or ad hoc visitation and use in the absence of an occupational relationship with the land.
1697 The Sullivan applicant contends, consistent with the principle in Moses FC (at [215]) that ‘evidence to establish occupation need not necessarily be confined to evidence of activities occurring on the particular area; it may be possible to establish that a particular area is occupied by reference to occupation of a wider area which includes the particular area’, that the evidence of occupation of the whole area that comprises the four Cosmo Newberry Reserves is sufficient to establish the occupation of each of the smaller areas covered by the particular reserves. However, the following paragraphs also provide examples of more location-specific evidence that further demonstrates the requisite occupation of particular reserves. Evidence in relation to specific sites referred to can be found in Annexure 8, the Sullivan Edwards Sites Evidence Summary.
1698 This reserve is located in the south-eastern part of the Sullivan claim area. The amendment to the Sullivan claim boundary substantially reduces the area within this reserve in relation to which occupation needs to be proved.
1699 The Sullivan Edwards witnesses gave evidence about their use and occupation of this part of the claim area, which they consider their ngurra through their grandmother Kitty and, in the case of members of the Sullivan family, their mother, Mrs Sullivan. They gave evidence of their knowledge and use of the country around sites such as Talintji (in the north west of the area), Pt Sunday (located just outside the eastern boundary of this reserve) and Dorothy Hills (located just outside the northern boundary of this reserve in the area currently covered by the Yamarna Pastoral Lease).
1700 For example, Mervyn Sullivan, referring to the land around Marntjal (which is in the south of the area now covered by the Yamarna Pastoral Lease) and Talintji, said ‘I've been to those places many times.’ Talintji is located near the western boundary of this reserve. Talintji is not shown on the Sullivan site map but it is shown on a map produced by Dr Vachon and attached (Map 3) to his report dated 28 February 2014 (Exh S84).
1701 Mervyn Sullivan said that his mother used to walk from Talintji to Dorothy Hills and referred to Talintji (and/or Dorothy Hills – it is somewhat unclear) as ‘a good camping place and it's good for hunting karlaya (emu) and getting karlaya eggs’. Although Dorothy Hills is located just to the north of this reserve it is clear from the evidence, the Sullivan applicant submits, that Sullivan claimants regard a significant amount of country around and between water sources and hunting and camping sites such as this to be within their ngurra and zone of occupation.
1702 Hence, when considered in conjunction with the more general evidence of traditional usage of the Sullivan claim area, it can be inferred that the occupation of one or more members of the Sullivan claim group extends to all of Reserve 20396 to the extent it lies within the Sullivan claim area (as amended).
1703 This reserve is located in the western part of the Sullivan claim area. There is location-specific evidence demonstrating the requisite ‘occupation’ of this reserve by various Sullivan claimants.
1704 The Cosmo Newberry Community is located in this reserve. The evidence establishes that Mervyn Sullivan has lived on this community on a relatively permanent basis since the late 1980s (he said that he has been mainly living there since around 1989) and that he has raised several children there, some of whom still come back to stay at the community. At the time the Sullivan Form 1 was filed (7 December 2011) Mervyn Sullivan and his children lived at the Cosmo Newberry Community. This occupation, in terms of living on and using the area, was not confined to the Cosmo Newberry Community, but extended throughout Reserve 22032 and the other Cosmo Newberry Reserves.
1705 Many of the sites on the Sullivan sites list are located within Reserve 22032 - including Claypan Well, Bullrush Reserve, Mitika, Tjiwartun, Katangurn, Puntitjarra, Limestone Well, Judson's Soak, Mt Shenton, Wartu, Ngarrurtji (Thatcher Soak), Palkapiti (Mt Venn), Tatjarn, Patjarta Soak, and Nanirri (Hunter's Waterfall). A considerable body of evidence was given about the Sullivan claimants' continuing physical and spiritual association with these sites prior to and after the date on which the Sullivan Form 1 was lodged. For example, Mervyn Sullivan said that he often goes hunting around Judson’s Soak and Ngarrurtji, that he has horses out at Palkapiti, and the he usually goes on day trips to Nanirri, which he has shown to his children ‘many times’. On the whole this evidence, when considered in conjunction with the more general evidence of traditional usage of the Sullivan claim area, provides firm basis for drawing the inference that one or more of the Sullivan claimants ‘occupied’ this reserve in December 2011.
1706 This reserve is located in the south-western part of the claim area. The proposed amendment to the Sullivan claim boundary substantially reduces the area within this Reserve in relation to which occupation needs to be proved.
1707 The Sullivan Edwards witnesses also gave evidence about their use and occupation of this part of the claim area, which they consider their ngurra through Kitty and Mrs Sullivan. They gave evidence about places such as Nanirri (Hunter's Waterfall), Patjarta Soak and Marntjal. Whilst each of these places is located just to the north of this reserve (between approximately 2 and 5 kilometres from the northern boundary of the reserve), I accept from the evidence that Sullivan claimants regard a significant amount of country around and between water source sites such as these to be within their ngurra and zone of occupation. References to a place usually refer to the area around the site used for hunting, camping and other traditional activities.
1708 When considered in conjunction with the more general evidence of traditional usage of the claim area, I infer that the occupation extends to all of Reserve 25050 to the extent it lies within the Sullivan claim (as amended).
1709 This reserve is located in the northern part of the claim area. The proposed amendment to the Sullivan claim boundary substantially reduces the area within this Reserve in relation to which occupation needs to be proved.
1710 Sullivan Edwards witnesses gave evidence about their use and occupation of this part of the Sullivan claim area, which they consider their ngurra through Kitty and Mrs Sullivan. They gave evidence about places such as Mapa (which is just outside the area to the west according to the Yilka site map), Mt Gill (which is within the area), MT Cowderoy (also within the area) and Point Newland (which lies on the boundary with the Yamarna Pastoral Lease). For example, Mervyn Sullivan said of Mt Gill ‘I have been going here a lot over the years. I still visit here, for example with my daughter Jessica’.
1711 When considered in conjunction with the more general evidence of traditional usage of the claim area, I infer that the occupation extends to all of Reserve 25051 to the extent it lies within the Sullivan claim (as amended).
7.6 Application of s 47B to the Sullivan claim area
1712 The Sullivan applicant submits that the Sullivan claim should receive the benefit of s 47B NTA in relation to all areas of UCL within the Sullivan claim area (as amended) at the time of filing of the Sullivan Form 1 on 7 December 2011. The Sullivan applicant contends that s 47B(1)(c) has been made out in that, at the time the Sullivan Form 1 was filed, one or more members of the Sullivan claim group occupied the relevant areas of UCL. The same body of evidence that demonstrates occupation of the Sullivan claim area as a whole, referred to above in relation to s 47A, is relied upon in support of this contention. I find that there is sufficient evidence to infer that the small areas of UCL within the Sullivan claim, as amended, were occupied by at least one Sullivan claimant at the time the Sullivan claim was filed in December 2011.
1713 More specifically, UCL 1 (Area 12) is a relatively small area of UCL surrounding Reserve 18714, located within the boundary of the area of the Yamarna Pastoral Lease, intersected by the Yamarna White Cliff Road. In addition to the occupation evidence of a general nature referred to above, the Sullivan Edwards witnesses gave specific evidence about their use and occupation of this part of the Sullivan claim area. They consider this to be their ngurra through Kitty and Mrs Sullivan. They gave evidence about places on Yamarna Pastoral Lease, such as Marntjal (which Mervyn Sullivan said he has been to ‘many times’), Dorothy Hills and Minnie Creek (at which there is an important men’s site which Patrick Edwards said he has responsibilities for as a wati) and about hunting and camping on Yamarna Pastoral Lease. Mervyn Sullivan said that he camped at Yamarna once for about three weeks with his family, and Patrick Edwards listed Yamarna as one of the areas he most frequently goes hunting at. Along with the occupation evidence of a general nature referred to above, the evidence supports an inference, which I draw, that this area of UCL was occupied at the relevant time by at least one of the Sullivan claimants.
1714 UCL 2 (Area 13) is located just to the east of the Yamarna Pastoral Lease eastern boundary, approximately half way between the Yamarna station homestead and Point Sunday. This area of UCL is intersected by the Anne Beadell Highway and lies within the external boundary of Reserve 20396. In addition to the occupation evidence of a general nature referred to above, the specific occupation evidence outlined in relation to Reserve 20396 supports the inference that this area of UCL was occupied at the relevant time by at least one of the Sullivan claimants. The submission for the Sullivan applicant is the same in respect of UCL 3 (Area 14), which is located just to the west of the eastern boundary of the Sullivan claim area adjacent to Point Sunday, is intersected by the Anne Beadell Highway; and lies within the external boundary of Reserve 20396. Similarly, in relation to UCL 6 (Area 17), which is located in the western part of the Sullivan claim area adjacent to the Great Central Road near Ngatjun, also known as Claypan Well, and lies within the external boundary of Reserve 22032, the Sullivan applicant submits that the general occupation evidence and the evidence in relation to Reserve 22032 supports an inference that this area of UCL was occupied at the relevant time by at least one of the Sullivan claimants. As a consequence of the application of s 47B to these areas of UCL, prior extinguishment of native title on any of the areas of UCL should be disregarded in accordance with s 47B(2) and s 47B(3). I accept these submissions.
1715 As noted above, the State accepts that s 47B NTA may apply to these areas with the exception of UCL 6 (Area 17) and subject to the exclusion of roads – if ‘occupation’ with regards to these areas can be established. The State’s submissions as to the occupation evidence in relation to both the Yilka and Sullivan claims now follows.
7.7 The State’s response on occupation evidence
1716 The State submits that questions relating to ‘occupation’ should not be approached on a presumption that a single conclusion relevant to an entire area is to be made, especially where the area is extensive and boundaries do not conform with any traditional boundaries. The State accepts that some Yilka claimants have been resident at the Cosmo Newberry Community at the time the Yilka No 1 and Yilka No 2 claims were made. The State also accepts that Mervyn Sullivan, a member of the Sullivan claim group was resident at the Cosmo Newberry Community as at 7 December 2011, the date of making of the Sullivan claim.
1717 The State also accepts that the Yilka claimants ‘occupied’ (in the relevant sense) a tract of the claim area broadly bounded in the north by a curtilage including Great Central Road and in the south by the area close to and south of the White Cliffs-Yamarna Road and Minnie Creek Road. The area includes Ngalkal (Site 6.5), Yinti (Site 6.4), Ngurlu # 1, # 2 and # 3 (Sites 6.2, 6.3 and 6.6) in the north as well as Mantjal (Site 5.3) in the south.
1718 Although it is probable that Mervyn Sullivan made use of an area beyond the immediate limits of the Cosmo Newberry Community, the extent to which that use could be taken to amount to occupation, and the area which could properly be said to be occupied, is not said to be capable of adequate identification. The State does not accept that Mervyn Sullivan, or any other members of the Sullivan claim group ‘occupied’ (in the relevant sense) the same area as other members of the Yilka community, or that occupation by other members of the Cosmo Newberry Community can be attributed to Mervyn Sullivan (or other Sullivan group members).
1719 The comments in the preceding paragraphs are subject to the proviso that the State does not concede that roads (including but not limited to Road 1 and Road 2) within the outer boundary of the claim area were claimed (other than if and to such extent as s 47A, or s 47B might apply) or that those roads were ‘occupied’ in the relevant sense.
1720 The State contends that the evidence does not establish that any member of either the Yilka claim group (or the Sullivan claim group) have disclosed affiliations with the northern portion of Reserve 25051 (beyond the sites referred to previously), any part of Reserve 20396, or the southern and south-eastern portion of Reserve 25050 sufficient to establish that those areas were ‘occupied’ in the relevant sense at the relevant dates.
1721 The State also contends that, within the Yilka claim group or the Sullivan claim group or across those groups, in claims that are based on individually attained rights attaching to tracts of land particular to the individual or an ancestor's connection, no occupation of the kind required by s 47A and s 47B which is demonstrated by one individual, is capable of being or should be equated with, occupation by others, or by any group of people. It should be noted, however, that for the purposes of s 47A(1)(c) and s 47B(1)(c) NTA, it is only required that ‘one or more members of the native title claim group occupy the area’ when the application is made.
1722 Contrary to the State’s position I find on consideration of the evidence as a whole that there is sufficient evidence that one or more members of both the Yilka and the Sullivan claim groups occupied these areas of their respective claim areas over which s 47A and s 47B NTA are said to apply at the time that each of their native title applications was filed. It is clear that the use of the areas by member of the claim groups was not ‘random or coincidental’ but was ‘in accordance with the traditional way of life, habits, customs and usages of the community: see Banjima (at [1211]) set out above. It is certainly the case that the evidence of occupation is relatively sparse in relation to some areas; however the question of occupation ‘must be considered in the context of each individual case’: Moses FC (at [210]), cited in Banjima (at [1213]). Some degree of latitude must apply in these claims, given the harsh environment of the Western Desert and the particularly harsh environment towards the outer areas of the Yilka claim area. Further, I find that the principles set out in Moses FC (at [215]) lend support to such a conclusion: including that activities need not be performed on every part of the land in order for that land to be occupied, that activities need not be constantly or even contemporaneously performed but that ‘spasmodic or occasional physical activities carried on over the area’ are sufficient, and that it may be possible to establish that a particular area is occupied by reference to occupation of a wider area which includes the particular area.
1723 The Yilka applicant supplements its general submissions on the law and evidence in response to the State’s Extinguishment Submissions with a detailed area by area analysis dealing with all of the areas referred to in its claim, submissions and the Yilka Tenure Map. The substance of the submissions relating to the area by area analysis by the Yilka applicant is set out below from Pt 8.1 to Pt 8.14.2. It should be noted that this analysis is based on the evidence adduced by the State as at the time of filing of the Yilka Extinguishment Submissions; that is, prior to the re-opening of the State’s case to bring further evidence on roads. Other than where I have specifically expressed to the contrary, I accept the submissions made for the reasoning advanced. I have made some slight modifications where there appear to be inaccuracies in relation to the tenure information.
8.1 Areas 1–5 – Water Reserves 18594, 18595, 18596, 18597 & 18714
1724 Areas 1-4 are small parcels of land located within the external boundaries of Area 7 (Reserve 22032), as shown on the Yilka Tenure Map. These reserves are expressly excluded from the gazetted description of Aboriginal Reserve No 22032. Area 5 is likewise a small parcel of land, located within the external boundaries of the Yamarna Pastoral Lease and surrounded by Area 12.
1725 The water reserves were set apart as reserves for the public purpose of ‘Water’ on 17 April 1924 and vested in the Minister for Water Supply, Sewerage and Drainage on 16 May 1924 (except for Area 5, which was set apart and vested in the same manner on 5 September 1924). They are currently vested in the Waters and Rivers Commission. The Yilka applicant accepts that the vested reserves are previous exclusive possession acts and that the extinguishment of native title is confirmed by s 12I(1a) TVA: see Pt 4.2 ‘Vested Reserves’. It accepts further that neither s 47A nor s 47B is applicable.
1726 Accordingly, each of these areas is excluded from the claim by virtue of [35] of the Yilka Amended Form 1 and they appear in Sch 1 Pt 2 of the Yilka Determination Sought.
1727 The State makes no further submission in its Extinguishment Submissions in relation to these areas except to note that Reserve 18594 is traversed by the Great Central Road within Area 17, which the State says extinguishes native title as a public work (this is discussed below in relation to re-opening on roads).
1728 Area 6 is currently Aboriginal Reserve No 20396. When reserved, it was described as being in the locality of Point Salvation and being about 500,000 acres (or 2,023 square kilometres) in area. The north and western boundaries of Area 6 adjoin Area 11 (Yamarna Pastoral Lease) and the western boundary also adjoins Area 9 (Reserve 25050) in the south. UCL Area 13 and Area 14 are located on the north western and north eastern boundaries respectively.
1729 The reserve was first set aside for the purpose of ‘Aborigines’ on 14 March 1930 under s 39 of the Land Act 1898. It was vested in the AAPA on 15 June 1973, and after a change of purpose, to ‘Use and Benefit of Aborigines’, was vested in the Aboriginal Lands Trust on 6 July 1973.
1730 The area is extremely remote from any permanent community or residential area. According to topographical information on the Yilka site map, it is flat, relatively featureless, has only sparse intermittent water and is mostly sand ridge country (average sand ridge height of 10 metres) with some areas of scrubland. Lake McInnes, located in the extreme east of the area is shown on the Yilka site map as a ‘non-perennial lake’ and on the published Great Desert Tracks Map as a ‘Mainly Dry Lake/Salt Lake’. It is also reasonable to infer something about the nature of the country from the fact that only a relatively small portion of it was ever the subject of a grant of a pastoral lease. The tenure information for in LRM4 shows that only two pastoral leases were granted in the area.
1731 The area appears to be accessible currently only via several routes. One runs east from Yamarna through Area 13 and Area 14. The Great Desert Tracks Map describes it partly as ‘Track-4WD only’ and partly as ‘Minor Road’ and the Yilka site map describes it as ‘Minor Road’. Another is shown on the Great Desert Tracks Map as terminating in roughly the centre of the area and as a ‘Rough Track – Track is very rough, becoming overgrown or is difficult to follow’. What appears to be the same route is shown on the Yilka site map as ‘Minor Road’ and that map shows it as extending to and beyond the eastern boundary of the area. The Yilka site map also shows a track in the south-eastern corner of area, which runs south from Mt Fleming to intersect with a track running parallel to and south of the southern boundary of the area. These are likely to be tracks and cutlines graded by claimants, according to the Yilka applicant: see HM’s affidavit (at [381]). These routes are all mentioned in the evidence of claimants as identified in the ‘occupation evidence’: for example, see HM’s affidavit (at [391]-[393]), set out above.
1732 The State in its Extinguishment Submissions makes no further submission in relation to this Area, or in relation to Areas 6, 7, 9 and 10 discussed below, except to note that these areas are traversed by roads which the State says extinguish native title as public works.
1733 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter at which that type of tenure is considered in relation to each layer:
Act | Extinguishment Submissions | |
Current Land Tenure | ||
Aboriginal Reserve No 20396 | As the vesting of a freehold estate in the Aboriginal Lands Trust was within the exclusion in s 23B(9)(b) it was not a previous exclusive possession act. The vesting was valid and took place before 31 October 1975 and was effective to extinguish native title at common law: see Pt 6.2 above. | |
Reserves vested in the Aboriginal Lands Trust under s 33 of the Land Act 1933 satisfy the requirements in s 47A(1)(b)(ii): see Pt 7.3 above. Section 47A(1)(c) occupation requirement is satisfied: see Pt 7.1 above. Any extinguishment of native title by the creation of the trust (vesting in the Aboriginal Lands Trust) or reservation (setting apart as a reserve for Aborigines) must be disregarded: s 47A(2)(a). Any extinguishment of native title by the creation of any other ‘prior interest’ must be disregarded: s 47A(2)(b): see Pt 7.2 above and Pt 4.1.4 in relation to whether construction of public works constitutes a ‘prior interest’. | ||
Historical Land Tenure | ||
Pastoral Leases 905/102 and 1013/102 granted under the Land Act 1898 | Generally as to extinguishment by pastoral leases see Pt 5.2 above. These each covered part of Area 6 but in aggregate much less than a third of it. They preceded the historical petroleum titles and also the creation and vesting of Reserve 20396 and the RDA. The leases were previous non-exclusive possession acts and inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. Any extinguishment by the grant of the leases must be disregarded under s 47A(2)(b). | |
Historical Mining Tenure | ||
Various interests granted under Mining Act 1978 and Mining Act 1904 | Mineral Claims under the Mining Act 1904 covered a small area near the western boundary. Not necessary to consider any of the interests as they had no greater effect on native title than the extinguishment effected by the earlier historical petroleum interests or pastoral leases and in any event the vesting of the reserve would have wholly extinguished native title at common law. | |
Historical Petroleum Interests | ||
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally as to extinguishment by petroleum interests see Pt 5.4 above. Each of these covered the whole of Area 6 and was granted prior the vesting of the reserve and also prior to the RDA. Where Area 6 previously had not been covered by either pastoral lease, the first of these interests was inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. Those interests that followed had no (additional) effect on and did not extinguish native title to any extent. Any extinguishment by the grant of the interest must be disregarded under s 47A(2)(b). | |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Various interests granted under the Mining Act 1978 | All interests were granted after the date when the reserve was vested in the Aboriginal Lands Trust and therefore had no effect on native title rights and interests, which had been wholly extinguished. Any interest remaining in force at the date of the determination is an ‘other interest’ for the purposes of s 225(c). Presently current licences are listed in Schedule 5 Item 3 of the Yilka Determination Sought. | |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 (WA) | Generally as to current petroleum interests see Pt 6.4 above. The EP has no extinguishing effect on native title: State Extinguishment Submissions Schedule 3, Table 4 The permit was granted after the date when the reserve was vested in the Aboriginal Lands Trust and therefore had no effect on native title rights and interests, which had been wholly extinguished. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. | |
8.2.2 Occupation when Yilka claim made
1734 The Yilka applicant contends that the occupation requirement in s 47A(1)(c) is met and that the evidence directly about or relevant to the occupation of Area 6 as referred to in Pt 7.1.2 establishes that one or more members of the Yilka claim group occupied the Yilka claim area at the time when the Yilka claim was made.
1735 The Yilka applicant submits, and I accept, that s 47A applies to Area 6. By virtue of the operation of that section, any extinguishment of native title by the following acts must be disregarded:
(a) the vesting of the reserve in the Aboriginal Lands Trust in trust for the purpose of ‘Use and Benefit of Aborigines’;
(b) the grant of the pastoral leases and historical mining tenure;
(c) the setting apart of the land as a reserve for the purpose of ‘Aborigines’; and
(d) the vesting of the reserve in the AAPA.
1736 The validity of the creation of the trust or reservation, or of any other prior interest, will not be affected by a determination that the Yilka claimants hold the native title rights and interests claimed, and the non-extinguishment principle (s 238 NTA) applies.
1737 Consequently, in the Yilka Determination Sought:
(a) native title exists in and Area 6 is included in the Determination Area in Sch 1 Pt 1 of the Yilka Determination Sought;
(b) the exclusive native title right is recognised. Order 3 applies; the area is part of the area covered by Sch 3 and will be shown on the maps in Sch 6;
(c) the interests in Reserve 20396 remain current and are ‘other interests’ under Order 8. The provisions of Order 9 apply to describe their relationship to the native title. The interests are recorded in Sch 5, Item 1 and Item 7(a) of the Yilka Determination Sought; and
(d) other ‘other interests’ are among those recorded in Sch 5. The provisions of Order 9 also apply to them.
8.3 Area 7 – Reserve 22032 (Use and Benefit of Aborigines)
1738 Area 7 is currently Aboriginal Reserve No 22032. The eastern boundary adjoins Areas 10 (Reserve 25051) and 11 (Yamarna Pastoral Lease). The northern boundary adjoins Area 10 in the far east of the area and the southern boundary adjoins Area 9 (Reserve 25050) in the west of the area. It is 4,514 square kilometres in area.
1739 The reserve was first set aside for the purpose of ‘Natives’ on 25 August 1939 under s 29 of the Land Act 1933. The boundaries of the reserve were amended on 23 April 1948. It was vested in the AAPA on 15 June 1973, and after a change of purpose, to ‘Use and Benefit of Aborigines’, was vested in the Aboriginal Lands Trust on 3 August 1973.
1740 Area 7 includes the area of the Cosmo Newberry Community, where many claimants live or have lived and otherwise visited and used on a regular basis. It is generally an area much used by many Yilka claimants and was central in the conduct of the hearing because of its relative accessibility. Many witnesses described it as the part of their ngurra that includes the most reliable water and other frequently used resources. With the exception of travel to the men's restricted site evidence through part of Area 10 (during which some central parts of that area were pointed out) and the hearing of the men's evidence at Area 11, the site visit evidence was heard in various locations on Area 7. Cosmo Newberry Hall, at which the bulk of the Yilka claimant's evidence was heard, is located on Area 7.
1741 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions | |
Current Land Tenure | ||
Aboriginal Reserve No 22032 | As the vesting of a freehold estate in the Aboriginal Lands Trust was within the exclusion in s 23B(9)(b) it was not a previous exclusive possession act. The vesting was valid and took place before 31 October 1975 and was effective to extinguish native title at common law: see Pt 6.2 above. | |
Reserves vested in the Aboriginal Lands Trust under s 33 of the Land Act 1933 (WA) satisfy the requirements in s 47A(1)(b)(ii): see Pt 7.3 above. Section 47A(1)(c) occupation requirement is satisfied: see Pt 7.1 above. Any extinguishment of native title by the creation of the trust (vesting in the Aboriginal Lands Trust) or reservation (setting apart as a reserve for Aborigines) must be disregarded: s 47A(2)(a). Any extinguishment of native title by the creation of any other ‘prior interest’ must be disregarded: s 47A(2)(b): see Pt 7.2 above and also Pt 4.1.4 above in relation to whether construction of public works constitutes a ‘prior interest’. | ||
Historical Land Tenure | ||
One reserve (R17570) for the purpose of ‘Common’ set apart under the Land Act 1898 | Where not preceded by a historical pastoral lease (which extinguished the exclusive but not non-exclusive native title over the granted areas) the creation of the reserve had that effect on the native title: see Pt 5.5 above. Where preceded by a valid pastoral lease it had no effect on native title. Any extinguishment by the setting apart of the land as a reserve must be disregarded under s 47A(2)(b). | |
Forty-four pastoral leases granted under the Land Act 1898 (note: Yilka applicant only said there were forty-one such leases) | Any extinguishment by the grant of the valid leases must be disregarded under s 47A(2)(b). Generally as to extinguishment by pastoral leases see Pt 5.2 above. These each covered part of Area 7 but in aggregate not the whole of it. Many preceded the historical petroleum titles and all preceded the creation and vesting of Reserve 22032 and the RDA. The leases that were valid were previous non-exclusive possession acts and inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights where they were not preceded by other interest that already had had that effect. The following leases appear not to have been validly granted: 2909/97, 2914/97, 2915/97, 2916/97, 2917/97, 2960/97, 3337/97, 3352/97, 3389/97, 3411/97, 3454/97, 3455/97, 3460/97, 3520/97 and 3630/97: see Pt 5.2 above. | |
Five pastoral leases granted under the Land Act 1933 | Any extinguishment by the grant of the leases must be disregarded under s 47A(2)(b). The leases were previous non-exclusive possession acts and inconsistent with the exclusive native title right but not the non-exclusive native title rights where they were not preceded by other interests that already had had that effect. | |
Historical Mining Interests | ||
One gold mining lease granted under the Goldfields Act 1886; and fifty-nine gold mining leases (note: the Yilka applicant only said there were forty-seven) as well as mineral claims granted under the Mining Act 1904. Various interests granted under Mining Act 1978 | Not necessary to consider any of the interests as they had no greater effect on native title than the extinguishment effected by the historical petroleum interests or pastoral leases and in any event the vesting of the reserve would have wholly extinguished native title at common law. Any extinguishment by the grant of the interests must be disregarded under s 47A(2)(b). Interests granted under the Goldfields Act 1886 and the Mining Act 1904 have no greater extinguishing effect than interests under the Mining Act 1978: see Pt 4.3 and Pt 4.4 above. As to the extinguishing effect of mineral claims, see Pt 5.1 above. | |
Historical Petroleum Interests | ||
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally as to extinguishment by petroleum interests see also Pt 5.4 above. Each of the OPAs covered the whole of Area 7 and was granted prior the vesting of the reserve and also prior to the RDA, and PE 157H covered more than the eastern half of Area 7. Where Area 7 previously had not been covered by a pastoral lease, the first of these interests was inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. Those interests that followed had no (additional) effect on and did not extinguish native title to any extent. Any extinguishment by the grant of the interest must be disregarded under s 47A(2)(b). | |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Various interests granted under the Mining Act 1978 | All such interests were granted after the date when the reserve was vested in the Aboriginal Lands Trust and therefore had no effect on native title rights and interests, which had been wholly extinguished. Any interest remaining in force at the date of the determination is an ‘other interest’ for the purposes of s 225(c). Presently current licences and leases are listed in Schedule 5 Item 3 of the Yilka Determination Sought. | |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 | Generally as to current petroleum interests see Pt 6.4 above. The EP has no effect on native title: State Extinguishment Submissions Schedule 3, Table 4. The permit extends west into Area 7 to a line extending south from just north of and through Cyril Well (Site 8.3). It was granted after the reserve was vested in the Aboriginal Lands Trust and therefore had no effect on native title rights and interests, which had been wholly extinguished. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. | |
8.3.2 Occupation when Yilka claim made
1742 The Yilka applicant contends that the requirement of s 47A(1)(c) is met and that the evidence directly about or relevant to the occupation of Area 7 in Pt 7.1.2 above establishes that when the Yilka claim was made one or more members of the claim group occupied the area.
1743 The submission for the Yilka applicant is that 47A applies to Area 7. I accept this submission. Any extinguishment of native title by the following acts must be disregarded:
(a) the vesting of the reserve in the Aboriginal Lands Trust in trust for the purpose of ‘Use and Benefit of Aborigines’;
(b) the grant of the historical pastoral leases and historical mining tenure;
(c) the setting apart of the land as a reserve for the purpose of ‘Aborigines’; and
(d) the vesting of the reserve in the AAPA.
1744 The validity of the creation of the trust or reservation, or of any other prior interest, will not be affected by a determination that the Yilka claimants hold the native title rights and interests claimed, and the non-extinguishment principle applies.
1745 Consequently, in the Yilka Determination Sought:
(a) native title exists in and Area 7 is included in the Determination Area in Schedule 1 Part 1 of the Yilka Determination Sought;
(b) the exclusive native title right is recognised. Order 3 applies; the area is part of the area covered by Sch 3 and will be shown on the maps in Sch 6;
(c) the interests in Reserve 22032 remain current and are ‘other interests’ under Order 8. The provisions of Order 9 apply to describe their relationship to the native title. The interests are recorded in Sch 5, Item 1 and Item 7(a) of the Yilka Determination Sought; and
(d) other ‘other interests’ are among those recorded in Sch 5. The provisions of Order 9 also apply to them.
8.4 Area 8 - Reserve 24980 (Warburton Range Stock Route)
1746 Area 8 is currently the Warburton Range Stock Route. The stock route traverses, but is excluded from, Area 10 and Area 11.
1747 The extremely significant sacred site complex referred to during the hearing generally as ‘Minnie Creek’ (Site 6.9) is located in the central north of Area 11 and was visited by the Court during site visit evidence. It appears to be likely that this significant country lies partly within the pastoral lease and partly within the stock reserve.
1748 The reserve was set apart as a public reserve for the purpose of the ‘Warburton Range Stock Route’ on 6 June 1958. The reserve has not been vested in any person.
1749 The State in its Extinguishment Submissions made no further submission except to contend that Minnie Creek Road and the Great Central Road lie within Area 8 and extinguish native title as public works (the State no longer argues for any extinguishment by Minnie Creek Road).
1750 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions | |
Current Land Tenure | ||
Warburton Range Stock Route set part under the Land Act 1933 | As the whole of the area was the subject of the historical petroleum interests and part was the subject of historical pastoral leases prior to the creation of the Stock Route Reserve its creation had no greater effect on native title than the extinguishment resulting from those historical petroleum interests or pastoral leases: see Pt 5.5 above. | |
Historical Petroleum Interests | ||
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally as to extinguishment by petroleum interests see also Pt 5.4 above. Each of these interests covered the whole of Area 8 prior to the creation of the stock route reserve (except for PE 157H, which was issued on 12 August 1960) and also prior to the RDA. Where Area 8 previously had not been covered by a pastoral lease, the first of these interests was inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. The interests that followed had no (additional) effect on and did not extinguish native title to any extent. | |
Historical Land Tenure | ||
Five pastoral leases granted under the Land Act 1898 Two pastoral leases granted under the Land Act 1933: 395/0784 and 395/1031 (note: Yilka applicant only said there was one pastoral lease) | Generally as to extinguishment by pastoral leases see Pt 5.2 above. These each covered part of Area 8 and in aggregate appear to have covered that part of it that traversed Area 11 but not that part that traversed Area 10. Two appear to have preceded the first two historical petroleum titles. The leases were previous non-exclusive possession acts and inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights where they were not preceded by one of the historical petroleum interests. | |
Historical Mining Interests | ||
Various interests granted under Mining Act 1904 and Mining Act 1978 | These had no greater effect on native title than the extinguishment effected by the historical petroleum interests or pastoral leases. The net result is the extinguishment of the exclusive but not the non-exclusive native title rights. | |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Various interests granted under the Mining Act 1978 | These had no greater effect on native title than the extinguishment effected by the historical petroleum interests or pastoral leases. Any interest remaining in force at the date of the determination is an ‘other interest’ for the purposes of s 225(c). Presently current licences are listed in Schedule 5 Item 3 of the Yilka Determination Sought. | |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 | Generally as to current petroleum interests see Pt 6.4 above. The EP has no effect on native title: State Extinguishment Submissions Schedule 3, Table 4. The permit covers all but for a small section of Area 8 in the far north east. It does not affect native title at all because it had no greater effect than at least the historical petroleum interests. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. | |
1751 The Yilka applicant accepts, and I agree, that neither s 47A nor s 47B applies in relation to Area 8, and says that native title rights and interests will have been extinguished to the extent of the exclusive right but not any, or any part of, the non-exclusive rights.
1752 Consequently, in the Yilka Determination Sought:
(a) native title exists in and Area 8 is included in the Determination Area in Sch 1 Part 1 of the Yilka Determination Sought;
(b) the non-exclusive native title rights are recognised. Order 4 applies; the area is identified in Sch 4 and will be shown on the maps in Sch 6; and
(c) the interests in the reserve remain current and are ‘other interests’ under Order 8. The provisions of Order 9 apply to describe their relationship to the native title. The interests are recorded in Sch 5, Item 1.
1753 Area 9 is currently Aboriginal Reserve No 25050, being 2,143 square kilometres in area. The eastern boundary adjoins Area 6 and the northern boundary adjoins Area 7 and Area 11.
1754 The reserve was first set aside for the purpose of ‘Natives’ on 11 July 1958 under s 29 of the Land Act 1933. It was vested in the AAPA on 1 July 1972, and after a change of purpose, to ‘Use and Benefit of Aborigines’, was vested in the Aboriginal Lands Trust on 3 August 1973.
1755 Judging from the evidence, including topographic information discernible on Yilka site map, the area for the most part is just as harsh, featureless and waterless as Area 6 to its east. However it is generally perhaps more accessible - by routes that might or might not still approximate what were formerly Road 2 and Road 1 as well as by some graded tracks created by claimants, for example, a road which runs to and then south beyond Mt Fleming. In the west from around Mt Sefton (near Area 15 and Area 16) there is an intermittent watercourse system that extends towards the boundary with Area 7, and up to Nyanyirri (Hunters Waterfall), Site 3.1, which is in the south of Area 7. There was a reasonable amount of evidence of travel through and use of the area, given the harshness of the environment.
1756 Most of the area, except in the east, has been covered by historical pastoral leases and all has been covered by the historical petroleum OPA interests. PE 157H covered all but a very thin slice of country at the western border of the area. A block of mineral claims granted under the Mining Act 1904 were located near the central eastern boundary and otherwise, historical mining interests extended to most of, but not all of, the area.
1757 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions | |
Current Land Tenure | ||
Aboriginal Reserve No 25050 | As the vesting of a freehold estate in the Aboriginal Lands Trust was within the exclusion in s 23B(9)(b) it was not a previous exclusive possession act. The vesting was valid and took place before 31 October 1975 and was effective to extinguish native title at common law: see Pt 6.2 above. | |
Reserves vested in the Aboriginal Lands Trust under s 33 of the Land Act 1933 satisfy the requirements in s 47A(1)(b)(ii): see Pt 7.3 above. Section 47A(1)(c) occupation requirement is satisfied: see Pt 7.1 above. Any extinguishment of native title by the creation of the trust (vesting in the Aboriginal Lands Trust) or reservation (setting apart as a reserve for Aborigines) must be disregarded: s 47A(2)(a). Any extinguishment of native title by the creation of any other ‘prior interest’ must be disregarded: s 47A(2)(b): see Pt 7.2, and also Pt 4.1.4 above in relation to whether construction of public works constitutes a ‘prior interest’. | ||
Historical Land Tenure | ||
Sixteen pastoral leases granted under the Land Act 1898 (note: the Yilka applicant only said there were fourteen) Two pastoral leases granted under the Land Act 1933 (note: the Yilka applicant said there were five) | Any extinguishment by the grant of the valid leases must be disregarded under s 47A(2)(b). Generally as to extinguishment by pastoral leases see Pt 5.2 above. These each covered part of Area 9 but in aggregate did not cover the whole of it. Many preceded the historical petroleum titles and all preceded the creation and vesting of Reserve 25050 and the RDA. The leases were previous non-exclusive possession acts and inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights where they were not preceded by another interest that already had had that effect. | |
Historical Mining Interests | ||
A block of 27 mineral claims granted under the Mining Act 1904. Various interests granted under the Mining Act 1978 | As to the extinguishing effect of mineral claims, see Pt 5.1 above. Not necessary to consider any of the interests as they had no greater effect on native title than the extinguishment effected by the historical petroleum interests or pastoral leases and in any event the vesting of the reserve would have wholly extinguished native title at common law. Any extinguishment by the grant of the interests must be disregarded under s 47A(2)(b). Interests granted under the Mining Act 1904 have no greater extinguishing effect than interests under the Mining Act 1978: see Pt 4.3 and Pt 4.4 above. | |
Historical Petroleum Interests | ||
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally as to extinguishment by petroleum interests see also Pt 5.4 above. Each of the OPAs covered the whole of Area 9 and was granted prior the vesting of the reserve and also prior to the RDA and PE 157H covered almost the whole of the area. Where Area 9 previously had not been covered by a pastoral lease, the first of these interests was inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. The interests that followed had no (additional) effect on and did not extinguish native title to any extent. Any extinguishment by the grant of the interest must be disregarded under s 47A(2)(b). | |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Various interests granted under the Mining Act 1978 | All such interests were granted after the date when the reserve was vested in the Aboriginal Lands Trust and therefore had no effect on native title rights and interests, which had been wholly extinguished. Any interest remaining in force at the date of the determination is an ‘other interest’ for the purposes of s 225(c). Presently current licences are listed in Schedule 5 Item 3 of the Yilka Determination Sought. | |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 | Generally as to current petroleum interests see Pt 6.4 above. The EP has no effect on native title: State Extinguishment Submissions Schedule 3, Table 4. The permit extends over approximately the eastern half of Area 9. It was granted after the reserve was vested in the Aboriginal Lands Trust and therefore had no effect on native title rights and interests, which had been wholly extinguished. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. | |
8.5.2 Occupation when Yilka claim made
1758 The Yilka applicant contends that the requirement of s 47A(1)(c) is met and that the evidence directly about or relevant to the occupation of Area 9 as identified and referred to in Pt 7.1.2 above establishes that when the Yilka claim was made one or more members of the claim group occupied the area.
1759 The Yilka applicant submits, and I accept, that s 47A applies to Area 9. Any extinguishment of native title by the following acts must therefore be disregarded:
(a) the vesting of the reserve in the Aboriginal Lands Trust in trust for the purpose of ‘Use and Benefit of Aborigines’;
(b) the grant of the historical pastoral leases and historical mining tenure;
(c) the setting apart of the land as a reserve for the purpose of ‘Aborigines’; and
(d) the vesting of the reserve in the AAPA.
1760 The validity of the creation of the trust or reservation, or of any other prior interest, will not be affected by a determination that the Yilka claimants hold the native title rights and interests claimed, and the non-extinguishment principle applies.
1761 Consequently, in the Yilka Determination Sought:
(a) native title exists in and Area 9 is included in the Determination Area in Sch 1 Part 1 of the Yilka Determination Sought;
(b) the exclusive native title right is recognised. Order 3 applies; the area is part of the area covered by Sch 3 and will be shown on the maps in Sch 6;
(c) the interests in Reserve 25050 remain current and are ‘other interests’ under Order 8. The provisions of Order 9 apply to describe their relationship to the native title. The interests are recorded in Sch 5, Item 1 and Item 7(a) of the Yilka Determination Sought; and
(d) other ‘other interests’ are among those recorded in Sch 5. The provisions of Order 9 also apply to them.
1762 Area 10 is currently Aboriginal Reserve No 25051 covering an area of 2,023 square kilometres. The southern boundary of the reserve adjoins Area 7 (Reserve 22032) and Area 11 (Yamarna Pastoral Lease).
1763 The reserve was first set aside for the purpose of ‘Natives’ on 11 July 1958 under s 29 of the Land Act 1933. It was vested in the AAPA on 1 July 1972, and after a change of purpose, to ‘Use and Benefit of Aborigines’, was vested in the Aboriginal Lands Trust on 3 August 1973.
1764 The area generally is remote from any community or permanent residential areas. The northern half of the area is harsh, featureless and generally devoid of permanent water. It is sand ridge spinifex country with little to assist access by vehicle. As a result, the Yilka applicant says, human occupation is necessarily sporadic and opportunistic. The relative dearth of historical pastoral leases speaks to its being inhospitable. In the south it is accessible by a graded track which runs through Yilurn (Site 4.2) in Area 7, and north into Area 10, bypassing Mapa (Site 7.1) and Yinti (Site 6.4), before it returns to the area marked on the Yilka site map as the ‘Great Central Road’ towards the far north east of the Yilka claim area. The area includes a number of secret sacred sites associated with the mythology that give significance to the Minnie Creek area.
1765 Around half of the area (in the west) has been covered by historical pastoral leases and all has been covered by the historical petroleum interests. A block of mineral claims granted under the Mining Act 1904 were located approximately north of Yinti (Site 6.4) and otherwise, historical mining interests extended to most but not all of the area. Current petroleum interest EP 468 extends across a stretch of the area in the south.
1766 The Warburton Range Stock Route Reserve 24980 (Area 8) was expressly excluded from Reserve 25051 when the latter was created, and severs the southeastern corner from the balance of the reserve.
1767 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions | |
Current Land Tenure | ||
Aboriginal Reserve No 25051 | As the vesting of a freehold estate in the Aboriginal Lands Trust was within the exclusion in s 23B(9)(b) it was not a previous exclusive possession act. The vesting was valid and took place before 31 October 1975 and was effective to extinguish native title at common law: see Pt 6.2 above. | |
Reserves vested in the Aboriginal Lands Trust under s 33 of the Land Act 1933 (WA) satisfy the requirements in s 47A(1)(b)(ii): see Pt 7.3 above. Section 47A(1)(c) occupation requirement is satisfied: see Pt 7.1 above. Any extinguishment of native title by the creation of the trust (vesting in the Aboriginal Lands Trust) or reservation (setting apart as a reserve for Aborigines) must be disregarded: s 47A(2)(a). Any extinguishment of native title by the creation of any other ‘prior interest’ must be disregarded: s 47A(2)(b): see Pt 7.2 and also Pt 4.1.4 in relation to whether construction of public works constitutes a ‘prior interest’. | ||
Historical Land Tenure | ||
Eight pastoral leases granted under the Land Act 1898 | Any extinguishment by the grant of the valid leases must be disregarded under s 47A(2)(b). Generally as to extinguishment by pastoral leases see Pt 5.2 above. These each covered part of Area 10 but in aggregate did not cover the whole of it. Some preceded the historical petroleum titles and all preceded the creation and vesting of Reserve 25051 and the RDA. The leases were previous non-exclusive possession acts and inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights where they were not preceded by one of the historical petroleum interests. | |
Historical Mining Interests | ||
A block of 12 mineral claims granted under the Mining Act 1904. Various interests granted under Mining Act 1978 | As to the extinguishing effect of mineral claims, see Pt 5.1 above. Not necessary to consider any of the interests as they had no greater effect on native title than the extinguishment effected by the historical petroleum interests or pastoral leases and in any event the vesting of the reserve would have wholly extinguished native title at common law. Any extinguishment by the grant of the interests must be disregarded under s 47A(2)(b). Interests granted under the Mining Act 1904 had no greater extinguishing effect than interests under the Mining Act 1978: see Pt 4.3 and Pt 4.4 above. | |
Historical Petroleum Interests | ||
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally as to extinguishment by petroleum interests see also Pt 5.4 above. Each of these interests covered the whole of Area 10 and was granted prior to the vesting of the reserve and also prior to the RDA. Where Area 10 previously had not been covered by a pastoral lease, the first of these interests was inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. The interests that followed had no (additional) effect on and did not extinguish native title to any extent. Any extinguishment by the grant of the interest must be disregarded under s 47A(2)(b). | |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Various interests granted under the Mining Act 1978 | All such interests were granted after the date when the reserve was vested in the Aboriginal Lands Trust and therefore had no effect on native title rights and interests, which had been wholly extinguished. Any interest remaining in force at the date of the determination is an ‘other interest’ for the purposes of s 225(c). Presently current licences are listed in Schedule 5 Item 3 of the Yilka Determination Sought. | |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 | Generally as to current petroleum interests see Pt 6.4 above. The EP has no effect on native title: State Extinguishment Submissions Schedule 3, Table 4. The permit extends over a stretch of country along the southern border of Area 10, extending approximately as far north as Site 6.6 is shown to the north of the boundary on the Yilka site map. It was granted after the reserve was vested in the Aboriginal Lands Trust and therefore had no effect on native title rights and interests, which had been wholly extinguished. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. | |
8.6.2 Occupation when Yilka claim made
1768 The Yilka applicant contends that the requirement of s 47A(1)(c) is met and that the evidence directly about or relevant to the occupation of Area 10 as identified and referred to in Pt 7.1.2 establishes that when the Yilka claim was made one or more members of the claim group occupied the area.
1769 The Yilka applicant submits, and I accept, that s 47A applies to Area 10, and that any extinguishment of native title by the following acts must be disregarded:
(a) the vesting of the reserve in the Aboriginal Lands Trust in trust for the purpose of ‘Use and Benefit of Aborigines’;
(b) the grant of the historical pastoral leases and historical mining tenure;
(c) the setting apart of the land as a reserve for the purpose of ‘Aborigines’; and
(d) the vesting of the reserve in the AAPA.
1770 The validity of the creation of the trust or reservation, or of any other prior interest, will not be affected by a determination that the Yilka claimants hold the native title rights and interests claimed, and the non-extinguishment principle applies.
1771 Consequently, in the Yilka Determination Sought:
(a) native title exists in and Area 10 is included in the Determination Area in Sch 1 Pt 1 of the Yilka Determination Sought;
(b) the exclusive native title right is recognised. Order 3 applies; the area is part of the area covered by Sch 3 and will be shown on the map in Sch 6;
(c) the interests in Reserve 25051 remain current and are ‘other interests’ under Order 8. The provisions of Order 9 apply to describe their relationship to the native title. The interests are recorded in Schedule 5, Item 1 and Item 7(a) of the Yilka Determination Sought; and
(d) other ‘other interests’ are among those recorded in Sch 5. The provisions of Order 9 also apply to them.
8.7 Area 11 - Pastoral Lease 3114/854 (Yamarna)
1772 Pastoral Lease 3114/854 was granted on 17 June 1968 for a term expiring on 30 June 2015. Prior to the grant of the lease the whole of Area 11 had been included in Pastoral Lease 395/1031 granted under the Land Act 1933. Almost all of Area 11 had also been covered by historical pastoral leases granted under the Land Act 1898, save for a small portion in the north.
1773 The lease covers an area of 355,384 acres or 1,438 square kilometres. The Warburton Range Stock Route Reserve 24980 (Area 8) is excluded from the pastoral lease area and severs the northwestern corner from the balance.
1774 The extremely significant sacred site complex referred to during the hearing generally as ‘Minnie Creek’ is located in the central north of the area and was visited by the Court during site visit evidence. The Yilka applicant says that it is likely that this significant country lies partly within the pastoral lease and partly within the stock reserve.
1775 The State made no further submission in its Extinguishment Submissions except to contend that Area 11 is traversed by roads which extinguish native title as public works. The plan forming part of the lease instrument included in TCL 196800258_.pdf in LRM4 bears the notation on the plan ‘ab. 355, 384 ac. ex. rd, [symbol for reserves] & S.R’ and bears the further notation ‘the area delineated includes unsurveyed public roads which are not shown’.
1776 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions | |
Current Land Tenure | ||
Pastoral Lease 3114/84 | The lease had no greater effect on native title than the earlier grant of pastoral leases under the Land Act 1898 and the Land Act 1933 or the grant of the historical mining interests, whichever first occurred in any given part of the Pastoral Lease area. | |
Historical Land Tenure | ||
Fourteen pastoral leases granted under the Land Act 1898 Three pastoral leases granted under the Land Act 1933 (note: the Yilka applicant said there were four) | Generally as to extinguishment by pastoral leases see Pt 5.2 above. These each covered part of Area 11 and in aggregate appear to have covered the whole of it. Some preceded the historical petroleum titles. The leases were previous non-exclusive possession acts and inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights where they were not preceded by one of the historical petroleum interests. | |
Historical Petroleum Interests | ||
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally as to extinguishment by petroleum interests see also Pt 5.4 above. Each of these interests covered the whole of Area 11 and was granted prior to the commencement of the RDA. Where Area 11 previously had not been covered by a pastoral lease, the first of these interests was inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. The interests that followed had no (additional) effect on and did not extinguish native title to any extent. | |
Historical Mining Interests | ||
A number of blocks of mineral claims granted under the Mining Act 1904. Twenty six gold mining leases granted under the Mining Act 1904 after 31 October 1975. Two mining leases granted under the Mining Act 1978 (note: the Yilka applicant said there was one) Various other interests granted under Mining Act 1978 | Interests granted under the Mining Act 1904 had no greater extinguishing effect than interests under the Mining Act 1978: see Pt 4.3 and Pt 4.4 above. As to the extinguishing effect of mineral claims, see Pt 5.1 above. Not necessary to consider any of the interests as they had no greater effect on native title than the extinguishment effected by the historical petroleum interests or pastoral leases. The net result is the extinguishment of the exclusive but not the non-exclusive native title rights. | |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | ||
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 | Generally as to current petroleum interests see Pt 6.4 above. The EP has no effect on native title: State Extinguishment Submissions Schedule 3, Table 4. The permit covers the whole of Area 11 but does not affect native title at all because it had no greater effect than at least the historical petroleum interests. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. | |
Groundwater Licence | ||
Groundwater Licence 169756 | See Pt 6.3 above. This licence is current and co-exists with the non-exclusive native title rights. It is recorded as an ‘other interest’ in the Yilka Determination Sought. | |
1777 Neither s 47A nor s 47B applies in relation to Area 11 and native title rights and interests will have been extinguished to the extent of the exclusive right but not any, or any part of, the non-exclusive rights.
1778 Consequently, in the Yilka Determination Sought:
(a) native title exists in and Area 11 is included in the Determination Area in Sch 1 Pt 1 of the Yilka Determination Sought;
(b) the non-exclusive native title rights are recognised. Order 4 applies; the area is identified in Sch 4 and will be shown on the maps in Sch 6;
(c) the interests in Pastoral Lease 3114/854 remain current and are ‘other interests’ under Order 8. The provisions of Order 9 apply to describe their relationship to the native title. The interests are recorded in Sch 5, Item 2; and
(d) the Groundwater Licence is also recorded in Sch 5 and other ‘other interests’ are among those recorded in Sch 5. The provisions of Order 9 also apply to them.
1779 Area 12 is UCL. It is surrounded by Yamarna Pastoral Lease and in turn surrounds Water Reserve 18714.
1780 The area coincides with the area of former Temporary Reserve 3 (TR3). It is presently the subject of a Crown Land Title, which describes the status of the area as ‘Unallocated Crown Land’ and describes the area as ‘Lot 18 on Deposited Plan 194858’.
1781 The evidence for TR3 is the same document as provides the evidence for Temporary Reserve 2 (TR2) (now Areas 15 & 16), being a copy of Public Plan 44/300.
1782 The State makes no further submission in its Extinguishment Submissions except to contend that the White Cliffs-Yamarna Road passes through Area 12 and extinguishes native title as a public work.
1783 The following table identifies the current and historical layers of tenure affecting the area and identifies the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions |
Current Land Tenure | |
Unallocated Crown Land | Section 47B(1)(b) tenure requirement satisfied: see the paragraph following this table. Section 47B(1)(c) occupation requirement satisfied: see Pt 7.1 above. Part of Area 12 appears to have been covered by an exploration or prospecting licence under the Mining Act 1978 when the Yilka claim was made. For example, E3801386 granted on 25/10/2004 appears to have an end date of 24/10/13 and covered a thin slice of the eastern edge of the area. |
Historical Land Tenure | |
Pastoral Leases 2034/102, 2035/102, 3131/97, 3474/97, 3673/97 granted under the Land Act 1898 | Generally as to extinguishment by pastoral leases see Pt 5.2 above. Together these leases covered the whole of Area 12. The first two leases, which together covered the whole of Area 12, preceded the historical petroleum interests. The leases were non-exclusive possession acts and extinguished the exclusive, but not the non-exclusive, native title rights. Any extinguishment by the grant of the leases must be disregarded under s 47B(2). |
Historical Mining Tenure | |
Exploration Licences 3800001, 3800053, 3800173, 3800174, 3800230, 3800527, 3800361, 3800689, 3800796, 3801084, and Prospecting Licence 3802504 granted under Mining Act 1978 | Not necessary to consider as they had no greater effect on native title than the extinguishment effected by the historical petroleum interests. |
Historical Petroleum Tenure | |
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally as to extinguishment by petroleum interests see Pt 5.4 above. Each of the interests covered the whole of Area 12. As the area had previously been covered by pastoral leases, the petroleum interests had no (additional) effect on and did not extinguish native title to any extent. Extinguishment by the grants must be disregarded under s 47B(2) where s 47B applies. |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Exploration Licences 3801386, 3802326, Prospecting Licences 3803337 (note: end date of this licence is 6 December 2011), 3803887 and Mining Leases 3800435, 3800436, 3800437, 3800438 and 3800439 granted under Mining Act 1978 | Most of these were current when the Yilka claim was made and in aggregate cover the whole of the area, but for one tiny portion. The mining leases in aggregate cover the majority of the area and the exploration and prospecting licences cover the balance. There is a tiny portion of the area that is not covered by any mining tenure, which is a horizontal strip across the south of what appears on the mapping extract below as ‘P3803887’ P3803337 and E3802326 were granted after the Yilka claim was made and thus cannot preclude the application of s 47B. An exploration licence or prospecting licence current when a claim is made, in any event, does not preclude the application of s 47B: see Pt 7.4 above. |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 | Generally as to current petroleum interests see Pt 6.4 above. The EP has no effect on native title: State Extinguishment Submissions Schedule 3, Table 4 The EP was granted after the Yilka claim was made and thus does not preclude the application of s 47B. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. |
1784 The mining interests referred to in the table as not being current when the Yilka claim was made or as otherwise not precluding the application of s 47B are shown in more detail in the following marked and annotated extract from the ProViewer mapping in evidence in LRM4. The Yilka applicant contends that s 47B applies between the blue lines marking the boundaries of the explication and prospecting licences and the red lines marking the boundary of Area 12:
8.8.2 Occupation when Yilka claim made
1785 The Yilka applicant contends, and I accept, that the requirement of s 47B(1)(c) is met and that the evidence directly about or relevant to the occupation of Area 12 as identified and referred to in Pt 7.1.2 establishes that when the Yilka claim was made one or more members of the claim group occupied the area.
1786 The conclusion sought by the Yilka applicant is that Area 12 is UCL and s 47B applies to it except the parts that were covered by mining leases when the Yilka claim was made. In relation to the part to which s 47B applies:
(a) the part is the subject of the (exclusive) native title rights referred to Orders 3 and 6 of the Yilka Determination Sought;
(b) the part is covered by the area described in Sch 3 of the Yilka Determination Sought and will be shown on the maps in Sch 6;
(c) it is listed in Sch 7 of the Yilka Determination Sought;
(d) the interests arising on grant of the historical pastoral leases and petroleum interests are prior interests and any extinguishment effected by them must be disregarded;
(e) current mining interests are listed as ‘other interests’ in Item 3 of Sch 5 in the determination sought and are subject to the provisions of Orders 8 and 9.
1787 In relation to the part of Area 12 to which s 47B does not apply:
(a) the part is the subject of the (non-exclusive) native title rights referred to Orders 4 to 6 of the Yilka Determination Sought;
(b) the part is listed in Sch 4 and will be shown on the maps in Sch 6; and
(c) current mining interests are listed as ‘other interests’ in Item 3 of Sch 5 in the Yilka Determination Sought and are subject to the provisions of Orders 8 and 9.
1788 Area 13 is currently UCL. It is located near to (but does not adjoin) the western boundary in the north of Area 6. It coincides with the area of former Temporary Reserve 4.
1789 The area appears to be accessible currently only via routes that the Great Desert Tracks Map describes as ‘Track-4WD only’ and the Yilka site map describes as ‘Minor road’ running east from Yamarna.
1790 The State made no further submission on this area, except to contend that the Anne Beadell Highway passes through the area. This road extinguishes native title as a public work, according to the State Extinguishment Submissions.
1791 Its tenure history is generally the same as for Area 14 except that Pastoral Lease PL 905/102 did not extend over the entirety of Area 13. It overlapped most, but not all, of Area 13 as shown in the diagram below:
1792 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions |
Current Land Tenure | |
Unallocated Crown Land | Section 47B(1)(b) tenure requirement satisfied: see Pt 7.4 above. Section 47B(1)(c) occupation requirement satisfied: see Pt 7.1 above. |
Historical Land Tenure | |
Pastoral Lease 905/102 granted under the Land Act 1898 | Generally as to extinguishment by pastoral leases see Pt 5.2 above. This lease covered almost the whole of Area 13 as shown in the diagram above. It preceded the historical petroleum titles. The lease was a previous non-exclusive possession act and inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. Any extinguishment by the grant of the leases must be disregarded under s 47B(2). |
Historical Mining Tenure | |
Exploration Licences 3800619, 3800687, 3800688 and 3801847 granted under the Mining Act 1978 | Not necessary to consider as they had no greater effect on native title than the extinguishment effected by historical petroleum interests. |
Historical Petroleum Tenure | |
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally as to extinguishment by petroleum tenure see Pt 5.4 above. So far as Area 13 previously had been covered by the pastoral lease, none of these titles had any (additional) effect on and did not extinguish any native title. However, over that part of Area 13 not covered by the pastoral lease, the first of these petroleum tenures was inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. Each of the titles covered the whole of Area 13 and was granted prior to the commencement of the RDA. To the extent that the grants these of titles effected any extinguishment it is to be disregarded under s 47B(2). |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Exploration Licence 3802446 granted under Mining Act 1978 | The EL covers a strip of the western side of Area 13. It was granted after the Yilka claim was made and therefore cannot preclude the application of s 47B |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 | Generally as to current petroleum interests see Pt 6.4 above. The EP has no effect on native title: State Extinguishment Submissions Schedule 3, Table 4. The EP was granted after the Yilka claim was made and thus does not preclude the application of s 47B. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. |
8.9.2 Occupation when Yilka claim made
1793 The Yilka applicant contends, and I accept, that the requirement of s 47B(1)(c) is met and that the evidence directly about or relevant to the occupation of Area 13 as identified and referred to in Pt 7.1.2 establishes that when the Yilka claim was made one or more members of the claim group occupied the area.
1794 Area 13 is UCL and s 47B applies to it, and:
(a) it is the subject of the (exclusive) native title rights referred to Orders 3 and 6 and it appears in Sch 1 of the Yilka Determination Sought;
(b) the area is part of the area described in Sch 3 of the Yilka Determination Sought and will be shown on the maps in Sch 6;
(c) it is listed in Sch 7 of the Yilka Determination Sought;
(d) the interests arising on grant of the historical pastoral lease and petroleum interests are prior interests and any extinguishment effected by them must be disregarded; and
(e) EP 468 and EL 3802446 are listed as ‘other interests’ in Sch 5 Item 4 and Item 3 respectively of the Yilka Determination Sought and the provisions of Orders 8 and 9 apply to them.
1795 Area 14 is currently UCL. It adjoins the northern most eastern boundary of Area 6 (Reserve 20396) and is located near to a place marked on the Yilka site map as Point Sunday. It coincides with that part of the area of former Temporary Reserve 5 that was within the external boundaries of the Yilka claim area.
1796 The area appears to be accessible currently only via routes that the Great Desert Tracks Map describes as ‘Minor Road’ and the Yilka site map describes as ‘Minor Road’; one running east from Yamarna and intersecting the other which runs south to Point Sunday.
1797 In its Extinguishment Submissions, the State made no further submission on this area except to contend that the Anne Beadell Highway and Point Sunday Road pass through Area 14. These roads extinguish native title as public works, according to the State. The State no longer argues any extinguishment by the Point Sunday Road.
1798 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions |
Current Land Tenure | |
Unallocated Crown Land | Section 47B(1)(b) tenure requirement satisfied: see Pt 7.4 above. Section 47B(1)(c) occupation requirement satisfied: see Pt 7.1 above. |
Historical Land Tenure | |
Pastoral Lease 905/102 granted under the Land Act 1898 | Generally as to extinguishment by pastoral leases see Pt 5.2 above. This lease covered the whole of Area 14. It preceded the historical petroleum titles. The lease was a previous non-exclusive possession act and inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. Any extinguishment by the grant of the leases must be disregarded under s 47B(2). |
Historical Petroleum Tenure | |
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally as to extinguishment by petroleum titles see Pt 5.4 above. As Area 14 previously had been wholly covered by the historical pastoral lease, these titles had no (additional) effect on and did not extinguish any native title. Each of the titles covered the whole of Area 14. Extinguishment by the grants must be disregarded under s 47B(2). |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Nil | |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 | Generally as to current petroleum interests see Pt 6.4 above. The EP has no effect on native title: State Extinguishment Submissions Schedule 3, Table 4. The EP was granted after the Yilka claim was made and thus does not preclude the application of s 47B. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. |
8.10.2 Occupation when Yilka claim made
1799 The Yilka applicant contends, and I accept, that the requirement of s 47B(1)(c) is met and that the evidence directly about or relevant to the occupation of Area 14 as identified and referred to in Pt 7.2 establishes that when the Yilka claim was made one or more members of the claim group occupied the area.
1800 Area 14 is UCL and s 47B applies, and:
(a) it is the subject of the (exclusive) native title rights referred to Orders 3 and 6 and it appears in Sch 1 of the Yilka Determination Sought;
(b) the area is part of the area described in Sch 3 of the Yilka Determination Sought and will be shown on the maps in Sch 6;
(c) it is listed in Sch 7 of the Yilka Determination Sought;
(d) the interests arising on grant of the historical pastoral lease and petroleum interests are prior interests and any extinguishment effected by them must be disregarded;
(e) EP 468 is the only other ‘other interest’ in evidence; it is shown in Sch 5 Item 4 of the Yilka Determination Sought and the provisions of Orders 8 and 9 apply to it.
8.11 Areas 15 and 16 - UCL 4 and UCL 5
1801 Both of these areas are UCL. They represent the area of the former TR2 and are located near Mt Sefton in the west of, and are completely surrounded by, Reserve 25050 (Area 9).
1802 TR2 was expressly excluded from Reserve 25050 (Area 9) when it was created. TR2 was referred to in the Gazettal notice of creation of the reserve as ‘the temporary reserve adjacent to survey mark F.Y. 229’.
1803 The only evidence for the existence of TR2 is a copy of a Plan bearing the number 44/300, being the number of the Public Plan referred to in the Gazette by which Reserve 25050 was created.
1804 The two areas are separated by the area referred to as Road 2.
1805 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions |
Current Land Tenure | |
Unallocated Crown Land | Section 47B(1)(b) tenure requirement satisfied: see Pt 7.4 above. Section 47B(1)(c) occupation requirement satisfied: see Pt 7.1 above. |
Historical Land Tenure | |
Pastoral leases 3488/97 and 3638/97 granted under the Land Act 1898 | Generally and as to extinguishment by pastoral leases see Pt 5.2 above. Together these leases covered the whole of the aggregate of Areas 15 and 16. They were preceded by the first two historical petroleum interests and thus had no (additional) effect on native title. Any extinguishment by the grant of the leases must be disregarded under s 47B(2). |
Historical Mining Tenure | |
Exploration Licence 3801835 and 3800265 granted under Mining Act 1978 | Not necessary to consider as they had no greater effect on native title than the extinguishment effected by the historical petroleum interests. |
Historical Petroleum Tenure | |
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally as to extinguishment by petroleum interests see Pt 5.4 above. Each of the interests covered the whole of Ares 15 and 16. As the areas previously had not been covered by pastoral leases, the first of the OPAs was inconsistent with and extinguished the exclusive but not the non-exclusive native title rights. Extinguishment by the grants must be disregarded under s 47B(2). |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Nil | |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Nil | |
8.11.2 Occupation when Yilka claim made
1806 It is appropriate to regard these two areas as one for present purposes as they are both part of the former TR2 and in any event are in a remote area and separated only by a narrow strip of land.
1807 The Yilka applicant contends, and I accept, that the requirement of s 47B(1)(c) is met and that the evidence directly about or relevant to the occupation of Areas 15 and 16 as identified and referred to in Pt 7.2 establishes that when the Yilka claim was made, and again when the Yilka No 2 claim was made, one or more members of the claim group occupied the area.
1808 Area 15 and Area 16 are UCL and s 47B applies and:
(a) the areas are the subject of the (exclusive) native title rights referred to Orders 3 and 6 of the Yilka Determination Sought;
(b) the area is part of the area described in Sch 3 of the Yilka Determination Sought and will be shown on the maps in Sch 6;
(c) are listed in Sch 7 of the Yilka Determination Sought;
(d) the interests arising on grant of the historical pastoral lease and petroleum interests are prior interests and any extinguishment effected by them must be disregarded;
(e) there is no evidence of any extant granted interests as ‘other interest’ in evidence.
1809 Area 17 is currently either part of Reserve 22032 (Area 7) or it is UCL. It is adjoined on both long sides by western and eastern portions of Reserve 18594 (Area 1) and on the short sides by Reserve 22032 (Area 7). It is close to or adjacent to Claypan Well, Ngatjun (Site 5.8).
1810 If it was not part of Reserve 18594 when Reserve 22032 was created it is part of Reserve 22032 (Area 7). If Area 17 was originally part of but later excluded from Reserve 18594 after Reserve 22032 was created, then it is UCL.
1811 The State says in relation to Area 17 that it was excised from Reserve 18594 for the Laverton-Warburton Road under s 37 of the Land Act 1933. The State refers to the Gazette of 1 June 1993, which, under the heading ‘Amendment of Reserves’, states (on p 2703) that: ‘Reserve No. 18594 … to comprise Location 49 as shown delineated and bordered red on Land Administration Reserve Diagram 1129 and of its area being reduced to about 19.1539 hectares accordingly’. The reference to the relevant public plan is ‘Laverton (250) Laverton-Warburton Road’. The State contends that Area 17 was at that time and still remains part of the Great Central Road. The extinguishing effect of the Great Central Road is discussed below.
1812 Because the area is very small, it is difficult to see any detail on maps generally. For convenience, an enlarged extract from the ProViewer mapping of the area was in evidence, and has been marked and annotated. It is set out below. It shows the relative locations of and relationship between Reserve 18495, Reserve 22032 and Area 17.
Marked and annotated snapshot of detail of Area 17
from the map in ProViewer in LRM4.
(note: that under the notation ‘Area 1’ on the right it should read ‘Reserve 18594’)
1813 The analysis of the evidence leading to the conclusion that Area 17 is properly regarded as currently part of Reserve 22032 (Area 7) and not as having any separate ‘current tenure’ from Area 7 is as follows:
(a) the evidence of the State is that Reserve 18594 does not presently include Area 17;
(b) the copy of the 1924 Gazettal of the setting apart of an area for Reserve 18594 in LRM4 refers to a ‘square block of land’ without reference to any specific exclusion. It also refers to Plan 41/300, which plan is not in evidence; nor are any of the other plans of ‘DOLA Files’ referred to in that material in evidence;
(c) absent evidence to the contrary it is reasonable to infer that the Plan showed Area 17 as excluded, even though the words used in the Gazettal to create Reserve 18594 did not refer to the exclusion;
(d) when Reserve 22032 was created and vested, the area of Reserve 18594 (Area 1) was expressly excluded from it. The reservation would have covered any area not included in (or by then excluded from) Reserve 18594.
1814 The analysis that leads to the alternative conclusion that Area 17 is UCL is as follows:
(a) Reserve 18594 does not presently include Area 17.
(b) Reserve 18594 was created as having an area of 50 acres (20.2343 hectares) on 17 April 1924 and vested in the Minister for Water Resources on 16 May 1924;
(c) Reserve 18594 currently (as from 1 June 1993) has an area of about 19.1539 hectares; that is to say it is now 1.0804 hectares less in size than it was originally. The State has suggested there was a 1993 amendment of the area of the reserve but the material in evidence does not establish that (I note that the Gazettal of 1 June 1993 does show that the reserve was amended although the precise nature of that amendment is unclear as the diagram referred to is not in evidence);
(d) Area 17 is approximately 20 metres wide and approximately 540 metres in length so has an area of approximately 1.08 hectares.
(e) the evidence in LRM4 pertaining to Area 7 does not explain the difference in area;
(f) it may be reasonable to infer that the difference reflects the exclusion of Area 17 from Reserve 18594 in some way at some point; and
(g) if any exclusion took place after the creation of Reserve 22032 then Area 17 is UCL rather than part of Reserve 22032.
1815 The end result for native title of both arguments is that Area 17 has a current tenure status under the NTA which allows any prior extinguishment to be disregarded if an occupation requirement is met. That is to say, prior extinguishment would be disregarded under either s 47A or s 47B NTA, subject to the satisfaction of the occupation requirement
1816 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions |
Current Land Tenure | |
If part of Reserve 22032 (Area 7) | Section 47A(1)(b) tenure requirement satisfied: see Pt 7.3 above. Section 47A(1)(c) Occupation requirement satisfied: see Pt 7.1 above. |
If Unallocated Crown Land | Section 47B(1)(b) tenure requirement satisfied: see Pt 7.4 above. Section 47B(1)(c) occupation requirement satisfied: see Pt 7.1 above. |
Historical Land Tenure | |
Reserve 18954 (if it ever covered the area) | Vesting of the reserve in 1924 wholly extinguished remaining native title: see Pt 4.2 above. Extinguishment by the creation and vesting of the Reserve must be disregarded under s 47A(2)(b) or alternatively under s 47B(2). |
Historical Mining Tenure | |
Exploration Licence 3801811 granted under Mining Act 1978 | Not necessary to consider as native title was wholly extinguished by either the vesting of Reserve 18594 or of Reserve 22032. |
Historical Petroleum Interests | |
OPA 51H & 116H granted under Mining Act Amendment Act | Generally as to extinguishment by historical petroleum interests see Pt 5.4 above. Each of the interests covered the whole of Area 17. Area 17 not previously covered by any historical pastoral lease, therefore the first valid petroleum interest was inconsistent with and extinguished the exclusive but not the non-exclusive native title rights. Extinguishment by the grants of the interests must be disregarded under s 47A(2)(b) or alternatively under s 47B(2)(b). |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Nil | |
Petroleum Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Nil | |
8.12.2 Occupation when the Yilka claim made
1817 If Area 17 is part of Reserve 22032 (Area 7) there is no separate s 47A(1)(c) ‘occupation requirement’ and the Yilka applicant refers to and relies on the evidence referred to in Pt 8.3.2 above in relation Area 7.
1818 If Area 17 is UCL and not part of Area 7, the Yilka applicant contends, and I accept, that the requirement of s 47B(1)(c) is met and that the evidence directly about or relevant to the occupation of Area 17 as identified and referred to in Pt 7.1.2 establishes that when the Yilka claim was made, and again when the Yilka No 2 claim was made, one or more members of the claim group occupied the area.
1819 If Area 17 is part of Reserve 22032 (Area 7):
(a) the exclusive native title right is recognised and Order 3 of the Yilka Determination Sought applies, the area is part of the area described in Sch 3 of the Yilka Determination Sought and would not be shown separately on the maps in Sch 6;
(b) the area is not separately recorded but is included in the Determination Area in Sch 1 Pt 1 of the Yilka Determination Sought;
(c) section 47A applies and the area is included in Area 7 for the purposes of Sch 7 of the Yilka Determination Sought;
(d) the creation and vesting of the reserve constitute prior interests and any extinguishment effected by them must be disregarded; and
(e) the interests in the reserve remain current and are ‘other interests’ under Order 8 of the Yilka Determination Sought and the provisions of Order 9 apply; they are recorded in Sch 5, Item 1 and Item 7(a) of the Yilka Determination Sought.
1820 If Area 17 is UCL (that is, if it was formerly part of Reserve 18594 but not part of Reserve 22032):
(a) the exclusive native title right is recognised and Order 3 of the Yilka Determination Sought applies: the area is part of the area described in Sch 3 of the Yilka Determination Sought and would be shown separately on the maps in Sch 6:
(b) section 47B applies and the area should be listed separately in Sch 7 of the Yilka Determination Sought;
(c) if the area was formerly part of Reserve 18594, the interests arising on creation and vesting of that reserve are prior interests and any extinguishment effected by them must be disregarded; and
(d) the interests in the reserve do not remain current and are not ‘other interests’.
1821 Putting aside for now questions in relation to roads, it is irrelevant whether Area 17 is UCL or part of Reserve 22032, as extinguishment will be required to be disregarded in either instance. Whether or not there is extinguishment by the Great Central Road, as contended by the State, is discussed in the remainder of the chapter.
1822 As to consideration of extinguishment by roads, see generally Pt 4.1 ‘Roads’. The principles and arguments stated there are taken into account in this part. See also Pts 9–13 concerning the State’s interlocutory application to re-open its case to adduce further evidence on roads, and the submissions which were made following that application. My final conclusions as to the extinguishing effect of this road are found in Pt 13.
1823 The Yilka applicant asserts that Road 1 is not properly characterised as an area of ‘current tenure’ within the external perimeter of the claim area because it has been subsumed into Reserve 25050 and Reserve 22032, and currently is not a ‘road’.
1824 The only evidence provided (as at the time of filing of the Yilka Extinguishment Submissions) regarding the status of this area as a ‘road’ is in the relevant file in LRM4 and is the following:
(a) the Gazettal (18 April 1935) of a resolution of the Mt Margaret Road Board passed at a meeting of the Board held at Laverton on or about 15 January 1935 to ‘open’ the road;
(b) the Gazettal (on 12 April 1935) of a declaration made under the Road Districts Act 1919-1934 of the area having been ‘set apart, taken, or resumed under Section 17 of “The Public Works Act, 1902”, for the purpose of new Roads’;
(c) Sheets 1, 2 and 3 of a ‘Plan of Traverse’ (plans numbered 4679, 4680 and 4681); and
(d) a plan labelled ‘Perth L.O.’, bearing the number 44/300, marked ‘Cancelled 24.10.74’ and apparently indicating an alignment of Road 9462.
This evidence is largely unexplained in the affidavits accompanying the tenure evidence.
1825 While the ‘Info’ and ‘Hot link’ buttons in MapInfo ProViewer material in evidence do not show Reserve 25050 and Reserve 22032 as extending over or including the areas of Road 1, that representation of the road appears to be incorrect. It appears from the evidence of the Gazettes notifying the creation (and vesting) of the reserves that the road was not excluded from the reserves. This is supported by the fact that there were specific exclusions from the reserves, which do not include the road. The Road was thus included in the area of the reserves.
1826 Section 14 and s 15 of the Aborigines Act 1905 (later renamed as the Native Administration Act), s 20 of the Native Welfare Act 1963, and most recently, s 31 of the AAPA Act, all restricted the rights of persons other than those of Aboriginal descent from entering and remaining within the boundaries of an Aboriginal reserve, subject to exceptions. After the creation and vesting of Reserves 25050 and 22032 (Area 9 and Area 7 respectively) there could be no use of the reserved and vested areas, whether road or otherwise, by the public as of right. Road 1 had become part of the reserves and no longer open to use by the public over the lengths that it formerly traversed those areas respectively. Any such right must be taken to have been abrogated, as contended by the Yilka applicant, referring to Harper and Akiba HC (see Pt 7.1.3 above) above. Similarly any vesting of Road 1 in the Mount Margaret Road Board must be regarded as overtaken by the subsequent vesting of the reserves in the AAPA and later in the Aboriginal Lands Trusts.
1827 If extinguishment were not to be disregarded, it would be relevant to note (for the purposes of identifying the correct area to be excluded from the determination) that the alignment of Road 1 as shown in the ProViewer mapping in LRM4 bears little resemblance to the alignment as shown in the tenure material for the road in LRM4 File GG12041935p812_9462.pdf; as can be seen from the annotated snapshot from the ProViewer mapping and the extract from the documentary evidence for the road extracted below.
Annotated shapshot from ProView Maps in LRM4
showing asserted alignments of Roads 1 & 2
Extract from map in LRM4 File GG12041935p812_9462.pdf
Red circles indicate alignment of Road 1 between two points on the claim area. Note the shape of the road relative to the shape shown in the ProViewer mapping above.
1828 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions |
Current Land Tenure | |
The segment that lies within the external perimeter of Reserve 22032 is part of Reserve 22032 (Area 7). The segment that lies within the external perimeter of Reserve 25050 is part of Reserve 25050 (Area 9) | The road was not constituted as a public road at common law: see Pt 4.1.2 above. Vesting in the Road Board, and any enforceable public right of use, wholly extinguished native title: see Pt 4.1.3 and Pt 4.1.5 above. The road was not a ‘public work’ as defined in NTA s 253; but even if it was, extinguishment should be disregarded: see Pt 4.1.4 above. The creation and vesting of the reserve did not extinguish native title because it had been extinguished by the road. The vesting of the reserves without excluding the road abrogated any statutory or public rights in the road. Section 47A(1)(b) tenure requirement is satisfied as part of the reserve: see the paragraph following this table. Section 47A(1)(c) occupation requirement is satisfied as part of the reserve: see the paragraph following this table. Extinguishment should be disregarded under s 47A(2)(b). |
Historical Land Tenure | |
Pastoral leases granted under the Land Act 1898 and the Land Act 1933 2917/97, 3259/97, 3352/97, 3488/97, 3570/97, 1011/102, 1012/102, 1665/102, 1666/102, 395/0704 | Generally as to extinguishment by pastoral leases see Pt 5.2 above. These leases in aggregate covered the whole of Road 1. Considered alone those leases would be previous non-exclusive possession acts inconsistent with and able to extinguish the exclusive, but not the non-exclusive, native title rights. However, they would only have that status and effect to the extent they preceded the creation and vesting of the road and the grant of the historical petroleum tenures |
Historical Petroleum Interests | |
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally and as to relevant principles see Pt 5.4 above. So far as Road 1 previously had been covered by the pastoral leases, none of these titles had any (additional) effect on and did not extinguish any native title. Over any part of Road 1 not previously covered by a pastoral lease, the first of these titles was inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. All of the interests covered the whole of the area of Road 1. All were granted prior the vesting of Reserves 22032 and 25050 and also prior to the RDA. |
Historical Mining Tenure | |
Various Exploration Licences granted under Mining Act 1978 | Exploration licences cover much of the area of Road 1 towards the northern end of the road and for a distance within the area of Reserve 25050. Not necessary to consider for extinguishment as all were preceded by the grant of the historical petroleum interests and had no (additional) effect on native title. Alternatively, not necessary to consider because the vesting of the reserves would have extinguished all native title. Any extinguishment by the grant of the titles is to be disregarded under s 47A(2)(b). |
Mining Tenure as at 28 October 2011 (and as at 6 June 2014) | |
Exploration Licences 3801541, 3802353, 3802290, 3802154, granted under the Mining Act 1978 | All licences were granted after the date when the reserves were vested in the Aboriginal Lands Trust and therefore had no effect on native title rights and interests, which had been wholly extinguished. Any licence remaining in force at the date of the determination is an ‘other interest’ for the purposes of s 225(c). Presently current licences are listed in Schedule 5 Item 3 of the Yilka Determination Sought. |
Petroleum Tenure as at 28 October 2011 | |
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 | Generally as to current petroleum interests see Pt 6.4 above. The EP has no effect on native title: State Extinguishment Submissions Schedule 3, Table 4. The area covered by this title extends over a very short distance of the area of Road 1 in the extreme north end of the road. The permit was granted after the date when the area it covers was covered by Reserve 22032 and therefore it had no (additional) effect on native title. It was also granted after the Yilka claim was made. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. |
1829 The Yilka applicant contends that, given that the current tenure over Road 1 is that of Reserves 25050 and 22032 it is not necessary to consider Road 1 separately from consideration of those reserves (Area 9 and Area 7). Thus it is not necessary to consider the occupation of the area of Road 1 separately from occupation of those areas. The conclusions in relation to those areas are also relied on by the Yilka applicant in relation to Road 1. In summary, the exclusive native title right is recognisable over the area of Road 1.
1830 As to consideration of extinguishment by roads, see generally Pt 4.1 ‘Roads’. The principles and arguments stated there are taken into account in this part. See also Pts 9–13 concerning the State’s interlocutory application to re-open its case to adduce further evidence on roads, and the submissions which were made following that application. My final conclusions as to the extinguishing effect of this road are found in Pt 13.
1831 The Yilka applicant asserts that Road 2, apart from the area of that section of it that traverses Area 11 (Yamarna Pastoral Lease), is not properly characterised as an area of ‘current tenure’ within the external perimeter of the claim area because it has been subsumed into Reserve 25050 and Reserve 22032 and currently is not a ‘road’.
1832 The only evidence provided (as at the time of filing of the Yilka Extinguishment Submissions) regarding the status of this area as a ‘road’ is in the relevant file (File GG12041935p812_9463.pdf) in LRM4 and is the following:
(a) the Gazettal (on 18 April 1935) of a resolution of the Mt Margaret Road Board passed at a meeting of the Board held at Laverton on or about 15 January 1935 to ‘open’ the road;
(b) the Gazettal (on 12 April 1935) of a declaration made under the Road Districts Act 1919-1934 of the areas having been ‘set apart, taken, or resumed under Section 17 of ‘The Public Works Act, 1902”, for the purpose of new Roads’; and
(c) Sheets 1, 2 and 5 of a ‘Plan of Traverse’ (plans numbered 4679, 4680 and 4683).
(d) A plan labelled ‘Perth L.O.’, bearing the number 44/300 and marked ‘Cancelled 24.10.74’ and apparently indicating an alignment of Road 9463.
This evidence is largely unexplained in the affidavits accompanying the tenure evidence.
1833 While the ‘Info’ and ‘Hot link’ buttons in MapInfo ProViewer material in evidence do not show Reserve 25050 and Reserve 22032 as extending over or including the areas of the road, that representation of the road appears to be incorrect. It appears from the evidence of the Gazettes notifying the creation (and vesting) of the reserves that the roads were not excluded from the reserves, especially in light of the fact that there were other specific exclusions from the reserves.
1834 TR2 over the area that is now the UCL comprising Area 15 and Area 16 was specifically excluded from Reserve 25050 (Area 9) when it was created. Similarly, Reserves 18594, 18595, 18596 and 18597 were all specifically excluded from Reserve 22032 when it was vested. The necessary implication is that the road was not excluded from the reserves.
1835 That part of the area said to be Road 2 where it traverses what was the former TR2 (and where it now lies between Areas 15 and 16) is also included in Reserve 25050 (Area 9). This demonstrated on the tenure evidence. The TR2 is said to have been created prior to 5 April 1938: Sch 2 Table 5 Item 4 to the State Extinguishment Submission. Road 2 is said to be 'dedicated' and vested on 12 April 1935. It seems that Road 2 was excluded from the area of TR2 when it was created. It is shown as so excluded on the ProViewer Mapping. Road 2 was not interrupted by the area of TR2. The Plans in File GG12041935p812_9463.pdf support this conclusion. In any event, it would not have made practical sense to interrupt the road. Thus the area of Road 2 through (but excluded from) TR2 was included in the creation and vesting of Reserve 25050 (Area 9); it not having been excluded.
1836 As mentioned above, the Aborigines Act 1905, the Native Welfare Act 1963, and most recently, the AAPA Act, all contained provisions restricting the rights of persons other than those of Aboriginal descent from entering and remaining within the boundaries of an Aboriginal reserve. After the creation and vesting of Reserves 25050 and 22032 (Area 9 and Area 7 respectively) there could be no use of the reserved and vested areas, whether road or otherwise, by the public as of right. Road 2 had become part of the reserves and no longer open to use by the public over the lengths it formerly traversed those areas. Any such right must be taken to have been abrogated, as contended by the Yilka applicant, referring to Harper and Akiba HC (see Pt 7.1.3 above) and the vesting of the road must be regarded as overtaken by the vesting of the reserves.
1837 Accordingly, Road 2 where it crosses Area 7 and Area 9 it is no longer a road but part of the reserves and where it crosses or runs between Area 15 and Area 16 it is not a road but part of Area 9. Any extinguishment by the creation and vesting of the road in those areas is to be disregarded upon application of s 47A NTA.
1838 However, where Road 2 extends into and traverses what is now the Yamarma Pastoral Lease it may retain its original status as a road though isolated and inaccessible by all but those entitled to use of the Reserve 22032 and the Yamarna Pastoral Lease. Its original extinguishment of native title does not fall to be disregarded under the NTA.
1839 If extinguishment by the road in the area of the reserves is not to be disregarded, it is to be noted that it must be doubted that the alignment of Road 2 as shown on the compiled plan reproduced in LRM4 File CPP502965.pdf corresponds to the alignment of the road as shown on the ProViewer maps in evidence in LRM4. This is clear from a comparison of the extract from the material set out below
Extract from CPP502965.pdf.
1840 In the above plan Road 2 appears to be identified by reference to survey points. The road enters TR2 well south of half way down the western boundary of TR2 and exists just south of the north east corner. In comparison, note in the snapshot map below that the road appears to enter what was formerly TR2 well to the north of half way down the western boundary and exits the area well to the west of the north east corner. The two alignments are clearly not the same.
Annotated snapshot from the map in ProViewer in LRM4.
1841 The following table identifies the current and historical layers of tenure affecting the area and refers to the relevant parts of this chapter in relation to each layer:
Act | Extinguishment Submissions |
Current Land Tenure | |
The segment that lies within the external perimeter of Pastoral Lease 3114/854 (Yamarna) is a road | Area remains a road as originally established and vested in 1935. Native title wholly extinguished: see Pt 4.1.3 and Pt 4.1.5 above, Area excluded from claim area: Yilka Form 1 [15(f)(vii)] and Yilka Amended Form 1 (at [46]), see also Pt 3.1.1 above. |
The segment that lies within the external perimeter of Reserve 22032 is part of Reserve 22032 (Area 7) | The road was not constituted as a public road at common law: see Pt 4.1.2 above. Vesting in Road Board and any enforceable public right of use wholly extinguished native title: see Pt 4.1.3 and Pt 4.1.5 above. The road was not a ‘public work’ as defined in NTA s 253; but even if it was, extinguishment should be disregarded: see Pt 4.1.4 above. The creation and vesting of the reserve did not extinguish native title because it had been extinguished by the road. Section 47A(1)(b) tenure requirement is satisfied as part of Reserve: see the paragraph following this table. Section 47A(1)(c) occupation requirement is satisfied as part of Reserve: see the paragraph following this table. Extinguishment should be disregarded under s 47A(2)(b). |
The segment that lies within the external perimeter of Reserve 25050 including the segment that lies between Areas 15&16 and not included in TR2 is part of Reserve 25050 (Area 9) | See table cell above. |
Historical Land Tenure | |
Pastoral leases granted under the Land Act 1898 and the Land Act 1933: 395/1031, 395/0410, 3336/97, 3337/97, 3488/97, 3522/97, 3549/97, 3550/97, 3564/97, 3638/97, 3670/97, 2035/102, 2036/102, 3310/102, 1395/94 | Generally and as to principles relevant to extinguishment by pastoral leases see Pt 5.2 above. These leases in aggregate covered the whole of Road 2. Considered alone those leases would be previous non-exclusive possession acts inconsistent with and able to extinguish the exclusive, but not the non-exclusive, native title rights. However, they would only have that status and effect to the extent they preceded the creation and vesting of the road and the grant of the historical petroleum tenures. Any extinguishment by the grant of the titles is to be disregarded under s 47A(2)(b) except as to the segment within Area 11, where s 47A does not apply. |
Historical Petroleum Interests | |
OPA 51H & 116H granted under Mining Act Amendment Act; PE 157H granted under Petroleum Act 1936 | Generally and as to relevant principles see Pt 5.4 above. So far as Road 2 previously had been covered by the pastoral leases, none of these interests had any (additional) effect on and did not extinguish any native title. Over any part of Road 2 not previously covered by a pastoral lease, the first of these titles was inconsistent with and extinguished the exclusive, but not the non-exclusive, native title rights. Each of the interests covered the whole of the area of Road 2 and was granted prior the vesting of the subsequent Reserves 22032 and 25050 and also prior to the RDA. Any extinguishment by the grant of the interests is to be disregarded under s 47A(2)(b) except as to the segment within Area 11, where s 47A does not apply. |
Historical Mining Interests | |
Various exploration licences granted under Mining Act 1978 | Not necessary to consider for extinguishment as all were preceded by the grant of the historical petroleum interests and had no (additional) effect on native title. Alternatively not necessary to consider as the vesting of the reserves would have wholly extinguished native title. Any extinguishment by the grant of the interests is to be disregarded under s 47A(2)(b) except as to the segment within Area 11. |
Mining Interests as at 28 October 2011 (and as at 6 June 2014) | |
Exploration Licences 3802514, 3802290, 3802530, 3802532, granted under the Mining Act 1978 | All licences were granted after the date when the reserve was vested in the Aboriginal Lands Trust and therefore had no effect on native title rights and interests, which had been wholly extinguished. Any licence remaining in force at the date of the determination is an ‘other interest’ for the purposes of s 225(c). Presently current licences are listed in Schedule 5 Item 3 of the Yilka Determination Sought. |
Petroleum Interests as at 28 October 2011 (and as at 6 June 2014) | |
Exploration Permit EP 468 granted under Petroleum and Geothermal Energy Resources Act 1967 | Generally as to post RDA petroleum interests see Pt 6.4 above. The area covered by this title extends over less than 50% of the area of Road 2 within the Yilka claim area, being the area extending from the termination of Road 2 near Yamarna, south east to about half way between the western boundary of Area 11 and Areas 15 and 16. The permit was granted after the date when the area it covers was covered by the Yamarna Pastoral Lease or one of Reserves 25050 and 22032 therefore had no (additional) effect on native title. The EP has no effect on native title: State Extinguishment Submissions Schedule 3, Table 4. It was also granted after the Yilka claim was made. If it remains in force at the date of the determination it is an ‘other interest’ for the purposes of s 225(c). It is presently listed in Schedule 5 Item 4 of the Yilka Determination Sought. |
1842 The Yilka applicant submits that, for parts of Road 2, the current tenure is that of Reserves 25050 and 22032, and therefore it is not necessary to consider Road 2 separately from consideration of those reserves (Area 9 and Area 7). Thus it is not necessary to consider the occupation of the area of Road 2 separately from occupation of those areas.
1843 The exception is that where the road traverses the Yamarna Pastoral Lease (Area 11), neither s 47A nor s 47B applies and accordingly the occupation requirement does not apply.
1844 Where the area of Road 2 is part of Areas 7 and 9 it is not necessary to consider it apart from those areas. The conclusions in relation to those areas are relied on on by the Yilka applicant in relation to that part of Road 2. The exclusive native title right is recognisable over that part of the area of Road 2.
1845 Otherwise, to the extent that Road 2 traverses the Yamarna Pastoral Lease (Area 11), native title is wholly extinguished and the area is excluded from the Yilka claim.
1846 The State does not accept that s 47A NTA could apply to roads within the Claim Area.
1847 Subject to considerations regarding the existence of roads with the Claim Area and their extinguishing effect, which is canvassed in the remainder of this chapter, I accept the submissions advanced for the Yilka applicant in Pt 8.
9. THE STATE’S INTERLOCUTORY APPLICATION TO RE-OPEN ON ROADS
1848 The State filed an interlocutory application on 10 July 2014, by which it sought leave to reopen its case for the limited purpose of adducing further evidence in relation to the establishment and construction of roads within the outer boundary of the Claim Area. The State moved on the affidavit of Mr Trevor Allan Creewel sworn 9 July 2014.
1849 Oral final submissions on the principal application had been scheduled to be heard from 29 July 2014 to 1 August 2014, pursuant to programming orders of 5 march 2014. Following the State’s filing of its interlocutory application, submissions in respect of this application were filed by the State on 15 July 2014 and by each of the applicants on 16 July 2014. On 17 July 2014, I ordered that the interlocutory application be stood over to a date to be fixed. The State was then required by orders of 31 July 2014 to file and serve further submissions setting out the contentions it would make if the affidavit of Mr Steven John Deckert, affirmed 14 July 2014 and the affidavit of Mr Peter Augustine Hill, sworn 9 July 2014 were admitted into evidence, together with a description of roads it contends would be sufficient for any native title determination in the proceedings. Provision was made for the applicants to file and serve submissions in response, and for the State, in turn, to file and serve submissions in reply. By orders of 28 November 2014, against opposition, I granted leave to the State to re-open its case to adduce further evidence relating to the construction, existence, maintenance and funding of roads within the Claim Area. As communicated to the parties, I decided to provide reasons for granting the interlocutory application in the course of the main reasons in the principal application. I have therefore set out below the main arguments raised by the parties over the course of the exchange of submissions on the State’s interlocutory application, and provided my reasons for granting leave.
9.1 ‘First Respondent’s Submissions in Support of the Interlocutory Application Filed 20 July 2014’ filed 15 July 2014
1850 The State's interlocutory application was purportedly made in accordance with liberty to apply provided for in consent orders made on 5 March 2014 which provided:
5. The [State] has liberty to apply for leave to re-open its case and to adduce further evidence in the event that an applicant's submissions on extinguishment identify a deficiency in the [State’s] evidence that can be remedied by further evidence.
1851 The Yilka applicant in its Extinguishment Submissions submitted that the Court should infer that only two tracts of road (each of which terminates within the Claim Area) exist within the outer boundary of the Claim Area. The map at Attachment C to and forming part of the Yilka Form 1 (and the Yilka Amended Form 1) identifies the ‘major roads’ and ‘tracks’ and includes specific reference to the following named roads:
(a) Great Central Road,
(b) Cosmo Bypass Road,
(c) Lake Wells Road,
(d) Cosmo Newberry Road,
(e) White Cliffs-Yamarna Road,
(f) Mt Shenton Yamarna Road,
(g) Minnie Creek Road,
(h) Anne Beadell Highway, and
(i) Point Sunday Road.
1852 In bringing in this interlocutory application, the State submitted that it sought to rely upon additional material referring primarily to these roads within and passing through the outer boundary of the Claim Area. The additional evidence which the State sought to rely upon was identified in some detail in the Mr Creewel's affidavit. The additional evidence upon which the State sought to rely was the affidavit of Mr Deckert (the present Chief Executive Officer of the Laverton Shire Council) affirmed 14 July 2014 and the affidavit of Mr Hill (a long time pastoral lessee of lands near the Claim Area, and former councillor of the Laverton Shire Council) sworn 9 July 2014.
1853 The State submitted that the purpose of adducing this additional evidence would be to establish the existence, construction, maintenance, care and management of roads within the outer boundary of the Claim Area and the use of those roads before 23 December 1996 (the date identified in s 23B(7) NTA).
1854 Mr Deckert's affidavit goes to the nature of records secured from the Laverton Shire Council relating to roads within the outer boundary of the Claim Area.
1855 In the case of Mr Hill's affidavit the evidence comprises first-hand knowledge as to the existence and accessibility of roads within the outer boundary of the Claim Area.
1856 The State made identical submissions as in its reply submissions on extinguishment as to roads (which will not be repeated extensively here) – namely, that the applicants’ Forms 1 excluded roads from their native title applications (see at Pt 4.1.7 above). The State’s submission in support of its interlocutory application was therefore that, subject only to the possible application of s 47A or s 47B NTA, the Yilka applicant having expressly excluded areas where there has been an existing dedicated road from the area claimed in the Yilka No 1 and Yilka No 2 claims, the State considered that the existence of roads was not a matter of real controversy.
1857 The State accepts that it bears an evidentiary onus in relation to acts of the State which have or might have brought about extinguishment of native title. The State’s contention was that the identification of roads was and remains a necessary part of identification of the area claimed and the area under consideration in the proceedings. But identification is for the purpose of giving effect to the Yilka applicant's exclusion of the area concerned, not for the purpose of considering the provenance and consequences of the establishment or construction of those roads.
1858 The prospect that, on the Yilka applicant’s case, these arteries will be interdicted is too serious to ignore, so the State argued. It would invest a private party with capacity to isolate the Warburton community and east from west, to effectively land lock the Yamarna lessee and holders of mining titles, and to stifle the movement of others. This is why the State sought to adduce further evidence of the existence of roads.
1859 The State also argued that it would not have been consistent with the principles of promptness, efficiency, economy and proportionality as provided by s 37M of the Federal Court of Australia Act 1976 (Cth) (FCAA) for the State to collate and adduce all the evidence that might exist in records, archives and repositories which are often not directly controlled by the State for the purpose of proving, (or over-proving) a particular point, especially in circumstances where a serious issue does not arise.
1860 The State in its Extinguishment Submissions presented some, but not all, potentially available evidence in relation to the establishment and the existence of roads. The State argued that in the circumstances described it had not anticipated that the Yilka applicant would contend that an absence of evidence relating to roads constituted a basis to conclude that roads were absent.
1861 The State repeated its submission, made in its reply submissions on extinguishment, that while it bears an evidentiary onus in relation to the adducing of evidence of acts which have might have brought about extinguishment of native title, it is open to the State to rely on the evidence of the witnesses for the applicant (and the confines of the matters in issue expressly or implicitly identified in an application) in identifying the extent of that onus and in discharging it. The State’s reference to evidence brought by the Aboriginal witnesses for the applicants, and the asserted relevance of that evidence, will not be repeated here – see Pt 4.1.7 above.
1862 In addition to the evidence of the Aboriginal witnesses, the State also referred to the evidence of existence of roads by Yilka applicant's historian Ms Plant:
(a) The 1928 grading and survey of the track from Laverton to Cosmo Newberry by the Mt Margaret Roads Board, and around the same time the road pioneered by Hazlett to Minnie Creek and Thatcher's Soak.
(b) In 1956 Warburton Mission staff put though a new road to the north of Minnie Creek where it intersected the (implicitly existing) Cosmo Newberry-Thatchers Soak Road.
(c) The 1937 correspondence from Gravestock (a police officer) to Clements (Police Inspector) which refers to Claypan Well (Ngatjun, Site 5.8) on the Cosmo Newberry Road.
(d) The 1939 correspondence from the Commissioner of Native Affairs to the Minister for the North-West which calls for road improvements to transport rations (to Cosmo Newberry).
(e) The reporting in 1950 of the undertaking of road improvements to Mt Shenton.
1863 The State argued that the evidence referred to was an indication of how uncontroversial the question of the existence of roads appeared to be. The above evidence, the fact that almost all of it was adduced as evidence in chief by the Yilka applicant and the conduct of the proceedings rests very uncomfortably with the Yilka applicant's submission that the only proper inference is that roads (other than Road 1 and Road 2) do not exist and no relevant evidence exists, according to the State’s submission. The State contended that the suggestion that such an inference should be drawn also rests uncomfortably with the references made by Justice Lindgren in the Wongatha Judgment (at [5], [2131], [2871], [2873]) to the Great Central Road (otherwise known as the Laverton-Warburton Road). The State’s rationale for seeking to adduce additional evidence was to diminish the likelihood that such a submission would be adopted.
9.2 The Applicants’ submissions dated 16 July 2014 on the State's interlocutory application
1864 As noted, the Yilka applicant and the Sullivan applicant each filed submissions on 16 July 2014 in relation to the State’s interlocutory application. The State’s application was ‘opposed unequivocally’ by the Yilka applicant. The explanation given for the State was said to be entirely inadequate and to significantly misrepresent the situation in which the State found itself. The Sullivan applicant appears to have taken a more moderate stance, noting its concerns with the State’s interlocutory application and with timing and costs ramifications.
9.2.1 Order 5: ‘liberty to apply’
1865 The Yilka applicant submitted that while it is open to the State to apply to the Court to re-open its case in any event, at any time, it has no liberty to succeed on such an application, and that, indeed, it ought not succeed in this instance. The Yilka applicant submitted that whether or not liberty to apply was reserved, the State’s application can only be determined, in accordance with the principles that ordinarily govern those kinds of applications.
1866 The Yilka applicant said further that the State was incorrect in purporting to base its application on the liberty to apply provided for in the orders of 5 March. The parties contemplated that the liberty to reopen was limited and not at all inclusive of the application the State sought to make. The Yilka applicant reiterated that it does not assert invalidity in respect of tenures in the State's tenure information, rather, the State’s application was an attempt to introduce, as if ‘new evidence’, evidence that was within the State's knowledge, possession and power, at all relevant times. As such this application fell clearly outside Order 5, according to the Yilka applicant. The State did not submit that ‘a deficiency in the [State’s] evidence’ was identified by the Yilka applicant.
1867 The Yilka applicant submitted that, in any event, Order 5 could not to be construed as permission generally for reopening of the extinguishment case at the stage of the programming of final submissions.
9.2.2 The Yilka and Sullivan applications
1868 The Yilka applicant said that, while it is true that the Yilka Form 1 (and the Yilka Amended Form 1) formally excludes from the Yilka claim area those areas that are established by evidence to be roads having status such as may extinguish native title, there is no admission as to the existence or identity of any such roads. The Sullivan applicant likewise submitted that its Form 1 does not specifically exclude any roads from the Sullivan claim area, but merely excludes any areas subject to previous exclusive possession acts under s 23B(7) NTA if attributable to the State, subject to the application of ss 47, 47A and 47B NTA. The Yilka applicant argued that it was wrong for the State to assert that the need for further evidence arose against the terms and content of the Yilka Form 1. If anything, the references in the Form 1 that the State relies on now, should have been considered on its filing in 2008.
1869 The Yilka applicant further contended that neither amendments of the Yilka Form 1 nor the Yilka POC can be read as expanding the Yilka claim area by reference to roads or amounting to any admission as to the existence of any particular road, or any concession as to dealing with roads on an unspecified basis in the absence of evidence, as may have been suggested by the State. As the Yilka applicant submitted, it was always up to the State to plead, identify its case and lead such evidence as it wished in relation to roads.
9.2.3 The State's position on roads
1870 The Yilka applicant submitted that there was never a basis for any assumption that the existence of roads was not a matter of real controversy; the State having put in issue and made a controversy of virtually every other possible element of this claim could not at this point assert a basis for an assumption that roads were not contentious. Roads are notoriously contentious in native title claims, particularly any suggestion of extinguishment of unspecified roads, because of the impact on the right to control access.
1871 Further, the Yilka applicant noted that the roads issue was always important, in these proceedings, as the Yilka Form 1 (and the previous experience of the Cosmo claim) makes clear beyond doubt.
1872 Extinguishment, including in relation to roads, was a fully contested matter in the context of the Wongatha trial, and in particular of the Cosmo, proceedings. The Yilka applicant argued that in the Cosmo claim the State was also roundly criticised by the Cosmo applicant for its attempt to rely on unspecified roads about which the State had led no evidence as to their existence, alignment or status. This showed, according to the Yilka applicant, that the State had been on notice for a long time that the extinguishment status of roads in the Claim Area is a contentious issue.
1873 The Yilka applicant said that the State also had ample opportunities over the three years or so preceding the interlocutory application to adduce this evidence on roads. At the time that the State filed its application to re-open, the Yilka claim had been on foot for five and a half years. Evidence was heard as early as October 2011 and several tranches, both on country and in Perth, had occurred since then. Substantial evidence has been heard by the Court from the Aboriginal witnesses, which mentions the traversing of the country of the Yilka claim area by routes of various kinds and alignments. The Yilka applicant contended that nothing as to the status of those roads for extinguishment purposes is to be taken from that evidence.
1874 The Yilka applicant noted that its witnesses had had no opportunity to provide such evidence as they may be able to give on the topic and would be deprived of that opportunity. Prejudice would be occasioned.
1875 Additionally, the Yilka applicant argued that State had ample opportunity to notify the parties of its intention to address the deficiencies asserted in the Yilka Extinguishment Submissions, which were filed four weeks prior to the State’s filing of its interlocutory application.
1876 Further, the Yilka applicant said that it was not acceptable for the State to seek to file further evidence, which should have been raised in its initial Extinguishment Submissions, at such a late stage in the proceedings. The State specifically dealt with roads in those submissions, as outlined in Pt 4.
1877 Tenure evidence was the subject of programming orders since the first programming orders in the Yilka proceedings were made on 25 February 2011. The only roads about which the State filed tenure evidence were Road 1 and Road 2. As the Yilka applicant notes, the State was no doubt aware of the evidentiary onus it bears to raise extinguishment questions and material it seeks to rely on in that regard.
1878 Section 37M of the FCAA, far from aiding the State, indeed might be read as requiring that the State’s interlocutory application be dismissed, so the Yilka applicant argued. The State had previously led evidence about roads, and had years to lead all the evidence it wished to. It is a stretch for the State to contend that it was just being efficient, in light of the expenditure and time that has been spent because the State has fully contested the claim. The Yilka applicant argued that it should not suffer prejudice if the State merely misdirected its attention to the case.
9.2.4 Evidence (so far) of roads
1879 The use of the word ‘road’ by witnesses for the Yilka applicant to identify places visited and routes taken does not contradict the stance of the Yilka applicant on the roads extinguishment questions; nor does the use of certain maps or counsel’s use of the word ‘road’ for convenience when addressing the Court. None of those matters was relevant to whether the roads in question were dedicated under statutory procedure or were or are roads at common law, or whether the ‘roads’ constitute public works. Nor can the evidence of witnesses be taken to identify any particular or any fixed alignment.
1880 The Yilka applicant submitted that it was not only incorrect, but also prejudicial, for the State, in the circumstances, to assert that evidence led by the Yilka applicant indicates any lack of controversy about the existence of native title extinguishing roads in the Claim Area. There is nothing uncomfortable about references in Wongatha to areas and evidence by reference to the word ‘roads’. As there was expressly no consideration of extinguishment by Justice Lindgren, they cannot be taken as findings or indeed as having any status in relation to any question about the native title extinguishing effect of roads.
9.2.5 The scope of the issue and potential prejudice to the applicants
1881 The Yilka applicant noted that there would be likely to be a considerable amount of debate, time and effort expended on the part of all involved, given that relevant evidence about roads can be complex and disputed, particularly if the allegation is as to the existence of a road at common law, and particularly in relation to trafficable alignments which rarely remain the same for long. The Yilka applicant said that questions about extinguishment of native title by roads are complex, difficult and heavily dependent on evidence and that this is relatively unsettled law.
1882 Similarly, the Sullivan applicant noted its concern that the State sought to re-open its case at a very late stage in the proceedings in order to adduce a substantial amount of new evidence from various sources, including various records as well as narrative evidence based on personal knowledge. The Sullivan applicant, emphasising that the State has had ample opportunity to adduce such evidence earlier, also noted that the State’s submissions in relation to roads in support of its interlocutory application and the evidence it proposed to adduce raised complex issues of law and fact, especially given that much of the land affected is Aboriginal reserve for which entry permits are required under the AAPA Act.
1883 The Yilka applicant submitted that the matters it raised indicated the serious and irremediable prejudice that the Yilka applicant would suffer if the State’s application was acceded to.
1884 Both applicants raised issues in terms of the timing, given the lack of time at that stage to deal with the interlocutory application in the lead up to and as part of the oral closing submissions. As the Sullivan applicant suggested may have been necessary, the interlocutory application was dealt with subsequent to the final submissions on the principal applications.
1885 The Yilka applicant advised that it had no funding to undertake the necessary work to deal with the proposed new evidence.
1886 The Yilka applicant sought costs in relation to the interlocutory application, and said that if the application were granted, it would seek compensatory costs on a solicitor client basis of and in relation to the hearing of the evidence. The Sullivan applicant at this stage reserved its position as to costs.
9.3 ‘First Respondent’s Further Submissions on Roads’ dated 29 August 2014
1887 Following the filing of the initial submissions regarding the State’s interlocutory application, the Court made orders on 31 July 2014 that the State file and serve further submissions setting out the contentions it would make if the affidavits of Mr Deckert and Mr Hill were admitted into evidence, and a description of roads it contends would be sufficient for any native title determination in the proceedings. As the State’s interlocutory application was ultimately successful, for the reasons set out below, the contentions submitted by the State at this stage were for the most part reproduced, although in some respects modified, expanded on, or presented in a different format, in its submissions on roads filed on 29 May 2015 (State Road Submissions), which are discussed in detail below. In addition, some of the contentions made by the State repeated those it had previously made in its reply submissions on extinguishment. The response submissions of the applicants at this stage did not address substantive issues in terms of extinguishment by roads. For these reasons, I will not set out the State’s arguments here, except to note or summarise its main submissions.
9.3.1 State’s contentions should leave to re-open be granted
1888 Overall, the State contended that the evidence it proposed to refer to would provide a basis for direct findings of fact and the drawing of inferences as to the use made by the public of roads within the Claim Area. Matters apparent from the evidence, according to the State, included:
(a) The establishment and dedication of roads under the common law through permitted public use and access;
(b) Presence and use of roads;
(c) The acceptance by the claimants of the public (who are not native title claimants) using the public roads to travel on roads within the external boundary of the Claim Area;
(d) Aside from any extinguishing effect, evidence from the claimants has not been adduced which would support native title rights and interests over public roads. The State said that any native title rights and interests, if once held, over public roads has either been abandoned or not continuous since sovereignty.
1889 The State’s main assertion was that roads created, constructed, established or dedicated by the State before 23 December 1996 (including any adjacent lands necessary for or incidental the construction, establishment or operation of the roads) wholly extinguish native title.
1890 The State submitted that the creation, construction, establishment or dedication of roads within the Claim Area is valid. In particular, roads which came into being:
(a) prior to 31 October 1975 are valid as no question of invalidity by reason of a breach of the RDA arises;
(b) between 31 October 1975 and 1 January 1994 are past acts as defined in s 228(2) NTA and are validated by s 19 NTA and s 5 TVA;
(c) between 1 January 1994 and 23 December 1996 are intermediate period acts as defined in s 232A(2) NTA and are validated by s 22F NTA and s 12A TVA;
(d) at any time prior to 23 December 1996 and falling within the meaning of public work in s 253 and s 251D NTA, are previous exclusive possession acts as defined in s 23B(7) NTA and extinguish native title by operation of s 23E NTA and s 12J TVA;
(e) after 23 December 1996 are, to the extent that they affect native title (as that term is defined in s 227 NTA) and would, but for the NTA, as a consequence be invalid, validated by the future act provisions of the NTA.
1891 It was submitted at this stage in relation to the roads identified by the State (listed below) that extinguishment arose from:
(a) The roads in question having been dedicated by the Crown at common law and having been the subject of public use or expenditure by the Crown maintaining the land as a road. Such dedication is inconsistent with the continuation of native title rights in the land and wholly extinguishes native title;
(b) The roads being 'public works' constructed or established by the Crown or the Shire of Laverton within the meaning of s 253 NTA and previous exclusive possession acts the construction or establishment of which, upon commencement, wholly extinguished native title.
1892 At this stage of the proceedings the State said that, if included in the areas covered by the native title applications, the following roads wholly extinguish native title:
(a) Great Central Road
(b) Lake Wells Road
(c) Cosmo Newberry Road
(d) White Cliffs – Yamarna Road
(e) Road 2: White Cliffs – Rutter’s Soak Road
(f) Mount Shenton – Yamarna Road
(g) Anne Beadell Highway
(h) Point Sunday Road
(i) Minnie Creek Road
(j) Cosmo Newberry Bypass Road
(k) Unnamed road from Cosmo Newberry Community to Pilki Soak (Road R98)
(l) Unnamed road from Cosmo Newberry Road to Mount Shenton – Yamarna Road (Road R20)
1893 The State in these submissions referred to specific evidence in support of its contention in relation to each of these roads that native title was wholly extinguished by dedication by the Crown at common law and the status of the road as a public work constructed or established by the Crown or the Shire of Laverton. That evidence included:
(a) Affidavit of Mr Hill sworn 9 July 2014,
(b) Affidavit of Mr Deckert sworn 14 July 2014,
(c) Records contained in Annexure SJD1 to the affidavit of Mr Deckert (SJD1), including budgets, meeting minutes and correspondence from the Shire of Laverton and extracts from the Government Gazette,
(d) LMR4, the Tenure DVD,
(e) Exhibit A1A, the Yilka site map, and
(f) Various affidavits and transcript evidence of the Aboriginal witnesses.
9.3.2 Description of roads for the purpose of any native title determination
1894 The State proposed (at this point of the exchanges) the following description of roads in any native title determination:
Native title rights and interests do not exist in any area of land which has been dedicated or established as a public road, main road or secondary road in accordance with the statutory requirements for such dedication, even if the land is no longer so dedicated. An established public road also includes any road created or constructed prior to 23 December 1996 that has been established or dedicated as a public road under the common law or subject to public works before 23 December 1996.
1895 The State proposed the above description ‘in line with s 37M FCAA’. The State highlighted the difficulty in obtaining evidence in regard to roads and the potential importance of evidence that is not readily obtainable or comprehensible. The obtaining and analysis of such evidence required significant time using State and, ultimately, judicial resources in circumstances where a multitude of complex documents may be required to be sourced for each and every road.
1896 The State referred to the note to s 225 NTA, which says:
The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.
1897 Paragraph ‘(c)’ of s 225 NTA refers to ‘the nature and extent of any other interests in relation to the Determination Area’. Although roads cannot be strictly categorised as an ‘interest’, the note to s 225 reflects the position that a native title determination cannot be expected to deal with particular kinds of non-native title interests collectively.
1898 The State said although the note to s 225 NTA does not specifically apply to public works (of which roads are a sub-set), it does have a role to play in that the existence of a road necessarily recognises the interests members of the public have in use of the road within the outer boundary of the Claim Area, and that such an interest, if not recorded in the determination either as an area excluded from the determination or as an 'other interest', may fall into dispute or be overlooked. The note to s 225 NTA provides a basis for the Court to consider dealings in the land and waters in the Claim Area on a collective or generic basis.
1899 A general description of roads that were ‘reserved, dedicated or otherwise with some formality classed as a road’ was considered by Sundberg J in the context of public works in Neowarra (at [621]). Such a description ultimately formed part of the native title determination, in which it was held that native title dos not exist in areas of ‘land that has been appropriated as at the date of this Determination for use (whether by dedication, setting aside, reservation or other valid means) and used for roads’: see Neowarra v Western Australia [2004] FCA 1092 (Neowarra [2004] FCA 1092) (at Sch 3 para 9g). The State proposed the clause (as set out above) in these proceedings where a greater reliance has been placed on common law roads and common law extinguishment as compared with the Neowarra determination.
1900 The State initially argued that a similar approach should be adopted by the Court in these proceedings. It should be noted, however, that by the end of the exchange of submissions on roads, the State conceded that its position, advocating for a generic exclusion of roads in any native title determination in these proceedings, was untenable. The State’s final position, as discussed below, is that only four roads extinguish native title in the Claim Area. (The applicants concede just two.)
9.4 Applicants’ submissions dated 1 October 2014 on the State’s interlocutory application
1901 The applicants both filed submissions in response to the State’s further submissions with regards to its interlocutory application, pursuant to orders made on 31 July 2014. Much of these submissions goes to procedural matters which will not be discussed here. Both applicants submitted that the State’s interlocutory application should be refused. The Sullivan applicant adopted the submissions advanced by the Yilka applicant in this regard.
9.4.1 Principles regarding the grant of leave to re-open case
1902 The Yilka applicant discussed the principles governing applications for leave to re-open a party’s case.
1903 In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, Kenny J stated at [24]:
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ("UTA") at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ("Silver Fox") at [22] and [25].
1904 Kenny J’s analysis and classification of cases have been approved by others: Blank v Commissioner of Taxation (No 2) [2014] FCA 517 (at [11]); Matthews v SPI Electricity Pty Ltd (Ruling No 28) [2013] VSC 523 (at [20]); Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232 (at [25]-[26]). In one of those cases, Spotlight Pty Ltd, the Victorian Court of Appeal stated (at [17]):
Were applications to reopen to be allowed almost as of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the reopened hearing was strictly confined. The discipline which ought to attend the conduct of litigation by highly competent litigators would also inevitably decline.
Some of the cases cited by Kenny J are referred to further below.
1905 In Smith v New South Wales Bar Association (1992) 176 CLR 256, Brennan, Dawson, Toohey and Gaudron JJ said (at 266-267) (footnotes omitted):
If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for the judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised.
1906 Urban Transport Authority (NSW) v Nweiser (1992) 28 NSWLR 471 was cited by Kenny J as an illustration of her third and fourth classes of case. In that case, the New South Wales Court of Appeal allowed an appeal against the rejection by a trial judge of an application by a party to re-open its case to call a witness whom it had not previously called. Counsel making the application informed the Court that the witness had been in the precincts of the Court, but that he (counsel) had decided not to call the witness on the basis of his assessment that the witness’ evidence would have gone only to credit. After that party’s case had closed, but before evidence from any other party had been given, counsel revised his view that the witness’ evidence would have gone only to credit. The Court of Appeal held that failure to call a witness due to a deliberate decision, made for tactical reasons, was not decisive (at 475-476). In this case, the appellant would have gained no tactical advantage if the application had been granted and the respondent would have suffered no prejudice (at 476). The Court described the application to re-open in that case as one that had resulted from the mistake of counsel, namely a misapprehension as to the relevance and admissibility of the proposed evidence (at 476). The Court held that, in these circumstances, the interests of justice favoured the grant of leave.
1907 The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 was cited by Kenny J as an additional illustration of her fourth class of case. In that case, both the Court and counsel for the respondents had misunderstood aspects of the applicant’s claim for damages (at [9]-[10]).
1908 Possibly the only native title case in which a party made application for leave to reopen its case by adducing further evidence and which resulted in written reasons is Sampi v Western Australia [2003] FCA 463. The basis for the application in that matter was very different to the basis for the application in the present matter as the parties had reserved the right to make further submissions after conclusion of the principal case, depending upon the outcome of other proceedings before the High Court after completion of the Sampi final submissions. Beaumont J decided (at [15]) to take the further evidence as ‘preservation’ evidence in the form of oral questions in chief and to allow cross-examination, then to hear submissions on what, if any, of the evidence should be allowed by way of re-opening.
9.4.2 Whether the State’s application fell within any of the recognised classes of cases
1909 The Yilka applicant submitted that whilst it may readily be accepted that the four classes of case described by Kenny J in Bradshaw (at [24]) were not intended to be exhaustive, no new or additional class of case for the grant of leave to re-open had been advanced by the State. In these circumstances, the Yilka applicant proceeded to consider the State’s application by reference to the classes of case identified by Kenny J.
1910 Clearly enough, the present case was not one of fresh evidence (Kenny J’s first class), nor was it a case of inadvertent error in failing to adduce particular evidence (Kenny J’s second class). The examples of inadvertent error given by Kenny J in Bradshaw were inadvertent omission to tender some interrogatories (Murray v Figge (1974) 4 ALR 612); omission to adduce evidence due to accident, mistake or want of foresight (Henning v Lynch [1974] 2 NSWLR 254 (at 257 and 259)); and inadvertent omission to ask a witness about a particular matter (Brown v Petranker (1991) 22 NSWLR 717 (at 728)).
1911 The Yilka applicant submitted that the State may conceivably rely on Kenny J’s third or fourth classes of case, namely mistaken apprehension of the facts or the law. However, the State made no acknowledgment of any such mistaken apprehension, but rather attempted to lay responsibility for its failure to adduce the proposed further evidence at the feet of the Yilka applicant, so the Yilka applicant argued. The Yilka applicant contended that this attempt was without substance, as discussed below.
1912 Accordingly, the submission for the Yilka applicant was that the State’s application did not fall within any of the four classes of case identified by Kenny J in Bradshaw and should therefore be dismissed.
9.4.3 The interests of justice
1913 As noted by Kenny J in Bradshaw (at [24] and [26]) the overriding principle is whether, taken as a whole, the ‘interests of justice’ favour the grant of leave to re-open. The Yilka applicant contended that the interests of justice would be better served by refusing the State’s application than by allowing it. The prejudice that the Yilka applicant said it would suffer was, firstly, the additional and unnecessary costs that would be incurred, and secondly, the prejudice that HM would suffer in the event that he was required for further cross-examination. This would be the third occasion (apart from the evidence he gave on site visits) for substantive evidence from HM, and he may have been required to travel to Perth.
1914 The Yilka applicant contended that in assessing where the interests of justice lie, it may be relevant to consider whether or not the proposed further State evidence would be likely to make any and if so what difference to the Court’s decision on the matter to which that evidence is directed. For example, in Murray v Figge (at 614), Muirhead J refused an application to re-open the plaintiff’s case. An important factor in his Honour’s decision was that the proposed further evidence would not have altered his views in relation to credibility, nor would it have affected his factual findings.
1915 Mr Hill’s affidavit suggests that there is significant public usage of at least some of the roads in question. Though not stated directly, it would appear that the Court was being asked to accept that any public use of these roads may be put at risk in the event of a determination of native title in respect of them.
1916 Each of the roads in question appears to travel through one or more of the following reserves: Reserve 20396 (Area 6), Reserve 22032 (Area 7), Reserve 25050 (Area 9) or Reserve 25051 (Area 10). The roads in question are not expressly excluded from the reserves, and each of these reserves is vested in the AAPA.
1917 Part 3 of the AAPA Act applies in respect of the reserves referred to above (see s 26). Subsection 31(1) of the AAPA Act provides as follows:
A person who enters or remains on any land to which this Part applies, or is shown to have been within the boundaries of that land, shall be guilty of an offence, unless he establishes to the satisfaction of the court that he is —
(a) a person of Aboriginal descent; or
(b) a member of either House of the Parliament of the State or of the Commonwealth; or
(c) a person lawfully exercising a function under this Act or otherwise acting in pursuance of a duty imposed by law; or
(d) a person authorised in that behalf under the regulations.
1918 Regulation 8 of the Aboriginal Affairs Planning Authority Act Regulations 1972 (WA) (AAPA Regulations) establishes a system for obtaining permission to enter reserves. Under this system persons who are not of Aboriginal descent or authorised under the AAPA Act or the AAPA Regulations to enter and remain within the boundaries of a reserve may obtain permission to enter a reserve. Application must be made to the Minister, who must consult the Aboriginal Lands Trust in the matter. The Minister may, in his or her discretion grant permission, though it may be revoked at any time, if the Minister thinks fit.
1919 Mr Hill’s affidavit makes no reference to the AAPA, the AAPA Act or the requirement to obtain permission. The State’s further submissions on roads dated 29 August 2014 say nothing about these matters, save for the submission that any vesting of those parts of the roads passing through the reserves for the use of Aboriginal people cannot undo the extinguishing effects of earlier acts. The State also appears to make the submission that any statutory regulation of access in relation to the roads in question is not necessarily incompatible with those roads being public roads. (This was a repetition of the State’s earlier reply submission on extinguishment in relation to roads, discussed at Pt 4.1.7 above.)
1920 It is noteworthy that, in the Ngaanyatjarra Lands consent determination, in which the State was the principal respondent, roads are overwhelmingly treated as ‘other interests’, not as matters that have extinguished native title: see Mervyn on behalf of the Peoples of the Ngaanyatjarra Lands v Western Australia [2005] FCA 831 (Mervyn v Western Australia [2005] FCA 831). This includes the Great Central Road that also passes through the Yilka claim area (at [13(d)] of Sch 4). The only roads identified as being excluded from the determination area are access roads to the Giles Meteorological Station: see Sch 2 at (b)(i). Schedule 4 to the determination set out the ‘other interests’ i.e. interests within the determination area. The ‘other interests’ in relation to roads are identified as follows: the (limited) right of mining tenement holders to use access roads and tracks to mining interest areas (at [6]-[7]); the Shire of Laverton’s rights and interests in Parallel Road, Rawlinna Warburton Road, Ilkurlka Wingelina Road and Hunt Oil Road (at [12]); and the right of any person to use (subject to the laws of the State, in particular, the AAPA Act and AAPA Regulations) the Great Central Road and any road in the determination area over which, as at the date of the determination, the public has a right of way according to the common law (at [13(d)]).
9.4.4 The alleged inadequacy of the evidence in support of the State’s application
1921 The Yilka applicant argued that the State’s evidence contains no or no adequate explanation about why the proposed further State evidence was not called at the hearing, relying on the extract from Smith (at 266-267) quoted above.
9.4.5 The State’s submissions including that roads are excluded from the claims
1922 The State submitted that the Yilka claim does not extend to any of the roads within the external boundaries of the claim area; though at times a more qualified submission is put, namely, that based on the way in which the claim has been framed and presented, no real controversy or serious issue about roads arose or was thought by the State to have arisen.
1923 Thus, the State’s initial submissions in support of its interlocutory application:
(a) referred to ‘the Yilka applicant’s description of the claim area by which it was made clear that roads were not claimed’;
(b) asserted that ‘the State has considered that the existence of roads was not a matter of real controversy’;
(c) implied that no ‘serious issue’ had been thought to arise in the present proceedings about the status of roads within the Claim Area;
(d) asserted that the State ‘has not anticipated that the Yilka applicant would contend that an absence of evidence relating to roads constituted a basis to conclude that roads were absent’.
1924 The Yilka applicant contended that the various submissions by the State above should be rejected, and that counsel’s assertions about the State’s state of mind (presumably meaning that of its legal representatives) should not be accepted in the absence of evidence.
1925 The Yilka applicant asserted that the expression ‘not a matter of real controversy’ is so vague as to be almost meaningless. Litigation is customarily approached on the basis that a matter is either in issue or it is not. If there is doubt about whether or not something is in issue, it is customarily resolved by open correspondence, a request for particulars or obtaining appropriate orders from the Court. The State had done none of these things in relation to the roads issue.
1926 Further, the Yilka applicant argued that such a state of mind would not have had any foundation in fact. To begin with, all four iterations of the Yilka applicant’s points of claim have included at Pt 2 of Sch 1 of the determination sought annexed to each of the documents, under the heading ‘excluded areas’, a list of areas that are within the external boundaries of the Yilka claim area, but are ‘not included because they are not covered by the native title determination application’. The areas thus identified are water reserves; no roads are included.
1927 The State submitted that by s 64(1) NTA it is not open to an applicant to amend a Form 1 so as to include additional areas.
1928 The State’s suggestion that the Yilka Amended Form 1 and/or Yilka POC may have impermissibly sought to expand the area claimed in the original Yilka Form 1 lacks any substance. This suggestion is not pleaded. The Yilka applicant has not contended that the roads in question are absent i.e. physically absent. What it has submitted is that the available evidence does not support any finding that native title rights and interests over the physical areas occupied by these roads have been extinguished, given that many questions fall for consideration in relation to those physical areas in order to prove extinguishment.
1929 The Yilka applicant argued the expression ‘an existing dedicated public road’ is clearly a short-hand expression of the applicant’s position. For example, it could not seriously be suggested that, by the inclusion of these words, the applicant did not claim land or waters on which there existed a road used by the public that had not been validly created or a road used by the public that had been validly created after 23 December 1996. Equally, the inclusion of these words cannot reasonably be regarded as precluding any debate about matters such as what constitutes dedication or acceptance in a particular case. There was no reason at all for the State to be in any doubt about the applicant’s position about roads, which was that, unless it could be satisfied to the contrary by evidence produced and/or submissions made by the State, it did not accept that any of the roads within the Yilka claim area had been excluded from its claim or ought be regarded as having extinguished native title.
9.4.6 Summary of the Yilka applicant’s position in relation to the State’s interlocutory application
1930 The position of the Yilka applicant, in summary, was that the State’s interlocutory application should be dismissed for the following reasons:
(a) It does not fall within any of the four classes of case identified by Kenny J in Bradshaw. In relation to any reliance on Kenny J’s third or fourth classes of case, the State has failed to acknowledge, either in its evidence or in its submissions, that there has been any mistake, misapprehension or inadvertence on its part.
(b) No new or additional class of case for the grant of leave to re-open has been advanced by the State.
(c) The interests of justice would be better served by rejecting the application, than by allowing it. The granting of the application would cause prejudice to the Yilka applicant in that, first, additional and unnecessary costs would be incurred and, secondly, HM would suffer prejudice because, for the third time, he would have to make himself available to be cross-examined.
(d) The State’s evidence in support of the application contains no or no adequate explanation about why the proposed further State evidence was not called at the hearing. Such an explanation is necessary. The Court should not act on mere assertions made in submissions about such matters.
(e) As a matter of construction of the relevant documents, the State’s submission that the Yilka claim does not extend to any of the roads within the external boundaries of the Yilka claim area and that there is no ‘real controversy’ or ‘serious issue’ about roads are without substance.
1931 The Yilka applicant accepts that s 85A NTA applies to the present proceedings generally, including to the State’s application.
1932 Section 85A NTA provides as follows:
(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.
Unreasonable conduct
(2) Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.
1933 In Cheedy v Western Australia (No 2) (2011) 199 FCR 23 (at [9]), North, Mansfield and Gilmour JJ described the effect of s 85A in the following terms:
It is now well established that in proceedings to which s 85A applies:
(1) s 85A(1) removes the expectation that costs will follow the event, but the Court retains its discretion as to costs under s 43 of the [FCAA];
(2) the “unreasonable conduct” of the parties is not a jurisdictional fact which pre-conditions the exercise of the discretion, and on the other hand, s 85A(2) does not control or limit the discretion in s 85A(1);
(3) whilst the exercise of the discretion when making a costs order should be judicial, the starting point is that each party will bear its own costs; and
(4) it is not proper to use the power to award costs to punish either a successful or an unsuccessful party or as a deterrent to other would-be applicants: Reid v South Australia [2007] FCA 1479 at [54].
1934 Costs have been awarded in native title proceedings in a variety of different circumstances, including:
(a) Woosup on behalf of the Northern Cape York Group #1 v Queensland [2014] FCA 910: indigenous respondents ordered to pay applicant’s costs of and incidental to the preparation and serving of certain materials relied on by the applicant in support of an interlocutory application;
(b) Cheedy: appellant ordered to pay one half of a respondent’s costs;
(c) Tullock v Western Australia [2010] FCA 351: applicant on the motion ordered to pay the costs of the applicants, on an indemnity basis, in relation to an interlocutory motion;
(d) Birri-Gubba (Cape Upstart) People v Queensland [2008] FCA 659: applicant ordered to pay 50% of the costs of the State relating to its preparation for and appearance at directions hearings over a certain period in relation to the issue of what evidence ought be preserved;
(e) McKenzie v South Australia [2006] FCA 891: applicants ordered to pay the respondents’ costs of the discontinuance; and
(f) Davison v Fesl (No 2) [2005] FCAFC 274: applicants ordered to pay respondents’ costs of the motion for leave to appeal.
1935 The Yilka applicant submitted that despite the State’s suggestions to the contrary, the need for the State to bring the interlocutory application seeking leave to re-open its case was entirely the result of the unreasonable manner in which it conducted its case on the issue of roads.
1936 The State’s unreasonableness was said to have included:
(a) failing to consider, or appreciate the import of, Pts B and C of Sch B of the Yilka Form 1 and the Yilka Amended Form 1;
(b) failing to consider, or appreciate the import of, the form of the determination sought in each of the various points of claim filed by the Yilka applicant, and, in particular:
(i) Part 2 of Sch 1 (which did not identify any roads among the excluded areas); and
(ii) the fact that it did not at any time include a generic exclusion clause in relation to roads;
(c) if it was in any doubt about whether or not the native title status of roads within the external boundaries of the Yilka claim area was in issue; failing to take any steps to resolve that doubt by open correspondence, a request for particulars or obtaining appropriate orders from the Court;
(d) failing to undertake rudimentary investigations about roads within the external boundaries of the Yilka claim area, for example, by making inquiries of the Shire of Laverton and persons such as Mr Hill.
1937 The Yilka applicant argued that in these circumstances, whether the State was successful in its interlocutory application or not, the State should be ordered to pay the Yilka applicant’s costs of and incidental to that application, as well as the costs of any further hearing in the substantive proceedings. Such costs should be paid on an indemnity basis under s 43(3)(g) of the FCAA, to be taxed in default of agreement and payable forthwith. Indemnity costs are appropriate, having regard to the unreasonable conduct of the State referred to above and to the resulting inconvenience to the Court and inconvenience and expense to the other parties.
1938 The Yilka applicant said that such costs should include those in relation to:
(a) the preparation, filing and service of the affidavit Ms Gemma Wheeler-Carver sworn 16 July 2014;
(b) the preparation, filing and service of:
(i) the Yilka applicant’s ‘Submission on State Interlocutory Application filed 10 July 2014’ dated 16 July 2014;
(ii) the ‘Yilka Applicant’s submissions in response to the First Respondent’s interlocutory application filed 10 July 2014’ dated 1 October 2014;
(c) the following steps in the proceedings proposed by the Yilka applicant in the event of leave to re-open being granted to the State, assuming that they prove to be necessary, namely any:
(i) conferring with the State in relation to programming orders;
(ii) further directions hearing;
(iii) further substantive hearing in the matter.
1939 The Sullivan applicant likewise sought costs of and incidental to the State’s application and any further hearing, given that, if the State had initially given details and evidence of roads asserted to extinguish native title, these matters could have been addressed when initial instructions were obtained from the Sullivan applicant and heard in the course lo of the substantive hearing.
9.5 State’s submissions in reply on roads dated 16 October 2014
1940 In its reply submissions filed 16 October 2014, the State responded to the Yilka applicant’s submissions regarding the principles governing applications to re-open a party’s case.
1941 The State emphasised that the four classes of case where leave may be granted to re-open are not exhaustive: Bradshaw (at [24]). The State noted the Yilka applicant's criticism of the State's explanation for not adducing greater evidence in relation to roads. Although critical of the explanation, the State said that the circumstances fall within multiple categories of the classes as identified in Bradshaw. There is no suggestion that it was a deliberate decision not to adduce the relevant evidence here.
1942 As the Yilka applicant correctly submitted, the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open.
1943 The State submitted that:
(a) Although evidence in the proceedings was closed, it was an important factor that the Court had not yet entered judgment. In this respect the State argued that these proceedings have been complex and have taken place over many years where other parties have been provided with the opportunity of adducing further evidence in multiple tranches of evidence. The further evidence to be adduced by the State would not cause any embarrassment or prejudice to the other parties that could not be overcome by time and potentially some additional costs (which are open to further orders of the Court);
(b) It has been asserted by the Yilka applicant that prejudice would be suffered. At this stage, it was yet to be determined what evidence if any from HM would be the subject of any cross-examination. Any such prejudice only went to additional time and costs;
(c) The important extinguishment issues to be determined by this Court would not necessarily be avoided by the parties should the evidence not be permitted in these proceedings. By way of analogy what would be made of litigation to follow from any potential compulsory acquisition by the State of a relevant road (the subject of the State's further evidence) and possible compensation claims by any native title holder? The question arises, what would be the loss to the native title holder? Would extinguishment be a potential argument? Without developing these arguments or indeed considering whether they are available, the State said that it is in the interests of justice and consistent with the s 22 of the FCCA to deal with the further evidence proposed by the State and any extinguishing effect in these proceedings albeit belatedly;
(d) Further, where findings by this Court in relation to the land and waters within the Claim Area are made in rem, it is the case that third parties and the public at large have a significant interest in the Court dealing with the relevant roads;
(e) The Yilka applicant appeared to suggest that the proposed evidence from the State would be of little significance in light of the fact that the roads in question travel through one or more reserves. This failed to address the obvious complexity of roads and their extinguishing effect which may have preceded any dealings in regard to the reserves; and
(f) In the 'First Respondent's Further Submissions On Roads', it was proposed that any native title determination include a description of roads that would alleviate the need for this Court to determine the detailed and specific issues relating to the creation of roads and extinguishment of native title in regard to individual roads or sections of roads, and in particular alleviate the need to deal with the State's further proposed evidence which is the subject of this interlocutory application.
1944 By orders made on 28 November 2014, I granted leave to re-open. Those orders were as follows:
1. Leave be granted to the First Respondent to re-open its case and to adduce further evidence relating to the construction, existence, maintenance and funding of roads within the claim area, and such be within the parameters described in the affidavit of Trevor Allan Creewel dated 9 July 2014.
2. The First Respondent pay the costs on an indemnity basis of the Yilka and Sullivan Edwards Applicants incidental to the application itself, but not inclusive of costs specifically associated with the hearing time involved in the hearing of the new evidence (Costs).
3. If the parties cannot agree the quantum of Costs, the Court will fix them.
4. The Costs be paid by the First Respondent no later than 28 days prior to the commencement of the hearing.
5. The parties provide counsels’ unavailable dates for the hearing in March and April 2015 to chambers by no later than close of business on 5 December 2014.
6. The parties confer to finalise the programming orders adverted to in the outlines of submissions filed in relation to the First Respondent’s application and confirm those orders by way of a consent minute.
7. The parties provide the consent minute referred to in order 6 to chambers by no later than close of business on 15 December 2014.
8. Liberty to apply.
1945 As will be seen, the position on roads ultimately, despite the seemingly never ending exchanges between the parties, reduced to a relatively simple position.
1946 The vast amount of time and effort spent in the Wongatha proceedings, together with the very considerable time spent in these proceedings, was a factor I took into account in permitting the State’s application to re-open. Clearly there are roads in the Claim Area. Whether or not they satisfy the necessary legal requirements is, if not a particularly simple question, certainly not a question of great length, despite the oceans of ink that have been spilt on the topic.
1947 It is true that there was no explicit explanation given as to the reason why more specific evidence was not initially adduced on the topic by the State. However, I inferred from the nature of the affidavits, which again, in total run to hundreds of pages just on this point, that a certain assessment was made on the basis of the material supporting the claim and that the legal advisors subsequently came to the view, particularly when the lengthy submissions were exchanged, that there may have been a misunderstanding, misapprehension or oversight on the part of the State. These things can happen. It would be inappropriate for the applicants to have a windfall as a result of those events. Following Smith (at 266-267), given that I do not find that the State’s previous omission was a deliberate decision on its part, and that the reasons for judgment had not yet been delivered, the embarrassment or prejudice suffered by the applicants should be the primary consideration.
1948 I considered that the re-opening of the State’s case would cause little, if any, prejudice to the applicants, which could not be overcome by a costs order in their favour. It was therefore my conclusion that the ‘interests of justice’ – which was easily the most important consideration - favoured the re-opening of the State’s case.
1949 On the other hand, considering the totality of the exchanged submissions, in my view, it would have been quite unreasonable to put the applicants to the added cost well after the event of addressing this issue, unless they were adequately protected by costs which should, at least in part, be paid on an indemnity basis. It was not, contrary to any muffled suggestion to the contrary, the applicants’ fault that the State had not led this evidence and made the submissions on roads. Whether the State’s strategy had been reasonable or not, it was clear the outcome for the applicants from a costs perspective would be most unreasonable. As noted by the Yilka applicant, s 85A NTA does not remove the Court’s discretion as to costs under s 43 of the FCAA; following Cheedy (at [9]). The purpose of the order as to costs was to compensate the applicants for the additional costs incurred as a result of the State’s application over and above the costs they would have already incurred ordinarily in addressing the issue of roads in a hearing of this nature. In a practical sense, the view I took was that those costs should be paid before any further evidence on the topic was called because the benefit of a costs order otherwise would be substantially deferred, given the inevitable lengthy period before judgment could be delivered.
10. STATE’S SUBMISSIONS ON ROADS FOLLOWING INTERLOCUTORY APPLICATION
1950 The State Road Submissions expressly pertain to the issue of roads in the Claim Area and the State’s contention that the roads have an extinguishing effect. The State’s says that they are intended to replace its previous submissions on extinguishment insofar as they relate to roads. The State Road Submissions, which are discussed in this Part, specifically address:
(a) the State’s evidence in relation to roads, including further evidence adduced by the State in its interlocutory application of 10 July 2014 and the related oral evidence given on 8 April 2015;
(b) the extinguishing effect of roads in the Claim Area; and,
(c) a description of roads that the State contends would be sufficient for any native title determination in the proceedings.
1951 While the earlier submissions, insofar as roads are concerned, are, therefore to some extent redundant, I have set them out in part because they are relevant to the historical unfolding of the parties’ position on this topic and to the reasoning behind the ultimate conclusion on roads.
1952 As discussed above, the four current Aboriginal reserves cover most of the Claim Area. Those four reserves (including the name by which the State refers to them) are:
(a) Reserve 20396 – ‘Point Salvation’, covering the eastern part of the Claim Area;
(b) Reserve 22032 – ‘Cosmo Newberry’, covering the central and western part of the Claim Area;
(c) Reserve 25050 – ‘Yamarna’, which covers the southern central part of the Claim Area; and
(d) Reserve 25051 – ‘Yamarna’, which covers the northern central part of the Claim Area.
1953 Roads within the outer boundary of the Claim Area have been created at different times during the 20th century. Some of them pass through more than one of the four Aboriginal reserves. Others affect only an area within one of the reserves. Many of the roads extend beyond the Claim Area to Laverton, Warburton and elsewhere. Each of the areas covered by the Aboriginal reserves has, prior to the recent notification pertaining to that area, been the subject of one or more earlier notifications or actions directed towards the setting aside of the land for the benefit of Aboriginal people (in terms which have differed slightly over time, under differing legislation which has applied from time to time). In addition, the State says that the various roads have been opened at different times and over time, the legal regimes for the creation or recognition of roads have changed. Events relating to or evidencing the creation, use, upkeep and existence of the various roads have also occurred irregularly and intermittently, and generally with specificity to particular roads, over the period during which changes in the status of land and legislative regime have taken place. Accordingly, separate descriptions of various legal regimes, dealings that have occurred, and evidence relating to one or other road or reserve is likely to be difficult to apply in a particular instance. The State has set out a broad outline of its position, followed by tables setting out chronologically all matters relevant to a particular reserve and roads within that reserve. There is some repetition in this process, but it is a clearer depiction of the State’s position.
1954 The State identifies the various issues between the parties, as it understands them. The first is the applicants’ argument that, to the extent that roads ostensibly overlap with or pass through any of the four Aboriginal reserves, those roads form part of the respective Aboriginal reserves and have ceased to exist, or never existed, as roads, by reason of the reservation of the land question.
1955 Secondly, the applicants appear to contend that the fact that the four Aboriginal reserves, including roads, ostensibly within or passing through the reserves, have been reserved for the benefit of Aboriginal peoples enlivens s 47A(1)(b)(ii) NTA. In short, the applicants assert that to the extent that the Court finds that, when one or more of the native title applications was made, one or more members of the native title claim group occupied the area of the reserve so that the Court is to disregard any previous extinguishment brought about by the creation of a prior interest.
1956 The State’s broad position is that:
(a) Roads traversing or within any of one or more of the four Aboriginal reserves, whether created before or after the reserve, are not part of any of the relevant reserves and have acquired and retained the status of roads;
(b) Alternatively to (a), that the reservation of land comprising a road does not defeat or cancel the road and the creation of a road on reserved land does not diminish the effectiveness of the creation of the road;
(c) Native title has been wholly extinguished in the area of each road traversing or within any of the four Aboriginal reserves by reason of:
(i) the consequences of creation of each road under the common law or statute, and/or,
(ii) the status of each road as a public work within the meaning of s 253 NTA;
(d) The area covered by any road traversing or within any of the four Aboriginal reserves has not been shown to have been occupied in the sense required by s 47A(1)(c) NTA and therefore extinguishment by reason of the creation of the road is not to be disregarded under s 47A(2) NTA; and,
(e) Extinguishment as a consequence of construction or establishment of any public work before 23 December 1996 is not to be disregarded under s 47A(2) NTA.
1957 In the State Road Submissions, the State said that the varying conditions and circumstances relating to the different parts of the various roads within the outer boundary of the Claim Area and determination of the breadth and location of the roads and areas necessary for or incidental to their construction and establishment ‘present imponderable possibilities beyond the scope of the evidence that would reasonably be efficiently presented’. For this reason the State initially proposed a generic reference or references in any determination of native title to ‘roads’ in the realisation that, if specific issues arise, those issues could be dealt with by a court of competent jurisdiction on the basis of evidence specific to the circumstances relating to the particular place and issues under consideration.
1958 However, following subsequent submissions by the applicants, the State changed its position and asserted extinguishment by only four identified roads.
1959 The State identifies the following evidence which it has previously filed and is relevant to the issue of roads:
(a) Index to Tenure Material filed 21 December 2012;
(b) Affidavit of Mr Morgan sworn 21 December 2012;
(c) Affidavit of Mr Xavier Marszal sworn 11 September 2013;
(d) Affidavit of Mr Grant Werner sworn 11 September 2013;
(e) Affidavit of Mr affirmed 14 July 2014;
(f) Affidavit of Mr Deckert sworn 28 August 2014;
(g) Affidavit of Mr Hill dated 9 July 2014; and,
(h) Minute of resolution 23 November 1995 – ordinary meeting of council.
1960 Other evidence tendered in the proceedings by the applicants in regard to roads includes:
(a) Proclamations with respect to Reserves 25050 and 25051;
(b) Proclamations with respect to Reserve 20396;
(c) Proclamations with respect to Reserve 22032;
(d) The AAPA Regulations as at certain dates; and,
(e) The AAPA Regulations.
1961 A matter which the State notes in relation to the evidence of roads is the use of interchangeable and sometimes unclear titles for particular roads. For example, the ‘Great Central Road’ is in some instances referred to as the ‘Laverton Warburton Road’, ‘Warburton Road’, ‘Warburton Range Road’ and ‘S87’. It should be noted however that, contrary to the State’s assertion, Mr Deckert in his affidavit says that the ‘Warburton Range Road’ was the original name of the roads now known as R53 and R21 (that is, the White Cliffs – Yamarna Road and the Anne Beadell Road). The State Road Submissions seek to minimise confusion of this kind, and in most instances use the road names as used by Mr Deckert in his affidavit affirmed 14 July 2014.
1962 Apart from evidence adduced by the State there have been, throughout the proceedings, many incidental and spontaneous references to and evidence of the existence and use of roads in the Claim Area. Whilst the State bears an evidentiary onus in relation to the adducing of evidence of acts which have might have brought about extinguishment of native title (see Ward FC (at [118])), the legal onus of establishing that native title has not been extinguished remains with the applicants: see Ward FC (at [116]-[117]). In cases where extinguishment is said to have occurred by reason of the legal effect of an instrument, questions of onus are unlikely to be important as ultimately the effect of the instrument will be a question of law: see Ward FC (at [119]). However, in the case of roads created or dedicated at common law, more widely ranging facts and widely held knowledge or information such as evidence going to questions of usage are relevant. The State asserts that the applicants must provide some explanation as to what should be made of the claimants’ references to existence and use of roads. It is of course open to the State to rely on the evidence of the witnesses for the applicants (and the confines of the matters in issue expressly or implicitly identified in an application). In the case of roads, the content of the applications and the applicants’ evidence goes a considerable distance towards establishing or supporting the inference that many roads within the outer boundary of the Claim Area were established and in use before 23 December 1996, according to the State.
1963 The Yilka site map, Exh A1A, tendered by the Yilka applicant, is a map that identifies, by name, the nine roads which the State at this point contend exist within the Claim Area. The map is entitled ‘YILKA SITES AND REGISTER MAP including Tenure and Topographic feature’. The markings on the map were not at any time the subject of qualification, correction or rejection (at least until the filing of Yilka Extinguishment Submissions which refer in one instance to ‘… the area marked on [the Yilka site map] as the “Great Central Road”’. Senior counsel also referred to the Great Central Road from Laverton to Warburton in opening. Witnesses were asked questions by the Yilka applicant’s counsel which presupposed the existence of roads and those witnesses referred to those roads in answers. The Court travelled upon some of the roads that the Yilka applicant, on the State’s understanding, says should be inferred not to exist. One such road delivered the purchases of petrol to the Cosmo Newberry Community and in part facilitated its re-establishment in the late 1980s. It was never suggested that the references made by the applicants and witnesses to roads were fictitious or misconceived. The State relies on evidence as to the existence of the roads as used by the Aboriginal witnesses, and identifies evidence concerning particular roads in the claim throughout its submissions.
1964 One witness relied upon by the State, Mr Hill, was 81 years of age at the date of his affidavit and has lived and worked in the Laverton area his entire life, save for a few months. Mr Hill was involved with the Laverton Shire Council between 1955 and 1995. The affidavit of Mr Hill provides evidence concerning the following roads:
(a) Great Central Road (referred to by Mr Hill as Road R87 at [11] and [13]);
(b) Lake Wells Road (referred to as Road R27 at [17] and [18]);
(c) Cosmo Newberry Road (referred to as Road R36 at [20]);
(d) White Cliffs-Yamarna Road (referred to as Road R53 at [14] and [15]);
(e) Mount Shenton-Yamarna Road (referred to as Road R39 at [23] and [24]);
(f) Neale Junction Road (or Anne Beadell Highway), (referred to as Road R21 at [26]);
(g) Point Sunday Road (referred to as Road R38 at [25]);
(h) Road 20 (and southern part of Cosmo Newberry Road, mislabelled as R20 in Annexure ‘PAH1’), (referred to as Road R20 at [22]) and,
(i) Cosmo Duketon Heights Road (unnamed by Mr Hill and not shown on Yilka site map), (referred to as Road R98 at [19]).
1965 Another witness relied upon by the State, Mr Deckert, is presently the Chief Executive Officer of the Shire of Laverton. Mr Deckert’s affidavit (affirmed 14 July 2014) contains SJD1 which includes extracts from business records of the council comprising:
(a) Minutes of Shire Council meetings;
(b) Correspondence from the Commissioner of Main Roads;
(c) Financial papers of the Shire of Laverton (including funding and budgets for roads);
(d) Road Proclamations;
(e) Notifications containing naming of streets;
(f) Identification of roads (by the numbers also used by Mr Hill), on a copy of the Yilka site map, ;
(g) Government Gazette extracts; and,
(h) Proclamation plans.
1966 Exhibit R97, the affidavit of Mr Deckert (containing SJD1) provides evidence concerning the following roads (note that in relation to (e), (f), (g), (j) and (k) the only evidence included is identification on the map mentioned at f in the above paragraph):
(a) Great Central Road;
(b) Lake Wells Road;
(c) Cosmo Newberry Road;
(d) White Cliffs-Yamarna Road;
(e) Mount Shenton-Yamarna Road;
(f) Neale Junction Road (also known as Anne Beadell Highway);
(g) Point Sunday Road;
(h) Minnie Creek Road;
(i) Cosmo Bypass Road;
(j) Cosmo Duketon Heights Road (referred to as Road R98); and,
(k) Road 20.
1967 The affidavit of Mr Deckert is useful in that it provides a number of historical documents which identify the general location and what the State contends to be the public nature of many of the roads, as well as the times and circumstances in which the council and its predecessor Road Board dealt with those roads.
1968 The State Road Submissions deal with the evidence generally and in particular the material provided by Mr Deckert as part of SJD1 on a reserve by reserve and then on a road by road basis. This process in itself highlights the difficulties associated with the task of tracing the history of roads in circumstances where a number of changes in circumstances have occurred over time and records, such as they are, of the events that were not momentous at the time they occurred, are fragmented and incomplete.
1969 The term ‘road’ is not defined in the NTA. The State contends that statutory definitions of ‘road’ and like terms in State legislation are not determinative of the class of lands that might be taken as constituting a road for the purpose of the NTA, because if State regimes were intended to apply, the Commonwealth Act would say so. Additionally, if State laws were to be taken to define the meaning of the term under the Commonwealth Act then the term ‘road’ might either be susceptible to taking all of the conceivable, and possibly conflicting, meanings under all of the statutes from time to time of all of the States or, alternatively, having an ambulatory meaning depending on the particular statute or State under consideration. The State says that whilst State legislation is relevant to identification of a road, and the designation by the State legislature of land meeting particular requirements or having particular properties as a road is relevant, the use of the term road in the NTA should not be confined to such instances.
1970 Questions as to the creation and existence of roads, and the time at which creation, establishment or construction occurred, involve questions of fact. Those questions are to be addressed on the balance of probabilities, in most cases long after the events occurred and in circumstances where the need to later establish the regularity of steps taken years after normally encountered periods of limitation had expired could not have been contemplated.
1971 Additionally, the State says that in relation to roads established at common law or under statute, it is not apparent that there is any impediment to the creation of such a road over the land previously identified as part of an existing reserve for any purpose, or if there is a case in which a reservation includes land which is already a road, that the reservation closes, revokes or cancels the road. The parties are at odds on this issue as will be seen.
1972 The State summarises what it says are the relevant processes under common law and under State legislation concerning the creation of roads. A discussion of these processes now follows. While some is repetitive of points made at Pt 4.1 above, it has been included here for completeness.
1973 The State emphasises that the existence of a method for statutorily dedicating a public road does not necessarily preclude the opening of a public road in accordance with the rules developed by the common law: see, for example, Permanent Trustee v Campbelltown and A-G (NT) v Minister for Aboriginal Affairs. In A-G (NT) v Minister for Aboriginal Affairs (at 541) it was recognised that, absent any contrary legislative provisions, it remains possible for a public road to be dedicated in accordance with common law rules.
1974 Justice Windeyer explained the common law creation of a public road in Permanent Trustee v Campbelltown (at 420) (footnotes omitted):
It is the public right to use the land as a way, rather than its physical nature, that makes land a highway. At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proffered dedication.
1975 In Ngalakan (at [32]), O’Loughlin J, in discussing dedication of a road at common law, said:
At common law, a road most commonly became a public road by reason of the dedication of the right of passage to the public by the owner of the soil and by reason of an acceptance of the right of way by the public. Usually, that acceptance was established by use: see generally Halsbury’s Laws of England (4 ed) Vol 21 pars 64-67. “Dedication” in that sense, was taken to mean that the owner so conducted himself as to make an offer of usage to the public which the public then accepted.
1976 The State submits that in the case of dedication by the Crown, acceptance by the public is not a necessary element of the creation of a road: Halsbury’ Laws of England (4th ed) vol 21 (at [91]). However, it should be noted that the paragraph cited by the State is found under the heading ‘Statutory Creation and Construction’, and the relevant sentence reads: ‘Where a highway is created by statutory powers, no user by the public or act of any party is necessary to complete its creation’.
1977 The State contends that in context, the facts and circumstances surrounding a road’s creation, history and use may establish both an intention by the owner of the land to dedicate the road, and where the road is not created by the Crown, acceptance by the public that the road is in fact a public road. The dedication can be made expressly or may be inferred from the conduct of the owner: see Shoalhaven (at [10]) per Bryson JA, quoting Newington v Windeyer (1985) 3 NSWLR 555 (per McHugh JA (at 559), Kirby P and Hope JA agreeing).
1978 Whether a road has been dedicated as a public road at common law is a question to be determined on the facts of each case: A-G (NT) v Minister for Aboriginal Affairs (at 542). Factors which may, when considered with all of the relevant evidence, indicate an intention to dedicate the land as a public road include:
(a) declaration of an intention to dedicate: A-G (NT) v Minister for Aboriginal Affairs (at 542);
(b) delineation or demarcation of the road on maps or plans of roads set apart for pubic uses: A-G (NT) v Minister for Aboriginal Affairs (at 542 and 545);
(c) uninterrupted and continuous user of the road by the public (Turner v Walsh (at 639 and 641); Folkestone Corporation (at 352 and 362)). This may also constitute acceptance by the public of the land as a road: Permanent Trustee v Campbelltown (at 422);
(d) expenditure of money by public bodies in forming or maintaining the land as a road (A-G (NT) v Minister for Aboriginal Affairs (at 542)). This may also constitute acceptance of the land as a road: Permanent Trustee v Campbelltown (at 422); and
(e) whether the road communicates with and connects other roads: Permanent Trustee v Campbelltown (at 412, 415 and 422).
1979 The State says that there is no identifiable principle which precludes land the subject of a reservation from being dedicated in accordance with the common law or as a road.
1980 Section 84 of the Public Works Act 1902 provided that, for the purposes of that Act:
the word "road" means a public highway, whether carriage-way, bridle-path, or footpath, and unless repugnant to the context, includes all roads which have been or may hereafter be set apart, defined, proclaimed, or declared roads under any law or authority for the time being in force, and all bridges, culverts, drains, ferries, fords, gates, buildings, and other things thereto belonging, upon, and within the limits of the road, and includes arable soil of every road.
1981 Under s 85 of the Public Works Act 1902 (as it currently stands) the soil of all roads is vested in the Crown (this section as enacted was in the same words, except with the words ‘His Majesty’ instead of ‘the Crown’). In the case of ‘Government roads’, being roads declared as Government roads pursuant to s 86(2) of the Public Works Act 1902, this vesting includes ‘all materials and things of which such roads are composed, or which are capable of being used for the purpose thereof, and are placed or laid upon any such roads’.
1982 The Public Works Act 1902, s 17 (as enacted), provided that whenever any land was:
required for any public work, the Governor may, by notice published in the Government Gazette, declare that the land has been set apart, taken, or resumed under this Act for the purpose therein expressed…
(This section was repealed after various amendments by s 45(1) of the Acts Amendment (Land Administration) Act 1997 (WA).)
1983 Relevantly, s 2 of the Public Works Act 1902 defined public work to include any road. Section 18 of the Public Works Act 1902 (as enacted) further provided that, upon publication of a notice in the Gazette:
(1) The land referred to in such notice shall, by force of this Act, be vested in His Majesty, or the local authority, as the Governor may direct and the case require, for an estate in fee simple in possession for the public work expressed in such notice, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of-way, or other easements whatsoever; and
(2) The estate and interest of every person in such land, whether legal or equitable, shall be deemed to have been converted into a claim for compensation under the provisions hereinafter contained.
Provided that the Governor may, by the same or any subsequent notice, declare that the estate or interest of any lessee or occupier of the land shall continue uninterrupted until taken by further notice.
1984 Section 18(1) was amended by s 3(1) of the Public Works Act Amendment Act 1950 (WA) to add after the word ‘possession’, the words, ‘or such lesser estate’. Various minor amendments were made before the section was deleted by s 45(2) of the Acts Amendment (Land Administration) Act 1997.
1985 The State then turns to s 5 of the Roads Act 1911 which defined a road to mean:
any land notified in the “Government Gazette” as a road, or as a main or minor road, and includes any road declared or notified as such under any repealed Act; and any public highway, whether carriage way bridle path, track, cycle track, or footpath; and all bridges, culverts, drains, ferries, jetties, fords, gates, buildings, and other things appertaining thereto; and any part of a road; but does not include Government roads
1986 The term ‘Government Road’ was defined in s 5 to mean a road declared to be a Government road under the provisions of the Public Works Act 1902. By s 137 of the Roads Act 1911, a Board (defined in s 5 as ‘the Road Board of a district’) had, subject to the provisions of that Act and the Public Works Act 1902, the ‘care, control and management’ of all roads within their district. Further, s 145 provided that ‘all roads and materials thereof, and all things appurtenant thereto’ shall vest in the Board.
1987 Section 144 of the Roads Act 1911 provided that the Board may ‘make, form, alter, level grade, improve, repair, maintain, light, water, cleanse and keep in good order and condition’ roads within the district. However, pursuant to s 163, any resolution of the Board to open a new road, or divert an existing road, was subject to confirmation by the Governor. Section 166 provided that following such confirmation by the Governor, the Minister was required to publish notification of such in the Government Gazette, upon which the road, or altered line of road, was taken to become a road within the meaning of the Act.
1988 This Act, which remained in force until the commencement of the Local Government Act 1960, was relevant for much of the period during which roads were created or established in the Claim Area.
1989 The Road Districts Act defined a road by s 5 as meaning:
any thoroughfare or highway which the public are entitled to use and every part thereof and all bridges and culverts and other things appurtenant thereto and used in connection therewith
1990 The State says this definition is not substantially different to, although a simplification of, the common law position, and that it does not require, either expressly or impliedly, any formality or procedure for the creation of a road.
1991 The definition of s 5 was amended from 1933 by s 2(c) of the Road Districts Amendment Act 1932, so that it read as follows:
any thoroughfare or highway which the public are entitled to use and every part thereof and all bridges and culverts and other things appurtenant thereto and used in connection therewith and includes any land marked as a road upon the plan of any lands publicly exhibited in the public office of the Department of Lands and Surveys, or on any plan deposited in the Office of Titles either prior to or after the passing of this Act
1992 This expanded definition, which included any land marked as a road on a plan in the Department of Lands and Surveys or deposited in the Office of Titles, was retrospective in that it included plans and roads which had been created prior to the passage of the Road Districts Act. This had the effect, the State says, of establishing roads where these roads were identified on relevant plans, whether or not the formalities, usage and rights of public access were present.
1993 Pursuant to s 144 of the Road Districts Act, every Board (defined in s 5 as ‘the Board of a Road District’) had the power to provide and set out roads within its district. However, s 147 provided that every resolution of a Board to open a new road, or divert an existing road, was subject to confirmation by the Governor. Pursuant to s 149, upon confirmation by the Governor of a Board’s resolution to open a new road, or alter the line of an existing road, the Minister was required to publish a notification of such in the Gazette, upon which the road, or altered line of road, was to become a road within the meaning of the Act.
1994 Section 158 of the Road Districts Act 1919 provided that ‘all roads and materials thereof and all things appurtenant thereto’ within a district ‘shall vest in’ the Board of that district and that the Board authority had ‘the care, control and management thereof’. The reference in s 158 to ‘all things appurtenant thereto’ might be thought to be redundant given that the term roads itself included ‘all things appurtenant thereto’ but, the State submits, whether or not that is so the language of the legislature conveys a clear intention to create a wide notion of a ‘road’. This, and the powers of Road District Boards under s 184 of the Road Districts Act to enter upon adjoining lands and to use resources necessary for making or repairing roads, might be read as indicative of the scope of s 251D NTA in relation to roads, according to the State (although note that s 184(6) provides that the powers conferred by s 184 shall not be exercised upon any reserve without written consent from the Minister).
1995 Section 203 of the Road Districts Act permitted any land required for the purposes of the Act to be entered upon, surveyed, and taken under the powers contained in and in accordance with the procedure prescribed by the Public Works Act 1902. Section 204 provided for the making of offers of compensation under the Public Works Act 1902 by the Board or Minister. The State says that this process has a bearing on whether, in the event that a post-1975 creation of any road were to be found to offend s 10 of the RDA, an entitlement to compensation similar to that enjoyed by others would be conferred, or alternatively, whether the creation of the road might be treated as invalid. The State’s submission is that the former would be the case.
1996 There is nothing to suggest that the Road Districts Act displaced the common law, or constituted a code identifying the only method by which roads could thereafter be created or recognised, according to the State. All indications, so the State contends, are to the contrary: s 17 of the Public Works Act 1902 provided one alternative or coexisting avenue, and later, the Local Government Act 1960, by incorporation in the definitions of ‘road’, ‘street’, and ‘public place’ of areas which the public ‘are allowed to use’ (as described further below in Pt 10.4.7), suggests survival and continuation of common law principles and recognition of roads created under those principles.
1997 No provision of the Road Districts Act precluded land that was the subject of a reservation from sale from being dedicated in accordance with the common law, or attaining recognition under the Act, as a road.
10.4.5 Town Planning and Development Act 1928 (WA)
1998 Section 27(2) of the Town Planning and Development Act 1928 (WA) (subsequently renumbered as s 28 in 1951 reprint of the Act) provided that where a street or road corner shown on any plan registered in the Office of Titles or in the Department of Lands and Surveys was subsequently rounded off or truncated, the portion excised formed part of the public street or road and, from the date of approval of the inspector of plans and surveys, was dedicated to the public use and placed under the control of the local authority.
10.4.6 Main Roads Act 1925 (WA) and Main Roads Act 1930 (WA)
1999 Section 4 of the Main Roads Act 1925, provided for the establishment of the Main Roads Board (referred to in this Act as ‘the Board’). Section 13 provided for the proclamation of (existing) roads as main roads. Section 14 provided that ‘[t]he Governor may on the recommendation of the Board authorise and empower the Board to provide and set out main roads’, and that, ‘every main road set out by the Board shall be deemed to have been proclaimed to be a main road under this Act’. Section 15 vested ‘all main roads and the materials thereof and all things appurtenant thereto’ in the Crown and assigned ‘the care control and management thereof’ to the Main Roads Board. Section 21 permitted the declaration by the Governor, and the laying out and provision by the Board upon authorisation by the Governor, of ‘developmental roads’ and provided for their maintenance by the relevant local authority.
2000 The State says that the setting out of the White Cliffs-Yamarna Road by the Main Roads Board (indicating its status as either a main road or a developmental road) had commenced by 1930: see table at Pt 10.5.4 below.
2001 The Main Roads Act 1930 (WA) repealed and replaced the Main Roads Act 1925. A ‘Commissioner’ replaced the ‘Board’, and in most other respects the scheme of the Main Roads Act 1925 was re-enacted. Section 4 was a saving provision in respect of acts, matters, or things under, or for the purposes, of the repealed Main Roads Act 1925.
2002 Amendments made to Main Roads Act 1930 in 1975 provided for the reclassification of ‘main roads’ and ‘developmental roads’ as ‘highways’, ‘main roads’ and secondary roads.
2003 The Great Central Road was declared to be a secondary road in the Gazette dated 2 July 1976: see table at Pt 10.5.3 below.
10.4.7 Local Government Act 1960
2004 The Local Government Act 1960 replaced the Road Districts Act with effect from 1 July 1961. Of the provisions discussed here, ss 6, 282, 283 and 305-315 were repealed by the Local Government Act 1995 (WA), which commenced on 1 July 1996; and s 286 and s 288 were repealed by the Acts Amendment (Land Administration) Act 1997.
2005 Section 6 defined ‘road’ as having the same meaning as ‘street’. The meaning of ‘street’ was explained to include:
a highway; and
a thoroughfare;
which –
the public are allowed to use;
and include and includes every part of the highway or thoroughfare and other things including bridges and culverts, appurtenant to it.\
2006 The meaning of ‘public place’ was also expressed as including ‘a street, way and place which the public are allowed to use, whether the street, way or place is or is not on private property’.
2007 The meaning of the expression ‘allowed to use’ where used in relation to ‘public place’, ‘street’ or ‘way’, was:
a public place, a street, or a way respectively:
(a) which having been dedicated to use as such by the public under an Act or at common law, the public has a right to use as such,
and includes
(b) but only while it is being used as mentioned in this paragraph, a place, a street, or a way, which not having been so dedicated, is being used as such by the public as a public place, public street, or public way with the permission express or implied of the person entitled to grant or refuse the permission substantially as if it were so dedicated and notwithstanding the exercise by the person entitled to exercise it of a right which temporarily interrupts that use whether the right is exercised for the purpose of precluding dedication at common law to that use or for another purpose
2008 It is relevant to observe that for the purposes of the Local Government Act 1960, a ‘street’ or ‘road’ the public are ‘allowed to use’ may have been dedicated at common law or under an Act, but also extended to places which, not having been dedicated, were being used as if they were a public place, street (or road), or way.
2009 Section 282 of the Local Government Act 1960, like the Road Districts Act before it, permitted a council, with the consent of the Governor, to take land compulsorily (subject to the Public Works Act 1902) ‘for the purpose of carrying out a work or undertaking which it is authorised by law to carry out’. Section 283 provided for the making of offers of compensation by a council or the Minister. The state says that this capability has a bearing on whether, in the event that a post-1975 creation of a road were to be found to offend s 10 RDA, an entitlement to compensation similar to that enjoyed by others would be conferred, or alternatively, whether the creation of the road might be treated as invalid. The State submits that the former position would arise.
2010 Section 286(1) of the Local Government Act 1960 provides that:
The absolute property in land reserved, declared, or otherwise dedicated, under this or another Act as a road, street, or highway is by, but subject to the provisions of, this section revested in the Crown.
The State says that the inclusion of land which, although not formally dedicated as a public place, street (or road), or way, the public are allowed to use as such, as described above, in the wide definition of ‘street’ and ‘road’ brings the land of this kind within the operation of s 286. On the other hand, s 286 could be read as referring only to roads which have been reserved, declared or otherwise dedicated under legislation, and not to any land which fell under the broader definitions of ‘road’ or ‘street’ in s 6 of the Local Government Act 1960. Section 286(4) provided that the revesting of property in the Crown did not affect the powers and obligations of a Council in respect of a street (or road) of which it has the care, control or management.
2011 The State says that consistent with its construction of s 286, s 288 of the Local Government Act 1960 provided a mechanism under which land used by the public as a street (or road), way, public place etc. under the care, control, and management of a council may at the request of a council, be declared by the Governor to be a public street. This section was amended by the Local Government Act Amendment Act (No 2) 1963 (WA), such that land comprising a private street of which the public has had uninterrupted use for a period of not less than ten years may similarly be declared a public street by the same mechanism. It is to be noted that the mechanism provided for by s 288 is permitted, not required, and is declaratory of the status of the land rather than transformative of it.
2012 Sections 305-315 set out other powers of councils relating to streets.
2013 No provision of the Local Government Act 1960 precluded land that was the subject of a reservation from sale from being dedicated in accordance with the common law, or attaining recognition under the Act, as a street (or road).
10.5 Principles of extinguishment relevant to roads
2014 Against that common law and statutory background, the position which the State takes in relation to roads is that roads created, constructed, established or dedicated by the State before 23 December 1996 (including any adjacent lands necessary for or incidental to the construction, establishment or operation of the roads) wholly extinguish native title.
2015 The State submits that the creation, construction, establishment or dedication of roads within the Claim Area is in each case valid. In particular:
(a) any road which came into being prior to 31 October 1975 is valid, as no question of invalidity by reason of a breach of the RDA arises; and
(b) any road coming into being between 31 October 1975 and 23 December 1996 is valid because either:
(i) if it is a public work (s 253, s 251D NTA) it will therefore be a ‘previous exclusive possession act’ within s 23B(7) NTA and will have, at the time of its establishment or construction, wholly extinguished any native title by operation of s 23E NTA and s 12J TVA; or
(ii) if the road is not a 'public work', and therefore not within the definition of a 'previous exclusive possession act' within s 23B NTA, the act of creating the road will only be invalid (subject to validation under the NTA and the TVA) if it is shown to offend against s 10 RDA and the effect of the operation of s 10 RDA (but for the NTA) would not be to supply to native title holders with rights equivalent to those conferred on holders of other interests in land, but rather to invalidate the act (purportedly) creating the road: see Ward HC (at [108]). Where this is the case, the act creating the road will be a past act if it took place before 31 October 1975 and 1 January 1994 (s 228 NTA) or an intermediate period act if it took place between 1 January 1994 and 23 December 1996 (s 232A NTA). In the case of past acts, the act will be a category D past act (s 232 NTA), validated by the s 15 and s 19 NTA and s 5 and s 9 TVA; in the case of intermediate period acts, the act will be a category D intermediate period act (s 232E NTA), validated by s 22B and s 22F NTA and s 12A and s 12E TVA. In all instances the non-extinguishment principle (s 238 NTA) will apply.
(c) any road which came into being after 23 December 1996 is, if and to the extent that it might affect native title, as that phrase is defined in s 227 NTA, and would, but for the NTA, as a consequence be invalid, validated by the future act provisions of the NTA.
2016 Importantly, it should be noted that in the State’s final submissions in relation to roads, it contends that only four roads extinguish native title, and that these were all created prior to the commencement of the RDA: see Pt 13 and the comments at the foot of each table in Pts 10.5.2, 10.5.3 and 10.5.4.
10.5.1 Extinguishment by statute or executive act or at common law
2017 The State argues that the conferral of rights in the public by establishment of a road in accordance with statutory procedures or by operation of the common law is inconsistent with the continuation of native title rights in the land upon which the road is established: see Pt 4.1.6 above. Once land is constituted a public road, it retains that character, even if it falls within disuse as a road, unless and until its status as a road is altered by action taken under statute: see Fourmile (at 169). Even where a road loses its character and its status as a road is cancelled, revoked or neutralised, the extinguishing effect of the former status of the land is not undone (see s 237A NTA).
2018 The State relies upon the following tables with respect to each of the four Aboriginal reserves. These tables identify chronologically statutory provisions in force, actions taken in respect of putative roads and evidence relevant to the particular road, along with submissions for the State in respect of these dealings or events. As noted, the State’s final submissions maintained that native title had been extinguished by only four roads within the outer boundaries of the Claim Area. As such, only the evidence pertaining to those four roads, being Neale Junction Road (Anne Beadell Highway), Great Central Road, White Cliffs-Yamarna Road (Road 2) and Road 1 has been included in the tables set out below.
10.5.2 Roads within the outer limits of Reserve 20396
Reserve 20396 ‘Point Salvation’ | ||
Date | Dealing/Event | Notes |
1/1/1899 | Commencement of Land Act 1898. | Section 39: Power to except from sale and reserve or dispose of ‘any lands vested in the Crown’ for (inter alia) the use and benefit of Aboriginal inhabitants. |
16/12/1899 | Commencement of Permanent Reserves Act 1899 (WA) | Section 2: Permits notice of categorisation of lands of the Crown which have been or may be reserved as either A, B or C. Class A reserves require Act of Parliament to revoke, Class B reserves may be cancelled by notification in Gazette and all other reserves are Class C. Section 3: Records that the Act shall not prevent survey and declaration of necessary roads and streets through or over any reserve classified as Class B or Class C. |
19/2/1902 | Amendment of Permanent Reserves Act 1899 s 3 by Permanent Reserves Amendment Act 1902 (WA). | Section 3 amended to read that the Act ‘shall not prevent survey and declaration of ‘necessary roads and streets through or over any reserve’. |
30/4/1906 | Commencement of Aborigines Act 1905 (No 14 of 1905) | Section 10: Permits, relevantly, Governor, by proclamation, to declare ‘any Crown lands to be reserves for aborigines…’ ‘Crown lands’ not defined in Aborigines Act 1905 but under Land Act 1898 s 3 ‘means the waste lands of the Crown within the Colony … not for the time being reserved for or dedicated to any public purpose…’. |
17/12/1919 | Commencement of Road Districts Act | Section 5: Defines ‘road’ (later amended – see below). Section 144: ‘Every Board shall, subject to this Act, have power to provide and set out roads within its district.’ Section 158: vests in the Board for the Road District, ‘all roads and the materials thereof and all things appurtenant thereto …. and the Board shall have the care, control, and management thereof.’ Section 160(1): A Board may, subject to the Act: ‘Make, form, alter, level, grade, pave, improve, repair, maintain, light, water, cleanse and keep in good order and condition all roads and other public places within the district… and do all acts and things necessary for or incidental to the proper management thereof‘. |
14/3/1930 | Government Gazette. Proclamation of Reserve 20396 | Reserve 20396 set aside for the purpose of ‘Aborigines’. Legislative basis not expressly disclosed in published notification. Area at the time of proclamation about 500, 000a. Excludes a ‘proposed Water Reserve of 640 acres near “Dunges Table Hill”. Other notifications in same notice identify various purposes suggesting that reservation is pursuant to Land Act 1898, not Aborigines Act 1905. Reserve not expressed to be Class A or Class B, therefore Class C under Permanent Reserves Act 1899 s 3. Upon reservation all affected land ceases to be ‘Crown Land’ within Land Act 1898 s 3. |
11/2/1933 | Amendment of Road Districts Act by Road Districts Act Amendment Act 1932 | Section 2(c): Definition of ‘road’ expanded to mean and include: ‘any thoroughfare or highway which the public are entitled to use and every part thereof and all bridges and culverts and other things appurtenant thereto, and used in connection therewith, and includes any land marked as a road upon the plan of any lands publicly exhibited in the public office of the Department of Lands and Surveys, or on any plan deposited in the Office of Titles either prior to or after the passing of this Act’. |
6/3/1934 | Commencement of Land Act 1933 | Section 4, Schedule 1: repeal, subject to savings and Interpretation Act 1918 s 16, of inter alia Land Act 1898 and Permanent Reserves Act 1899. Section 10: Governor may by notice ‘[d]efine or alter the name of any street, square, terrace, road, lane or way’. Sections 29, 30: power to reserve ‘any lands vested in the Crown’ (i.e. not limited to ‘Crown Lands’ as defined in s 3). Section 31: Classes A, B and C and power to survey and declare ‘necessary roads and streets through or over any reserve’. Cf. Permanent Reserves Act 1899 s 3. |
11/12/1936 | Amendment of Aborigines Act 1905 (No 14 of 1905) by Aborigines Act Amendment Act 1936 (WA) | Section 35: Aborigines Act 1905-1936 reprinted with renumbered sections as Native Administration Act 1905-1936 (WA). |
13/3/1953 | Government Gazette. Proclamation of Reserve 20396 is expressed to be pursuant to the Native Administration Act 1905-1947 (WA), s 11 (formerly Aborigines Act 1905 s 10). | Gazette notice refers to Proclamation of Reserve 20396 ‘Point Salvation’ as a reserve for natives under Native Administration Act 1905-1947, s 11. No express revocation of prior reserve 14/3/1930 (as permitted under Land Act 1933 s 37). Any roads within outer boundary of reserve not ‘Crown lands’ within Land Act 1933 by reason of prior reservation or dedication. Application of Native Administration Act 1905-1947, s 11 to all land other than Crown lands not apparent. Area is identified by reference to previous reserve number. No further description of the reserve area (although Land District and Plan No cited). Reserve not expressed to be Class A or Class B, therefore Class C under Land Act 1933 s 31. |
1958 | Neale Junction Road (also known as the Anne Beadell Highway) extant: | Evidence of Peter Hill that he used this road in 1958 suggests prior dedication at common law. |
1/7/1961 | Commencement of Local Government Act 1960 | See comments regarding Local Government Act 1960 in Pt 10.4.7 above. |
1/7/1964 | Commencement of Native Welfare Act 1963 | Section 3: repeal of Native Welfare Act 1905-1960 (WA) subject to savings and Interpretation Act 1918 s 15 and s 16. Section 18 permits Governor, by proclamation, to declare ‘any Crown lands to be reserves for natives’. ‘Crown lands’ not defined in Native Welfare Act 1963 but under Land Act 1933 ‘means and includes all lands of the Crown vested in His Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose…’. State submits that land dedicated at common law as a road is not ‘Crown land’ or amenable to reservation under Native Welfare Act 1963. |
1960’s or 1970’s | Neale Junction Road extant. | Evidence of HM (born 1961) of travelling to Lake Yeo when he was a child via a road going that way. There being no other similar road, the inference is that HM was referring to and as a child used Neale Junction Road. Evidence suggests prior dedication of road at common law and a ‘street’ which the public are allowed to use (Local Government Act 1960). |
16/7/1964 | Neale Junction Road extant. | Minutes of the Laverton Shire Council refer to a proposal for grids to be installed ‘at all gates on the Neale Junction Road’. Evidence suggests prior dedication of road at common law. |
2/2/1973 | Amendment of Main Roads Act 1930 by Main Roads Act Amendment Act 1972 (WA) | Section 3: Replaced s 15 of the Main Roads Act 1930 to provide that ‘absolute property in the land over which a main road is declared shall vest in the Crown’, with Commissioner to have ‘care, control and management of the land over which a main road is declared’. |
1/7/1972 | Commencement of AAPA Act | Section 6: repeal of Native Welfare Act 1963 subject to savings and Interpretation Act 1918 s 15 and s 16. Section 25(1)(a): permits Governor, by proclamation, to declare ‘any Crown lands to be reserved for persons of Aboriginal descent.’ ‘Crown lands’ not defined in the AAPA Act but under Land Act 1933 ‘means and includes all lands of the Crown vested in His Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose…’. State submits that land dedicated at common law as a road is not ‘Crown land’ or amenable to reservation under the AAPA Act. Sections 26 and 27: vests land reserved for Aboriginal inhabitants under Land Act 1933 s 29 and proclaimed as reserve under Native Welfare Act 1963 s 18(1)(a) or under the AAPA Act s 25(a) in ‘the Aboriginal Affairs Planning Authority’. Section 24: permits Governor, at the request of the Authority, to place certain reserved land under control and management of Aboriginal Lands Trust. |
15/6/1973 | Government Gazette. Proclamation of Reserve 20396 is expressed to be pursuant to AAPA Act s 25. | Gazette notice refers to Proclamation of Crown Lands including Reserve 20396 ‘Point Salvation’ as a reserve of Crown land for persons of Aboriginal descent. No express revocation of prior reserves 14/3/1930, or 13/3/1953 (as permitted under Land Act 1933 s 37 and AAPA Act, s 25(1)(c)). [Although previous dates are mentioned for each of the reserves listed, under the headings ‘Land Act’ and ‘Proclamations Aboriginal Affairs Statutes’, those dates being 14/3/30 and 13/3/53 respectively for Reserve 20396.] Roads within outer boundary of reserve not ‘Crown Lands’ within Land Act 1933 by reason of prior reservation(s) or dedication. Application of the AAPA Act, s 25(1)(a) to land other than ‘Crown lands’ not apparent. Area is identified by reference to previous reserve number. No further description of the reserve area. Reserve not expressed to be Class A or Class B, therefore Class C under Land Act 1933 s 31. |
17/8/1973 | Government Gazette. Proclamation of Reserve 20396 is expressed to be pursuant to the AAPA Act, s 24. | Reserve 20396 is placed under the control and management of the Aboriginal Lands Trust. No further description of the reserve area. |
23/10/1981 | Naming by the Governor pursuant to Land Act 1933, s 10, of Neale Junction Rd. | The relevant Gazette notes the Governor’s approval of the definition of road names ‘shown or underlined in red on the Lands and Surveys Miscellaneous Plan No. 1142’. |
2019 The State contends that there is ample evidence of Neale Junction Road (also known as Anne Beadell Highway) prior to 30 October 1975. The creation of that road is valid notwithstanding any effect upon native title as it predates commencement of the RDA.
2020 The State argues that, in the event that, by operation of s 47A NTA, extinguishment brought about by the creation of the Neale Junction Road is to be disregarded, that requirement does not neutralise, cancel or invalidate the creation of the road or annul rights in respect of it, but, rather, alters the legal consequences of its creation. Similarly, even if by operation of s 47A NTA, extinguishment brought about by the creation of any road is to be disregarded, the State says that that requirement does not give rise to any right to compensation.
10.5.3 Roads within the outer limits of Reserve 22032
2021 The State relies on the following table in relation to these roads:
Reserve 22032 ‘Cosmo Newbery’ | ||
Date | Dealing/Event | Notes |
30/4/1906 | Commencement of Aborigines Act 1905 | Section 10 permits, relevantly, Governor, by proclamation, to declare ‘any Crown lands to be reserves for Aborigines…’ ‘Crown lands’ not defined in Aborigines Act 1905 but under Land Act 1898 s 3 ‘means the waste lands of the Crown within the Colony … not for the time being reserved for or dedicated to any public purpose…’ |
17/12/1919 | Commencement of Road Districts Act | Section 5: Defines ‘road’ (later amended: see below). Section 144: ‘Every Board shall, subject to this Act, have power to provide and set out roads within its district.’ Section 158: vests in the Board for the Road District, ‘all roads and the materials thereof and all things appurtenant thereto …. and the Board shall have the care, control, and management thereof’. Section 160(1): A Board may, subject to the Act: ‘Make, form, alter, level, grade, pave, improve, repair, maintain, light, water, cleanse and keep in good order and condition all roads and other public places within the district… and do all acts and things necessary for or incidental to the proper management thereof’. |
7/6/1926 | Commencement of Main Roads Act 1925 | Section 4: Establishment of Main Roads Board. Sections 13, 14 and 17: Governor may on recommendation of Main Roads Board proclaim main roads. Factors to be considered. Section 16: Power of Main Roads Board to ‘make, form, level, grade, pave, improve and maintain all main roads … and do all acts and things necessary for or incidental to the proper management thereof’. Section 21: Governor may on own initiative or on recommendation of Main Roads Board declare roads to be ‘developmental roads’. Section 25: Resumption of land permitted in accordance with Public Works Act 1902. |
1/12/1930 | Commencement of Main Roads Act 1930 | Sections 3 and 4: Repeal of Main Roads Act 1925 subject to savings of subsisting declarations etc. Establishment of Commissioner of Main Roads in place of Main Roads Board. Section 15: Main roads and materials thereof and all things appurtenant thereto vested in the Crown, with Commissioner to have care control and management. |
16/11/1931 | Great Central Road extant | Road shown on Surveyor General’s plan Perth Land Office Kalgoorlie LA Plan dated 16/11/1931. Great Central Road is unlabelled but appears in the top left hand corner marked as ‘Rd’ and ‘surveyed by Angove’. Plan is limited to section of about 30km N.E. from Bubbles Rockhole (near Papul Rockhole Site 8.9). |
11/2/1933 | Amendment of Road Districts Act by Road Districts Amendment Act 1932 | Section 2(c): Definition of ‘road’ expanded to mean and include: ‘any thoroughfare or highway which the public are entitled to use and every part thereof and all bridges and culverts and other things appurtenant thereto and used in connection therewith and includes any land marked as a road upon the plan of any lands publicly exhibited in the public office of the Department of Lands and Surveys, or on any plan deposited in the Office of Titles either prior to or after the passing of this Act.’ |
6/3/1934 | Commencement of Land Act 1933 | Section 4, Schedule 1: repeal, subject to savings and Interpretation Act 1918 s16, of inter alia Land Act 1898. Sections 29, 30: power to reserve ‘any lands vested in the Crown’ (i.e. not limited to ‘Crown Lands’ as defined in s 3). Section 31: Classes A, B and C and power to survey and declare ‘necessary roads through or over any reserve’. Cf. Permanent Reserves Act 1899 s 3. |
11/12/1936 | Amendment of Aborigines Act 1905 by Aborigines Act Amendment Act 1936 | Section 35: Aborigines Act 1905-1936 reprinted with renumbered sections as Native Administration Act 1905-1936. |
28/4/1938 | Great Central Road extant | Road shown on Surveyor General’s plan Perth Land Office Kalgoorlie LA Plan dated 28/4/1938. Great Central Road is labelled as ‘Warburton Range Road’ (suggestive of its end point) but plan is limited to section of about 30km N.E. from Bubbles Rockhole (near Papul Rockhole Site 8.9). [Note that whether the ‘Warburton Range Road’ is a reference to the Great Central Road is disputed by the Yilka applicant: see Pt 12.1.2] |
25/8/1939 | Government Gazette Proclamation of Reserve 22032 | Reserve 22032 set aside for the purpose of ‘Natives’. Legislative basis undisclosed. Area at the time of proclamation about 339, 645a Excludes Reserve 18594. Cancels Reserve 17570. Other notifications in same notice identify various purposes suggesting that reservation is pursuant to Land Act 1933, not Native Administration Act 1905-1936 (formerly Aborigines Act 1905). Reserve not expressed to be Class A or Class B, therefore Class C under Land Act 1933 s 31. Upon reservation all affected land ceases to be ‘Crown Land’ within Land Act 1933 s 3. |
17/9/1948 | Government Gazette. Proclamation of Reserve 22032 is expressed to be pursuant to the Native Administration Act 1905-1941 (WA), s 11 (formerly Aborigines Act 1905 s 10). | Gazette notice refers to Proclamation of Reserve 22032 as a reserve for natives under Native Administration Act 1905-1941 s 11. No express revocation of prior reserve 25/8/1939 (as permitted under Land Act 1933 s 37). Roads within outer boundary of reserve not ‘Crown Lands’ within Land Act 1933 by reason of prior dedication under statute and at common law. Application of Native Administration Act 1905-1941 s 11 to lands other than Crown lands not apparent. Area is identified by reference to previous reserve number, and boundaries are described. Area proclaimed to be 1, 115, 435a. Excludes Reserves 18594, 18595, 18596 and 18597. Reserve not expressed to be Class A or Class B, therefore Class C under Land Act 1933 s 31. |
18/5/1949 | Great Central Road extant | Minutes of the Laverton Shire Council referring to work on this road, (referred to in this instance as ‘White Cliffs Warbarton [sic] Range Road’). |
21/9/1949 | Great Central Road extant. | Evidence of funding for the ‘Warburton Range Road’. |
16/11/1949 | Great Central Road extant. | Report sent to the ‘Main Road Engineer... on the Warburton Roangs [sic] Road’. |
7/12/1949 | Great Central Road extant. | Work on the road referred to as the ‘Warburton Range Road’ completed up to about 92 miles from Laverton and about 52 miles from Ivor Rocks. |
Late 1950’s/early 1960’s | Great Central Road extant. | Mr Smythe (born 1956), as a little boy ‘travelled down the old road from Warburton to Cosmo’ via Cyril Well. |
1/7/1961 | Commencement of Local Government Act 1960 | See comments regarding Local Government Act 1960 in Pt 10.4.7 above. |
1/7/1964 | Commencement of Native Welfare Act 1963 | Section 3: repeal of Native Welfare Act 1905-1960 subject, to savings and Interpretation Act 1918 ss15 and 16. Section 18 permits Governor, by proclamation, to ‘declare any Crown lands to be reserves for natives’. ‘Crown lands’ not defined in Native Welfare Act 1963 but under Land Act 1933 ‘means and includes all lands of the Crown vested in His Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose…’ |
Around 1965 | Great Central Road extant. | Rhys Winter used the ‘first old Warburton Road’. [Note that it seems from his description of sites along the way that this more closely aligns with Road 1, although he does say that he camped at Cyril Well (Site 8.3) ‘on the north side of the Great Central Road’]. |
14/6/1968 | Great Central Road extant. | Shire of Laverton document noting the first tourist bus from Sydney to Laverton via Warburton (using the Warburton Road). |
Late 1960’s/early 1970’s | Great Central Road extant. | Hayley Westlake (born 1966) remembered as a young girl camping near the road to Laverton. |
21/10/1970 | Great Central Road extant | Minutes of Ordinary Meeting of Laverton Shire Council reports that grading and gravelling was presently occurring on the Laverton to Cosmo Road. |
18/12/1970 | Great Central Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council reports that the Laverton- Warburton Road had been graded for 185 miles to Lake Throssell. |
27/7/1971 | Great Central Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council reports that the Laverton- Warburton Road had been graded ‘right through’. At this time the Shire of Laverton was maintaining this road right through to the Northern Territory border. |
16/6/1972 | Great Central Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council say that the Laverton- Warburton Docker River Road had been graded over a seven week period and was in good condition. |
1/7/1972 | Commencement of AAPA Act | Section 6: repeal of Native Welfare Act 1963 subject to savings and Interpretation Act 1918 ss 15 and 16. Section 25(3)(a): permits Governor, by proclamation, to declare ‘any Crown lands to be reserved for persons of Aboriginal descent.’ ‘Crown lands’ not defined in AAPA Act but under Land Act 1933 ‘means and includes … all lands of the Crown vested in His Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose…’. Sections 26 and 27: vests land reserved for Aboriginal inhabitants under Land Act 1933 s 29 and proclaimed as reserve under Native Welfare Act 1963 s 18(1)(a) or under s 25(a) of the AAPA Act in ‘the Aboriginal Affairs Planning Authority’. Section 24: permits Governor, at the request of the Authority, to place certain reserved land under control and management of Aboriginal Lands Trust. |
22/12/1972 | Great Central Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council say that the Warburton to Laverton Road had been maintenance graded. It was noted that the road is very rough in places and will need more work. |
23/2/1973 | Great Central Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council say that the Laverton-Warburton Road had been graded right through. |
15/6/1973 | Government Gazette. Proclamation of Reserve 22032 is expressed to be pursuant to AAPA Act, s 25. | Gazette notice refers to Proclamation of Crown Lands including Reserve 22032 ‘Cosmo Newberry via Laverton’ as a reserve of Crown Lands for persons of Aboriginal descent. No express revocation of prior reserves 25/8/1939, or 17/9/1948 (as permitted under Land Act 1933 s37 and AAPA Act, s 25(1)(c). [Although the dates of these previous proclamations are noted, as with the other reserves listed.] Roads within outer boundary of reserve not ‘Crown lands’ within Land Act 1933 by reason of prior dedication under statute and at common law. Application of AAPA Act, s 25(1)(a) to land other than ‘Crown Lands’ not apparent. Area is identified by reference to previous reserve number. No further description of the reserve area. Reserve not expressed to be Class A or Class B, therefore Class C under Land Act 1933 s 31. |
17/8/1973 | Government Gazette. Proclamation regarding Reserve 22032 is expressed to be pursuant to AAPA Act, s 24. | Reserve 22032 ‘Cosmo Newberry’ is placed under the control and management of the Aboriginal Lands Trust. No further description of the reserve area. |
20/11/1975 | Amendment of Main Roads Act 1930 by Main Roads Act Amendment Act 1975 (WA) | Reclassification of main roads and developmental roads as highways, main roads and secondary roads. |
2/7/1976 | Great Central Road extant. | Government Gazette proclaiming Laverton-Warburton Road (Route No. S68 a ‘Secondary Road’ (under the Main Roads Act 1930-75 s 24). |
16/8/1978 | Great Central Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council discussed further funds for Laverton-Warburton Road. |
21/2/1979 | Great Central Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council notes inspection of ‘the Laverton-Warburton-Blackstone-Giles-Warburton-Laverton Roads.’ |
21/2/1979 | Great Central Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council notes discussion of developing ‘the Laverton-Warburton-Blackstone-Dokker route’ with tourists in mind. |
16/10/1979 | Great Central Road extant. | Correspondence from Commissioner of Main Roads notes the classification of the Laverton-Warburton Road as a Secondary Road. |
10/12/1979 | Great Central Road extant. | Minutes Laverton Shire Works Committee Meeting - report on the completion of a maintenance grade on the ‘Warburton Road to the Shire Boundary.’ [Note that future maintenance works to be undertaken on ‘Laverton Warburton’ Road.] |
21/2/1980 | Great Central Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council notes recent heavy rains and the necessity to close the Laverton Warburton Road. |
23/10/1981 | Naming of Great Central Road (noted as the ‘Laverton-Warburton Rd’ at the time) by the Governor pursuant to Land Act 1933, s 10: | The relevant Gazette notes the Governor’s approval of the definition of road names ‘shown or underlined in red on the Lands and Surveys Miscellaneous Plan No. 1142’. |
About 1984 | Great Central Road extant. | Rhys Winter gave evidence of working for the Shire of Laverton and graded the Great Central Road right up to Kanpa to the north-east of the Cosmo area, past Tjukayirla Road House. |
5/1985 | Great Central Road extant. | Declared Roads Map notes ‘S68’ (Laverton-Warburton Road) as secondary road. |
1989 | Great Central Road extant. | Evidence of HM’s move back to live at the Cosmo Newberry Community in this year. The Murrays sustained the community by sale of petrol to people travelling through from Warburton and other communities using the Great Central Road. |
1995 | Great Central Road extant. | Sections in poor condition and needed upgrading, according to oral evidence of Mr Deckert. |
2/1995 | Great Central Road extant. | Floods and weather affected the Laverton area and roads out of Laverton were closed for several weeks. |
15/12/1995 | Great Central Road extant. | Government Gazette declaring this road to no longer be a secondary road from 1 February 1996. |
1/2/1996 | Great Central Road extant. | This road no longer a secondary road. |
30/6/1996 | Great Central Road extant. | Shire of Laverton Budget for the year ending 30 June 1996. |
2022 The State notes that the Great Central Road (which also travels through Reserve 25051) has been historically known as the Warburton Road and the Laverton-Warburton Road and has also been referred to as the Warburton Range Road and S68. It was named as the Great Central Road on 19 October 1999, including the part which was formerly known as the Laverton-Warburton Road. As the State notes, the Court travelled on the Great Central Road from Laverton to the Cosmo Newberry Community for the hearing of evidence and, separately, beyond the Cosmo Newberry Community to its intersection with Point Sunday Road in the east of the Claim Area when the Court visited Minnie Creek. It is a substantial road. There has been evidence that at times this road has been closed and at other times in a poor condition. The State says that a poor road is nonetheless a road. The categorisation of this road as a ‘road’ and its quality at various times does not diminish its role and status as such. There is evidence of floods and weather affecting the area and the road, particularly in February 1995. Indeed, there was flooding during the course of the hearing of the application.
2023 A very small part of the White Cliffs-Yamarna Road (R 53) travels through the south-eastern corner of Reserve 22032 ‘Cosmo Newbery’. The entries for this road have not been duplicated in the table for Reserve 22032. Entries relating to the White Cliffs-Yamarna Road can be found in the table for Reserve 25050 ‘Yamarna’. Similarly, Road 1 passes through both Reserve 22032 and Reserve 25050. Entries relating to that road can be found in the table for Reserve 25050 and have not been duplicated in the table above.
2024 The State says there is ample evidence of the creation of the Great Central Road prior to 30 October 1975. The creation of this road is valid notwithstanding any effect upon native title as it predates commencement of the RDA.
2025 The State argues that in all cases, in the event that, by operation of s 47A NTA, extinguishment brought about by the creation of any road in Reserve 22032 is to be disregarded, that requirement does not neutralise, cancel or invalidate the creation of the road or annul rights in respect of it, but rather, alters the legal consequences of its creation. Similarly, even if by operation of s 47A NTA, extinguishment brought about by the creation of any road is to be disregarded, that requirement does not give rise to any right to compensation.
10.5.4 Roads within the outer limits of Reserve 25050
2026 The State relies upon the following table in relation to these roads:
Reserve 25050 ‘Yamarna’ | ||
Date | Dealing/Event | Notes |
30/4/1906 | Commencement of Aborigines Act 1905 | Section 10 permits, relevantly, Governor, by proclamation, to declare ‘any Crown lands to be reserves for Aborigines…’. ‘Crown lands’ not defined in Aborigines Act 1905 but under Land Act 1898 ‘means the waste lands of the Crown within the Colony … not for the time being reserved for or dedicated to any public purpose…’ |
17/12/1919 | Commencement of Road Districts Act | Section 5: Defines ‘road’. Section 144: ‘Every Board shall, subject to this Act, have power to provide and set out roads within its district’. Section 158: vests in the Board for the Road District, ‘all roads and the materials thereof and all things appurtenant thereto …. and the Board shall have the care, control, and management thereof.’ Section 160(1): A Board may, subject to the Act: ‘Make, form, alter, level, grade, pave, improve, repair, maintain, light, water, cleanse and keep in good order and condition all roads and other public places within the district… and do all acts and things necessary for or incidental to the proper management thereof.’ |
1920 | White Cliffs-Yamarna Road extant. | This road built to create access to the pastoral lease, according to Mr Hill. The first pastoral lease over Yamarna was in place from 1920. |
1/4/1928 | Road 1 (6462) extant. | Shown on Pastoral Lease 3570/92 |
27/2/1930 | White Cliffs-Yamarna Road (Road 2 or 9463 on plans) extant. | Survey comprised in ‘Plan of Traverse Weld District’ (sheet 4680) notes, in relation to Road No 9463, that ‘Transverse follows Road recently cleared by Main Roads Board’. |
16/11/1931 | Road 1 (9462) and White Cliffs-Yamarma Road (Road 2, or 9463 on plans) extant. | Roads shown on Surveyor General’s plan Perth Land Office Kalgoorlie LA Plan dated 16/11/1931. Road 1 and Road 2 (White Cliffs-Yamarna Road) are labelled 9462 and 9463 respectively. |
11/2/1933 | Amendment of Road Districts Act | Section 2(c): Definition of ‘road’ expanded to mean and include: ‘any thoroughfare or highway which the public are entitled to use and every part thereof and all bridges and culverts and other things appurtenant thereto and used in connection therewith and includes any land marked as a road upon the plan of any lands publicly exhibited in the public office of the Department of Lands and Surveys, or on any plan deposited in the Office of Titles either prior to or after the passing of this Act.’ |
6/3/1934 | Commencement of Land Act 1933 | Section 4, Sch 1: repeal, subject to savings and Interpretation Act 1918 s16, of inter alia Land Act 1898. Sections 29, 30: power to reserve ‘any lands vested in the Crown’ (i.e. not limited to ‘Crown Lands’ as defined in s 3). Section 31: Classes A, B and C and power to survey and declare ‘necessary roads through or over any reserve’. Cf. Permanent Reserves Act 1899 s 3. |
1/1/1935 | Road 1 (9462) extant. | Shown on Pastoral Lease 395/704. |
15/1/1935, 12/4/1935, 18/4/1935 | Road 1 (or 9462 on plans) and White Cliffs-Yamarna Road (Road 2, or 9463 on plans) extant. | Gazette notification 18/4/1935 of resolution of the Mount Margaret Road Board made on 15/1/1935 to open Road 1 (9462 on plans) and Road 2 (9463 on plans). Gazette notification on 12/4/1935 that Road 1 (9462 on plans) and Road 2 (9463 on plans) are declared as set apart, taken or resumed for the purpose of new roads under Public Works Act 1902 s 17. |
11/12/1936 | Amendment of Aborigines Act 1905 by Aborigines Act Amendment Act 1936 | Section 35: Aborigines Act 1905-1936 reprinted with renumbered sections as Native Administration Act 1905-1936. |
28/4/1938 | Road 1 (9462 on plans) and White Cliffs-Yamarna Road (Road 2 and 9463 on plans) extant. | Roads 1 and 2 (labelled 9462 and 9463 respectively) shown on Surveyor General’s plan Perth Land Office Kalgoorlie LA Plan dated 28/4/1938. |
22/5/1946 | White Cliffs-Yamarna Road extant. | Minutes of the Laverton Shire Council referring to prospective work on ‘the White Cliffs Road’. |
19/12/1951 | White Cliffs-Yamarna Road extant. | Minutes of Ordinary Meeting of Laverton District Road Board reports that grading has been completed on the ‘White Cliffs Road’. |
15/9/1952 | White Cliffs-Yamarna Road extant. | Minutes of Ordinary Meeting of Laverton District Road Board records that the grader was then on ‘White/Cliffs Road’ and that the job will be completed about the end of the week. [Note that date of meeting not recorded in excerpt in evidence; but minutes were audited on 15/9/1952.] |
11/7/1958 | Government Gazette Proclamation of Reserve 25050 | Gazette notice refers to Proclamation of Reserve 25050 ‘Weld and Yamarna’ as a reserve for ‘Natives’. Legislative basis undisclosed. Area at the time of proclamation about 529,598 a. Other notifications in same notice identify various purposes suggesting that reservation is pursuant to Land Act 1933, not Native Welfare Act 1905-1954 (WA). (Formerly Aborigines Act 1905 and Native Administration Act 1905-1947). Reserve not expressed to be Class A or Class B, therefore Class C under Land Act 1933 s 31. Upon reservation all affected land ceases to be ‘Crown Lands’ within Land Act 1933 s 3. |
17/8/1960 | White Cliffs-Yamarna Road extant. | Minutes of Ordinary Meeting of Laverton District Road Board notes that the gang has completed work on the ‘White Cliffs Road’. |
1/7/1961 | Commencement of Local Government Act 1960 | See comments regarding Local Government Act 1960 in Pt 10.4.7 above. |
1/7/1964 | Commencement of Native Welfare Act 1963 | Section 3: repeal of Native Welfare Act 1905-1960 subject to savings and Interpretation Act 1918 ss 15 and 16. Section 18 permits Governor, by proclamation, to ‘declare any Crown lands to be reserves for natives’. ‘Crown Lands’ not defined in Native Welfare Act 1963 but under Land Act 1933 ‘means and includes all lands of the Crown vested in His Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose…’ |
17/6/1968 | White Cliffs-Yamarna Road extant. | Pastoral Lease 3114/854 (Yamarna Station) was granted on 17 June 1968 pursuant to Land Act 1933, s114. Inference is that this road was built in the late 1960’s when viewed with other evidence in the proceedings. |
18/6/1971 | White Cliffs-Yamarna Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council reports that the White Cliffs road was being graded. |
23/6/1972 | Government Gazette. Proclamation of Reserve 25050 is expressed to be pursuant to Native Welfare Act 1963 s 18. | Gazette notice refers to Proclamation of Crown Lands including Reserve 25050 ‘Yamarna’ as a reserve of Crown land for ‘Natives’. No express revocation of prior reserve 11/7/1958 (as permitted under Land Act 1933 s 37 and Native Welfare Act 1963 s 18(1)(c)). Roads within outer boundary of reserve not ‘Crown Lands’ within Land Act 1933 by reason of prior reservation(s) or dedication. Application of Native Welfare Act 1963 s 18, to lands other than ‘Crown lands’ not apparent. Area is identified by reference to previous reserve number. No further description of the reserve area. Reserve not expressed to be Class A or Class B, therefore Class C under Land Act 1933 s 31. No changes to the reserve area. |
1/7/1972 | Commencement of AAPA Act | Section 6: repeal of Native Welfare Act 1963 subject to savings and Interpretation Act 1918 ss 15 and 16. Section 25(1)(a): permits Governor, by proclamation, to declare ‘any Crown lands to be reserved for persons of Aboriginal descent.’ ‘Crown Lands’ not defined in AAPA Act but under Land Act 1933 ‘means and includes all lands of the Crown vested in His Majesty, except land which is, for the time being, reserved for or dedicated to any public purpose…’. Section 26 and 27: vests land reserved for Aboriginal inhabitants under Land Act 1933 s 29 and proclaimed as reserve under Native Welfare Act 1963 s 18(1)(a) or under AAPA Act s 25(a) in ‘the Aboriginal Affairs Planning Authority’. Section 24: permits Governor, at the request of the Authority, to place certain reserved land under control and management of Aboriginal Lands Trust. |
18/8/1972 | White Cliffs-Yamarna Road extant. | Minutes of Ordinary Meeting of Laverton Shire Council say that the ‘Laverton/White Cliffs road’ had been maintenance graded. |
23/3/1973 | Government Gazette. Proclamation is expressed to be pursuant to AAPA Act s 24. | Reserve 25050 is placed under the control and management of the Aboriginal Lands Trust. No further description of the reserve area. |
15/8/1977 | White Cliffs-Yamarna Road extant. | Minutes of the Laverton Shire Council referring to work on this road on the ‘Yamarna-Whitecliffs road’. |
6/11/1979 | White Cliffs-Yamarna Road extant. | Minutes of the Laverton Shire Council refers to the grant job ($6000) for the ‘White Cliffs-Yamarna’ road as having been completed. |
10/12/1979 | White Cliffs-Yamarna Road extant. | Minutes of the Laverton Shire Council noting completion of formation on this road. |
23/10/1981 | Naming of White Cliffs-Yamarna Road; by the Governor pursuant to Land Act 1933, s 10. | The relevant Gazette notes the Governor’s approval of the definition of road names ‘shown or underlined in red on the Lands and Surveys Miscellaneous Plan No. 1142’. |
9/2/1981 | White Cliffs-Yamarna Road extant. | Minutes of the Laverton Shire Council note a budget recommendation of $9,600 for this road. |
About 1984 | White Cliffs-Yamarna Road extant. | Rhys Winter had a job with the Laverton Shire grading this road. |
2027 The State says that there is ample evidence of the creation of White Cliffs-Yamarna Road (Road 2) and Road 1 prior to 30 October 1975. The creation of these roads is valid notwithstanding any effect upon native title as they predate commencement of the RDA.
2028 In both cases, in the event that, by operation of s 47A NTA, extinguishment brought about by the creation of any road in Reserve 25050 is to be disregarded, that requirement does not neutralise, cancel or invalidate the creation of the road or annul rights in respect of it, but rather, alters the legal consequences of its creation, according to the State. Similarly, even if by operation of s 47A NTA, extinguishment brought about by the creation of any road is to be disregarded, that requirement does not give rise to any right to compensation.
10.5.5 Roads within the outer limits of Reserve 25051
2029 The only road which the State maintains is within Reserve 25051 is the Great Central Road. Evidence and submissions in relation to that road have been covered above, Pt 10.5.3, and will not be duplicated here.
10.5.6 Roads as ‘public works’ within s 253 NTA
2030 The State makes essentially the same points in relation to roads as public works as in its initial submissions on extinguishment, which have been discussed at Pt 4.1.4 above. Those submissions are therefore not repeated here, except to note the following additions and modifications:
(a) The State says that the view that the legal creation or recognition of a road might constitute ‘establishment’, in the relevant sense, is consistent with the extinguishment being taken to have occurred when construction or establishment of the public work began (see s 23C(2)(b) NTA and s 12J(1)(b) TVA);
(b) The State says that perhaps the clearest example of ‘establishment’ of a road by the State in circumstances where the parties responsible for its physical construction are not identified, or relevant, is to be found in the recognition by Local Government Act 1960, of places the public are ‘allowed to use’ and places not formally dedicated as ‘roads’;
(c) The State adds to the second sentence of the second paragraph in Pt 4.1.4, so that it now reads, consistent with the phrasing used above in these reasons: Further, given that the construction or establishment of those roads was undertaken ‘by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities’ (s 253 NTA) and is attributable to the State, s 23E NTA and s 12J TVA confirm complete extinguishment;
(d) In relation to the operation of s 251D NTA and road reserves, the State adds that roads and the subsurface and air space are used in many cases as corridors for the accommodation of services, including those necessary for the supply of electricity, telecommunications, water supply, sewers and gas;
(e) In place of its earlier submission that the width of corridors for roads should be 100 m or 200 m, the State says that the location and breadth of any particular road corridor will be a question of fact dependent on the circumstances in the particular instance. Under s 145 of the Road Districts Act, which deals with secondary as well as major roads, the minimum width of roads is to be 66 feet (one chain). The State says that the minimum width should not be taken as an indication of what is appropriate for routes which are used or likely to be used, even irregularly, by bullock teams and later by semi-trailers, B-Doubles, road trains, coaches, caravans and for the carriage of oversize loads in both directions. The State says that it is beyond the limits of reasonable endeavour to attempt to specify the precise location, breadth and layout of all of the roads and areas associated with their construction, establishment or operation throughout the Claim Area. The State submits that an ample corridor of ‘adjacent land’ is ‘necessary for, or incidental to, the construction, establishment or operation of’ roads within the meaning of s 251D NTA. While the task of specifying a dimension for each part of each road cannot reasonably be undertaken, the State suggests that what can be said with certainty is that the roads are not less than 66 feet wide.
2031 The State also refers to specific evidence of work conducted on each of the roads it asserts extinguish native title, saying that if the Court proposes to find that a particular road or roads within the Claim Area form part of any one of the four Aboriginal reserves and also to the extent that s 47A NTA applies, the State relies on the character of the roads as public works as extinguishing native title rights and interests. These public works include the creation and/or maintenance of such roads on behalf of the Crown.
2032 The State identifies attributes relating to specific roads which it submits bring them within the meaning of public works, as follows below. The evidence relied upon by the State is largely taken from SJD1, as well as Dr Sackett’s oral evidence and other evidence where indicated. The evidence referred to in relation to the four roads which the State in its final submissions maintains have an extinguishing effect on native title is set out under the headings which follow.
10.5.6.1 Great Central Road (R87)
(a) This road over the years has had a number of names.
(b) The Secretary’s Report of 25 March 1958 reports that grading has been completed on the Cosmo–Minnie Creek Road, which, according to the oral evidence of Mr Deckert, would have been a reference to a section of the current Great Central Road (although note that this is disputed by the Yilka applicant: see Pt 12.1.2).
(c) Extract from Minutes of Ordinary Meeting of Laverton Shire Council on 21 October 1970 reports that grading and gravelling was presently occurring on the Laverton to Cosmo road. Again, Mr Deckert in his oral evidence gave his belief that this is a reference to part of what is now the Great Central Road.
(d) Extract from Minutes of Ordinary Meeting of Laverton Shire Council on 20 November 1970: Foreman’s Report says that the Cosmo Road is now graded to 140 miles. Mr Deckert explained in his oral evidence that this means the graders would have started just north of Laverton, at the point where the Great Central Road would have started at that time, and worked out some 140 mile from there.
(e) This road has also been referred to as the Laverton-Warburton Road. The following six paragraphs identify further extracts from documents included as part of SJD1 which refer to work carried out on the Laverton-Warburton Road.
(i) Extract from Minutes of Ordinary Meeting of Laverton Shire Council dated 18 December 1970 reports that the Laverton/Warburton Road had been graded for 185 miles to Lake Throssell.
(ii) Extract from Minutes of Ordinary Meeting of Laverton Shire Council of 27 July 1971 reports that the Laverton/Warburton Road had been graded ‘right through’. At this time the Shire of Laverton was maintaining this road right through to the Northern Territory border.
(iii) Extract from Minutes of Ordinary Meeting of Laverton Shire Council dated 16 June 1972: Foreman’s Report says that the Laverton/Warburton Road Docker River Road had been graded over a seven week period and was in good condition.
(iv) Extract from Minutes of Ordinary Meeting of Laverton Shire Council on 22 December 1972: Foreman’s Report says that the Warburton to Laverton Road had been maintenance graded.
(v) Extract from Minutes of Ordinary Meeting of Laverton Shire Council dated 23 February 1973: Foreman’s Report says that the Laverton/Warburton Road had been ‘graded right through clearing all the sand patches’.
(vi) Extract from Minutes Laverton Shire Works Committee Meeting 10 December 1979 where the Shire Clerk and Foreman verbally reported on the completion of a maintenance grade on the ‘Warburton Road to the Shire Boundary’. [Note that these minutes also record that maintenance work to be done ‘Laverton-Warburton’.]
10.5.6.2 White Cliffs-Yamarna Road (R53)
2033 The extracts from documents included as part of SJD1 set out in the following seven paragraphs identify work carried out on the White Cliffs-Yamarna Road (although the Yilka applicant disputes whether references to the White Cliffs Road are to the While Cliffs-Yamarna Road: see Pt 12.1.2 below):
(a) Extract from Minutes of Ordinary Meeting of Laverton District Road Board 19 December 1951 reports that grading has been completed on the White Cliffs Road.
(b) Extract from Minutes of Ordinary Meeting of Laverton District Road Board, audited on 15 September 1952 (date of meeting not recorded) reports that ‘[t]he grader is now on the White/Cliffs Road and the job will be completed about the end of this week’.
(c) Extract from Minutes of Ordinary Meeting of Laverton District Road Board 17 August 1960: Secretary’s Report notes that ‘the gang has completed work on the White Cliffs road’.
(d) Extract from Minutes of Ordinary Meeting of Laverton Shire Council 18 June 1971: Foreman Report says that the ‘Whitecliffs’ road was being graded.
(e) Extract from Minutes of Ordinary Meeting of Laverton Shire Council 18 August 1972: Foreman’s Report says that the Laverton/Whitecliffs Road has been maintenance graded.
(f) Extract from Minutes Laverton Shire Council Works Committee Meeting of 6 November 1979: Works Report says that White Cliffs-Yamarna grant job ($6000) has been completed.
(g) Extract from Minutes Laverton Shire Council Works Committee Meeting of 10 December 1979 where the Shire Clerk and Foreman verbally report on the completion of formation on the White Cliffs-Yamarna Road.
10.5.6.3 Neale Junction Road (aka Anne Beadell Highway) (R21)
(a) This road was originally known as the Warburton Range Road;
(b) Extract from Minutes for Meeting of Mount Margaret Road, Health and Vermin Boards 7 December 1949 reports that grading has been completed on the Warburton Range Road about 92 miles from Laverton.
10.6 Occupation for the purposes of s 47A NTA
2034 In terms of the legal principles relating to the occupation requirement in s 47A generally, the State makes the same submissions as above: see Pt 7.
2035 As noted in its reply submissions on extinguishment (see Pt 7.7), the State has accepted that some Yilka claimants have been resident at the Cosmo Newberry Community at the time the Yilka No 1 and Yilka No 2 claims were made. The State also accepts that Mervyn Sullivan, a member of the Sullivan claim group, was resident at the Cosmo Newberry Community as at 7 December 2011, the date of making of the Sullivan application, and also occupied certain areas. The State does not concede that the evidence relating to use of roads within the outer boundary of the Claim Area demonstrates that those roads were 'occupied' in the sense necessary in order to permit reliance on s 47A NTA.
2036 The State does not dispute the Yilka applicant's submission that the relevant date for the ascertainment of a 'prior interest', which is susceptible to being disregarded where s 47A NTA is enlivened, is the date upon which the application is made. It should be noted that the Yilka applicant also suggests that interests created after the date when the application was made and prior to the date of the determination may constitute ‘prior interests’; although this is presently immaterial. The State submits that, consistent with the judgment of the Full Court in Erubam Le (at [87]-[90]), s 47A does not, where it has application, extend to require extinguishment brought about by public works to be disregarded. That decision was, the State submits, correctly decided by the Full Court with the consequence that the extinguishing effect of roads within the outer boundary of the Claim Area, which are ‘public works’, is in any event not to be disregarded.
2037 As noted above, the State submits that even if the extinguishing effect of an act comprising the creation of a road is to be disregarded, the consequences of the act, that is, the opening of the road and its availability for use by the public, subject to regulation, continue without impairment.
10.7 Response to the applicants’ Extinguishment Submissions
2038 The State again makes the same submissions in response to the Yilka Extinguishment Submissions as they relate to roads as were made by the State in its reply submissions on extinguishment: see Pt 4.1.7 above. The only additional point made by the State here is that, in relation to the creation of roads, where a road is dedicated by the Crown no public acceptance is required: see Pt 10.4.1 above.
2039 The only response made by the State to the Sullivan Extinguishment Submissions is in relation to the State’s proposal to deal with roads by way of a generic description, which was said by the Sullivan applicant to be too vague. This is dealt with in Pt 10.8 below.
10.8 Description of roads for the purposes of any determination
2040 As noted above, prior to the State’s final submissions in reply in relation to roads, the State contended that a general description of roads would suffice. The State here made the same points in support of this contention as previously made over the course of submissions in relation to its interlocutory application to re-open its case: see Pt 9.3.2 above. The description proposed by the State at this point in the proceedings was somewhat simplified from its earlier proposed description, and read as follows:
Native title rights and interests do not exist in any area of land which, prior to 23 December 1996 had been dedicated or constructed or established as a public road, main road or secondary road, even if the land is no longer or ceases to be so dedicated.
2041 As will be seen, the State ultimately abandoned such a contention and now submits that native title was extinguished only by four roads within the claim boundary.
11. THE SULLIVAN APPLICANT’S FINAL SUBMISSIONS ON ROADS
2042 This Part discusses the ‘Sullivan Edwards Applicant’s Submissions on Roads’, filed on 30 June 2015 (Sullivan Road Submissions), in response to the State Road Submissions.
11.1 State’s general proposition regarding extinguishment by roads
2043 The Sullivan applicant does not accept the State’s proposition that roads created, constructed, established or dedicated by the State before 23 December 1996 (including any adjacent lands necessary for or incidental to the construction, establishment or operation of the roads) wholly extinguish native title.
2044 The Sullivan applicant says that it rejects that proposition as:
(a) that proposition does not mirror the requirements for extinguishment under the NTA; and
(b) the situation is complicated by the fact that the Claim Area includes areas of Aboriginal reserve, over which public access is and has been restricted at law.
2045 The Sullivan applicant repeats that the law relating to extinguishment by way of roads was set out by Sundberg J in Neowarra [2004] FCA 1092 (at Sch 3 [(g)]), where his Honour excluded from native title:
land that has been appropriated as at the date of this Determination for use (whether by dedication, setting aside, reservation or other valid means) and used for roads.
2046 This approach was explained by Sundberg J in Neowarra (at [621]):
I agree with the applicants that the State’s general description of “any road or track” within the claim area is too wide. It would include private roads and unformed tracks, and would extend beyond the opening words of par (a) of the definition of “public work”. On the other hand, I think it appropriate to have a description that will pick up roads that have been reserved, dedicated or otherwise with some formality classed as a road. This would mean that if the Port Warrender Road fits this description, as Mr Sarich’s evidence suggests it may, it will be a road within the definition of “public work”. In Mabo (No 2) (1992) 175 CLR at 70 Brennan J employed language of this type to describe relevant extinguishing events – land that has been “validly appropriated for use (whether by dedication, setting aside, reservation or other valid means) and used for roads …”.
(emphasis added)
2047 The terms of Sundberg J’s determination, the Sullivan applicant submits, and I accept, properly places the emphasis on formal appropriation of the land in question, rather than on common law roads. This differs from the State’s approach, as the State concedes: see Pt 9.3.2 above.
2048 In Daniel (at [640]), Nicholson J said:
The law relating to the effect of roads on native title has been relevantly considered in [Ward FC] at 415-416 and in [Fourmile]. It was held in Fourmile that ‘where the Crown is permitted by legislative authority to constitute a public road, the question whether lands have been so constituted as a public road depends entirely on whether the statutory procedure has been followed’: at 167 per Drummond J with whom Burchett J agreed...
2049 The Sullivan applicant relies on this authority for the proposition that statutory procedures are the only means by which the State, as opposed to a private landholder, can make a road. It should be noted that his Honour went on to reject the applicants’ submission in that case regarding lack of evidence of usage of the roads saying that such evidence is only relevant ‘in the case of a road constituted other than as the consequence of the exercise of legislative authority or executive or administrative action under the legislative authority’ (at [641]). This may suggest that it is possible for the Crown to create roads other than pursuant to legislation, although it may only refer to roads created by private land owners.
2050 As to dedicated roads, the Sullivan applicant contends that only two roads appear to have the colour of being formally dedicated or ‘appropriated’ as roads. The first is the White Cliffs-Yamarna Road. This was proclaimed on 18 April 1935, being the date on which the resolution of the Mount Margaret Road Board to open this road was gazetted.
2051 While there was confusion amongst the parties over the numbering and naming of roads, it appears that the White Cliffs-Yamarna Road was Road No. 9463 on plans. It has also been referred to in these reasons as Road 2. At some points it appears that the State has confused this road with Road No. 9462 (Road 1), which it had previously referred to as ‘White Cliffs-Rutter’s Soak Road’ (see Pt 9.3.1), but in its final submissions refers to as being unnamed. Any such discrepancies in the above evidence tables have been changed to reflect the State’s final submissions and the evidence referred to by the State. At this point, however, it is worth noting that the evidence of formal dedication appears to have been identical in terms of the White Cliffs-Yamarna Road (Road 2, or 9463 on plans) and the unnamed road (Road 1, or 9462 on plans). Road No 9462, like road No. 9463, was resolved to be opened by the Mount Margaret Road Board; which resolution was noted in the Gazette of 18 April 1935.
2052 With regards to the White Cliffs-Yamarna Road, the Sullivan applicant says that the extent of gazettal is unclear, and that it may only refer to that part of this road which is to the south and outside of the Aboriginal reserve/Claim Area. However, the description of this road (referred to as Road No. 9463) in the Gazette of 12 April 1935 as well as 18 April 1935 notes that it runs in an easterly and north-easterly direction ‘to Survey Mark F.Y. 202, near Point Salvation’. Point Salvation, which is within the area of the Yamarna Pastoral Lease, is near the northerly point of the White Cliffs-Yamarna Road as depicted in the Yilka site map. Therefore it appears that the Sullivan applicant is incorrect in this assertion.
2053 The other road which the Sullivan applicant notes as having the colour of being formally dedicated is the Great Central Road. This was proclaimed as a secondary road on 2 July 1976 and proclaimed to no longer be a secondary road on 15 December 1995, according to the State’s evidence table.
2054 The road is said by the State to be to be over Aboriginal Reserve 22032. The Sullivan applicant says that the de-proclamation of the road needs to be considered, although the State has not given any explanation for this in its submissions. As the road was proclaimed after the introduction of the RDA, it may be considered an invalid act as being contrary to s 10 RDA. This may have led to its subsequent de-proclamation, although this is speculation and unexplained by the State.
2055 The Sullivan applicant says that the current situation on the State’s evidence appears to be that the Great Central Road is currently not proclaimed as a road following the de-proclamation. There is satisfactory proof that the Great Central Road has ever been validly proclaimed as a road, the Sullivan applicant says. Even if both the White Cliffs-Yamarna Road and the Great Central Road have been validly proclaimed over the Claim Area and extinguishment of native title has occurred, s 47A NTA applies such that the extinguishment shall be disregarded, on the Sullivan applicant’s case. The Sullivan applicant says that this is so whether or not the roads are public works within the definition of s 253 NTA. That position is explained further below.
11.3 Naming and marking of roads on plans
2056 There is a debate about the significance of roads being named and marked on plans. The State in its submissions points to evidence of where the Governor has named roads or given approval for the naming of roads pursuant to the s 10 of the Land Act 1933. These roads with names have been marked on plans. Some of these roads have not been, so it appears, formally proclaimed, including the Neale Junction Road which the State maintains extinguishes native title in its final reply submissions. The State seeks to interpret s 5 of the Road Districts Act (as amended) to mean that wherever a road is or was marked on a Department of Lands and Surveys public plan it is ‘established’ as a road ‘whether or not the formalities, usage and rights of public access were present’: see Pt 10.4.4 above. The Sullivan applicant contends that this is a misinterpretation of the amended section. The word ‘includes’ does not seek to establish a different category of road apart from those that ‘the public are entitled to use’. Rather, the addition is meant to clarify, by the certainty of public plans, the extra areas immediately previously referred to in the section, that is, bridges, culverts and other things appurtenant thereto and used in connection therewith.
2057 To accept the State's interpretation would fly in the face of the provisions of the Road Districts Act for the taking of roads and providing compensation for the same (for example, s 203 and s 204 referred to by the State: see Pt 10.4.4 above), according to the State.
2058 There is also debate about common law roads. The Sullivan applicant says that common law roads, on applying Neowarra, Daniel and Fourmile, do not without anything more extinguish native title: see Pt 11.1 above. Nonetheless, the Sullivan applicant refers and replies to the concepts and arguments in the State's submissions where the State relies on principles for the creation of common law roads, citing Permanent Trustee v Campbelltown (at 420) and also Ngalakan (at [32]).
2059 The State says that both of those cases refer to the need for (a) the manifestation by a competent landowner of an intention to dedicate land as a public road; and (b) the acceptance by the public of the proffered dedication. These are separate features that must each be proven, the Sullivan applicant says, if a common law road is to be established. The State had not, at this point of its submissions, pointed to specific roads that it says are created at common law or to the evidence which it says support (a) and (b) in respect of each such road. This no doubt was consistent with the State’s submission that a generic exclusion can be included in the native title determination in relation to roads (which the State no longer presses in its final reply submissions on roads, as will be seen in Pt 13 below).
2060 The competent landowner in relation to the Claim Area at the relevant time of the alleged possible creation of common law roads was the State, the land having been Aboriginal reserve, pastoral lease or vacant crown land. As to the State’s process to dedicate, the Sullivan applicant argues that this can only be through statutory process. The only roads that have the colour of having been formally dedicated according to the Sullivan applicant, are the White Cliffs-Yamarna Road and the Great Central Rd.
2061 Even if there is a dedication of a road or roads to public use, the Sullivan applicant submits that the evidence of public use of the roads (acceptance) on the Claim Area has not been made out. The State has relied largely on evidence of use by adjoining landholder Mr Hill, by claimants themselves and by sandalwooders and mining companies having interests in the area. There was also some non-specific evidence from Mr Hill of use by members of the public.
2062 The Sullivan applicant submits that the evidence of public use is imprecise and insufficient to show a general ‘acceptance by the public’ of use of the roads in the Claim Area. Further, the reserve status of claim area land and the restrictions on public access to it (see Pt 11.6 below) vitiate against any presumption that roads were open to public use or freely used by them. In relation to the Yamarna Pastoral Lease, the Sullivan applicant submits that the evidence is insufficient to establish whether the dedicated parts of either of the two abovementioned roads cross the area of that lease and are used by the public.
11.5 Roads as public works within s 253 NTA
2063 The State also claims a special status for roads by way of being ‘public works’ as defined in s 253 NTA and says that this effectively neutralises the operation of s 47A NTA, which would otherwise work to have any extinguishment disregarded: see Pt 10.6 above.
2064 The Sullivan applicant says, however, that the State has not specified which, if any, roads can be classed as public works. In fact, it suggests that some of the roads may not have that status: see, for example, at Pt 10.5 where it is noted that the State submissions refer to roads which are or are not public works. The Sullivan applicant submits that the State leaves a confusing picture as to what it is submitting. The State makes a concession that there must be legal creation or recognition of a road (in order to amount to the establishment of a road as a public work) established ‘by or on behalf of the Crown, or a local government body or other statutory authority of the Crown’, picking up the wording from the definition of public work in s 253 NTA: see Pt 10.5.6. In considering that concession, the context of the case, and the evidence advanced by the State, the Sullivan applicant submits that it is important to note that in relation to road work undertaken or roads laid out by a local government authority (relevantly here the Shire of Laverton or its predecessor Roads Boards) the legal creation or recognition of a road depended upon the Governor's confirmation of the road, pursuant to s 147 of the Road Districts Act. There is only evidence of such confirmation in the case of the White Cliffs-Yamarna Road.
2065 The Sullivan applicant submits, therefore, that the only roads that can be ‘public works’ within s 253NTA are the White Cliffs-Yarmana and Great Central Road, the only two roads said to have been formally proclaimed.
2066 The State relies upon the Full Court decision in Erubam Le as authority for the proposition that s 47A NTA does not provide for the extinguishing effect of public works to be disregarded. However, the Sullivan applicant says Erubam Le can be distinguished as the Full Court was not there dealing with roads, but with other works which had not been dedicated or set aside, and rather were simply built on Erub Island land which remained the property of the Erub Island Council. The Court considered that they were merely constructed, and that there was no ‘creation of any prior interest’ within s 47A(2)(b) NTA. As to this, the Court said (at [89]-[90]):
89 Taken in isolation, the definition of "interest" extending, as it does, beyond legal and equitable interests to "any other right" in connection with land, might extend to the right that the owner of land has to deal with things that have become parts of the land such as dams, pumps, houses, pipes and other such things which, in this case, are in the nature of public works. It seems to us however that in the context of the [NTA] such a consequential or derivative interest cannot fall within the definition, wide though it is, of "interest" and it certainly sits uncomfortably with the notion of "the creation of any other prior interest" for the purposes of s 47A(2)(b).
90 We do not need to resolve this question however because, here again, it cannot be said that the construction or establishment of the public works is properly to be characterised as "the creation of a prior interest" in the land. It follows that s 47A(2)(b) does not apply so as to compel the disregarding of the extinguishment brought about by the acts of constructing or establishing the public works.
(emphasis in original)
2067 The Full Court noted (at [93]), after referring to the general scheme under the NTA in respect of extinguishment, protection of native title and public works, that it was inevitable that such a regime would produce differing results in different circumstances.
2068 The Sullivan applicant argues that in the present case there are different circumstances. The only works that could possibly constitute public works are roads that have been proclaimed as dedicated roads. If they have indeed been validly proclaimed over the Claim Area, this constitutes the creation of a prior interest as to the use of the land within s 47A(2)(b) NTA, thereby triggering the operation of that section. In support of this, the Sullivan applicant relies upon the observation of Nicholson J in Daniel (at [640]) where his Honour said:
The ratio of the decision in Fourmile was that such constitution of a road would, save in an exceptional case, be wholly inconsistent with any continuing right to enjoy native title in those lands and will be sufficient to extinguish native title, for the reason that it creates in third parties (members of the public) the enforceable right of free passage over the lands and denies to all persons the right to use the land for any other purpose than free passage or a purpose incidental thereto: at 170.
2069 The Sullivan applicant emphasises from this passage that the constitution of a road creates an enforceable right in the public, that is, the creation of a prior interest within s 47A(2)(b).
2070 It follows that in summary, the Sullivan applicant submits in relation to public works:
(a) the only possible roads that could possibly come within the definition of ‘public works’ in s 253 NTA are the White Cliffs-Yamarna Road and Great Central Road; and
(b) even if they are public works within that definition, s 47A NTA applies to disregard the extinguishment as the dedication of the road constitutes the creation of a prior interest in relation to the land.
11.6 Aboriginal reserve status and restriction of entry provisions
2071 As to reserve status, Reserve 20396 was first proclaimed on 14 March 1930, Reserve 22032 on 25 August 1939, Reserve 25050 on 11 July 1958 and Reserve 25051 on 11 July 1958, as indicated from the State’s evidence table.
2072 The making of Aboriginal reserves historically entailed legislative restrictions upon public, non-Aboriginal, entry: s 14 and s 15 of the Aborigines Act 1905, s 20 of the Native Welfare Act 1963, s 31 of the AAPA Act and reg 8 of the AAPA Regulations.
2073 The Sullivan applicant submits that evidence suggests that the reserve status of Cosmo Newberry was well known. Minutes extracted in SJD1 of the Shire of Laverton's predecessor, the Laverton District Road Board, held 19 December 1951 refer to a Board contract to grade the Cosmo Newberry road and airstrip. On 20 February 1952, the Board discussed a complaint from the ex-superintendent of Cosmo Newberry that the work on the road was unsatisfactory and the charge of forty pounds was excessive, according to an excerpt from minutes also found in SJD1. The Sullivan applicant submits that this evidence shows that the Board treated the Cosmo Newberry road as having a special ‘private’ status and required payment for the work that was carried out on it. The Sullivan applicant says that other work was done on roads in the reserve area as ‘grant jobs’, pointing to, as an example, work done on the White Cliffs-Yamarna road, as noted in minutes of the Laverton Shire Works Committee Meeting on 6 November 1979. In some cases, work on roads was apparently carried out by the Shire of Laverton for no fee on roads within both Aboriginal reserves and stations, according to Mr Deckert, who, in cross-examination, agreed that the Shire had been ‘generous’ in this regard.
2074 In terms of restrictions on entry, the Sullivan applicant points to minutes of the Laverton Shire Council meeting of 18 October 1979 which show discussion of correspondence from the Goldfields Administrator regarding ‘permits to travel from Laverton through central reserves to the Northern Territory’. The minutes noted that it ‘was resolved to write to the appropriate authorities requesting a survey of 5 chain road reserve between Laverton and N.T. border, with the object of illuminating (sic) the need for issue of permits’.
2075 The Sullivan applicant submits that the evidence of State witnesses Mr Hill and Mr Deckert, in effect, denying any knowledge of the permit system for the Cosmo Newberry Reserves, should not be accepted in light of the clear contrasting evidence in the documents. Mr Hill conceded in evidence that, as shown by the minutes of the Shire meeting, he himself moved that the correspondence concerning the permits be received. Obviously, with the very considerable passage of time, one would generally defer to documentary records in a situation such as this.
2076 There is no evidence or legal basis, the Sullivan applicant submits, for suggesting that the reserve status and restriction of entry to these reserve areas has at any time ceased or been abrogated by the creation of any of the roads. It is noted, for example, that s 12K TVA, reflecting s 23D NTA, moves to preserve such regimes even in cases of previous exclusive possession acts in terms:
If -
(a) a previous exclusive possession act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples; or
(b) the doing of a previous exclusive possession act attributable to the State would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage),
nothing in section 12I or 12J affects that reservation or condition or those rights or interests.
2077 The Sullivan applicant submits that implications flowing from the reserve status of land and the consequent restriction on public, non-Aboriginal, entry have been discussed above (throughout Pt 11), and that overall, these factors remove ‘roads’ from being capable of being described as being open to use by the public, whatever their history or dedication.
11.7 Description of roads for purposes of any determination
2078 The Sullivan applicant contends that the determination should define what, if any, roads extinguish native title, and whether or not s 47A NTA applies to any extinguishment, if found, such that it should be disregarded. Such a resolution now after the hearing of the evidence, including the specific re-opening of the case for the purpose, will be in all parties' interests in terms of clarity of findings and any future application of native title as well as costs.
2079 The only two declared roads that can be considered, subject to s 47A NTA, as possibly extinguishing native title are the White Cliffs-Yamarna Road and Great Central Road, according to the Sullivan applicant. But, as previously noted, the Sullivan applicant contends that the State has not sufficiently proven:
(a) in the case of the White Cliffs-Yamarna Road that the declaration includes the portion of the road over the Claim Area (although note that it appears from the Gazette that this road as declared is within the Claim Area: see Pt 11.2); and
(b) in the case of the Great Central Road, that given the fact of the de-declaration of it as a secondary road, the initial declaration was not an invalid act as being contrary to s10 RDA.
2080 The Sullivan applicant submits that a determination should not accept that these, or indeed any, roads in the claim area have, subject to s 47A NTA, extinguished native title.
2081 In the alternative, if, contrary to the submissions of the Sullivan applicant, the Court holds that these two roads or any other roads do, subject to s 47A, extinguish native title, then for the reasons advanced as set out in Pt 11.5 above, s 47A does apply such that any extinguishment should be disregarded within the Aboriginal reserves.
12. YILKA APPLICANT’S FINAL SUBMISSIONS IN RELATION TO ROADS
2082 The ‘Yilka Applicant’s Final Submissions in relation to roads’ (Yilka Road Submissions) was filed on 24 August 2015, in response to the State Road Submissions. The Yilka applicant notes that it intends these submissions to replace Pt 4.1 of the Yilka Extinguishment Submissions (see Pt 4.1 above), but not other parts of its Extinguishment Submissions which may pertain to relevant issues generally or to certain roads specifically.
2083 The State, in its Road Submissions (discussed in Pt 10 of this chapter) simultaneously sought a generic exclusion in relation to roads, and included numerous scattered references to Road 1, Road 2 and various other roads. Mr Deckert’s affidavit includes a map identifying 11 roads wholly or partly within the external boundaries of the Claim Area, which are discussed in the State’s submissions, but the State had not at this point examined the evidence on a road by road basis. As the Yilka applicant notes, the State had not in its submissions (prior to the final reply submissions, which were filed after the Yilka and Sullivan Road Submissions on roads) described when and by reason of what specific facts particular roads are said to have been created. Nowhere had the State conceded that any particular roads are not common law roads or public works within the meaning of the NTA. The Yilka applicant says the lack of clarity in the State's submissions is regrettable. Given the late stage at which its submissions were made, the Yilka applicant has made submissions pertaining to each of the roads initially claimed by the State to extinguish native title: see below at Pt 12.5 and Pt 12.6.
2084 It should be noted that the Yilka applicant’s submissions concerning the issues with including generic exclusion of roads in any native title determination were ultimately accepted by the State in its final submissions in reply on roads, filed 23 September 2015, and will not be canvassed here.
12.1.1 Relative sparseness and recency of development in the Claim Area
2085 A relevant consideration throughout this difficult claim is the nature of the land concerned. The sparseness of the development within the Claim Area and the relative recency of such development are matters here relied upon by the Yilka applicant. The following events, derived from Ms Plant’s chronology of key events, which is largely uncontested, show that in the last century or so the Claim Area has been quite remote. The key developments are as follows:
Year | Event |
1902 | Gold is discovered by Carr-Boyd in the Cosmo Newberry Hills leading to a small temporary European settlement in the area a few kilometres NNW of the current community. In any case, European interest in the area peters out within the decade. |
1920 | Although it is never developed by him, Yamarna Station is selected by James Keys in October. |
1923 | Under the Soldier Resettlement Scheme, two Europeans by the names of Willie Ross and Harry Axford take up 300,000 acres under pastoral lease which they name Cosmo Newberry. While the lease overlapped the claim area, one of the reasons the lease was eventually forfeited was the failure to establish infrastructure. |
1928 | The track between Laverton and Cosmo Newberry is surveyed and graded by the Mt Margaret Roads Board. Hazlett pioneers a road to Minnie Creek and Thatcher’s Soak around this time. |
1930 | The Cosmo Newberry pastoral lease is forfeited due to non-payment of rent and lack of improvements. |
1931 | The pastoral lease at Yamarna is cancelled due to a lack of improvements to the property, while the Mt Shenton area continues to be exploited for sandalwood. |
1934 | Warburton Ranges Mission is established by Will Wade, another member of the United Aborigines’ Mission. |
1940 | Albert Donegan is appointed Superintendent of the newly established Feeding Depot at Cosmo Newberry. A number of Aborigines from Laverton and other areas are subsequently relocated there. |
1949 | Cosmo Newberry becomes a penal settlement for Aborigines from the south of Western Australia. |
1953 | The United Aborigines’ Mission takes over responsibility for Cosmo Newberry. |
1956 | Warburton Mission staff put through a new road to the north of Minnie Creek where it intersects the Cosmo Newberry-Thatcher’s Soak Road. |
1965 | Kevin Ewings, a missionary at Cosmo Newberry, is granted the Yamarna lease. Meanwhile, H. Lovick becomes a joint tenant with G. Canning of Pastoral Lease No. 395/1031 which comprised 300,000 acres of land known as Minnie Creek Station. |
1967 | A teacher and classroom is provided to Cosmo Newberry, a community of 21 adults and 19 children. |
2086 The Yilka applicant submits that the sparseness of development is reinforced by the fact that the four main reserves that collectively comprise the great bulk of the Claim Area were not created until 1930, 1939 and 1958 respectively.
2087 The usage of some of the roads in issue is very substantially different today from what it was in at the time of the commencement of the RDA on 31 October 1975 or even as at 23 December 1996. The first tourist bus from Sydney to Laverton via Warburton, undertaking a journey described by the Shire Clerk as a ‘pioneering challenge’, was in 1968. The Shire Clerk lamented that Laverton ‘had so little to offer in return, in the way of decent toilet facilities, and refreshments after their long trip’. A traffic count for the Cosmo/Warburton Road in 1971 was an average of 42 vehicles per day. When it was put to him that many of those vehicles would have been Aboriginal people, Mr Hill replied ‘[p]robably might’. The Commissioner of Main Roads’ estimated traffic count for the Laverton to Docker Creek road (and perhaps also on to Ayers Rock) in 1986 was ten to fifteen vehicles per day.
2088 Mr Hill said that he would not argue against the proposition that there has been a concerted push to make the Great Central Road a popular road starting in about 1998 and he agreed strongly with the proposition that there had been a big increase number of people using that road in the 2000s.
2089 Of the roads in issue, the most important and, clearly enough, the best used of them, the Great Central Road, has never risen above the status of ‘secondary road’ under the Main Roads Act 1930. It achieved this status in 1976, but ceased to have it in 1996. There is nothing to suggest that it has ever been designated as a highway or main road under the Main Roads Act 1930. Based on the evidence before the Court, the ordinary statutory process for the creation of roads appears to have been invoked only twice in relation to the Claim Area in the history of settlement. On each occasion this occurred in 1935.
12.1.2 The State’s 11 roads and potential for confusion
2090 SJD1 includes a map which identifies 11 roads wholly or partly within the external boundaries of the Claim Area according to numbers. The State in its submissions generally refers to roads by verbal descriptions rather than Mr Deckert’s numbering.
2091 The use of the names of the relevant roads does carry some confusion because some roads have or, at least have had, multiple names and also because there appears to have been some confusion about exactly what particular names refer to.
2092 For example, the Great Central Road is said by the State to have no less than six other names: the Laverton-Warburton Road, the Warburton Road, the Warburton Range Road, S68, S87 and the Laverton to Cosmo Road.
2093 Although the State submits that the Warburton Range Road refers to what is nowadays called the Great Central Road (see Pt 10.3 and the State’s table of evidence for Reserve 22032, entry for 28/4/1938 and the four entries for 1949), Mr Deckert's evidence was to the effect that Warburton Range Road was the original name of the roads now known as R53 and R21, namely, the White Cliffs-Yamarna Road and the Anne Beadell Highway. The Great Central Road is a substantial distance from these other roads. The Yilka applicant submits it is difficult to understand how they could both have been known as the Warburton Range Road.
2094 Mr Deckert was asked for his understanding of the expression ‘Cosmo-Minnie Creek road’, which is referred to in SJD1 (annexed to his affidavit). Mr Deckert responded that he took this name to mean ‘the section of the current Great Central Road that runs between Cosmo and the turn off to Minnie Creek’ (see Pt 10.5.6.1). He did not explain the basis of his understanding, but it is reasonably clear, the Yilka applicant submits, that his understanding is incorrect. The Secretary's Report of 25 March 1958 conveys that the gang assigned to work on the Cosmo to Minnie Creek road was dispatched to Minnie Creek for that purpose. Substantial rain in that area hampered the gang and it was then pulled back to work on the Cosmo-Laverton road. The Yilka applicant says that, as the name suggests, the Cosmo to Minnie Creek road is likely to refer to a road from the Great Central Road to Minnie Creek, rather than a portion of the Great Central Road as Mr Deckert suggests.
2095 The Yilka applicant says that there are various other anomalies; and that further, in light of the fact that the majority of roads referred to by the State extend beyond the external boundaries of the Claim Area, it needs to be considered whether evidence of use or works relates to parts of roads within the Claim Area or somewhere outside it. For example, the State relies on an excerpt of minutes of the Laverton Shire Council in support of the proposition that works were done on the White Cliffs-Yamarna Road on or about 17 August 1960 (see Pt 10.5.6.2). However, the minutes refer only to a gang having completed work on the ‘White Cliffs road’. The Yilka applicant applicant says that, firstly, there is no basis for assuming, as the State does, that the White Cliff's road is the White Cliffs-Yamarna road. It seems more likely that the White Cliff's road is the road to White Cliffs, that is, the road between Laverton and White Cliffs, all of which is outside the Claim Area. Secondly, even if the works do relate to the White Cliffs-Yamarna road, there is nothing to say whether they occurred inside or outside the Claim Area. It is therefore necessary to take great care to identify, if that is possible on the evidence, exactly what road is being referred to in any particular document annexed to Mr Deckert's affidavit, and to take care to determine whether particular works relied upon by the State relate to the Claim Area or somewhere outside it.
2096 The Yilka applicant submits that Mr Hill’s evidence should be treated with caution, and not accepted in the absence of corroboration by reliable evidence. Like the Sullivan applicant, the Yilka applicant points to the evidence of Mr Hill concerning the permit system. Mr Hill’s evidence, when asked about the reserves, was that ‘[t]here's not a road there that's ever been under permit yet, within that reserve’. He then said, in relation to ‘the Cosmo Newberry Reserve’: ‘No permits required there. Never has been’. This approach was somewhat ameliorated subsequently, with Mr Hill saying that ‘[i]ts [sic] always been open to the public, what else can I say. There's never been any restrictions there to my knowledge’. When the relevant regulation was put to Mr Hill, his response was to suggest that the reserve boundaries are not signposted, in essence suggesting that it was not possible to comply with the permit regime when it is not clear where the boundaries are. He also said that ‘[w]hen you look at a reserve on the map it's different out there’.
2097 The Yilka applicant submits that Mr Hill exhibited strong philosophical views that, regardless of what the law is, the law should be that he and others have free access to the Claim Area. On cross-examination he was asked:
Are you worried that if this becomes native title land that your ability to do things might somehow be compromised, that you might not have the right to do what you do currently?
2098 Mr Hill’s answer was ‘[a]ren’t we living in Australia sir’. He said he did not ‘think it was necessary to get permission to travel on our own land’, and when asked what he meant said ‘I’m as much native to that country as anyone else is’. He said ‘I think I’ve been there long enough, for 82 years, to say that I should have the right to be able to go somewhere’.
2099 I tend to accept the Yilka applicant’s submission that Mr Hill did show himself to have a personal view that the Claim Area should be open to one and all. His view about what should happen on the Claim Area may well have influenced his evidence about what does happen and has happened in the past on the Claim Area. The most obvious example was that he has used the word ‘public’ some 14 times in his affidavit, when it was clear on any view that the great bulk of the Claim Area, in truth, is not open to the public at all. Even if Mr Hill was unaware of the permit system, this does not mean that other persons who might be using the Claim Area have not been doing so pursuant to a permit.
2100 The Yilka applicant was also critical of Mr Deckert’s apparent unfamiliarity (despite being the Chief Executive Officer of the Laverton Shire Council) with the status of the four large reserves lying within the Claim Area. It is not clear to me that this criticism adds much, particularly as Mr Deckert’s evidence essentially relates to documents, on which no criticism is based.
2101 It is helpful to move to more concrete issues.
12.2 The inter-relationship between the reserves and roads
12.2.1 The legal regimes applicable to the reserves
2102 The Yilka applicant addresses the absence of submissions on the part of the State about the actual legislative basis for the original creation of the reserves. The Yilka applicant notes that it is reasonably clear that the original creation of the reserves took place under s 29 of the Land Act 1933 (or under s 39 of the Land Act 1898 in the case of Reserve 20396, which was created in 1930). This is because, firstly, in each case the notice is headed ‘Reserves. Department of Lands and Survey’. Secondly, in each case the Governor set apart the relevant land as a public reserve - language consistent with action taken under s 39 of the Land Act 1898, or s 29 of the Land Act 1933. In no case was there a proclamation or did the Governor purport to declare land to be a reserve (as would be required in the case of action taken under s 10 of the Aborigines Act 1905, as amended (known as the Native Administration Act from 1936 and as the Native Welfare Act from 1954)). Thirdly, it is clear from the nature of the other reserves created on the same occasion that the Governor's action was an action under a general power, rather than one limited to declaring ‘Crown lands to be reserves land for aborigines’.
2103 The Yilka applicant submits that the reason for the use of the general power may at least in part be due to the statutory restriction imposed on the size of reserves that could be created under s 10 of the Aborigines Act 1905. As originally enacted, s 10(1) provided that the reserve was not to exceed ‘in any one magisterial district an area of two thousand acres’. At least by 1936, the requirement was that ‘not more than two thousand acres of land held under lease or license from the Crown shall be the subject of proclamation’: s 10(1) of the Native Administration Act 1905-1936.
2104 Although they started life as creatures of the Land Act 1898 or Land Act 1933, the character of each of the reserves subsequently changed:
(a) Reserve 22032: By proclamation notified in the Government Gazette on 17 September 1948, the Governor declared this reserve to be a reserve for ‘Natives’. The proclamation was expressed to be made under s 11 of the Native Administration Act 1905-1941, which was initially s 10 but renumbered in the 1941 reprint. Under s 11, the Governor was empowered to declare any Crown lands to be reserves for natives.
(b) Reserve 20396: By proclamation notified in the Government Gazette on 13 March 1953, the Governor declared this reserve to be a reserve for ‘Natives’. The proclamation was expressed to be made under s 11 of the Native Administration Act 1905-1947, under which the Governor was empowered to declare any Crown lands to be reserves for natives.
(c) Reserves 25050 and 25051: By proclamation made on 23 June 1972, the Governor declared these reserves to be reserves for ‘Natives’. The proclamation was made expressly under s 18 of the Native Welfare Act 1963. Under s 18 of that Act, the Governor was empowered to declare any Crown lands to be reserves for natives. Various other reserves for ‘Natives’ were created on the same occasion.
2105 Further, pursuant to the AAPA Act, the status of each of the four reserves again changed as follows:
(a) by notice in the Government Gazette dated 23 March 1973, the control and management of Reserve 25050 and Reserve 25051 were transferred to the Aboriginal Lands Trust pursuant to s 24 of the AAPA Act ;
(b) by notice in the Government Gazette dated 15 June 1973, Reserve 20396 and Reserve 22032 were reserved for persons of Aboriginal descent pursuant to s 25 of the AAPA Act; and
(c) by notice in the Government Gazette dated 17 August 1973, the control and management of Reserves 20396 and 22032 were transferred to the Aboriginal Lands Trust pursuant to s 24 of the AAPA Act.
Pursuant to ss 26 and 27 of the AAPA Act, each of the four reserves became vested in the AAPA.
2106 Specific areas within the external boundaries of Reserve 22032 and Reserve 25051 were excluded from those reserves.
2107 The State notes in its evidence tables of roads within the area of each of the reserves that where a later reserve was created, there was no express revocation of the prior reserve(s). The State has not offered any submission about the effect of such absence, nor has it sought to adduce any evidence about relevant departmental practices.
2108 The Yilka applicant submits that, just as statutes and statutory provisions can be impliedly repealed, so too can actions taken under statute. As Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011) says (at [7.13]):
If the maintenance of an earlier Act would defeat the purpose of the later, the earlier must give way. If inconvenience or incongruity would result from both Acts continuing in force, the later must prevail.
2109 The Yilka applicant says it is clear that the reserves created under the Aborigines Act 1905 and its successors cannot stand with the reserves granted under the Land Act 1898 and the Land Act 1933.
2110 The Yilka applicant points out that the evidence discloses that the four reserves were governed by different statutory regimes as follows:
Reserve 20396 | from 14/3/1930 to 13/3/1953, the Land Act 1989 (and the Land Act 1933); from 13/3/1953 to 15/6/1973, the Native Administration Act 1905-47 and its successors; from 15/6/1973 to date, the AAPA Act. |
Reserve 22032 | from 25/8/1939 to 17/9/1948, the Land Act 1933; from 17/9/1948 to 15/6/1973, the Native Administration Act 1905-1941 and its successors; from 15/6/1973 to date, the AAPA Act. |
Reserves 25050 & 25051 | from 11/7/1958 to 23/6/1972, the Land Act 1933; from 23/6/1972 to 23/3/1973, the Native Welfare Act 1963; from 23/3/1973 to date, the AAPA Act. |
12.2.2 Section 3 of the Permanent Reserves Act 1899 and s 31(4) of the Land Act 1933
2111 The State notes the terms of part of s 3 of the Permanent Reserves Act 1899 and of an amendment to it in 1902 in its table regarding Reserve 20396: see Pt 10.5.2. Following this amendment, the full text of s 3 was as follows:
Nothing in this Act shall prevent the survey and declaration by the Governor of any necessary roads and streets through or over any reserve; or, in the case of any such reserve being made before the land is surveyed, shall prevent the amendment of the boundaries and area in such manner as may be found necessary on survey, but so that the total area shall not be reduced by more than one-twentieth part thereof.
The Permanent Reserves Act 1899 was repealed by the Land Act 1933 (see the First Schedule to that Act).
2112 Section 31(4) of the Land Act 1933 was enacted in almost identical terms to s 3 of the Permanent Reserves Act 1899, save that the words ‘by the Governor’ were not included.
2113 The Yilka applicant accepts that, for as long as any of the four reserves were governed by the Permanent Reserves Act 1899 or the Land Act 1933, s 3 of the former Act and s 31(4) of the latter Act made clear that State retained the power to survey roads through or over the reserved lands and the Governor retained the power to declare that such lands be set apart, taken or resumed for the purposes of new roads under s 17 of the Public Works Act 1902.
2114 The Yilka applicant submits that:
(a) the only roads to which s 3 of the Permanent Reserves Act 1899 or s 31(4) of the Land Act 1933 could apply are Road 1 and Road 2. Only these roads were subject to any declaration. These declarations, however, occurred on 12 April 1935, prior to the creation of all of the reserves, save for Reserve 20396. Neither Road 1 nor Road 2 travels through or over this reserve;
(b) these provisions therefore have no direct application to matters in issue. They appear, however, to have an indirect application. First, they suggest that the only way that roads may be created through or over reserved land to which these provisions apply is by declaration, for example, that roads cannot be created by the common law process of dedication and acceptance. Secondly, they suggest that, where a road is created through or over reserved land to which these provisions apply, the boundaries of the reserve would at least ordinarily be amended to reflect the same; and
(c) in no case has the creation of any alleged road on the claim area resulted in any change to the reserve boundaries.
2115 Legislative provisions require that permission be obtained to enter the reserves. The current regime has been in place for over 40 years. Section 31(1) of the AAPA Act provides that a person who enters or remains on any land to which the Part applies, or is shown to have been within the boundaries of that land, shall be guilty of an offence, unless he establishes to the satisfaction of the court that he is a person of Aboriginal descent or that he falls within one of a number of other exceptions. The relevant part of the AAPA Act, Pt 3, relates to ‘Reserved lands’. Regulation 8 of the AAPA Regulations, as enacted, provided:
(1) Whenever any person, not being a person of Aboriginal descent or a person authorized under the Act or these regulations to enter or remain within the boundaries of a reserve, desires for any stated reason to enter or remain in any reserve, he shall apply the Commissioner for permission so to do and the Commissioner may recommend the Minister to grant such permission to enter accordingly.
(2) The Minister may in his discretion grant the permission referred to in sub-regulation (1) of this regulation, which permission shall be in the Form No. 2 in the Schedule to the regulations, and shall specify the conditions to be observed by the person to whom it is granted, but the Minister may at any time, if he thinks fit, revoke any permission so granted.
2116 There have been amendments to the AAPA Regulations but this provision has remained essentially the same. The Native Welfare Act 1963, s 20(1) and the Aborigines Act 1905, s 14 and s 15, which have been repealed, likewise made it an offence for a person other than an Aboriginal person to enter, remain or be within a reserve, subject to exceptions. The need for permission to enter the Cosmo Newberry Reserves is confirmed by the Aboriginal evidence given in the proceedings. For example, HM said that when first exploration started in the early 1990s, the government allowed the Cosmo Newberry Aboriginal Corporation to negotiate entry permits, and also said that:
Transit permits for people just travelling on the main road are automatically granted. The permit allows you to go certain meterage off the road which gives them plenty of right to camp. Applications to travel through the reserves from White Cliffs to Yamarna and White Cliffs along the old Warburton Road come to us for approval.
2117 Mrs Murray also said:
When people want to come on our country, they ring my son HM and ask him. As Chairman, he can talk to people from outside. He has been our chairman for a long time and he knows what to do.
12.2.4 The Yilka applicant’s response to the State’s submission
2118 As noted in Pt 10.2 above, the State’s submission is that roads traversing or within any of the four Aboriginal reserves, whether created before or after the reserve, are not part of any of the relevant reserves and have acquired and retained the status of roads; or that, alternatively, the reservation of land comprising a road does not defeat or cancel the road and the creation of a road on reserved land does not diminish the effectiveness of the creation of the road.
2119 In response to this, the Yilka applicant says, firstly, that inherent in the State's submission is the unlikely proposition that the reserves should be taken to have been something different from how they are described in the relevant proclamations. Just as the Governor could, by proclamation, declare any Crown lands to be a reserve for Aboriginal people, the Governor could also alter the boundaries of a reserve by proclamation (for example, s 10(2) of the Aborigines Act 1905, as enacted). If there was a need to create a public road over such reserved land, it might be expected that the reserve boundaries would have been altered to reflect this. Secondly, the Yilka applicant says that no areas should be taken to be excluded from the reserve unless they are expressly stated to be excluded, as was the case with other express exclusions from Reserve 22032 and Reserve 25051. No roads have been excluded from any of the reserves at any time.
2120 Thirdly, the Yilka applicant submits that any pre-existing common law road could be brought to an end by action taken under statute that is inconsistent with the continuance of the road. The creation of a reserve to which entry by all persons, save for those who are expressly authorised to enter, whether by permit or because the person concerned is a member of an excepted class of persons, is inconsistent with the continuance of the road.
2121 The Yilka applicant submits, fourthly, that the suggested implied exclusion of any pre-existing roads from the reserves would have substantial potential to compromise the underlying rationale of the system of Aboriginal reserves. The lives of Aboriginal people were subject to very high levels of control under the Aborigines Act 1905 (as amended from time to time). The legislative policy underlying the Act, whether for reasons of protection of Aboriginal people or otherwise, was for Aboriginal people and the general community to remain separate to a large degree. For example, the Chief Protector was the legal guardian of every Aboriginal and ‘half-caste’ child until such child attained the age of sixteen years, by s 8. It was an offence for any person, without written authority, to remove or cause to be removed any Aboriginal, male ‘half-caste’ under the age of sixteen years or female ‘half-caste’ from one district to another, by s 9. The Minister had the power to cause any Aboriginal person to be removed to and kept within the boundary of a reserve and it was an offence for any Aboriginal person to refuse to be so removed or kept under s 12. There were exceptions to s 12, including those lawfully employed by a person, those who were the holder of a permit to be absent from a reserve and females lawfully married to and residing with non-Aboriginal husbands (s 13).
2122 Therefore, on the Yilka applicant’s submission, Aboriginal reserves were intended as a kind of sanctuary for Aboriginal people. For other arms of government to have been free to create a road in accordance with statute or at common law through or over such reserves, the Yilka applicant says, would have tended to defeat their underlying rationale.
2123 Fifthly, the Yilka applicant argues that after a reserve is created, it is not possible to create a common law road over the land so long as it continues to have the status of reserved land because to do so would be inconsistent with the kind of statutory provisions referred to above that made it unlawful for any person to enter or remain on that land, subject to certain exceptions.
2124 Finally, it is necessary for common law roads to be open to one and all, as is evident from Halsbury's Laws of Australia, which states (at [225-1]) under the heading ‘Highways at Common Law’, said by the author to be current to 22 February 2013 (footnotes omitted):
The meaning of the word 'highway' is derived from common law. A 'highway' is a way over which every member of the public has a right to pass and repass at all times. This is contrasted with a private road or street, which lacks one or more of the public characteristics of a highway.
If the right to use a road is limited to a section of the public, it is not a highway.
2125 Each of the submissions made by the State is therefore, incorrect, according to the Yilka applicant and, rather, the position is that:
(a) any pre-existing roads in each of the four reserves came to an end with the creation of the relevant Aboriginal reserve;
(b) after the creation of the Aboriginal reserves, it was not possible for common law roads to have been created over the reserved lands; and
(c) as the State does not allege the creation of any relevant statutory roads after the creation of the reserves, it is unnecessary to consider whether a statutory road could validly have been created over the reserved lands.
2126 I agree with the submission for the Yilka applicant that the creation of a public road at common law would not have been possible subsequent to the creation of the reserves, given the limitations on entry under s 14 and s 15 of the Aborigines Act 1905 and subsequent legislation, which restricted public rights of access over those areas.
2127 I also agree with the submission for the Yilka applicant discussed at Pt 4.1.3 above, namely that any rights of the public to use the roads could not be said to continue to exist over the areas of the four Aboriginal reserves upon the creation of those reserves.
12.3 Relevant statutes, the common law and other legal issues
2128 The Yilka applicant for the most part repeats its earlier submissions as to extinguishment by roads which have been referred to at Pts 4.1.1, 4.1.3, 4.1.4 and 4.1.5 above. However, the Yilka applicant’s submissions as to common law roads, discussed at Pt 4.1.2 above, have been modified in its Road Submissions. A discussion of the Yilka applicant’s submissions on that topic now follows.
2129 The Yilka applicant cites Halsbury’s Laws of Australia (at [225]-[275], said by the author to be current to 23 February 2012) (footnotes omitted):
At common law, the dedication of land as a highway requires an act of dedication and an intention to dedicate by the owner as well as acceptance of the dedication by the public. The dedication and acceptance have to be proved as facts, the nature of the proof varying in every case.
Dedication is the act of opening land to the public for use by it as a road, with the intention of granting an irrevocable licence to use it, and the acceptance of the dedication by the public by using the way. The dedication of a highway is complete when the offer of dedication is accepted by the public.
2130 An intention to dedicate is not to be inferred lightly, according to the Yilka applicant: see, for example, Permanent Trustee v Campbelltown (at 422) where Windeyer J noted that ‘any act which unequivocally indicates an intention on the part of the owner of the land to abandon to the public right of passage over it will be effectual as a dedication’ (emphasis added). There are numerous authorities relevant to the creation of roads at common law. The Yilka applicant does not review these generally, but refers specifically to two Federal Court decisions, the latter of which has been discussed by the State: Attorney-General (NT) v Minister for Aboriginal Affairs (1988) 16 ALD 318 (Mt Theo road case); and A-G (NT) v Minister for Aboriginal Affairs.
2131 These cases arose out of land claim inquiries in the Northern Territory under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and related to one or more particular roads or tracks that were subject to claim. In each case, the question was whether each of these was ‘a road over which the public had a right of way’. These words were said to be synonymous with ‘public road’: Mt Theo road case (at [28]) and A-G (NT) v Minister for Aboriginal Affairs (at 541). The ‘roads’ in question were unsealed roads or tracks in reasonably remote parts of Australia. These cases provide useful comparators for consideration of issues that arise in the present case. In the Mt Theo road case, Wilcox J, referring to what he said (at [6]) was ‘no more than a graded bush track’, said (at [38]):
An intention to dedicate should be inferred only from unequivocal acts of dedication. No doubt it is for that reason that the act of dedication usually takes the form of marking the plan as a road reserve upon a document of title such as a land grant or a plan of subdivision. In such a case the position and dimensions of the road reserve are clearly stated, in such a manner that there can be no question as to the precise identity of the land the subject of the dedication. By contrast, in the present case, the position of the road has not been marked upon any document of title. The road is merely shown upon a plan prepared in order to locate the land the subject of the Aboriginal land claim. The dimensions of the road are not shown. The road is indicated merely by a line, no clue being given as to its width.
2132 His Honour decided (at [37] and [45]) that the evidence before him did not establish the necessary intention to dedicate, and that, in those circumstances, it was unnecessary to determine whether there had been an act of acceptance.
2133 In A-G (NT) v Minister for Aboriginal Affairs there was some land 240 kilometres north-west of Alice Springs that had previously been a cattle station. In discussion by Lockhart J, his Honour said (at 542) that the declaration of an intention to dedicate, delineation on maps or plans of roads set apart for public use, use by the public, and expenditure of money by public bodies in forming or maintaining the land as a road, are some of the matters which may, when considered with all the relevant evidence, amount to an unequivocal indication of the intention of the owner of the land to dedicate it to the public as a road. The description of the relevant land requires some certainty and precision, as can be seen from his Honour’s finding (at 545):
The fact that the roads in question are not shown with a great degree of consistency suggests that they must be treated with caution in determining the issue of dedication. The dedication of land as a public road is a serious step interfering permanently with the title of the landholder. In order to protect the interests of the landholder and the public it is necessary that acts of dedication define the road with some precision. The need for certainty in the description of the land dedicated is implicit in the judgment of the Court in Rapley v Martin (1865) 4 SCR (NSW) 173 at 180.
2134 At 546, his Honour said that he was not satisfied that the use of the roads upon which the applicant relied by the various persons concerned over the years had been other than as private roads by station owners or lessees and others who travelled to the stations for business, official or social purposes or by persons as invitees or licensees or for neighbourly relations in those large areas of land. The witnesses in that case included five pastoralists who had collectively been in the area for about 150 years; a school teacher from a nearby station; a manager of the local community store and other businesses; a Department of Industries and Fisheries Stock Inspector; a Department of Transport and Works employee who, at various times, had been a water cart driver, a grader driver and a maintenance manager; and a nurse from a nearby community's health centre: A-G (NT) v Minister for Aboriginal Affairs (at 543-544). The affidavits dealt with various matters including the use of the roads by persons for various purposes over some years, maintenance of the roads by the Northern Territory Government on particular occasions and the expenditure of public funds for that purpose (at 539).
2135 Contrary to the State’s submission that in the case of dedication by the Crown, acceptance by the public is not necessary for the creation of a road, in support of which the State cites only Halsbury’s Laws of England (4th ed), the Yilka applicant submits that a fairer way of stating the law is described in Halsbury’s Laws of Australia (at [225]-[285], which is said by the author to be current to 23 February 2012):
The Crown may dedicate defined Crown land as a highway by some action of the government, and such an action may create a highway without acceptance by the public. However, the contrary view has been taken and it is an open question.
2136 In the Mt Theo road case, Wilcox J found it unnecessary to decide ‘this important question’ (at [37]). Lockhart J (at 541) similarly noted that this was an open question and did not find it necessary to decide it in that case, although he did say that ‘as at present advised I would follow the view of Windeyer J in [Permanent Trustee v Campbelltown] that acceptance is essential to achieve dedication of land as a public road’.
2137 Another question which is relevant in this context relates to who it is who must have the requisite intention to dedicate a road as a public road. Windeyer J in Permanent Trustee v Campbelltown (at 420) referred to ‘a competent landowner’ and gave the example of a landowner absolutely entitled to fee simple. The Yilka applicant notes that prior to the creation of the reserves, the land in question here was generally Crown land. After the original creation of the reserves, the land was reserved for ‘Natives’. Since the enactment of the AAPA Act and proclamations made in 1973 with respect to the reserves, each of the reserves has been under the control and management of the Aboriginal Lands Trust and vested in the AAPA. Both the AAPA and the Aboriginal Lands Trust are bodies corporate, pursuant to s 8(1) and s 20(1) of the AAPA Act respectively.
2138 The Yilka applicant submits, and I accept, that there is no evidence from which it could be inferred that, at any time during the currency of their respective interests, either the AAPA or the Aboriginal Lands Trust have had the requisite intention to dedicate any land forming part of the reserves as roads. The same is true of the lessee of the current Yamarna Pastoral Lease and of the lessees of any relevant historic pastoral leases. In considering any evidence of use of the roads on the Claim Area, it should be borne in mind that, for such use to constitute acceptance, it must be use as of right. Trespassing, of course, could not create a public road, as the State accepts. When evaluating whether evidence of funding that may be allocated in relation to a road or of works that may be undertaken in relation to a road constitutes an unequivocal indication of the intention of the owner of the land to dedicate the road to the public as a road, it is necessary to examine all the surrounding circumstances, following A-G (NT) v Minister for Aboriginal Affairs (at 542).
2139 The Yilka applicant notes that Windeyer J said in Permanent Trustee v Campbelltown (at 422) that a declared intention to dedicate would be ripened into dedication ‘by a public body having authority to take it over on behalf of the public doing so, by for example, expending money in forming or maintaining it as a road’. The Yilka applicant emphasises the words ‘on behalf of the public’. The Yilka applicant also notes that in A-G (NT) v Minister for Aboriginal Affairs, Lockhart J found that none of the roads were dedicated to the public (at 546) despite evidence of government maintenance of the roads on particular occasions and the expenditure of public funds for that purpose. Wilcox J in the Mt Theo road case, after citing Permanent Trustee v Campbelltown (at 422), said (at [44]):
If there had been an act of dedication in the present case, the expenditure of public funds upon the maintenance of the road might have made out the applicant’s case on acceptance; although in determining that point it would have been necessary to consider the significance, if any, of the particular source, within government, of the funds. In other words, there may have been a question whether this expenditure was made as part of the management of the public road system of the Northern Territory or by way of special assistance to a particular class of Territory residents.
2140 The Yilka applicant accepts that the creation of a common law road, in accordance with the principles that have been discussed above, prior to 31 October 1975 extinguished native title at common law. Further, leaving to one side questions about invalidity, the Yilka applicant accepts that such creation of a common law road between 31 October 1975 and 23 December 1996 extinguished native title at common law. However, importantly, the Yilka applicant says that any rights of the public (though subsequently abrogated) would be ‘prior interests’, any extinguishment by which must be disregarded under s 47A(2)(b) and (3)(a)(ii).
12.4 Other matters arising on the evidence
12.4.1 Evidence about works and public expenditure
2141 The Yilka applicant submits, and I accept, that there is substantial evidence in this case of works being undertaken other than on behalf of the public and of funds being expended or, at least, committed other than as part of the management of the public roads system in Western Australia. The Yilka applicant submits that that evidence includes the following (note that in some of the evidence referred to here, the roads discussed are no longer asserted by the State to have any extinguishing effect; however, it may be of general contextual relevance):
(a) The Shire records for 21 May 1947 indicate that there was close (and no doubt perfectly proper) liaison in relation to roads between the Shire, Mr Donegan (an ex-policeman who ran the detention centre and ration station at Cosmo Newberry until 1953) and the Department of Native Affairs about the condition of the Cosmo Newberry Road. There is no reason to consider that this liaison was confined to the Cosmo Newberry Road. One passage included in these records is that the Secretary would ‘see Mr Donegan re the length of Road that has to be graded’. Another passage referred to a resolution that an application be made to the Department of Native Affairs for a Grant of £150 for the grading of the Cosmo Newberry Road. The Shire records for 20 August 1947 record the proposal that the Minister for Native Affairs be advised when work on the Cosmo Newberry Road would commence;
(b) The Shire records for 28 July 1948 record that the Shire had graded the Cosmo Newberry Aerodrome and that an account for the work had been sent to the Native Affairs Department. The grader then worked on the Cosmo Newberry Road and it was noted that ‘Mr Donegan has been giving a lot of help with the Natives cutting new Roads to avoid places where the Road has been washed out & other places where the Road has silted up with Sand’.
(c) The Shire records for 19 December 1951 refer to the Board's contracts to grade the Cosmo Newberry Road and the Aerodrome Strip. A complaint was made by the ex-superintendent of the ‘Cosmo Newberry Institution’ about the standard of the work from the boundary to Cosmo Newberry and the amount of the charge for it. A letter was received from the Department of Native Affairs expressing dissatisfaction with the grading of the boundary road.
(d) As at 16 July 1964, there were six gates on the Neale Junction Road (the Anne Beadell Highway) - given the matters referred to in (e) below, it seems likely that this ‘road’ to Neale Junction was only an unformed track at this stage. The Yilka applicant says that the leaving open and knocking down of gates was attributed to Hunt Oil Co vehicles, which suggests that this company was the primary and perhaps the overwhelming user of the road; and that there was correspondence between the Shire and the company about the damage to the gates on this road. However, the evidence referred to by the Yilka applicant regarding damage to gates by Hunt Oil Co in fact refers to the Warburton Road, which according to Mr Deckert would have meant the Great Central Highway.
(e) The Shire records for 19 August 1965 noted a request by Hunt Oil Co to construct the road from Lake Yeo to Neale's Junction (although note that, while the present day Anne Beadell Highway does pass through the Lake Yeo Homestead and Neale Junction, both of these locations are to the east of the Claim Area – see the Yilka site map and the Great Desert Tracks map, part of MFI A17). The records for 16 September 1965 note that, in the event that the Hunt Oil job eventuates, tenders would be called for in respect of the construction of ten ramps.
(f) At least as late as the 1960s, it was common enough for there to be gates on various roads, including the Neale Junction Road and the Warburton Road. One of the grids was allocated to ‘the far end of Cosmo Newberry at the most Eastern gate’. There is no reason to assume that these roads are the only ones that had gates on them.
(g) As recently as 12 January 1981, AMOS (an Aboriginal mission) expressed concern to the Shire that a drilling convoy was going through the area (presumably the Cosmo Newberry Community area) and requested that a by-pass road be built around the buildings area. The Shire resolved to contact the Shell Co to ascertain whether it would pay for or contribute to the cost of the by-pass. These matters are raised in Shire records under the heading ‘Cosmo Newberry-Bypass Road’. The by-pass road that came to be built is presumably the road that the Council identifies as R107.
(h) Mr Hill agreed in cross-examination that, not only does the Cosmo Newberry Community maintain certain roads itself, but it also makes new roads. Mr Hill added that this was done ‘[f]or the benefit of the Aborigines [sic] of the Cosmo Newberry Reserve’.
In his evidence, Mr Deckert used the expression ‘like a private works job’ and described it as a ‘cost recovery service, that can be done’, when asked about grading of the Cosmo Newberry Aerodrome. Mr Deckert also said that ‘generally, we can't do works on private property’, though in saying this he may have been referring to contemporary times. A little later, while being questioned about the contract of the Board to grade the Cosmo Newberry Road and Aerodrome Strip, he said ‘it seems like there were some additional works done over and above council's normal works that were paid for by another party’. Mr Deckert also agreed with Mr Vincent in cross-examination that it would appear that the Shire has been generous in putting in roads on the Reserve area. Elsewhere in the evidence, the expression ‘grant job’ is used. For example, in 1979 work was done on the White Cliffs-Yamarna road as a ‘grant job’, that is, it was not funded out of the Shire's ordinary road works budget.
2142 Mr Hill gave evidence that he hired the Shire grader on occasions in order to get private works done on Lake Wells Station, and said he thought that other station owners did the same thing.
2143 Mr Deckert's affidavit included a number of budget documents. The draft budget for the year ending 30 June 1997 included the item ‘Aboriginal Access Roads’, the expenditure on which was $105,836.29 for the previous year (actual) and $203,000 for the current year (estimated). Mr Deckert, when asked where the money comes from, explained that the Shire makes application for the funding to the Federal Government and that it does so ‘with the assistance of the various communities’.
12.4.2 Road alignments and deviations
2144 The Yilka applicant submits, and it is common ground, that the roads in issue are susceptible to flood damage and road closures following heavy rains. There is evidence that events such as these can and do result in temporary changes to road alignments. However, road alignments also change on a permanent basis, most commonly it would seem as a result of road upgrades or improvements. Shire records from 1960, for example, record that about five miles of new road was cut on the White Cliffs road to avoid deviations. Shire records from 1979 refer to road construction on the Laverton-Warburton Road and to lack of funds to complete 75 kilometres of clearing and formation, although, as the Yilka applicant notes, the location of these works is unclear. Lack of consistency between depictions was a matter for concern to Lockhart J in A-G (NT) v Minister for Aboriginal Affairs (at 545), as mentioned above in Pt 12.3. Change of alignments is a further troubling matter. The Yilka applicant asks whether the State suggests that native title has been extinguished over the current alignments of these roads, the alignment as at 23 December 1996, or the alignments at as at 23 December 1996 as well as all prior alignments.
2145 As the Yilka applicant notes this road travels through Reserve 22032, created in 1939, the Yamarna Pastoral Lease, and Reserve 25051, created in 1958.
2146 The evidence referred to by the State (see Pt 10.5.3) suggests that, through the 1970s, the Shire graded and maintained the Great Central Road through to Warburton and, at least at times, through to the Northern Territory border and Docker River (a community just inside the Northern Territory). Given that Mr Deckert searched the records only to the 1980s, it may be that the Shire continued to grade and maintain the Great Central Road beyond the end of the 1970s.
2147 Permits are and have been required for travel between Cosmo Newberry Community and Warburton and for travel on the Great Central Road beyond Warburton. This was acknowledged by Mr Hill and Mr Deckert, at least in relation to ‘the Warburton section of the road’.
2148 Mervyn v Western Australia [2005] FCA 831 was a consent determination to a very large area of lands and waters known as the Ngaanyatjarra Lands. There is a description of the determination area in Sch 1 to the determination. The determination includes links to two maps, though at the time of writing those links do not appear to be accessible via the internet. The determination is depicted on the Great Desert Tracks map (part of MFI A17) and extends in a south-westerly direction to a point between the north-eastern end of Lake Throssell and Tjukayirla Roadhouse, that is, to a point very close to the north-eastern corner of the present Claim Area. The exclusions from the determination area are described in Sch 2 to the determination. There are only three of them: the Gibson Desert Nature Reserve, the Giles Meteorological Station, and public works, including the relevant adjacent areas. Schedule 4 to the determination sets out the ‘other interests’. The rights and interests of the Shire of Laverton are set out at [12] of Sch 4 and include the maintenance of Parallel Road, the Rawlinna Warburton Road, the Ilkurlka Wingelina Road and the Hunt Oil Road within the Shire boundaries. It should be noted, although not mentioned by the Yilka applicant here, that Sch 4 at [13(d)] records as an ‘other interest’: ‘the right of any person to use (subject to laws of the State, in particular, the [AAPA Act] and [AAPA] Regulations) the Great Central Road…’.
2149 The Yilka applicant refers to this material because it appears clear that the Great Central Road within the external boundaries of the Ngaanyatjarra Lands determination area forms part of that determination area. The Yilka applicant submits there is no difference, from an extinguishment point of view, between the Great Central Road within the external boundaries of the present claim area and the Great Central Road within the external boundaries of the Ngaanyatjarra Lands determination area. The State has not contended that such distinction exists. On the State's case in the present claim, the Great Central Road should have been excluded from the Ngaanyatjarra Lands determination; yet the State consented to the form of that determination.
2150 The Yilka applicant notes that a copy of a proclamation made on 28 June 1976, by which the Laverton-Warburton Road and many other roads were declared to be secondary roads pursuant to s 24 of the Main Roads Act 1930, is included in SDJ1. The concept of secondary roads was introduced into that Act by the Main Roads Amendment Act 1975 (WA). The Main Roads Act 1930, as thus amended, provided that the absolute property in the land over which a highway or main road is declared shall vest in the Crown: s 15(1). It conferred upon the Commissioner of Main Roads the care, control and management of the land over which a highway or main road is declared: s 15(2) and, amongst other things, vested in the Commissioner the property in the materials of all highways and main roads and of all buildings, fences, gates, posts, boards, stones, erections, and structures placed upon any highway or main road by s 15(3).
2151 The Yilka applicant submits that there were no corresponding provisions in relation to secondary roads in the Main Roads Act 1930. The powers of a local authority over a secondary road was not deemed to be taken away by that Act, as amended (s 24(4)), although the Commissioner had certain powers, such as to direct a local authority to carry out specified works where the local authority failed to maintain to the satisfaction of the Commissioner any construction works carried out by the Commissioner on a secondary road (s 24(6)). Therefore, the Yilka applicant submits, the declaration of the Laverton-Warburton Road as a secondary road did not change anything. The road, whatever its status, existed prior to the declaration. The declaration was merely designed to confer upon the Commissioner of Main Roads a measure of control over the various roads the subject of the declaration. To the extent that the road was a public road prior to 28 June 1976, and it appears clear that it was a public road between Laverton and the boundary of the Claim Area, it continued to be a public road. Equally, to the extent that it was not a public road prior to that date, it continued not to be a public road. If the situation were otherwise, the declaration would have changed the status of the road, not just in the Claim Area, but all the way to Warburton, and that clearly did not occur, according to the Yilka applicant.
12.6 Additional comments about other roads
2152 The Yilka applicant makes the following additional submissions about the specific roads which the State contends extinguish native title. The Yilka applicant submits that the Court could not be satisfied on the evidence that any of the roads referred to below were either public roads at common law or public works within the meaning of the NTA at any time on or before 23 December 1996.
2153 The Yilka applicant accepts that Road 1 (9462) and Road 2 (9463) are vested roads that extinguished native title, but does not accept that they are common law roads, or public works for the purposes of the NTA, and contends that any extinguishment by either road must be disregarded where s 47A or s 47B NTA applies.
2154 The Yilka applicant says that neither Road 1 or Road 2 is a through road to anywhere. They both terminate in extremely remote areas and it is proper to infer that though they may have been used by persons with private interests in those areas to access pastoral leases or mining interests, they could not have been used as thoroughfares by members of the public. According to the descriptions of each in the relevant Gazette entries, Road 2 terminates somewhere in the vicinity of Point Salvation near Site 5.3 (Mantjal) and therefore somewhere short of Area 12 (UCL 1) and Area 5 (Reserve 18714), and Road 1 terminates somewhere ‘near Rutter’s Soak’, Site 5.24 (Wartu).
2155 The Yilka applicant notes that the alignment of the White Cliffs-Yamarna Road appears (at least partially) to correspond to that of Road 2. The State in its final submissions (discussed below) indeed submits that Road 2 corresponds to the White Cliffs-Yamarna Road.
2156 The Neale Junction Road, also referred to as the Anne Beadell Highway, extends from Yamarna to the east, going through the Yeo Lake Nature Reserve and to Neale Junction. It travels through the Yamarna Pastoral Lease and Reserve 20396, created in 1930. Evidence regarding the nature of this road and the circumstances in which it came into existence has already been canvassed: see above, Pt 12.4.1 (although note discrepancies in the Yilka applicant’s submissions on the evidence). This road appears to fall into the category of a road, such as it was, being the subject of works at the request of private interests.
2157 Mr Hill gave evidence about the grading of this road at the time that he made his affidavit. The Yilka applicant points out that he was no longer on the Laverton Shire Council at that point, although he claimed to be aware of the activities going on within the Shire. He agreed that he had not observed the maintenance work himself; he had just heard about it. It became clear during cross-examination that he did not have any direct knowledge of the Shire maintaining the portion of the road within the Claim Area: when this was put to him, he merely said: ‘I can’t see why they wouldn’t have done that section while they were out there grading the road…’. The Yilka applicant suggests that that is hearsay evidence, although it had not previously objected to that evidence at the time of filing objections to affidavit evidence on roads. Mr Deckert gave what appeared to be a more reliable account: saying that when he went on the road, it was ‘worse than a track’ and noted that the Shire is required (which the Yilka applicant takes to mean currently required) to grade the road only once every five years.
2158 The Yilka applicant refers to its previous submissions as to occupation, which are referred to at Pt 7.1 above, and says that in general terms, the evidence about the use of the roads in issue at and about the time that the Yilka claim was made for traditional purposes such as hunting, gathering and visiting, checking up on and looking after country and particular sites on country (for example, by cleaning rockholes, burning country and ensuring that the fauna have water) is compelling. As previously stated, I found that there is sufficient evidence of occupation in relation to the areas to which s 47A and s 47B NTA are said to apply in both the Yilka and Sullivan claims at the time those claims were made.
13. STATE’S FINAL SUBMISSIONS IN RELATION TO ROADS
2159 In its final submissions in reply in relation to roads, filed 23 September 2015, the State accepts the Yilka applicant’s concerns and agrees that is not the case that the status of roads have been dealt with by a generic exclusion clause in West Australian determinations. Accordingly, the State no longer presses a generic exclusion clause and agrees that the Court should determine the status of the roads within the area of the proceedings.
2160 After numerous exchanges of submissions on this topic, the State’s position, helpfully, came down simply to this - that only four of the roads within the area of the proceedings have extinguished native title, those roads being:
(a) Road 1:
(b) White Cliffs-Yamarna Road (Road 2);
(c) Great Central Road; and
(d) Anne Beadell Highway (Neale Junction Road).
13.1 Summary of the roads said to have extinguished native title
2161 The State summarises its legal submissions and the evidence adduced in relation to those four roads on a road by road basis.
2162 Road 1 (Road No. 9462) is an unnamed road. The identification of the road as ‘Road 1’ comes from LRM4 (the Tenure DVD). The location of the road is depicted on the Yilka Tenure Map (Annexure 9 to these reasons).
2163 Road 1 was set apart, taken or resumed under s 17 of the Public Works Act 1902 for the purpose of a new road by notice published in the Government Gazette on 12 April 1935. By operation of s 18 of the Public Works Act 1902, upon publication of that notice, the land comprising Road 1 was:
vested in His Majesty, or the local authority, as the Governor may direct and the case require, for an estate in fee simple in possession for the public work expressed in such notice, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of-way, or other easements whatsoever.
2164 A notice published in the Government Gazette on 18 April 1935 indicates that Road 1 was opened as a road by resolution of the Mount Margaret Road Board on or about 15 January 1935. The State submits that this was pursuant to the provisions of the Road Districts Act.
13.1.2 White Cliffs-Yamarna Road (Road 2)
2165 The White Cliffs-Yamarna Road was the original east–west road through the area of the proceedings.
2166 The White Cliffs-Yamarna Road has been given a number of different identification numbers in the evidence. Exhibit R98 (Mr Hill’s affidavit) refers to the White Cliffs-Yamarna Road as Road No. 53. LRM4 (the Tenure DVD) identifies the road as Road 2 (Public Road No. 9463).
2167 The location of the road is depicted on LMR4 (as Road 2); the Yilka Tenure Map (as Road 2) and on the map attached at Annexure ‘XM1’ to Exh R57 (Mr Marszal’s affidavit) (State Roads Map) (as the White Cliffs-Wamarna Road). That map has been annexed to these reasons at Annexure 11. It should be noted that the road has been incorrectly spelt on this map and should read White Cliffs-Yamarna Road.
2168 The White Cliffs-Yamarna Road was set apart, taken or resumed under s 17 of the Public Works Act 1902 for the purpose of a new road by notice published in the Government Gazette on 12 April 1935. By operation of s 18 of the Public Works Act 1902, upon publication of that notice, the land comprising Road 1 was:
vested in His Majesty, or the local authority, as the Governor may direct and the case require, for an estate in fee simple in possession for the public work expressed in such notice, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of-way, or other easements whatsoever.
2169 A notice published in the Government Gazette on 18 April 1935 indicates that the White Cliffs-Yamarna Road was opened as a road by resolution of the Mount Margaret Road Board on or about 15 January 1935, which, according to the State, was pursuant to the provisions of the Road Districts Act.
2170 The Great Central Road is the main east – west road running through the area of the proceedings. It runs between Laverton and Warburton and is used by the members of the Aboriginal community at Warburton. It also extends further into the Northern Territory.
2171 The Great Central Road has been given a number of different names over time. The State says that it has been formerly known as the Laverton-Warburton Road, the Warburton Road and the Warburton Range Road. A portion of the Great Central Road between Laverton and the Cosmo Newberry Community has also been referred to the Laverton-Cosmo Road while that portion of the Great Central Road between the Cosmo Newberry Community and Warburton has been referred to as the Cosmo-Warburton Road. The Great Central Road has also been given two different road identification numbers in the evidence. Exhibit R97 (Mr Deckert’s affidavit) refers to the Great Central Road as S68. Exhibit R98 (Mr Hill’s affidavit) refers to the Great Central Road as Road No. 87.
2172 The State acknowledges that the variety of names given to Great Central Road has caused some lack of clarity. Further, the State accepts the criticism of the Yilka applicant that the evidence of Mr Deckert further confuses the identification of the Great Central Road (in that it suggests that the Warburton Range Road was the original name given to the White Cliffs-Yamarna Road and the Anne Beadell Highway and not the Great Central Road: see Pt 12.1.2 above). In the State’s submission Mr Deckert was mistaken in this respect. Cancelled Public Plan 502965 shows the location of both the Warburton Range Road and the White Cliffs-Yamarna Road (denoted as Road No 9463 on the plan). These roads are depicted as being separate and distinct. Further, Mr Hill also understands these roads (the Great Central Road and the White Cliffs-Yamarna Road) to be different roads.
2173 The location of the Great Central Road within the Yilka application area appears on the State Roads Map at Annexure 11.
2174 In the State’s submission the Great Central Road is a common law road. The evidence said to support the finding that the Great Central Road is a common law road can be found in Pt 10.5.3 and Pt 10.5.6.1.
2175 The State acknowledges that the manner in which the evidence has been dealt with in the State Road Submissions (in particular the use of the tables) has resulted in some lack of clarity regarding the evidence relevant to each road in question. For completeness the evidence relied upon by the State to establish that the Great Central Road is a common law road is as follows:
(a) Evidence as to the establishment and existence of the Great Central Road:
(i) Cancelled Public Plan 502964 dated 16 November 1931 and Cancelled Public Plan 502965 dated 28 April 1938 showing the location of the Warburton Range Road. On Cancelled Public Plan 502964 the road is unnamed but appears in the top left hand corner and is marked as ‘surveyed by Angove’. In Cancelled Public Plan 502965 the road is named as the Warburton Range Road (although note that the road depicted on both of these plans, if it does align with the present day Great Central Road, would only represent a small portion of that road within the Claim Area);
(ii) Topographic map (i.e. State Roads Map) dated at 5 November 2012 showing the location of the Great Central Road;
(iii) Evidence of Mr Hill that he believes that the Great Central Road was extended eastwards to Warburton in approximately the 1970s (note that Mr Hill also said that that road was extended to Minnie Creek at that time);
(iv) Declaration of the Great Central Road (then known as the Laverton-Warburton Road) as a ‘Secondary Road’ pursuant to s 24 of the Main Roads Act 1930, published in the Gazette on 2 July 1976; and
(v) Naming of the Great Central Road (then known as the Laverton-Warburton Road) on 23 October 1981 pursuant to s 10 of the Land Act 1933 and its depiction on Deposited Plan 242307 (Land and Surveys Miscellaneous Plan No. 1142).
(b) Evidence of use of the Great Central Road:
(i) A report of the first tourist bus from Sydney to Laverton via Warburton in 1968 noted that the road conditions ‘on the WA side of the border were by far the best and the Warburton Rd the best on the trip’;
(ii) Estimation from the Commissioner of Main Roads in 1986 that approximately 10 – 15 vehicles per day used the road; and
(iii) Evidence from the Aboriginal witnesses as to the use or existence of the Great Central Road as set out in the table at Pt 10.5.3. The State also notes that the Court travelled on the Great Central Road from Laverton to the Cosmo Newberry Community to hear evidence and, separately, beyond the Cosmo Newberry Community to its intersection with Point Sunday Road in the east of the Yilka application area.
(c) Evidence of maintenance and grading of the Great Central Road by the local authority as set out in Pt 10.5.6.1 and the table at Pt 10.5.3.
2176 The Anne Beadell Highway is a continuation of the White Cliffs-Yamarna Road running from Point Salvation to the Lake Yeo Homestead to Neale Junction and then beyond into South Australia.
2177 The Anne Beadell Highway is also known as the Neale Junction Road. Exhibit R98 (Mr Hill’s affidavit) also refers to the Anne Beadell Highway as Road No 21.
2178 The location of the Anne Beadell Highway within the Claim Area is depicted on the State Roads Map. Anne Beadell Highway is marked on that map as the ‘Anna Beadell Highway’, which is presumably a misspelling.
2179 In the State’s submission the Anne Beadell Highway is a common law road. The evidence said to support the finding that the Anne Beadell Highway is a common law road is set out at Pt 10.5.2. For completeness the evidence relied upon by the State to establish that the Anne Beadell Highway is a common law road is as follows:
(a) Evidence as to the establishment and existence of the Anne Beadell Highway:
(i) Cancelled Public Plan 502964 dated 16 November 1931 and Cancelled Public Plan 502965 dated 28 April 1938 are said by the State to show the location of the Anne Beadell Highway. The road is unnamed on both plans but the location of the road is shown by means of a dashed line running from Point Salvation to Point Sunday;
(ii) Topographic map dated at 5 November 2012 showing the location of the Anne Beadell Highway (State Roads Map); and
(iii) Naming of the Anne Beadell Highway (then known as the Neale Junction Road) on 23 October 1981 pursuant to s 10 of the Land Act 1933 and its depiction on Deposited Plan 242307 (Land and Surveys Miscellaneous Plan No. 1142).
(b) Evidence of use of the Anne Beadell Highway:
(i) Evidence from the witnesses as to the use or existence of the Anne Beadell Highway as set out in the table at Pt 10.5.2.
(c) Evidence of the maintenance of the Anne Beadell Highway by the local authority as set out in the table at Pt 10.5.2 (see also Pt 12.6.2, which refers to the Yilka Road Submissions).
2180 The mechanics by which native title is said to be extinguished by these roads in the State’s submission are as follows.
13.2 Extinguishment of native title by the roads listed above
2181 The State submits that native title rights and interests have been wholly extinguished over the area of Road 1, the White Cliffs-Yamarna Road, the Great Central Road and the Anne Beadell Highway, for the reasons that follow.
13.2.1 Road No.1 and the White Cliffs-Yamarna Road
13.2.1.1 Public Works and the Road Districts Act
2182 As discussed above, Road 1 and the White Cliffs-Yamarna Road were dedicated as roads in 1935 pursuant to the provisions of the Road Districts Act: see the discussion of this Act at Pt 10.4.4 (and also Pt 4.1.1).
2183 Section 253 of the NTA defines ‘public work’ as:
(a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:
(i) a building, or other structure (including a memorial), that is a fixture; or
(ii) a road, railway or bridge; or
(iia) where the expression is used in or for the purposes of Division 2 or 2A of Part 2 - a stock-route; or
(iii) a well, or bore, for obtaining water; or
(iv) any major earthworks; or
(b) a building that is constructed with the authority of the Crown, other than on a lease.
2184 Public works which were commenced to be constructed or established on or before 23 December 1996 are previous exclusive possession acts as defined in s 23B(7) NTA.
2185 The State’s submission is that the statutory dedication of a road under the provisions of the Road Districts Act amounted to the ‘establishment’ of the road by or on behalf of the Crown or a local government authority, thus providing a basis for these roads being a public work within the definition of s 253 NTA.
2186 Such a construction of the definition of public work in s 253 NTA was accepted by Nicholson J in Daniel (at [642]-[643]), Sundberg J in Neowarra (at [621]) and Barker J in Banjima (at [1416]-[1419]) and CG (deceased) on behalf of the Badimia People v Western Australia [2015] FCA 204 (at [712] and [715]: note that Barker J did not specifically find that roads were public works, although the discussion appears under the heading ‘Roads and other public works’).
2187 Accordingly, Road 1 and the White Cliffs-Yamarna Road, also known as Road 2, which were commenced to be constructed or established on or before 23 December 1996, are previous exclusive possession acts as defined in s 23B(7) NTA. Further, as the construction or establishment of those roads was ‘attributable to the State’, s 23E NTA and s 12J TVA confirm complete extinguishment. The extinguishment is taken to have happened when the construction or establishment of the relevant road began: s 12J(1)(b) TVA.
2188 The construction or establishment of Road 1 and the White Cliffs-Yamarna Road wholly extinguished native title over the entirety of the area of the road and any ‘adjacent land … the use of which was necessary for, or incidental to, the construction, establishment or operation’ of the road’, pursuant to s 251D NTA.
2189 I accept the argument for the State that these two roads constitute public works under the definition in s 253 NTA, and that consequently they wholly extinguished native title, applying s 23B(7) and s 23E NTA and s 12J TVA, subject to the possible application of s 47A NTA. I do not find the argument for the Yilka applicant, that to fall within the definition of s 253 NTA the roads must be constructed and not merely established, to be compelling. Section 251D NTA would therefore also apply.
2190 In relation to the alignment of these roads, while the answer may not be wholly practical, it seems the effect of the law is that extinguishment must be confined to the alignment of the roads as and when they were created. I am not aware of any statutory justification to allow the extinguishment to travel with the moving alignment.
13.2.1.2 Extinguishment by operation of the Public Works Act 1902
2191 Further, or alternatively, the State says that Road 1 and the White Cliffs-Yamarna Road were set aside, taken or resumed pursuant to the provisions of the Public Works Act 1902 prior to 23 December 1996 and were previous exclusive possession acts on the basis that, by reason of s 23B(3) NTA, they were grants of freehold estate: see s 23B(2)(c)(ii). The majority of the High Court in Ward HC held that the vesting in the Crown of an estate in fee simple by the operation of s 17 and s 18 of the Public Works Act 1902 had the effect of wholly extinguishing native title. That extinguishment was confirmed by the operation of s 23B and s 23E NTA and s 12I TVA.
2192 The Yilka applicant agrees with the State that vestings under the Public Works Act 1902 may well have extinguished native title as a previous exclusive possession act under s 23B(2)(c)(ii) and s 23B(3) NTA. However, it is not necessary to decide this question as I have found that the two roads in question extinguished native title as public works.
13.2.2 Great Central Road and the Anne Beadell Highway
2193 As discussed above, in the State’s submission, the Great Central Road and the Anne Beadell Highway are common law roads (see the general discussion of creation of roads at common law at Pt 10.4.1, and also at Pt 12.3 as per the Yilka applicant).
2194 In summary, the State says that the existence of a method for statutorily dedicating a public road does not necessarily preclude the opening of a public road in accordance with the rules developed by the common law. It was recognised in A-G (NT) v Minister for Aboriginal Affairs (at 541) that absent any contrary legislative provisions it remains possible for a public road to be dedicated in accordance with well-established common law rules. The Great Central Road and the Anne Beadell Highway were both so dedicated, according to the State.
2195 In Ngalakan, O’Loughlin J summarised the common law test for dedication as follows (at [32]):
At common law, a road most commonly become a public road by reason of the dedication of the right of passage to the public by the owner of the soil and by reason of an acceptance of the right of way by the public. Usually, that acceptance was established by use: see generally Halsbury's Laws of England (4 ed) Vol 21 pars 64-67. "Dedication" in that sense, was taken to mean that the owner so conducted himself as to make an offer of usage to the public which the public then accepted.
2196 Therefore, the State says, to establish a common law dedication of a public road, the facts surrounding the road's creation and history must be considered in the context that they may establish both an intention by the owner to dedicate the road, and acceptance by the public that the road is in fact a public road. The dedication can be made expressly or may be inferred from the conduct of the owner: Shoalhaven (at [10]) per Bryson JA, quoting Newington v Windeyer (at 559) per McHugh JA (Kirby P and Hope JA agreeing).
2197 The State submits that whether a road has been dedicated as a public road at common law is a question to be determined on the facts of each case: A-G (NT) v Minister for Aboriginal Affairs (at 542). Factors such as a declaration of an intention to dedicate; delineation or demarcation of the road on maps or plans as a road set apart for public use; uninterrupted use of the road by the public; the expenditure of money by public bodies in forming or maintaining the land as a road; and whether the road communicates with, and connects other roads are some matters which may, when considered with all of the relevant evidence, amount to an unequivocal indication of the dedication of the land as a public road: see Pt 10.4.1 above. All of these are factors that are relevant to, and supported by the evidence in relation to, the Great Central Road and the Anne Beadell Highway, according to the State.
2198 The State submits further, that the construction or establishment of the Great Central Road and the Anne Beadell Highway were public works as defined in s 253 NTA. As these roads were commenced to be constructed or established on or before 23 December 1996 they would be previous exclusive possession acts as defined in s 23B(7) NTA. The construction or establishment of the Great Central Road and the Anne Beadell Highway would have wholly extinguished native title over the entirety of the area of the road and any ‘adjacent land … the use of which was necessary for, or incidental to, the construction, establishment or operation’ of the road, pursuant to s 251D NTA.
2199 In Badimia (at [716]-[720]) Barker J accepted the existence of a common law road which extinguished native title.
2200 However in this instance, I find that there is insufficient evidence to show that these two roads have been dedicated at common law, and that further, the ability of the Crown to dedicate such roads at common law, thereby making them open to use by the public, would have been hampered by the restrictions on public entry which attended the creation of the reserves (in 1930, 1939 and 1958 respectively). It is difficult to establish public use of the roads, evidence of which may be relevant both to the intention of a landowner to dedicate and to acceptance by the public (if indeed that it necessary in the case of dedication by the Crown), in such a context. Further, evidence of expenditure by public bodies on these two roads is equivocal, given that it is not clear whether such works occurred on those parts of the roads within the external claim boundaries. Demarcation of the Great Central Road on public plans in 1931 and in 1938, on the former of which it was unnamed, prior to the creation of the reserves over which it travels, is insufficient evidence of its creation as a common law road, especially given that only a small section of the road as it then was has been shown, and in light of the need for certainty in the description of the land dedicated: A-G (NT) v Minister for Aboriginal Affairs (at 545).
13.3 The inter-relationship between the reserves and the roads
2201 In terms of the inter-relationship between the Aboriginal reserves and the roads which the State says extinguish native title in the Claim Area, the State submits that these four roads were all established prior to the vesting of Reserves 20396, 22032, 25050 and 25051 in the AAPA pursuant to s 26 and s 27 of the AAPA Act in 1973. Any native title rights and interests extant in the areas of Road 1, the White Cliffs-Yamarna Road, the Great Central Road and the Anne Beadell Highway had, therefore, been extinguished prior to the provisions of the AAPA Act or Regulations applying to these areas. I agree, in relation to Road 1 and the Yamarna-White Cliffs Road, that native title rights had already been extinguished by the creation of these roads prior to the vesting of the Aboriginal reserves. The question which remains is whether that extinguishment is to be disregarded where s 47A NTA is said to apply.
13.4 Application or otherwise of s 47A NTA
2202 In relation to s 47A NTA, the State refers to Erubam Le (at [90]) where the Full Court found that ‘s 47A(2)(b) does not apply so as to compel the disregarding of the extinguishment brought about by the acts of constructing or establishing the public works’ on the basis that the construction or establishment of the public works could not be characterised as the creation of a prior interest in the land.
2203 The State says that the extinguishing effect of the Great Central Road, the White Cliffs-Yamarna Road, Road 1 and the Anne Beadell Highway, all of which are public works as defined under the NTA, is not to be disregarded under s 47A(2)(b) NTA.
2204 On this point, however, I disagree with the State’s submissions. I consider that s 47A NTA does apply to disregard extinguishment by the creation of roads where those roads fall within the areas of one of the Aboriginal reserves. As discussed above, I find that there is sufficient evidence of occupation for the purposes of s 47A(1)(c) NTA over the entirety of the areas of the four Aboriginal reserves by at least one member of each of the claim groups, so far as the area of those reserves are included in each of the claim areas. I agree with the argument for the applicants that Erubam Le is distinguishable. In the current proceedings the creation of the roads created in members of the public the enforceable right of free passage over the land (Fourmile (at 170)), and resulted in the vesting of the roads in the Mt Margaret Road Board under s 158 of the Road Districts Act or s 18 of the Public Works Act 1902. These constitute prior interests because, as argued by the Yilka applicant, the creation of the reserves subsequent to the creation of the roads would have abrogated the common law right of members of the public to use the roads, and the vesting of the reserves in the AAPA would have overtaken any prior vesting of the roads.
13.5 Remaining roads: other interests
2205 The State accepts that there has been confusion about the naming or numbering of the roads referred to in the evidence, but submits that all other roads depicted on the State Roads Map should be included in any determination as ‘other interests’ similarly to those roads set out in Sch 4 (at [12]) Ngaanyatjarra determination (Mervyn v Western Australia [2005] FCA 831) and that the State and the applicants should confer about and agree to the naming or numbering of those roads for the purposes of any determination. As I will need to hear further submissions from the parties concerning the content of any determination(s), I will await the parties’ submissions on this point. But if the other ‘roads’ are not roads, which extinguish native title, the utility of such an exercise is not immediately apparent in the context of native title determinations.
2206 The State advances submissions in relation to abuse of process and estoppel in connection with WAD 297/2008 (Yilka No 1), WAD 303/2013 (Yilka No 2) and WAD 498/2011 (Sullivan claim). Orders were made on 29 August 2013 that Yilka No 1 and Yilka No 2 be heard together pursuant to r 30.11(d) FCR. Orders were also made that the pleadings and evidence in both matters stand as pleadings and evidence in the other proceeding.
2207 As foreshadowed in earlier chapters, the State argues that the Court has power to prevent abuses of its processes, including by the doctrines of res judicata and issue estoppel and their analogical extensions as enunciated in Henderson v Henderson (1843) 67 ER 313 and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The State submits that the Court should exercise that power in each of the present proceedings by permanently staying or dismissing the proceedings. In the discussion that follows, where the arguments are referred to collectively, they are described as the ‘abuse arguments’. While the arguments on this topic might be expected to be addressed at an earlier stage, they are considered at this point, largely because of the way the issue has evolved through the course of the proceedings.
2208 As a preliminary but important observation, I should point out that rather than repeat many of the arguments advanced by the Yilka applicant when considering the position of the Sullivan applicant, it should be understood that the statements of principle, reasoning and the conclusions reached in this chapter apply to both claims.
2209 In the Yilka No 1 proceeding, the State filed an interlocutory application and subsequently an amended interlocutory application on 15 October 2012 seeking orders summarily dismissing the Yilka No 1 proceeding on the basis of the abuse argument. That application was listed for hearing on 22 and 23 April 2013. On 22 April 2013, I adjourned the interlocutory application to be heard and determined in closing submissions at trial on the basis that the evidence in the trial was then well-advanced and I considered it inappropriate to determine the interlocutory application at what was perceived, at least at that time, to be an advanced stage of the evidence, but certainly with more evidence to come. The trial subsequently took some unexpected steps which extended the anticipated duration. These steps included evidence adduced after the joining of the Sullivan claim and the State re-opening its case.
2210 The arguments that the State would have advanced on its amended interlocutory application filed on 15 October 2012 are effectively dealt with together with other arguments in the closing submissions and, accordingly, are all addressed collectively in these reasons.
2211 The State notes that the deferral of consideration of the State’s claim for interlocutory relief followed a course not dissimilar to the course of proceedings in Port of Melbourne Authority v Anshun Pty Ltd.
2212 In summary, the major issues that arise between the parties on the abuse arguments include:
(a) the Court’s jurisdiction and findings in the Wongatha proceedings;
(b) significance, if any, of the State’s failure to seek summary relief at an earlier time;
(c) the State’s burden of establishing an abuse of process;
(d) Justice Lindgren’s intent in the Wongatha judgment;
(e) the risk of conflicting judgments;
(f) relief pursuant to the State’s interlocutory application;
(g) the similarities and differences between the respective claims;
(h) unreasonableness on the part of the Cosmo applicant;
(i) unfairness and oppression; and
(j) delay or timing of the State’s abuse arguments.
2213 Broadly, the structure of this chapter (after dealing with some introductory principles (Pt 2)), is first to consider the elements of each of the two earlier claims (Pt 3 and Pt 4), including some specific features relating to them (Pt 5 and Pt 6); then to consider the components of the current claims (Pt 7 and Pt 8); then to conduct comparisons (Pt 9 and Pt 10; then to consider those comparative elements in light of the principles of the various abuse arguments and arrive at a conclusion (Pts 11-15).
2214 It is first necessary, however, to briefly revert to the basic, overarching principles.
2215 It is well-established that the powers of the Court to prevent abuses of process are not confined by hard and fast definitions or restricted to closed categories. The power of the Court to prevent abuses arises whether or not falling strictly within the scope of other more precise doctrines, such as estoppel. The rationale behind the guiding principles rests on overlapping considerations of public interest, the finality of litigation and avoidance of the potential for conflicting judgments.
2216 The particular form of abuse described by the State is the attempt to litigate controversies which have already been decided by the Court or which ought reasonably to have been agitated in the hearing before Justice Lindgren, which comprised over 100 hearing days (often of extended sitting hours and often on country) of the various overlapping native title claims, known as the Wongatha proceedings. The Wongatha proceedings resulted in a first instance judgment of 4000 paragraphs, handed down on 5 February 2007. The Cosmo claim was dismissed in Wongatha, as was the Wongatha claim.
2217 On a fundamental issue between the parties, by way of overview, I emphasise that the Yilka applicant argues that the State’s abuse arguments ultimately depend upon the proposition that Wongatha involved the effective and final determination of critical factual issues on the merits, or that the subject matter and issues in the Yilka claim could reasonably have been agitated in the Cosmo claim that formed part of the Wongatha proceedings. The Yilka applicant contends these propositions are unfounded.
2218 The Yilka applicant argues that of great importance is the fact that there was no finality in the Wongatha claim and Cosmo claim, except on the question of whether the Court had jurisdiction. Thus, there can be no risk of a judgment on the merits of the Yilka claim conflicting with the earlier judgment. That is significant because the prosecution of an abuse of process case requires careful attention to the identification of a final judgment and any cause of action merged in it, issues decided (in particular, issues indispensable to the judgment), and whether a party has acted unreasonably in the conduct of the first proceedings. It is not sufficient, the Yilka applicant would say, to simply identify ‘from the four corners of the Court record some similarities (of kinds and degrees which the State does not specify) between an earlier and a later proceeding’.
1.1 Delay in filing abuse of process interlocutory application
2219 The Yilka applicant relies upon the following chronology particularly in relation to the State’s delay in mentioning the possibility of a strike out or related application and further delay in bringing such an application:
Date | Event | Reference |
01/01/94 | NTA (except s 201) commenced | |
21/02/96 | Cosmo claim made | |
09/12/03 | Commonwealth non-claimant application foreshadowed | Wongatha [4000] |
10/12/03 | Hearing of evidence in Wongatha proceedings concludes | Wongatha [10] |
09/06/04 | Commonwealth non-claimant application (WAD 123/2004) (non-claimant proceeding) made | Wongatha [4002] |
10/06/04 | Hearing of Wongatha proceedings concludes | |
05/02/07 | Wongatha Reasons for Judgment, including dismissal of the Cosmo claim and refusal of a negative determination | Wongatha [2893], [4004] |
05/04/07 | Notice of Appeal filed by the Cosmo Applicant (WAD 43/2007) | |
26/07/07 | Orders in the non-claimant application for submissions and affidavits by any party wishing to support the making of a negative determination | Order 5 |
01/11/07 | Order giving leave to discontinue the non-claimant application | |
02/11/07 | Notice of discontinuance filed in the non-claimant application | |
15/12/08 | Yilka Form 1 filed | TAC1 Tab 21 |
05/08/10 | Directions hearing: Regarding the Cosmo Appeal: The Court was of the view that if the Cosmo appeal was stayed pending the completion of Yilka claim it would fall away if the Yilka claim succeeded. Regarding the State Application: State mentioned ‘whether, in fact, an issue estoppel or an Anshun estoppel or some other form of abuse of process might rear its head as we move forward.’ The Court noted, ‘Yes, and I would contemplate that in any programming orders, that issue be addressed sooner rather than latter [sic] so that we don’t obviously incur time and expense’ And the State responded, ‘Well, I think you could reasonably expect, to the extent that the State might want to address it, that we’d do it upfront.’ | T3.10-15 T3.15-29 |
13/12/10 | Hearing of argument about programming orders considered in Murray (No 3) | |
21/12/10 | Reasons for decision given in Murray (No 3). Regarding the Cosmo Appeal: Having heard the State argument that the Cosmo Appeal should proceed before the Yilka claim, the Court considered it was appropriate for the Yilka Claim to proceed and that the objective of the orderly and efficient administration of justice was best achieve [sic] by that process. Regarding the State Application: The Court noted that the State fully accepts that it should make any application based on res judicata, issue estoppel or Anshun estoppel as soon as possible and recognises the desirability of avoiding unnecessary costs being incurred. | Murray (No 3) [7], [8] Murray (No 3) [28] |
24/01/11 | Yilka POC filed | Yilka POC |
02/03/11 | State POR filed, pleading inter alia, res judicata, issue estoppel, Anshun estoppel and abuse of process | State POR [94(m)-(r)] |
06/04/11 | Yilka Reply to State Points of Response filed, denying abuse of process | Yilka Reply [4(m)-(r)] |
06/04/11 | Yilka Amended Form 1 filed | Exh R56 Tab 24 |
10/06/11 | Yilka Amended Points of Claim filed | Exh R56 Tab 25 |
22/07/11 | First Conference of Experts (Brisbane) | |
22/08/11 | Yilka Second Amended Points of Claim filed | Exh R56 Tab 26 |
20/10- 21/10/11 | Opening addresses in Perth, including the Yilka Applicant’s statements as to the departures of the Yilka claim from the Cosmo claim | T1-104 Exh R56 Tab 27 |
21/10/11 | Leading counsel for the State states, ‘We don’t abandon those matters [estoppels and so forth], but it really depends upon whether the claim proves to be one which raises the same questions or not, and I must say, at this stage, that’s not clear to me, whether we will be addressing the same claim or a different one. I mean, certainly, the characterisation of this as a claim by individuals sets it apart in one sense. However, on another view, one might say, well, you know, a party should bring forward all the claims that they can in the one proceeding. So I’m also conscious that they’re representative proceedings, that there are different, or possibly different, differently constituted, constituencies.’ | T103.17-24 |
31/10-11/11/11 | Hearing on-country evidence at Cosmo Newberry and various site locations | T110-1328 |
05/12-06/12/11 | Hearing of HM’s evidence in Perth | T1330-1534 |
06/12/11 | Mention by leading counsel for the State that ‘the estoppel question is still sort of looming’ and that it ‘may be something that we will give some thought to’. | T1530.34-38 |
07/12/11 | Sullivan claim (WAD498/2011) filed | |
23/12/11 | Yilka [Third Amended] POC filed | Exh R56 Tab 28 |
01/03/12 | Order that the Yilka claim and the Sullivan claim be heard together | |
24/07/12 16/08/12 | Second Conference of Experts (Brisbane) | |
15/10/12 | State [Amended] Application filed | |
22/10/12 | Court order in the Cosmo Appeal, by Justice Gilmour, that the appeal ‘be adjourned to a date to be fixed, as soon as practicable, after judgment is given in the first respondent’s strike out application in the matter WAD297/2008 (Yilka)’. | Order |
28/11/12 | Affidavit of Trevor Allan Creewel filed in support of State Application | Exh R56 |
21/12/12 | State Interlocutory Submission filed | |
13/03/13 | Yilka Interlocutory Submission filed | |
10/04/13 | State Interlocutory Reply filed | |
22/04/13 | State Application listed for hearing | |
22/04/13 | State Application adjourned for hearing and determination in closing submissions at the conclusion of the substantive trial. The State did not resist that course. | Murray v WA (No 4) [2013] FCA 413 |
24-25/06/13 | Hearing of further on-country evidence at Cosmo Newberry | T1535-1832 |
05/08/13 | Yilka [No 2] Form 1 filed | |
09/08/13 | Yilka [Fourth Amended] POC filed | |
16/08/13 | Sullivan POR to the Yilka POC filed | |
29/08/13 | Orders that Yilka [No 2] be heard with Yilka, and (relevantly) all pleadings in Yilka stand as pleadings in Yilka [No 2] (including Response by State) | |
06/09/13 | State POR (to Yilka [Fourth Amended] POC) filed | |
09-12/09/13 | Hearing of further Aboriginal evidence and expert evidence at Perth | T1833-2198 |
23/09/13 | Yilka Applicant’s Reply to State Response filed | |
09/09/13 | Affidavit of Malcolm O’Dell tendered | Exhibit A38 |
12/09/13 | Affidavit of Trevor Allan Creewel sworn 28 November 2012 in support of State Application tendered. Limited in use to the submissions on estoppel and abuse of process. | Exhibit R56, T2186-7 |
10-13/12/13 | Hearing of on-country evidence of the Sullivan Applicant (Aboriginal and expert) at Kalgoorlie | T2199-2733 |
13/03/14 | Hearing of expert evidence and of Mr O’Dell at Perth | T2734-2878 |
24/03/14 | Tender of Affidavit of Trevor Allan Creewel sworn 20 March 2014 in the Sullivan claim in support of State Submission that the claim be dismissed as an abuse of process and vexatious. Limited in use to the submissions on estoppel and abuse of process. | Exh R96 |
30/05/14 | State’s Submission on ‘Abuse of Process’ filed in relation to the Yilka claim and the Sullivan claim |
2220 The State’s first reference to the possibility of abuse arguments being raised was in submissions made in Court on 5 August 2010. The topic has been mentioned from time to time since that date. At the outset, the State did not commit itself to the course of seeking summary dismissal of the proceedings because it explained that it did not adequately understand the way the claim was put and this lack of understanding meant that the State, in turn, could not determine whether it should formulate the abuse arguments.
2221 The State says that although the Yilka applicant has frequently said that the Yilka claim is propounded on substantially different bases to those relied upon in the Cosmo claim that was heard and dismissed, it has never been clear, when the proceedings are scrutinised in any detail, how or in what respect the Yilka claim actually differs from the cases put forward in support of the earlier Wongatha and Cosmo claims. The State says that it has allowed the opportunity for such differences to emerge, but that has not occurred. Any such differences, it says, are entirely illusory, contrived or trivial. They are matters that could and should reasonably have been agitated in the Wongatha proceedings, either as part of, instead of, in the alternative to, or in addition to, the two relevant claims which were then made in relation to the relevant land (that is, the Cosmo claim and the Wongatha claim). Accordingly, the State argues that the Yilka claim and the Sullivan claim are simply abuses of process.
2222 In order to consider the State’s argument, it is necessary to analyse the matters relied upon by the respective applicants in the Cosmo claim and the Wongatha claim, the various formulations of the claims, successive versions of the Form 1 and Statements of Facts and Contentions, arguments that were advanced and the manner in which the applications were presented from time to time. The State says when this exercise is carried out, it is evident that the current claims are not materially distinguishable, or at least might and ought to have been presented. Even those aspects of the claim which may superficially appear to permit differentiation of the Wongatha and Cosmo claims from the claims in the present proceedings, it is said, are the product of deliberate and considered elections.
2223 The State complains that the manner in which the Yilka claim is put is still, even after the filing of hundreds of pages of submissions on native title at the end of the hearing, not clear beyond doubt. As the Sullivan claim adopts substantially the same form of the Yilka POC, it is said the same deficiency infects the Sullivan claim. One example is that the Yilka applicant purports to reserve its right to argue that the expression ‘communal, group or individual rights and interests’, where it appears in s 223(1) NTA, is a compound expression not requiring identification in any particular case as to whether rights are ‘communal’, ‘group’ or ‘individual’. The State says this is the position repeatedly put forward by the Yilka applicant as the basis of the Yilka claim and a feature setting it apart from the Cosmo claims, namely, that the Yilka claim is made in respect of ‘individual’ rights. In any event, it is argued, this is a matter which could and should have been and was agitated in presentation of the Wongatha proceedings and is the subject of the Cosmo appeal which has presently been stayed.
2224 In my view, the course that the State has taken in relation to the application has been entirely well understood by all parties as well as the Court. It was the Court’s decision to adjourn the interlocutory application. I also accept that the State reasonably had difficulty in appreciating how these claims were different from those dismissed by Justice Lindgren, at least in relation to the individual/group debate.
2225 As to the clarity of the Yilka claim, I am partially sympathetic to the State’s submission that the case as put at the outset was not entirely without ambiguity. Whilst I would readily accept that difficulty in understanding this case may be attributable to my own shortcomings, I am inclined to the impression that the State has been patiently awaiting the more succinct clarification of the Yilka case. But I do not accept the State’s submission that the case as put by the Yilka applicant is not now clear. I do accept that there are elements of it which are relatively novel, but the claim nonetheless is clear. On the particular example cited by the State in relation to the Yilka applicant’s characterisation of the claim rights, I accept the Yilka applicant’s argument that it has merely indicated it will rely, if necessary, on an argument about the proper construction of the words ‘communal, group or individual rights’ in s 223(1) NTA in their application to the WDCB laws and customs. This cannot constitute an abuse, and is not unfair or oppressive to the State or likely to bring the administration of justice into disrepute.
2226 In any event, in light of my disposition of the substantive argument, it is unnecessary to consider this issue which is essentially a procedural matter. If I were to rule in favour of the State in the ultimate argument, I would not allow this issue to stand in the way of that ruling. However, as I have not ruled in favour of the State and ruled against it on the abuse arguments, it is unnecessary to consider this submission further.
2227 I also reject the Yilka applicant’s submission that the State, having waited for two years after the commencement of the Yilka claim to even raise the possibility of such an application, as well as having held the possibility over the proceedings for another two years before making the application and then abandoning it informally and without notice, invites questions about the State’s behaviour relative to the requirements of Pt VB FCAA and to questions of costs.
1.2 Proceedings the subject of the State’s abuse arguments
2228 The Yilka applicant makes the point that the State’s application has only been made in Yilka No 1 and should not be regarded as extending to Yilka No 2 or the Sullivan claim. The Yilka applicant says that the State is taken to have abandoned its application. It is argued that the State’s interlocutory application should be withdrawn or dismissed with costs.
2229 In my view, this is an artificial approach. I do not accept the Yilka applicant’s submission that the Court has no jurisdiction to make orders in the other proceedings in circumstances where it has been patently clear throughout that the objective of the State is that the abuse of process arguments and other related claims were advanced in relation to each of the proceedings, and that all of the proceedings should be dismissed. That objective has been clear to the applicants and the Court.
2230 Further, I accept the State’s submissions that the State’s interlocutory application no longer has the character of an interlocutory application because the proceedings were approaching finality at the time these issues were addressed in closing submissions. The matters raised in the State’s interlocutory application have become part of the substantive proceedings.
2231 An unusual but beneficial feature of this application is that all of the evidence in the substantive proceedings is now open to be considered in connection with the issues as to abuse of process. Fortunately, however, the State has limited the matters on which it relies. It has adduced evidence specifically relevant to the issues in this case through affidavits of its instructing solicitor, Mr Creewel sworn on 28 November 2012 and 20 March 2014, comprising copies of Form 1s, points of claim and other records from the Wongatha proceedings. When looking at the weight of that material, one is reminded, as the Yilka applicant submits, that ‘right-thinking people’ mentioned by Lord Diplock in Hunter v Chief Constable of the West Midland Police [1982] AC 529 (at 536) might be excused for suggesting that in the circumstances it would be a waste of the Court’s time to consider the procedural issue when it is now in a position to consider the merits. Nonetheless, I propose considering all issues. I think that to do so is necessary in light of the fact that I adjourned the State’s interlocutory application because of the perception then held by, I think, all parties that the proceedings were well advanced. In adjourning that application, I did so without prejudice to the State’s rights to argue these matters again at the completion of the proceedings while acknowledging the interlocutory application had been brought at the earlier date.
2. RELEVANT GENERAL LEGAL PRINCIPLES
2232 An application for summary dismissal for abuse of process will only succeed in a very clear case and the power to make such an order is to be exercised only with exceptional caution (Co-Ownership Land Development v Queensland Estates Pty Ltd (1973) 47 ALJR 519 (at 521 per Walsh J). The Yilka applicant says that the very complexity and extent of the State’s submissions speaks against it being a clear case on any view. The Yilka applicant submits, and I accept, that the burden is no lighter by reason of the fact that the submission is made at the end of the hearing, rather than by way of an interlocutory submissions during the hearing.
2233 Although it may be that the categories of abuse are not closed, nonetheless, the burden of proof on an abuse argument is heavy, the evaluative standard is high and the tendency of the courts is against the serious result of precluding access to the courts, except in a clear case.
2.1 Abuse of process – principles
2234 The way the State formulates its submission in relation to the abuse of process claim is that, even if the present cases are distinguishable from the cases advanced in the Wongatha proceedings, the Yilka claim and the Sullivan claim are abuses of process as they present issues fundamentally akin to the issues in the Cosmo and Wongatha claims and/or issues which were open to be raised, and ought to have been raised, in the Wongatha proceedings.
2235 The State relies upon the observations of the High Court in Ridgeway v The Queen (1995) 184 CLR 19, where Gaudron J said (at 74-75) (footnotes omitted):
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are "frivolous, vexatious or oppressive". This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of "abuse of process" is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or “productive of serious and unjustified trouble and harassment”.
2236 The State also draws on the observations in Walton v Gardiner (1993) 177 CLR 378 (at 393) in which Mason CJ, Deane and Dawson JJ said (footnote omitted):
… proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. …
2237 Similarly in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699, French J (as his Honour then was) said (at [59]):
The Federal Court, like every Court of Justice, has an implied incidental power to prevent abuse of its processes. There are many ways in which the processes of a court may be abused. One form of such abuse is to invoke the procedures of the court to attempt to re-litigate controversies which have already been decided by the court. The court may be protected against such use of its procedures by the doctrines of res judicata and issue estoppel and their analogical extension to issues which ought reasonably to have been litigated in original proceedings as enunciated in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
2238 In Spalla (at [70]) French J cited with approval the statement of Giles CJ in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64,089), that the guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice.
2239 His Honour went on to cite with approval the non-exhaustive list of matters identified by Giles CJ in Stenhouse as relevant to the determination of whether there is an abuse of process in connection with an issue to be litigated in a second proceeding:
(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –
(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
2240 This list was also approved and recited in Dale v Western Australia (2011) 1914 FCR 521 (Dale FC) (at [112]).
2241 An attempt to re-litigate an issue which has been resolved in an earlier proceeding may constitute an abuse of process, even though the earlier proceedings did not give rise to a res judicata or an issue estoppel: see, for example, Walton per Mason CJ, Deane and Dawson JJ (at 393). The Full Court in Dale FC dismissed proceedings on the basis of an abuse of process, although, relevantly, in the absence of an application of the doctrine or res judicata or an issue estoppel. This is pertinent where the Court may find that the doctrine of issue estoppel has no operation in applications for native title determination. In Dale FC (at [88] and [90]-[93]), doubt, at least, was raised as to the operation of issue estoppel in native title applications. This might be contrasted with Quall v Northern Territory (2009) 180 FCR 528 (Quall FC) where issue estoppel was raised and applied.
2242 As the State submits, res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which is merged into a judgment in a prior proceeding: see Neil Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 38 NSWLR 443 per Kirby ACJ (at 450) and Anshun per Gibbs CJ, Mason and Aickin JJ (at 597-598). Arguably, this principle is not a form of estoppel, but rather a broad rule of public policy.
2243 The issue was considered in Blair v Curran (1939) 62 CLR 464 where a distinction was drawn between the principle of res judicata and issue estoppel. Dixon J (at 532), as his Honour then was, said that in res judicata:
… the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence…
2244 Similarly, Fullagar J observed (at 466) in Jackson v Goldsmith (1950) 81 CLR 446:
Where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims "interest reipublicae ut sit finis litium" and "nemo debet bis vexari pro eadem causa.”
2245 On appeal in Western Australia v Fazeldean (No 2) (2013) 211 FCR 150, the Full Court (Allsop CJ, Marshall and Mansfield JJ) considered the application of res judicata in the summary dismissal application over an area in respect of which a previous native title claim had been dismissed by consent. It was described (at [26]) to be a claim for the very same rights under the very same Act, based on the same asserted factual connection as was sought to be maintained in the original application.
2246 Dealing with the res judicata submission, the Full Court said (at [34]):
[L]itigation under the [NTA] is not ordinary private inter partes litigation. Sought to be vindicated are rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia. The vindication is not only for the living in the claim group, but for their ancestors and for generations to come. How that context affects the operation of principles such as res judicata under or in the context of the [NTA] is a large question, and is one of great importance. Such a question is not apt to be disposed of on a summary application.
2247 The Full Court also said (at [37]-[38]):
37 It may be, in the light of the joint submission to North J, that the proper construction of the order was such as to contemplate a reservation of the kind found in O 35, r 6. If not, the deeper question of the kind to which we have referred may arise. These questions require the care of final, not summary, disposition.
38 Even if one accepts as correct the applicant’s criticism that the primary judge approached the question laying too much emphasis on what the parties mutually intended, the correct order was made. In all the circumstances, it would be inappropriate to permit the Thalanyji people’s claim to be disposed of in a summary way without exploration of the kind of considerations to which we have referred. The question of res judicata and any consequential matter should be pleaded.
2.3 Issue estoppel – principles
2248 A party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. An issue estoppel is created where an issue or fact is indispensable to a prior decision involving the same parties (or their privies). In Blair v Curran (at 531) Dixon J, as his Honour then was, in relation to issue estoppel made it clear that a judicial determination directly involving an issue of fact or law disposes of the issues once and for all so that it cannot afterwards be raised between the same parties or their privies. The estoppel, his Honour said, covers only those matters which prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion.
2249 There must be:
(a) the same question to be decided;
(b) final judicial determination creating the estoppel;
(c) a matter that the prior judgment established as the legal foundation or justification of its conclusion (which mirrors (a)); and
(d) the correspondence of parties or their privies.
2250 In native title proceedings, the Full Court in Dale FC entertained doubt that issue estoppel had a field of operation in applications for native title determination, but did not need to resolve that question. Although the State acknowledges that the Full Court has not resolved the question, the State did not abandon that or any basis for its claim for interlocutory relief.
2251 The background to Dale FC was this. In Daniel, Nicholson J concluded that the Wong-Goo-TT-OO people do not form a single cognatic kin group and had not made out their claim to be a traditional native title claim group. As a result, they could not claim connection as a group, nor could they hold native title rights and interests as a group. (These findings were summarised in Dale FC (at [35] and [37])).
2252 Subsequently, in Daniel v Western Australia [2005] FCA 536 (at [24]), his Honour made a formal determination of native title and associated orders under which members of the Ngarluma and Yindjibarndi peoples held native title over certain parts of the claim area (at [3] and [5]). His Honour ordered that such part of the Wong-Goo-TT-OO claim as were before him would be dismissed. The proceedings in Dale v Western Australia [2009] FCA 1201 and Dale FC were heard after an appeal by the Wong-Goo-TT-OO people against the decision of Nicholson J in Dale v Moses [2007] FCAFC 82. That appeal was dismissed. This was a significant factor.
2253 A further native title application was prosecuted by the Wong-Goo-TT-OO people in Dale v Western Australia [2009] FCA 1201 in relation to a different area of land. The State applied for summary dismissal of the application pursuant to O 20 r 4 of the Federal Court Rules on the basis that no reasonable cause of action was disclosed. In that case, I summarily dismissed the further Wong-Goo-TT-OO application (at [93]) on the basis that critical findings in Daniel about society gave rise to an issue estoppel. I said (at [31], [52] and [76]):
31 Just as Risk had determined the critical society issue by finding that the relevant society did not exist, Daniel also (confirmed by the Full Court in Dale) reached the same conclusion in relation to Wong-Goo-TT-OO.
…
52 In summary, [Wong-Goo-TT-OO] did not establish that it was a cognatic group and did not establish that it was a traditional group in any other sense: Dale (at [15] and [18]); Daniel (at [384]; [387]; [389]; [390]; and [506]). Without establishing that there had been a society which has had a continuous existence since sovereignty, it was impossible to satisfy the definition of native title in s 223(1) NTA.
…
76 Importantly the central reasoning behind the decision in Daniel was that Wong-Goo-TT-OO did not hold native title over any part of the Ngarluma/Yindjibarndi claim area because Wong-Goo-TT-OO was not a group capable of holding native title. Far from being peripheral in any sense, this was the first and fundamental issue that his Honour had to decide and it was decided clearly against Wong-Goo-TT-OO.
2254 The subsequent proceedings involved the same Wong-Goo-TT-OO claim group in the dismissal of the earlier proceedings in question. Dismissal was wholly and only on the merits on a basis that made it impossible for that claim group to satisfy the definition of native title. It was also a dismissal in the context of a determination being made in favour of competing claimants on a claim with which the proceeding in question was directly inconsistent. The State explains that as a result of a different manner in which it argued the case in the Full Court, the Court decided the matter in terms of abuse of process, rather than issue estoppel. (At first instance the applicability of issue estoppel in native title proceedings was not questioned.) It held that, in substance, the Wong-Goo-TT-OO essentially sought to have the same issues as were previously determined, determined differently in the further proceedings. In those circumstances, its attempts to do so constituted an abuse of process (see Dale FC (at [111]). However, in the same hearing, the Full Court heard argument about whether the principles of issue estoppel had application to native title claims and stated (at [88]):
We have decided that the WGTO application constitutes an abuse of process and McKerracher J was correct in making the order he did dismissing the WGTO application. While we entertain real doubt that issue estoppel has any field of operation in applications for native title determination, it is unnecessary to resolve that legal question. We shortly explain why we doubt that issue estoppel has any application in proceedings of the present type.
2255 In [89] the Full Court noted that in Quall FC, no suggestion was made that issue estoppel had no application in relation to native title cases. Rather the Quall appeal proceeded on the assumption that it did.
2256 In Dale FC (at [90]), the Court expressed its doubts about the applicability of issue estoppel in native title claims, resting ‘on the statutory framework which establishes the procedure for hearing such application and the character of any determination that is ultimately made.’ At [92], the Court observed that a determination of native title is, in effect, a judgment in rem that will bind persons beyond the parties or privies to the proceedings in which the issue was earlier determined. Special leave to appeal to the High Court was refused.
2.4 Anshun estoppel – principles
2257 The State submits that the principle of res judicata has been extended to include the reasonableness of the litigant's conduct in the earlier proceedings, or the existence of an abuse of process in the later proceedings.
2258 It needs to be determined whether the case falls within the extended principle expressed by Sir James Wigram VC in Henderson v Henderson. The Vice-Chancellor expressed the principle in these terms (at 115):
[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
2259 In Anshun, Gibbs CJ, Mason and Aickin JJ approved the statement of principle in Henderson v Henderson (at 598). Their Honours (at [601]-[602]) considered and rejected the statement of Lord Kilbrandon in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 (at 590) that it was ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in the earlier proceedings.’ It was wrong because in that context ‘could’ did not entail ‘should’. Their Honours also said (at [602]) that it was ‘not of great utility’ to ask whether ‘the issue in question was so clearly part of the subject matter of the initial litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding.’ Their Honours laid down a test (at [602]) that this type of estoppel would not arise unless the matter sought to be relied upon in the second action ‘was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.’
2260 In Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 (at [3]), Allsop P (as the Chief Justice then was) said that when deciding whether the matter in question was so relevant that it can be said to have been unreasonable not to rely upon it in the first proceeding for the purpose of establishing Anshun estoppel, ‘the [Anshun] assessment is not to be made mechanistically, but rather there is a value judgment to be made referable to the proper conduct of modern litigation.’ The President then observed (at [4]) that it was a fundamental error to build on the proposition that because a matter could have been raised in the first proceeding to draw a conclusion that it ‘should’ have been so raised.
2261 Significantly, in Triantafillidis v National Australia Bank [1995] V ConvR 54-536, a decision of the Victorian Court of Appeal in 1995, Ormiston JA said (at 66,366, pp2-3 in the unreported version):
In a complex claim such as the present the defendant is not entitled to tie the plaintiff to her originally formulated pleading for the purpose of bringing it to a summary end. It is one thing to strike out a statement of claim, it is another to stay the proceeding entirely. Where the alleged vexatiousness depends upon the application of rules of res judicata or issue estoppel, or upon the analogous but perhaps less precise rules formulated in cases such as Anshun, care should be taken to see that the alleged new claim either coincides precisely with what has already been litigated or is of a kind where it would be plainly vexatious to allow the second proceeding to continue.
2262 Further, in Gibbs v Kinna [1999] 2 VR 19, Ormiston and Phillips JJA made clear their concerns about the ‘wider approach’. Ormiston JA also pointed out (at [1]) that the use by the majority in Anshun of a double negative in the phrase ‘it would have been unreasonable not to rely on it’, is significant because:
the question is not whether it would have been reasonable to take the course of relying on a particular defence or cause of action in the first proceeding, for more often than not it was then possible to rely upon the proposed defence or cause of action. The issue is whether it was unreasonable to defer reliance upon the defence or cause of action, so, if it cannot be shown to have been unreasonable not to have relied earlier on the defence or cause of action, then the principle stated by the majority in Anshun’s case will not shut out a party’s later reliance on the defence or cause of action, unless some other principle of estoppel or the law can be called in aid. Only if deferring reliance can be shown to be unreasonable, will the party be shut out. Frequently there is no clear answer as to what was possible and reasonable in the earlier proceedings; sometimes it will have been technically possible for the party to have relied on a particular defence or set up a particular claim, but nevertheless it may not have been demonstrated that it was unreasonable in all the circumstances not to have relied on that defence or not to have set up the claim. The answer depends not so much on legalities as practicalities.
(italics in original, underlining added)
3.1 The applicant’s case in the Cosmo proceedings
2263 Much has been said about the Cosmo proceeding, but it is necessary to review the position again in the context of the current chapter of these reasons. As the State notes, the Cosmo claim was an application under s 61 NTA for determination of native title made on behalf of persons asserting that they held native title to the area covered by that application.
2264 As noted previously, the Cosmo claim was not the first native title claim made in respect of the area now covered by the Yilka claim. A claim by Mrs Sullivan covering the entire area (Tjinintjarra Family Group Claim) had previously been lodged on 29 September 1995. At least one other claim by Quinton Tucker lodged on 3 August 1991 had also been made in respect of the area before the making of the Cosmo claim. The making of the claim on behalf of the Sullivan family and the exercise by that claimant of the right to negotiate under the NTA did not please the Murray family who had moved to the Cosmo Newberry Community after unhappy dealings with the Sullivan family.
2265 The State reiterates that the Cosmo claim was one of 35 applications for determination of native title which, after culmination, were reduced to eight claims heard concurrently as the Wongatha proceedings. The Cosmo claim was commenced by lodgement of claimant applications on 21 February 1996 and was accepted for registration on the Register of Native Title Claims on 10 May 1996. The Cosmo claim was made in respect of the area now covered by the Yilka claim which lay entirely within a larger area which by 22 January 1999, and as a result of the combining of the 20 separate proceedings, became the subject of the Wongatha claim. Parts of the area the subject of the Wongatha claim, also overlapped, but did not entirely cover, areas claimed by five other groups. As stated above, in the Wongatha judgment, Justice Lindgren dismissed all of the applications, including, relevantly, the Cosmo claim and the Wongatha claim. The Wongatha judgment, at least insofar as it determined the Cosmo claim, is the subject of an appeal that has been stayed pending resolution of the present claim. The State asserts (but I reject) that the concurrent maintenance of the Cosmo appeal and the Yilka claim ‘is a further or exacerbating abuse of process on the part of the Yilka applicant.’
2266 The applicant in the Cosmo proceedings made various changes to the Cosmo claim in the period following its commencement and the hearing of the Wongatha proceedings. Various versions of that claim revealed, the State says:
(a) the capacity available to the Cosmo applicant to make significant variations and amendments to the Cosmo claim during that period;
(b) that the Cosmo applicant did make significant variations and amendments to the claim during the period; and
(c) the nature of facts and forensic choices that were considered and able to be taken into account in making variations and amendments to the Cosmo claim.
2267 The applicant identified in the Cosmo application as originally lodged was identified as being 48 named persons. HM, one of the named applicants, was identified as the registered native title claimant. As is now the case in the Yilka claim, in the Cosmo claim, HM was the applicant as the representative of the persons who, in conformity with s 61 NTA, professed to hold the common or group interests comprising particular native title claimed in the Cosmo claim. It is not clear how the Court would reconcile the dual roles in face of the continuance of the Cosmo appeal and the prosecution of the Yilka claims, the State submits. In my view, it is clear that if this claim were to succeed, the Cosmo appeal would fall away. That, of course, was the very reason for staying the Cosmo appeal, so that this case could proceed.
2268 The State described changes in the description of the Cosmo claim and claimant group in attentive detail. The State’s submissions on this topic are as follows (footnotes omitted):
First Description of the Cosmo Claimant Group
41. The first description of the Cosmo claim group, contained in Cosmo Newberry Application filed 21 February 1996 was in broad but not particularly informative terms which by definition are capable of being taken as a description of the members of the Yilka [claim] group (if the members of the Yilka group possess native title rights and interests in the claim area). The description was as follows:
“The application is made on behalf of the applicants and others who are entitled in accordance with the traditional laws and customs to possess native title rights are [sic] interests, in the claim area.”
42. The description is capable of including members of the Sullivan, Edwards, Winter and Harris families and any wati, where they are persons who possess native title rights and interests in the claim area.
Second Description of the Cosmo Claimant Group
43. The second description of the Cosmo claim group, contained in Amended Native Title Application dated 24 December 1998 was as follows:
“The Native Title Claim Group comprises those people who hold in common the body of traditional law and culture governing the area the subject of the claim and who
a) are the descendants of a set of apical ancestors who are associated with the claim area. The set of apical ancestors consists of three sets of siblings, the primary members which are:
- Tjarltjanu, Winima and Timbaburu and Yupapa (all of the Panaka section)
- Putjipa, Nyuringka and Imandura and Tarrkatjarra (all of the [T]jarurru section)
- Billy Kurlu, Sandy Grey and Skipper Elliot (all of the [P]urrungu section)
The claimant group comprises those persons who are descended, on a bilateral basis, from the children of marriages among members of this set of apical ancestors. The following list indicated some of the families of claimants who derive their membership in the claimant group in this way (it is not however, intended to be a comprehensive list):
- the descendants of [Mrs]Murray
- the descendants of Ron [the late Mr Bonney]
- the descendants of Alan Bonney
- the descendants of [Ms Ross’ deceased husband] and [Ms]Ross
- the descendants of Nola Nash
- the descendants of [NW], Hudson Westlake and [MW]
- the descendants of Muriel Barnes
- the descendants of [Mathew] Grey
- the descendants of Gordon Elliott
- the descendants of Ivy Elliott
- the descendants of Timbaburu and Yupapa; or
b) have a common connection to the claim area in accordance with their traditional law and custom, which includes a custom of descent from their antecedents. Claimants so deriving their connection include Victor Frazer and Trevor Shaw, both whom have a connection to the area through birth, although their own primary local areas are elsewhere; and Cyril Simms, who derives a connection for himself and for the children of his late brother, Paul Simms, on the basis of the latter's birth in the area, although again the primary local areas of this family are elsewhere.
44. Two important features of this description are, first the conjunction “or” between (a) and (b) and secondly the broad scope of the inclusion in (b) of persons who: “have a connection to the claim area in accordance with their traditional laws and customs which includes ....”. The description is capable of being taken as a description of the members of the Yilka [claim] group (if the members of the Yilka group have a connection to the claim area in accordance with their traditional laws and customs) and of including members of the Sullivan, Edwards, Winter and Harris families and any wati, where such a connection exists.
Third Description of the Cosmo Claimant Group
45. The third description of the Cosmo claim group, contained in Re Amended Native Title Application dated 24 April 1999 made only a minor change to part (a) of the description set out in paragraph 42 above in that words 'the children of' were deleted. The former part (b) of the group description was replaced with the following:
(b) have a connection to the claim area by virtue of having been born within the area, provided that the birth occurred while the family was living a "traditional" way of life in the area, and was not simply an outcome of a temporary residence in European-created centre.
46. The substituted description in (b) replaced the earlier inclusive descriptions by introducing an exhaustive description of the claimant group into the Cosmo claim. On its face the group description that was adopted was substantially narrower than earlier descriptions in that it focussed on descent (in (a)) and birth (in (b)) and not the more general possibility of connection in accordance with traditional laws and customs.
Fourth Description of the Cosmo Claimant Group
47. The fourth description of the Cosmo claim group, contained in Further Re-Amended Native Title Determination Application, Claimant Application dated 22 November 1999 made changes to the group description in three respects:
a. First, in part (a) the words of introduction to the list of families was altered to as indicated in the following text:
“The claimant group comprises those persons who are descended, on a bilateral basis, from the children of marriages among members of this set of apical ancestors. The following list indicated some of indicates the families of claimants who derive their membership in the claimant group in this way (it is not however, intended to be a comprehensive list):
b. Secondly, changes were made to the specified lines of descent to add “descendants of Karen Vincent” and to omit reference to “descendants of Timbabura and Yupapa” although Timbabura and Yupapa continued to be identified as among the primary sets of apical ancestors; and
c. Thirdly, a proviso to the group description was added in the following terms:
“To avoid doubt, the claimant group does not include any person who is a claimant in WC94/8 WAG 6005/98 (The Wongatha Claim).”
48. The fourth description further narrowed the group on whose behalf the claim was made. It is not expressly stated that the families identified were meant to constitute an exhaustive list, but the changes suggest that may have been the case. The express exclusion of persons who were claimants in the Wongatha claim had the effect of excluding members of the Sullivan, Edwards, and Winter families and [Mr Harris] from possible membership of the Cosmo claimant group.
49. The artificiality of the exclusion (when considered in the context of the pre-sovereignty laws and customs) is self-evident. The Cosmo Applicant has clearly elected to shape its claim in this way to avoid offending NTA s 190C(3) and thus secure registration under NTA Part 7 and consequentially the right to negotiate under NTA Part 2 Division 3 Subdivision P. To do so it excluded certain individuals who were members of a group which enjoyed the right to negotiate by reason of their membership of the Wongatha group. Whatever the motives, the decision was clearly a considered, informed and strategic one.
Fifth Description of the Cosmo Claimant Group
43. The fifth description of the Cosmo claim group is contained in Points of Claim filed 26 April 2000 and is expressed in terms which confine the group to four closely related families (Murray, Westlake, Grey and Elliott) who identify with the claim area and have non-descent based personal connections to the claim and who are recognised and refer to themselves as the Cosmo Newberry people or mob.
50. Although expressed in Points of Claim (as opposed to a Form 1) the description departs from the formula adopted in the then current Form 1 and does not refer to the exclusion of Wongatha claimants.
Sixth Description of the Cosmo Claimant Group
51. The sixth description of the Cosmo claim group was explained in the Cosmo claimant's opening before Lindgren J on 19 February 2002.
52. The Cosmo Applicant's Senior Counsel said, quoting from the report of Dr Sackett which became Exhibit 4B10.1 in the Wongatha proceedings:
“Cosmo Newberry Native Title Claim Claimants contend that they and their ancestors have long and ongoing connections to the country of the claim area. Senior claimants say that Cosmo Newberry and other places on the claim area were part of their ancestors' runs; that is, parts of the countries, those ancestors moved about as they made a living from the desert, interacted with their kin and affines, attended ceremonies-”
and
“Another body of claimants asserts individually and collectively more varied and manifold linkages to claim area country, and while many of these claimants highlight descent from significant ancestors, they also speak of growing up on the country and of living on the claim area.”
53. Whilst not having the formal status of a Form 1 Application or Points of Claim, the opening was informed by anthropological opinion and made in the context of the developments and disclosure in relation to the Cosmo claim and the Wongatha claim up to that point in time. It was the Cosmo applicant's statement to the Court of the way in which the Cosmo claim was then put.
Seventh Description of the Cosmo Claimant Group
54. The seventh description of the Cosmo claim group is contained in Amended Points of Claim filed 9 April 2002. That description adapted the fifth description (in Points of Claim 26 April 2000) by reducing the "four closely related families" (Murray, Westlake, Grey and Elliott) to three (Murray, Westlake and Barnes, including members of the Nelson, families). Membership was said to be: “through birth on the land, and/or cognatic descent (whether via biological or adoptive links) from ancestors who were born on or had other connections with the claim area in accordance with traditional law and custom.”
55. The seventh description was circumscribed by the limitation that group membership was confined to the three identified families. Whilst the reference to “other connections with the claim area in accordance with traditional law and custom” invites contemplation of the connections of wati, multiple pathways, and the “manifold connections” referred to by Dr Sackett and cited by the Cosmo applicant's senior counsel in opening, these unspecified connections are not expressed as alternatives to descent but rather are additional criteria to family membership.
Eighth Description of the Cosmo Claimant Group
56. The eighth description of the Cosmo claim group was the description that was described by Lindgren J as "current" in the Wongatha Judgment and is contained in Fourth Amended Native Title Determination Application dated 14 August 2003. In that description changes were made to the list of apical ancestors; Sandy Grey, having been included by the third description and omitted by the fourth was reinstated as an ancestor. In addition amendments were made to the list of descended families ([MW], Ivy Elliott and Karen Vincent were removed. Clayton and Audrey Nelson were added).
57. The description did however allow for "personal connection", "including through their own birth or the birth of ancestors" (emphasis added) and, in this non-exhaustive way, could be taken to have, prima facie, included members of the Sullivan, Edwards, Winter and Harris families and wati.
58. In relation to wati, the eighth description specifically made provision for at least some such rights in that it identified the native title rights claimed as including "rights of related Aboriginal persons", rights which were defined to include (that is, not limited to): "in relation to an Aboriginal person with ritual authority who is a member of a group from a nearby area - rights to act, in accordance with traditional laws, customs and practices, in relation to the maintenance and protection of sites associated with the travels of an ancestral being which passes through the land and waters of the native title claim group."
59. The eighth description of the Cosmo claim group did however, incorporated [sic] further restrictive filters on the inclusion of claimants:
a. somewhat circularly, it attributed a gatekeeping role to the claimant group by providing that a claim to membership be recognised by the native title claim group according to its traditional decision making process,
b. it retained the prohibition on inclusion of Wongatha claimants by providing that, in respect of such persons the requirement of recognition by the native title claim group was not met, and
c. it included the added proviso that individuals who assert a claim accrue full rights and interests as their connection becomes real and meaningful by sharing in the taking of responsibility for the land and waters through extensive physical presence on it.
60. The eighth description of the claimant group contained in the Fourth Amended Native Title Determination Application dated 14 August 2003 was re-stated in the same terms in Further Amended Points of Claim filed shortly afterwards on 2 September 2003, which were described as "current" in the Wongatha Judgment. The relevant description was the subject of the Cosmo claimant's considered 369 page outline of submissions on connection dated 5 February 2004.
61. It might be observed that, in the period from the making of the Cosmo claim to the conclusion of the Wongatha proceedings there was a shift from a liberal group description (see paragraph 41 above) to a confined one (see paragraphs 56 to 59 above). This is to be contrasted with shift in relation to the Wongatha claim, insofar as it related to the Yilka claim area, from the narrow claim of the three families in the Tjinintjarra Family group (see paragraph 74 below) to the accommodating terms advanced at the hearing which specifically incorporated the rights of Cosmo claimants (see paragraph 85 below).
2269 It is evident, as argued, that the Cosmo claim progressively developed over the course of the proceeding. It does not seem to me that this analysis by the State establishes anything more than the difficulty of pursuing claims for native title in very remote regions with all the linguistic complications and practical (including to an extent, budgetary) constraints that anyone involved in any capacity in native title applications can readily observe.
2270 It does not appear to me that the evolution of the description of the Cosmo claim brings it within any relevant test for determining whether the present Yilka claim is an abuse of process. That being so, in my view, there is little utility in further examining that detail.
3.4 The area that is the subject of the Cosmo proceedings
2271 The Cosmo claim and the Wongatha claim covered the whole of the area covered by the Yilka claim and the Sullivan claim, if questions about extinguishment are put to one side.
3.5 The rights and interests claimed in the Cosmo claim
2272 The State contends that the rights and interests claimed in the Cosmo claim are, insofar as exclusive possession is claimed, indistinguishable from those claimed in the Yilka claim. Further, the State submits that insofar as alternative claims to less pervasive rights are made, the rights and interests claimed in the Cosmo claim are not materially different to those claimed in the Yilka claim. The Cosmo claim was put on the basis that the native title rights included the rights of related Aboriginal persons, being Aboriginal persons with ritual authority, Aboriginal persons belonging to Aboriginal groups from nearby areas, and Aboriginal persons closely related to a member of the native title claim group. The limits of ‘nearby’ were not formulated, but the Cosmo claim was clearly intended to incorporate the rights of wati who were not, except by reason of their status as wati, members of the Cosmo claimant group. The Cosmo applicant proposed a determination that specifically included such rights of related Aboriginal persons.
2273 The Yilka applicant takes issue with this submission and contends that it may be accepted that, ultimately, a native title right of exclusive possession is sought in both cases. However, the Yilka applicant says, importantly for the understanding of issues to be resolved in the respective cases, the Cosmo claim to traditional rights and interests preceded from a complex formulation of ‘qualified exclusive rights’ and ‘activity based rights’ reflecting a particular understanding of the jurisprudence at the time shortly after the High Court decision in Ward HC. While that decision was mostly about extinguishment, reference was made in it to notions of exclusive possession, the metaphor of a ‘bundle of rights’ and the understanding of rights by reference to activities. As to native title rights, the extinguishment considerations are now known to be significantly impacted by the formulation of underlying traditional rights and, in turn, by the understanding of the underlying traditional laws and customs. But the Yilka applicant says this was not known the time of the Cosmo claim as Akiba HC and Brown HC had not then been decided. In contrast, the Yilka applicant says that the Yilka claim is put such that the underlying rights possessed under traditional laws and customs are broadly framed rights; the claim and understanding of the applicable legal principles as put now is all ‘a long way down the path from what was put by the Cosmo applicant’. Importantly, for present purposes, the Yilka applicant says, it cannot be said that it acted unreasonably in not putting the Cosmo claim on the footing with regard to rights and interests (traditional and native title) as those on which the Yilka claim has been put. Shortly put, the Yilka applicant contends that it is the very development of the law which has given rise to the different formulation of the claims in the Yilka case and the Cosmo case.
2274 The Yilka applicant also explains that the area covered by the Cosmo claim and the Wongatha claim comprised an aggregate of the individual ‘my country’ areas of the individuals comprising the respective claimants. Individual Cosmo claimants asserted ‘my country’ areas but did not acknowledge that the area covered by the Cosmo claim included the ‘my country’ areas of persons not included as claimants. The Wongatha claimants made clear that, in relation to the Cosmo claim area, the rights of (some) members of the Wongatha claimants co-existed with the rights of the Cosmo claimants. In the case of the Cosmo claim, within the cumulative ‘my country’ areas addition rights of a different character were asserted as held by ‘related Aboriginal persons’, an expression for an Aboriginal person with ritual authority who is a member of an Aboriginal group from a nearby area.
2275 By the Cosmo claim and through the Cosmo appeal, the applicant sought and continues to seek a determination of native title in respect of the area which was the subject of the Wongatha claim and the whole of the area which is now the subject of the Yilka claim and the Sullivan claim. I return to the relevance of the rights and interests claimed in the Cosmo proceedings later in this chapter in connection with the rights and interests claimed by the Yilka applicant.
3.6 The laws and customs relied upon in the Cosmo proceedings
2276 Again, the State points out that the applicants in the Cosmo claim and the Wongatha claim relied upon the traditional laws and customs of the people of the Western Desert, as is the case in the Yilka claim and the Sullivan claim. Those laws and customs in the Cosmo claim are indistinguishable from those relied upon in the Yilka claim, the State says. This is essentially the evidence given by HM in any event. Accordingly, the State submits that the body of law and custom and particular laws and customs relied upon were not materially different to those relied upon in the Wongatha claim, the Yilka claim or the Sullivan claim.
2277 The Yilka applicant stresses that acknowledging that laws and customs relied on in Cosmo and Yilka are the laws and customs of the Western Desert does not entail, contrary to the State submission, that the claims are presented in the same way or raise the same issues with respect to laws and customs. Nor does it entail that the two claims were presented under the same jurisprudence or understanding of the legal principles of proof of native title.
2278 Neither party has descended to detail on this topic. But, in particular, the State, which asserts the abuse of process, has not descended to detail about the laws and customs relied upon in the Yilka claim, Cosmo claim, Sullivan claim and Wongatha claim and why they are the same, other than to assert that, in substance, they are all governed by Western Desert practice. Broadly, I accept the Yilka applicant’s submission that the formulation of laws and customs relied upon in the Cosmo and the Yilka claims do vary between the claims. If the differences reflect a better understanding of the laws and customs or are a different formulation reflecting developments in legal principles, it is not something in respect of which the State has asserted, or could establish, that the Cosmo applicant acted unreasonably so as to render the Yilka claim an abuse of process. In any event, so far as Justice Lindgren considered the laws and customs relied upon in the Cosmo proceedings, his Honour expressly refrained (at [3353]) from answering the question whether the Cosmo claim group acknowledged and observed the body of pre-sovereignty laws and customs of the Western Desert.
2279 The State contends that Justice Lindgren’s findings in Wongatha do contain final conclusions on important issues of a nature that were, and are, fatal to any finding of native title in favour of the Cosmo applicant group or ‘its successor’, the Yilka applicant. These findings are said by the state to include:
(a) Where a claim group comprises aggregations of individuals and the claim area comprises aggregations of their individual ‘my country’ areas, a claim by such a group to hold rights in the total area cannot be sustained under the NTA as explained in Yorta Yorta (Wongatha judgment (at [314]));
(b) In the Wongatha judgment (at [1142]):
[in the Cosmo case] each individual asserts individual rights and interests over his or her own “my country” area, and the individuals constituting a claim group are not members of it by reason of any unifying traditional characteristic; the unifying characteristic is that the Claim group has decided to recognise the connection or connections asserted by the individual, and to admit him or her to membership. There is nothing traditional about such decision making.
(See also [2934]).
(c) In the Wongatha judgment (at [3084]):
I can accept that there could be differentiation as between the rights and interests of the members of a group. For example, only watis might have access to particular sites. Another possibility would be a situation in which some individuals have active rights and interests only in certain areas. All would depend on the content of the traditional laws and customs that gave rise to the group rights and interests. However, the starting point in such a case must be the existence of a group, group rights and interests, and a group area, with all members having at least nominal rights and interests in the whole area by reason of nothing more than their membership of the group. If all members had nothing more than their rights and interests in their respective ‘my country’ areas, this would show that traditional laws and customs did not give rise to group rights and interests at all. That is the position in the case of the present Claims as they are put.
(d) In the Wongatha judgment (at [3043]):
It will be clear from what I have said earlier that I do not accept that the régime propounded in the Cosmo case is founded in traditional (pre-sovereignty) law and custom. …
(e) ‘… [I]t appears that certain Wongatha claimants would be included [amongst those who have rights in the Cosmo Claim Area]’ (Wongatha judgment (at [3043])).
(f) In the Wongatha judgment (at [3056]):
It is not shown, however, that traditional (pre-sovereignty) laws and customs provided, or with permissible adaptations provide, for individuals to aggregate their rights and interests and ‘my country’ areas, and so to create a group holding group rights and interests in a group area.
(g) In the Wongatha judgment (at [3354]):
The connection referred to in s 223(1)(b) of the NTA must be by traditional (pre-sovereignty) laws and customs. I refer to my reasons for my conclusion that the evidence does not satisfy s 223(1)(a) of the NTA. For the same reasons, the evidence does not establish that the Cosmo Claim group, by WDCB laws and customs, has a connection with the Cosmo Claim area for the purposes of s 223(1)(b) of the NTA.
(h) ‘I do not find the claims to country made by the Cosmo claimants who testified probative of any particular law or custom.’ (Wongatha judgment (at [3290])).
2280 The Yilka applicant accepts that Justice Lindgren regarded his merits findings as sufficient to found the dismissal of the Cosmo claim, but says this approach rests in his Honour’s findings about the way the Cosmo claim was put, namely, as a group claim to group rights in a group area. This is said to be evident from the reasoning in Wongatha (at [2893.2]-[2893.8], [2930], [3079]-[3080], [3084], [3242], [3357], [3997] and [4008]). Accordingly, to the extent it was a dismissal on the merits, the Yilka applicant argues it was a dismissal as a group claim to group rights in a group area. It now seems well understood that the Yilka claim is not put on that basis. Rather, it is put on the basis that traditional law and custom sees the possession of rights and interests as based on a particular attribute of a person (or, in the case of descent based rights: an attribute of a relevant ancestor) and as extending over an area associated with that attribute. Such rights are not dependent upon the existence of a ‘group’ in any sense beyond those people within the group being the people who possess the rights. That the exercise of such rights, according to traditional law and custom, might in a particular context be conditioned by the views and status of others makes no difference. Accordingly, the Yilka claim as put on the evidence cannot be regarded, the Yilka applicant submits, as a group claim to group rights in a group area.
2281 As the Yilka applicant puts, and I accept, in the Wongatha/Cosmo merits consideration, there was expressly no final conclusion on the merits of a number of issues. There was no need to make final conclusions on such matters. The merits considerations flowed from a central finding that s 223(1)(a) NTA was not satisfied. Thus the merits consideration of connection (s 223(1)(b) NTA) was concluded on the basis that s 223(1)(a) NTA was not satisfied. In the absence of satisfaction of elements in s 223(1), there was no need to consider:
(a) the rights and interests that were asserted to be held under traditional laws and customs (see Wongatha at [3355]);
(b) whether such rights are ‘in relation to’ lands and waters (see Wongatha at [3355]);
(c) whether such rights are possessed under traditional laws and customs acknowledged and observed (see Wongatha at [3355]); or
(d) the application of s 223(1)(c) NTA (see Wongatha at [3356]).
2282 There is force in the submission (at [161]) from the Yilka applicant on this issue as follows:
Therefore, the merits consideration (assuming jurisdiction) must be understood as being limited to consideration of the requirements of s 223(1)(a) and in turn thereby limited to a finding that the Cosmo claim was not a group claim to group rights in a group area: see Wongatha [3557]. The reasoning resulting in the adverse merits finding in relation to the s 223(1)(a) proceeded through the following issues:
(a) relevant society at the time of sovereignty (Wongatha [3017]-[3028]) – in relation to which the trial judge concluded that the Cosmo claim falls within the area of the WDCB at sovereignty and had previously (Wongatha [1003]) indicated he was prepared to assume - though “[w]ith considerable doubt [… that the WDCB is a single normative society …]”. Critically, [his Honour] proceeded on the basis that for the Cosmo claim to succeed (because he regarded the claim as being so put) that pre-sovereignty laws and custom must provide for “group ownership” (Wongatha [3020]) and that to succeed the Cosmo claimants would have to show traditional authority for individuals to pool their areas and form themselves into a claim group with rights and interests in the whole area. He found that there was not and “could hardly be” evidence of such authority: Wongatha [3020];
(b) relevant laws and customs at the time of sovereignty: Wongatha [3029] – in relation to which the trial judge merely referred to written submissions relied on by various parties without further consideration or expressed conclusion;
(c) rights and interests held at the time of sovereignty: Wongatha [3030] – in relation to which, again, certain submissions are referred to but no conclusion is expressed;
(d) applicant group and the relevant society: Wongatha [3031]-[3088] – as to which the [sic] Lindgren J considered what he termed the “pervasive individual/group issue” (Wongatha [3033]), which was about the way the case was put, and proceeded toward the adverse finding by reference to the ‘gatekeeper’ issue (Wongatha [3045], [3087]); the case having been put as a group claim to group rights in a group area (Wongatha [3056], [3084]), the artificial nature of the group and the connection between that and the authorisation requirements: see, for example, Wongatha [3036]; [and]
(e) relevant traditional laws and customs: Wongatha [3089]-[3353] – in relation to which his Honour expressly refrained from answering the question about whether there is acknowledgement and observance by the Cosmo claim group of the body of pre-sovereignty Western Desert laws and customs: Wongatha [3089], [3353].
(emphasis in the original)
2283 I accept the Yilka submission that there is no adverse finding to it in relation to the Cosmo claim about the relevant society or the acknowledgment or observance of its traditional laws and customs. There is no finding that rights are not possessed under those laws and customs in the Claim Area, nor a finding that the persons represented in the Cosmo claim did not, on some basis or other, possess rights and interests in the Claim Area under those laws and customs. Certainly, there was no adverse finding as against persons who were neither Cosmo nor Wongatha claimants, some of whom are members of the Yilka claim. On the other hand, that some of the Yilka claimants were Wongatha claimants is not determinative.
2284 I am of the view that the consideration of the Cosmo claim on its merits was limited to issues that are substantially different from those which the Yilka claim has sought to have litigated.
3.8 The dismissal of the Cosmo claim
2285 Throughout the State’s submissions (not just in relation to the contended abuse of process), the State has drawn on the terms and reasoning of the dismissal of the Cosmo claim. It refers on a number of occasions to [2893] of Wongatha, in which Justice Lindgren said:
The Cosmo Claim fails because:
1. The Cosmo applicant was not authorised to make the Cosmo application, as required by s 61(1) of the NTA.
2. The evidence does not establish that the Cosmo Claim group is recognised by WDCB traditional laws and customs as a group capable of possessing rights and interests in land or waters.
3. The evidence does not establish that group rights and interests exist in the Cosmo Claim area.
4. The evidence does not establish that at sovereignty WDCB laws and customs provided for an ancestral group of the Cosmo Claim group to possess group rights and interests in the Cosmo Claim area, or for individuals to be able to form themselves into a group possessing such rights and interests.
5. The Cosmo Claim is an aggregation of claimed individual rights and interests, and the Cosmo Claim area is an aggregation of individual ‘my country’ areas, the subject of the claimed individual rights and interests, and the NTA does not provide for the making of a determination of native title consisting of group rights and interests in these circumstances.
6. The Cosmo Claim area is not an area that is ultimately, whether directly or indirectly, defined by reference to Tjukurr (Dreaming) sites or tracks.
7. While particular Cosmo claimants can point to earlier times when they or their ancestors lived, or had other connections with, particular places within the Cosmo Claim area, the present Cosmo Claim group has resided at the Cosmo Aboriginal Community only since 1989/1990, and as a group its connection to the Cosmo Claim area dates only from that time.
8. The evidence does not establish that the Cosmo claimants have a connection to the Cosmo Claim area by Western Desert traditional laws and customs, as required by s 223(1)(b) of the NTA.
(emphasis in original)
I realise that I am repeating this passage quoted earlier in this judgment, but it is important to the State submission that his Honour’s reasoning be seen in the context of the present argument.
2286 The State argues that if the explicit identification of eight reasons for dismissal of the Cosmo claim was capable of leaving any doubt that the reasons for dismissal were manifold and not simply because of absence of authorisation, that doubt was removed by the earlier comments of Justice Lindgren (at [1174]) where his Honour said:
… If I had been of the view that any of the present Claims failed for lack of authorisation alone, interesting questions would have arisen, for example, as to whether the position could be cured by ratification, or by the authorised making of a new application coupled with an order that the existing evidence be evidence in the new proceeding.
2287 Similarly, his Honour held (at [1270]) that the Court does not have jurisdiction to hear and determine the Wongatha application. Against the possibility that his Honour was wrong, however, his Honour proceeded to deal with the Wongatha claim on its merits. He did the same thing in relation, more relevantly, to the Cosmo claim (at [3016]).
2288 At [4006] his Honour said:
The various Claim groups have failed to establish their Claims relating to the Wongatha Claim area. In all cases except the MN Claim, the applications were also not authorised. In those cases, the Court lacks jurisdiction to make a determination of native title. However, while deciding the challenge to authorisation, I have dealt with all Claims on their merits.
2289 In opening oral submissions, the Yilka applicant contended that by dismissing the claim, rather than making a determination that no native title existed and by adverting to the possibility that an individual or a small group of individuals may wish to make an application for determination of native title, his Honour had ‘left the door open and the Yilka claim will pass through that door’.
2290 This is an important issue. It is clear that Justice Lindgren did not make a determination of no native title and expressly declined to do so. It is a reasonable inference from what his Honour said that his Honour took that approach on the basis that another claim might be brought. The State says that the inference is not appropriate because Justice Lindgren explained (at [976]) that ‘[s]ince I have reached a decision adverse to each Claim’s success on other grounds, resolution of [whether the Claim groups continue to acknowledge and observe the body of traditional (pre-sovereignty) Western Desert laws and customs] is not necessary’. The State says that the fact that every issue of fact was not dealt with does not diminish the significance of his Honour’s use of the plural ‘grounds’, or the significance of the several issues that were dealt with. So the assertion by the Yilka applicant that Justice Lindgren did not deal with the matter on the merits is at odds with the assertions of HM as the Cosmo appellant, that his Honour did so in error.
2291 The State says the matters on which his Honour sometimes expressed tentative views did not include any of the matters identified in the reasons given for the Wongatha claim and the Cosmo claim failing. Rather, the State says it was clear from the Wongatha judgment, that they were views in relation to some, but not all, other laws and customs (referring to Wongatha (at [977])). This understanding of his Honour’s approach was affirmed by the nature of the challenge in the Cosmo appeal, the State says.
2292 Justice Lindgren noted (at [4008]) that it was not necessary to ‘discuss the question of the effect of a dismissal if, for example, an individual were in the future to apply for a determination that he or she had individual rights and interests, or if a different group were in the future to apply for a determination that it had group rights and interests, in the Wongatha claim area or part of it.’ His Honour then said that ‘nothing [his Honour had] said is intended either to preclude or to encourage the advancing of any such claim.’ However, according to the State, the claim postulated by Lindgren J in Wongatha is materially different to that identified in the summary in the Yilka applicant’s opening. Accordingly, the State says that little can be read into Justice Lindgren’s comments concerning future claims. His Honour made clear that nothing that he said was intended either to preclude or to encourage the advancing of the claim by an individual or a different group. Properly understood, the State says, this is not leaving the door open to the Yilka claim, which, if it is at all relevantly different to the Cosmo claim, is a seemingly enlarged ‘group’ (not an individual) asserting ‘individual’ rights (not group rights).
2293 In any event, the State argues the population of the Yilka claim group does not appear to be a small group of individuals, but rather to be larger and more inclusive than the Cosmo claimant group. The Cosmo claimant group was said to comprise 128 people on 3 September 2001. Whereas, the Yilka claim group is described as numbering approximately 400 to 500 people. HM, who gave the only oral evidence on that subject, thought the group numbered well over 1,000. The State argues that the determinative weight of Justice Lindgren’s conclusions on matters other than authorisation was demonstrated by his Honour’s dismissal of the Mantjintjarra Ngalia claim. That claim was not infected with a deficiency in authorisation and it was dismissed for reasons not dissimilar to those unrelated to the authorisations given in relation to the dismissal of the Wongatha and Cosmo claims.
4.1 The applicant’s case in the Wongatha proceedings
2294 The State makes the point that the Wongatha claim itself constituted a combination of 20 claims. This included the WAD 6049/1998 proceeding, which was commenced by Mrs Sullivan and styled the ‘Tjinintjarra Family Group’, comprising the Sullivan, Winter and Edwards families. The 20 claims that constituted the Wongatha claims also included the WAD 6166/98 proceeding which was commenced by Mrs Sullivan and styled ‘United North East Group Application’, comprising the Sullivan, Winter and Edwards families. Mrs Sullivan and her daughter, Celia Sullivan, (now one of the applicants in the Sullivan claim) and others provided affidavits verifying the United North East Group Application. Further, United North East Group Application covered an area that included the area the subject of the Tjinintjarra Family Group claim and, more recently, the Yilka claim and the Sullivan claim.
2295 The State says that the case put in respect of the Wongatha claim is relevant primarily insofar as it was pursued on behalf of persons that includes persons who are now members of either of the groups on behalf of which the Yilka claim and the Sullivan claim are made. In this respect, the representation in those proceedings of members of the Sullivan and Edwards families who are now represented in the Sullivan claim has already been identified. The State focusses on the Winter family and the descendants of the late Mr Harris, pointing out that the Winter family were represented with the Sullivan and Edwards families in the Tjinintjarra Family Group claim and the United North East Group claim. The descendants of the late Mr Harris were included in the Wongatha claim as were other families who, during the course of the Wongatha proceedings, subsequently asserted that native title rights in the Yilka claim area or were postulated as possible holders of native title rights and interests in that area. Examples included Mr Les Tucker (a Wongatha claim applicant who sought, but was denied, inclusion in the Yilka claim and who, according to Mervyn Sullivan and Dr Vachon, might have been a holder of rights), Ron Harrington-Smith, and possibly Aubrey Lynch. Another family that Dr Vachon identified as at least potentially having rights in the Yilka claim area, namely, the Tuckers, were also represented by the Wongatha applicant. The State submits that from time to time in the period after commencement of the Tjinintjara Family Group claim until the hearing of the Wongatha proceedings the applicants representing members of the Sullivan and Edwards families (and Winter and Harris families) made various changes to the assertions of native title. The State says the various renditions of such claims reveal:
(a) the capacity available to the present members of the Sullivan claim group and Yilka claim group to make significant variations and amendments to their assertions of native title during that period,
(b) that the present members of the Sullivan claim group and Yilka claim group did make significant variations and amendments to their assertions of native title during that period, and
(c) the nature of facts and forensic choices which were considered, and able to be taken account of in making variations and amendments to the assertions of native title of the present members of the Yilka applicant and the Sullivan applicant.
2296 Evolving formal explanations of the Wongatha claim relevant to the present proceedings are said by the State to be apparent from the following:
(a) Native Title Determination Application filed in the NNTT for the Tjinintjarra Family Group by Mrs Sullivan on 25 September 1995 on behalf of the Sullivan, Winter and Edwards families, registered in the National Native Title Register on 6 October 1995;
(b) Native Title Determination Application filed in the NNTT by the United North East Group by Mrs Sullivan and others on behalf persons including the Sullivan, Winter and Edwards families and registered in the National Native Title Register on 26 May 1997;
(c) Amended Native Title Determination Application filed for the Wongatha people by Ron Harrington-Smith and others dated 1 November 1999;
(d) Statement of Facts and Contentions filed for the Wongatha people by Ron Harrington-Smith and others dated 31 August 2001;
(e) opening submissions of the Cosmo claimant before Justice Lindgren 19 Feb 2002;
(f) Amended Statement of Facts and Contentions filed for the Wongatha people by Rob Harrington-Smith and others dated 28 February 2002;
(g) Particulars of Wongatha People with Connection to Particular Areas within the Claim Area filed for the Wongatha people by Ron Harrington-Smith and others dated 28 February 2002;
(h) Further Amended Native Title Determination Application filed with the Court for the Wongatha people by Ron Harrington-Smith and others on 25 October 2002;
(i) Proposed Further Amended Native Title Determination Application filed for the Wongatha people by Ron Harrington-Smith and others dated 27 November 2002;
(j) Further Amended Statement of Facts and Contentions filed for the Wongatha people by Ron Harrington-Smith and others on 11 April 2003; and
(k) Further Amended Native Title Determination Application filed for the Wongatha people by Ron Harrington-Smith and others on 11 April 2003.
2297 Although the applicants’ case in the Wongatha claim was for exclusive possession, the State points out that the applicants acknowledged in their Further Amended Statement of Facts and Contentions that other claimant groups, and in particular the Cosmo claimant group, also held native title rights and interests.
2298 Some aspects of the assertions of native title made in the Wongatha claim by or on behalf of persons who are now members of the Sullivan claim group and Yilka claim group that were the subject of variation or amendment are referred to under the headings that follow. It is the State’s submission that, cumulatively, the variations and amendments disclose that careful consideration and calculated choices were made concerning the manner in which the claims of persons who are now members of the Sullivan claim group and Yilka claim group were advanced, such that the Wongatha claim was not ill considered or misconceived and inaptly prosecuted.
2299 In the Wongatha claim, Mrs Sullivan was one of the persons comprising the applicant as the representative of the persons which, in conformity with s 61 NTA, professed to hold the common or group interests comprising the particular native title claimed in the Wongatha claim. She professed to be and was put forward by the claimant group as a member of that group.
4.3 The Wongatha claimant group
2300 The Wongatha applicant did not suggest that use in the name of the claimant group of the descriptor ‘Wongatha’ carried any significance as a traditional identifier of holders of rights in the area that is now the Yilka claim area. Therefore, the State argues that the composition of the Wongatha claim, to the extent that the members of the claimant group were part of the earlier Wongatha proceedings, is relevant for the purpose of the State’s abuse of process and estoppel argument. In particular, the State draws attention to the fact that the Sullivan, Edwards, Winter and Harris families were all represented by the applicants in the Wongatha claim. The State also draws attention to the considerable evolution and refinement of the Wongatha claim.
2301 The Yilka applicant makes the point that what might have been done by the Wongatha applicant was beyond the control of the Cosmo applicant, was on behalf of a different claim group, and was done in respect of a much wider area than the Cosmo claim. There is nothing that the Wongatha applicant did or did not do that might be sheeted home to the Cosmo applicant as a basis for any abuse of process argument against the Yilka applicant.
2302 It is not enough to draw on some similarities or some identity of parties, the Yilka applicant in effect contends. In any event, the material as presented by the State, the Yilka applicant says, goes a long way to establishing that, in the context of the Wongatha trial, there are many things that were beyond the control of and, therefore, unable to be done by the Cosmo applicant.
2303 The complex history of the previous claims, the complex evolution of the Cosmo claim group description, the complex evolution of the way the Wongatha claim was put, and the complexity of the analysis of the reasons for dismissal of the Cosmo and Wongatha claims, all of which are relied upon by the State, simply show how that claim was run by those persons.
2304 But the Yilka applicant contends that the State relies on no argument which can detract from the fact that Wongatha was a different proceeding brought on behalf of essentially different people in connection with a different area from that which concerns the Cosmo, Yilka or Sullivan claims and cannot, therefore, give rise to an estoppel of any kind or to any abuse of process generally.
2305 In that regard, when one assesses the detail:
(a) only two Yilka families were included in the large Wongatha native title claim group, namely the descendants of Charlie Winter and the late Mr Harris;
(b) the only Wongatha applicant to whom attention is drawn in the State submissions is Mrs Sullivan, who is not a member of either of those families, albeit, that she and Charlie Winter had the same mother. Mrs Sullivan was one of twelve Wongatha applicants;
(c) Rhys Winter gave evidence about the prevailing tension, pressure and discomfort around the Wongatha proceedings is relevant to the subsequent composition of the Yilka claim group;
(d) Junior gave evidence that, although his father had an involvement in the Wongatha claim, he, himself did not. Junior was in Warburton at the time. He ‘just heard that it was going on’ and ‘was just hoping that – somehow then something good will come of it’; and
(e) Mrs Murray gave evidence that the whole experience of Wongatha was ‘really frightening’. She was nervous because ‘there was Judge and lots of lawyers looking at [her] the whole time’ and ‘[t]he whole environment was stressful because there were a number of overlapping claims to the Cosmo area’. She said that ‘we’ believed that we were the rightful owners and that the claims made by some others were not proper claims under Wangkayi law.
2306 I accept the submission for the Yilka applicant that the members of the Sullivan, Edwards, Harris and Winter families were, in the context of the size and diversity of the Wongatha claim group, relatively few in number. According to the Wongatha list of identified persons, there were 820 Wongatha claimants as at 1 May 2002 (see Wongatha at [127]).
2307 My impression from the State’s submission in relation to all of the changes which occurred in the Wongatha claim is that, rather than setting up a comparative basis for the purposes of an abuse or process submission, it simply reflects a situation of obvious substantial forensic and procedural (and probably social) difficulty. Fortunately, relatively speaking, this case was able to be conducted without much of that difficulty (although not entirely free from it). Admittedly, the difficulties experienced by all the parties, including the State in the Wongatha proceedings, are not those which should ideally be faced again. But, that does not mean as I see the position, that, in an appropriate case, the correct group of people cannot bring a different claim.
4.4 The area that is the subject of the Wongatha proceedings
2308 The area covered by the Wongatha claim was during the course of the Wongatha proceedings subject to reduction. Relevantly, however, the Wongatha claim at all times covered a large area that included the same area as the Sullivan claim and the Yilka claim. By the Wongatha claim, the applicants sought a determination of native title in respect of the whole of the area which is now the subject of the Sullivan claim and the Yilka claim.
2309 The area covered by the Wongatha claim comprised an aggregation of the individual ‘my country’ areas of the individuals in the group. Each individual in the Wongatha claim group asserted a ‘my country’ area. Within the cumulative area additional rights of a different character were asserted to be held by related Aboriginal persons in relation to certain places, seemingly those associated with particular Tjukurrpa.
2310 By the Wongatha claim the applicant sought a determination of native title in respect of part of the whole of the area which is now the subject of the Yilka claim and the Sullivan claim.
4.5 The rights and interests claimed in the Wongatha proceedings
2311 The native title rights and interests asserted in the Wongatha claim were at all times, subject to remarks that follow, in the nature of exclusive possession and in the alternative less comprehensive rights.
2312 The Wongatha applicants’ ‘Further Amended Native Title Determination Application Claimant Application’ filed on 14 April 2004 describes the rights and interests claimed to be the rights to possession, occupation, use and enjoyment as against the whole world and, in particular, comprising the following rights:
(a) rights and interests to possess, occupy, use and enjoy the area;
(b) the right to make decisions about the use and enjoyment of the area;
(c) the right of access to the area;
(d) the right to control the access of others to the area;
(e) the right to use and enjoy resources of the area;
(f) the right to control the use and enjoyment of others of resources of the area;
(g) the right to trade in the natural resources of the area;
(h) the right to receive a portion of any natural resources taken by others from the area;
(i) the right to maintain and protect places of importance under traditional laws, customs and practices in the area;
(j) the right to teach and pass on knowledge of the applicant group's traditional laws and customs, pertaining to the area, and knowledge of places in the area; and,
(k) the right to learn about, and acquire knowledge concerning the applicant group's traditional laws and customs pertaining to the area, and knowledge of places in the area.
2313 The rights described above do not in any material way differ from the rights asserted by in the Cosmo claim, the Yilka claim or the Sullivan claim, according to the State.
4.6 The laws and customs relied upon in the Wongatha proceedings
2314 The applicant in the Wongatha claim relied upon the traditional laws and customs of the people of the Western Desert as is the case in the Yilka claim and the Sullivan claim. The State says body of law and custom and particular laws and customs relied upon are not materially different to those relied upon in the Cosmo claim, the Yilka claim or the Sullivan claim.
2315 The State argues that his Honour's findings contain final conclusions on important issues of a nature that were and are fatal to any finding of native title in favour of the Wongatha claim or its successor, the Sullivan applicant. These findings include:
(a) While claimants can point to ancestors who had various kinds of post-contact association with places within the Wongatha Claim area, it cannot be inferred, without more, that those ancestors’ own ancestors at sovereignty had connections to those same places. Indeed, in many cases there is positive evidence that the post-contact ancestors migrated to the outskirts of townships and to ration depots in the Goldfields in the closing years of the nineteenth century and the first half of the twentieth century, from places to the north, north-east and east of the Wongatha Claim area.
(at [302])
(b) Whatever the effect of pre-contact ‘traditional’ migration within the Western Desert (due to drought, for example) may have been under Western Desert laws and customs, migration to points of European contact because of certain attractions there is something quite different. The latter was not an adaptation of the former.
(at [303])
(c) On the basis of Professor Veth’s evidence:
(a) the same sites continued to be used following sovereignty, although, following contact/settlement, European materials appeared and there was a shift to greater residential permanency;
(b) in more recent times, sites near towns and European settlements seem to have been visited more often than more remote sites seem to have been;
(c) it is impossible to know the identity, including group identity, of the Aboriginal persons who were present at the sites visited, before sovereignty or since sovereignty, other than that they exhibited many characteristics consistent with the presence of Western Desert people;
(d) on the archaeological evidence there is no basis for distinguishing between the different GLSC claimant groups or between them as a whole and any other people, as the persons to whose visitations the archaeological record points.
(at [494])
(d) Further, to the extent that the migration was intra-Western Desert, it is not possible to be satisfied that under traditional laws and customs, those from the desert acquired rights and interests in the new locales. The reason is that whatever traditional laws and customs may have provided in relation to the acquisition of rights and interests by migration in the area to which intra-Western Desert migration occurred, the choice of the fringes of European settlement was not traditional. It might be different if it could be proved that if the Europeans had never come, the same migration would have occurred, that is to say, that drought or other pre-European causes would have brought about the migration that occurred. However, no attempt was made to establish that this was the case, and perhaps it would be impossible to establish it. The evidence that European activities, townships and settlements had a strong drawing power is incontrovertible.
(at [704])
(e) The GLSC and Cosmo Claim groups, and less clearly so, the Maduwongga and NK 1 and NK 2 Claim groups, comprise aggregations of individuals and the Claim areas comprise aggregations of their individual ‘my country’ areas. A claim by such a group to hold group rights and interests in the total area cannot be sustained under the NTA as explained in Yorta Yorta HCA.
(at [314])
(f) This important point calls for elaboration, and is discussed in detail at 3.6(c)(4). Each individual in the Wongatha Claim group, for example, has a ‘my country’ area, which represents only a small part of the vast Wongatha Claim area. There will be parts of that Claim area of which the individual has no knowledge and to which he or she professes no connection.
(at [315]) (emphasis in original)
(g) The position was made clear in the course of opening submissions by senior counsel for the GLSC Claim groups. He said that it may be appropriate, at the end of the day and in the light of the evidence, to divide up the Wongatha Claim area into five ‘Determination areas’ as shown on a map which was admitted into evidence, and which is Annexure E to these reasons for judgment. The proposed determination areas, senior counsel said, might be found to be shared as follows:
• Proposed Determination Area 1: Wongatha and MN
• Proposed Determination Area 2: Wongatha, MN and Cosmo
• Proposed Determination Area 3: Wongatha
• Proposed Determination Area 4: Koara, Wutha, some NK 1 claimants, and those Wongatha claimants who have a connection to this area
• Proposed Determination Area 5: (this is the area that was, by amendment, omitted from the Wongatha Claim in favour of this Pilki claim)
In substance, this was an invitation to do as the claimants had attempted to do – to constitute groups and areas based on the ‘my country’ entitlements of individuals.
(at [316])
(h) In the case of a claim of group rights and interests, it is the claim group (the claimants as an entity) that must have the connection required by para (b) of s 223(1). The Wongatha Claim does not meet this requirement for the same reason that it does not meet the requirement of para (a) of s 223 (1): the Wongatha Claim group (like the other Claim groups) is not one recognised, directly or indirectly, by pre-sovereignty Aboriginal law and custom, as having a connection with the Wongatha Claim area. Any connection is at the individual rather than at the group level, and is with a ‘my country’ area rather than with the entire Wongatha Claim area.
(at [1882])
(i) The advent of European settlement in the region precipitated rapid and widespread demographic change, with the result that ‘Aboriginal groups east, north-east and south-east of the [Wongatha] Claim area left their traditional homelands and moved to the fringe of European settlement where many of them lost their connection to their former traditional lands’, and ‘[t]he original occupiers of these areas of early European settlement were either displaced, or otherwise moved away’, or at least, they were numerically overwhelmed or dominated by the migrants from the east, north-east and south-east.
(at [1907])
(j) For the reasons given above and elsewhere, it is not established that the Wongatha Claim group possesses group rights and interests in the Wongatha Claim area, and the Wongatha application should be dismissed.
(at [1910])
2316 Despite these points of apparent similarity, for reasons developed in the discussion in this chapter, e.g. Pt 4.8, I am of the view that the consideration of the Wongatha claim on its merits was directed to issues that are substantially different from those which both the Yilka claim and the Sullivan claim seek to agitate.
4.8 The dismissal of the Wongatha claim
2317 In relation to the Wongatha claim, his Honour found (at [1167]) that the claim failed because:
1. The Wongatha applicants were not authorised to make the Wongatha application as required by s 61(1) of the NTA.
2. The evidence does not establish that the Wongatha Claim group is a group recognised by WDCB traditional laws and customs as a group capable of possessing group rights and interests in land or waters.
3. The evidence does not establish that group rights and interests exist in the Wongatha Claim area under WDCB traditional laws and customs.
4. The evidence does not establish that at sovereignty, WDCB laws and customs provided for an ancestral group of the Wongatha Claim group to possess group rights and interests in the Wongatha Claim area, or for individuals to be able to form themselves into a group possessing such rights and interests.
5. The Wongatha Claim is an aggregation of claims of individual rights and interests, and the Wongatha Claim area is based on an aggregation of individual ‘my country’ areas, the subject of those claimed individual rights and interests, and the NTA does not provide for the making of a determination of native title consisting of group rights and interests in these circumstances.
6. The Wongatha Claim area is not an area that is ultimately, whether directly or indirectly, defined by reference to Tjukurr (Dreaming) sites or tracks.
7. Approximately the western one sixth of the Wongatha Claim area lies outside the area of the WDCB ‘society’ on which the Wongatha Claim is based.
8. Many, if not most or all, of the Wongatha claimants are the descendants of people who migrated into the Wongatha Claim area from desert areas outside that area, in particular, to the east of it, since, and under the influence of, European settlement, and it is not established that their ancestors had any connection with the Wongatha Claim area at sovereignty, or that they or the Wongatha claimants descended from them, acquired rights and interests in the Wongatha Claim area in accordance with pre-sovereignty WDCB laws and customs.
9. The evidence does not establish that the claimants constituting the Wongatha Claim group have a connection with the Wongatha Claim area by Western Desert traditional laws and customs as required by s 223(1)(b) of the NTA.
(emphasis in original)
2318 The State argues that if the explicit identification of the nine reasons for dismissal of the Wongatha claim (at [1167]) were capable of leaving any doubt that the reasons for dismissal were manifold and not simply absence of authorisation, the matters listed by Justice Lindgren (at [2893]) in relation to the Cosmo claim were equally relevant to the dismissal of the Wongatha claim.
2319 This aspect of the State’s submissions appears to be directed to the Sullivan claim as the ‘successor’ to the Wongatha claim.
2320 In relation to that, the Sullivan applicant also relies on the passage relied upon by the Yilka applicant appearing at [4008] of the Wongatha judgment where it will be recalled Justice Lindgren said:
I need not discuss the question of the effect of a dismissal if, for example, an individual were in the future to apply for a determination that he or she had individual rights and interests, or if a different group were in the future to apply for a determination that it had group rights and interests, in the Wongatha Claim area or in part of it. Nothing that I have said is intended either to preclude or to encourage the advancing of any such claim.
2321 There are many other fundamental differences in the claim. The differences, for example, include:
(a) the parties: each has a single applicant (s 61(2)(c) NTA) and they are different.
(b) the geography and size of the claim area: as mentioned above, the Wongatha area is much larger.
(c) the constituents and size of the claim groups are different: the Wongatha claim group had some 820 members, the Sullivan claim has a small family-based membership.
(d) the nature of the claims: the Wongatha claim sought aggregated group rights for the Wongatha people, whereas the Sullivan claim seeks rights and interests for their family members over all of the Sullivan claim area.
(e) the basis of the claim (although WDCB law and custom is looked to in both claims).
(f) rights and interests claimed are expressed differently.
5. ABSENCE OF A NEGATIVE DETERMINATION IN WONGATHA
2322 In my view it is important to read the passages of the Wongatha judgment (at [4005]-[4007]), which are in the following terms:
4005 The expression ‘determination of native title’ is defined in s 225 of the NTA. In substance, a determination of native title is a determination ‘whether or not native title exists in relation to a particular area’. Accordingly, an order of dismissal is not a determination of native title.
4006 The various Claim groups have failed to establish their Claims relating to the Wongatha Claim area. In all cases except the MN Claim, the applications were also not authorised. In those cases, the Court lacks jurisdiction to make a determination of native title. However, while deciding the challenge to authorisation, I have dealt with all Claims on their merits.
4007 Ultimately, the kind of order to be made in a failure of proof case is one of discretion: see Ward FCAFC at 219. It may give rise to difficulty if, for example, in the MN proceeding (in which authorisation is not in issue) there were to be a determination that native title did not exist in the Wongatha/MN overlap, while there was only a dismissal of the Wongatha application in relation to the remainder of the Wongatha Claim area.
(emphasis added)
2323 The State also draws attention to the following passage of the summary that accompanied the Wongatha judgment:
First, I have declined an invitation of the non-indigenous respondents to make a determination that there is no native title in the Wongatha Claim area. Where, as here, applicants fail to prove their case, the usual order is simply one of dismissal. It is conceivable that an individual may wish to make an application for a determination of native title, or that a small group of individuals, each of whom has rights and interests in a constellation of Tjukurr sites or a Tjukurr track, may wish to do so. I say nothing, one way or the other, as to the prospects of success of any such application, but I decline, in these present proceedings, to preclude the bringing of it.
(emphasis added)
Of course, this summary does not form part of his Honour’s reasons.
2324 The State submits that the Yilka claim group cannot take comfort from Lindgren J electing to dismiss the various proceedings rather than determine under s 225 NTA that no native title existed. The State says that the power to make determinations under s 225 NTA is to be read in the context of the different types of applications that might result in a ‘determination of native title’: claimant applications, non-claimant applications and compensation applications. It is submitted that s 225 NTA does not encourage or permit the making of negative determinations in response to unsuccessful claimant applications.
2325 In Wongatha (at [4007]), Lindgren J found that the kind of order to be made in a failure of proof case is one of discretion: see also Ward FC (at [219]). In the executive summary that accompanied the Wongatha judgment Lindgren J states why he would not make a determination that there was no native title in the relevant claim area as quoted above.
2326 There are other cases where a determination of no native title was deliberately not made, such as De Rose v South Australia [2002] FCA 1342 (at [915]), Risk v Northern Territory [2006] FCA 404 (at [938]) and Levinge on behalf of the Gold Coast Native Title Group v Queensland [2013] FCA 634 (although I note that Rares J did in fact make a determination that no native title exists over the relevant land in Levinge (see [59]-[60])). It is not entirely clear to me what the thrust of the State’s submission is on the reference to these particular authorities, but I do accept the submission for the State that it could not be the case that dismissal of proceedings has the effect only of treating the proceedings as if they had never been prosecuted.
2327 The instances where unsuccessful native title claimant applications have resulted in the Court departing from the usual practice and determining that native title does not exist are few; for example: Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606, Daniel, and Wyman on behalf of the Bidjara People v Queensland (No 4) [2014] FCA 93. Assuming that is correct, albeit that not all of those proceedings had occurred at the time of the Wongatha judgment, it seems to me this adds, rather than detracts from the conclusion that given the express finding by Justice Lindgren that the Court did not have jurisdiction due to absence of authorisation, the additional remarks made by his Honour and the caution with which his Honour approached the question about making a negative determination supports, rather than detracts from the suggestion that the effect of the Wongatha case was that the door was left open.
2328 As stated above, the orders made in Wongatha were that the Wongatha claim and Cosmo claim be dismissed. There was no determination that native title does not exist.
2329 The State does not see this as a barrier to any of the grounds for disposition of the proceedings sought in the ‘interlocutory’ application. There is, in any event, ultimately a strong discretionary element in the kind of order to be made in a ‘failure of proof’ case. Even where a court is satisfied and determines that no native title exists in the claim area, a Court may simply dismiss an application. This discretion was recognised by Lindgren J in Wongatha (at [4007]). It is apparent that a significant consideration in Lindgren J’s exercise of discretion was this opinion, consistent with authorities at the time, that the absence of authorisation deprived the Court of jurisdiction to make a ‘determination of native title’ as provided for by s 225 NTA (Wongatha judgment at [4004]-[4006]). The Full Court’s post-Wongatha decision in Commonwealth v Clifton (2007) 164 FCR 355 makes it clear that jurisdiction does exist independently of proper authorisation. Justice Lindgren also gave consideration to the consequences of making a determination of no native title in relation to part of the Wongatha claim area (the overlap with the Mantjintjara Ngalia claim which was the only claim which had not been amended after introduction of the amendments to the NTA which required authorisation). His Honour saw this differentiated approach as giving rise to difficulties (see Wongatha judgment at [4007] extracted above).
2330 Whilst the dismissal of proceedings left open the prospect of subsequent applications for determination of native title in respect of the Yilka claim area, the State contends that it did not leave open the option of re-agitating the action that had been dismissed after a contested hearing or the findings were the essence of that decision. The State says that, in short, nothing turns on the failure to persuade the court in Wongatha to make a determination of no native title.
2331 The Yilka applicant says that it may be accepted that a negative determination is not a necessary condition to there being an abuse of process by a later claim; but it is not the case that ‘nothing turns on it’, as the State asserts. I agree.
2332 In Chapter 11 of his Honour’s reasons for judgment in Wongatha (at [4000]), Justice Lindgren drew attention to the fact that:
counsel for the Commonwealth foreshadowed the possibility that the Commonwealth may file a non-claimant application in respect of the Wongatha Claim area, seeking a determination that native title did not exist in that area. The reason given was that the Commonwealth feared that if the submissions that it and other parties had made challenging authorisation should be sustained, the various applications, or some of them, might be dismissed on that ground without any adjudication on their merits. In that event, a very lengthy hearing would have been wasted.
2333 His Honour identified the position of the Commonwealth as being that its proposed application would be designed to serve no other purpose than to ensure that there could be a determination on the merits. In other words, it was designed to address the possibility that the arguments of the Respondents about authorisation would be successful and that the claims would be dismissed. His Honour went on to state (at [4004]-[4005]):
It is submitted, in particular by the Commonwealth, that quite apart from its non-claimant application, I should make in this present Wongatha proceeding a determination that native title does not exist in relation to the Wongatha Claim area or any part of it. I do not agree. In my view, the appropriate order is one of dismissal.
The expression 'determination of native title' is defined in s 225 of the NTA. In substance, a determination of native title is a determination 'whether or not native title exists in relation to a particular area'. Accordingly, an order of dismissal is not a determination of native title.
(italics added)
2334 Notwithstanding that directions were issued as to filing of submissions by parties who wished to support the application that there be a negative determination, the State did not file submissions. Notwithstanding that the Commonwealth filed evidence and written submissions and the non-claimant application was fixed for hearing, it was discontinued without opposition from the State.
2335 As matters presently stand, absent the Full Court determining otherwise, there appears to be an inevitable consequence from the determination of Justice Lindgren in Wongatha (at [2893.1] and [3015]) that the Court lacked jurisdiction to hear and determine the Cosmo application. None of the Cosmo claimants (and because of corresponding findings in Wongatha, none of the Wongatha claimants either) have ‘had their day’ in Court. The State cannot rewrite the decision of Justice Lindgren to suit its purposes without a successful challenge having been mounted. The Court had jurisdiction to hear and determine the authorisation question, but having determined that there was no claim properly before the Court, it could hardly hear and determine the merits of the claim. The Full Court in Clifton (at [54]) rejected the submission by the Commonwealth that ‘s 61 is merely intended to “discipline applicants as to the content and form of primary applications” and that the incentive to comply with s 61 is the right to negotiate’.
2336 While Justice Lindgren did not recognise native title in either the Cosmo claim or the Wongatha claim as then expressed, his Honour expressly did not make a determination that no such native title exists recognising that it may exist. Declining to make a negative determination is significant to the present argument.
2337 As noted above, the Cosmo applicant filed an appeal in relation to the Cosmo claim. That appeal is still on foot, although it has been stayed pending the outcome of these proceedings or further order of the Court. A Supplementary Notice of Appeal dated 19 July 2010 was filed well after the commencement of the Yilka No 1 claim. The State says that claim was lodged by the same applicant/appellant, same solicitors and same representative Aboriginal Torres Strait Islander body who represent the Yilka applicant. The attributes of the appeal suggest that no question of conflict of interest arises. The State submits this, in turn, suggests either congruence of the groups and their aspirations, or a pragmatic willingness on the part of the Yilka claim group and the group represented by the Cosmo appellant (in each case through HM) to disregard differences between group composition (at least in the short term). The State points to the fact that in the Supplementary Notice of Appeal, the Cosmo appellant refers to findings of the primary judge throughout the document. In particular, the State draws attention to an aspect of the Supplementary Notice of Appeal where HM, as the Cosmo appellant says, appears to take a different view as to whether the Cosmo proceedings were dealt with on the merits from that which is advanced in this present argument.
2338 The State’s submission that the Cosmo claim was presented as a ‘group’ comprising individual components, which the State says the Yilka applicant is again attempting to establish, is supported by the Cosmo applicant’s grounds of appeal and assertions as to the findings that should have been made by the primary judge. In particular, the State points to the fact that the Cosmo appellant states in its Supplementary Notice of Appeal that the primary judge found that the:
claims to country made by the claimants are at the individual rather than a group level … and the evidence shows that, if anything, the claimants, as individuals, through one or more pathways of connection, have individual rights and interests in a ngurra or “my country” area as distinct from constituting groups having rights in group areas.
(references omitted)
2339 Further claims on the appeal are that the primary judge erred in:
(a) misdirecting himself as to the way the Cosmo application was formulated or put;
(b) not finding that the Cosmo application was formulated or put on the basis that individual rights existed in common and overlapping ‘my country’ areas;
(c) not considering the Cosmo application and the way it was put otherwise than as made as a group claim to group rights and interests in a group area; and
(d) not considering the Cosmo claim as the common or individual claims of the persons in the Cosmo claim group brought together in one proceeding under the NTA.
2340 In other words, the State argues that it is evident from the errors that have been attributed to the primary judge by the Cosmo appellant that the appeal is founded on the premise that the Cosmo claim was made on the basis of individual rights, rather than by a traditional group and as common or individual claims collected together in one proceeding, which is precisely how the present claim is put.
2341 I am unpersuaded as to this complaint. I do not see a difficulty in reconciling the role of HM as an applicant in the Cosmo claim and the Cosmo appellant on the one hand, with the role here as the Yilka applicant. First, there are no findings made on the appeal. There are simply foreshadowed, but stayed, arguments. Secondly, to the extent merits grounds would be argued in those foreshadowed but stayed arguments, it is not known precisely how those arguments would be developed, but certainly they do not involve the abandonment of the ground that the Court should not have found that it lacked jurisdiction. Advancing those grounds is no form of concession, therefore, if that be the State’s argument that merits issues were considered in the Cosmo claim. It is clear that some of the issues were considered on the merits as an alternative position after the jurisdictional conclusion was reached. Although, in the clearest of terms, the door was undoubtedly intended to be left open for an appropriate claim.
2342 Central to this is my finding above that the Cosmo claim (and any associated appeal) and the Yilka claim are fundamentally different. Therefore, in my view, the State’s contention as to the congruence of the Yilka and Cosmo claimant groups and any inconsistencies said to arise from the Supplementary Notice of Appeal falls away.
2343 The State refers to the following chronology in the development of this claim, much of which has been considered in other chapters:
1. Wongatha judgment handed down on 5 February 2007;
2. Meeting on 27 November 2007 in regard to native title claim matters;
3. Agreement made between CDNTS on behalf of the Cosmo claimants and Sackett Anthropological Services Pty Ltd dated 6 April 2008 requesting expert opinion;
4. Memorandum is sent from CDNTS dated 7 April 2009 requesting expert opinion;
5. Report of Dr Sackett conforming with instructions in April 2008;
6. Meeting on 23-24 April 2008 to discuss current claim group description;
7. Further brief to Dr Sackett from CDNTS dated 3 October 2008 to finalise the new Cosmo Newberry native title claim group description;
8. Meeting on 8 October 2008 to discuss upcoming authorisation meeting;
9. Report from Dr Sackett in December 2008;
10. Meeting on 4 December 2008 to authorise the making of a new native title claim over the area of the Cosmo Newberry Reserves and the Yamarna Pastoral Lease;
11. Yilka Form 1 filed 15 December 2008;
12. The Yilka applicant’s submission on future conduct of the matter dated 30 June 2010;
13. Yilka applicant’s POC dated 24 January 2011;
14. Yilka amended Form 1 filed 6 April 2011;
15. Yilka applicant’s second amended POC dated 22 August 2011;
16. Opening address in the Yilka proceedings on 20 October 2011;
17. Yilka applicant’s third amended POC filed on 23 December 2011; and
18. Yilka applicant’s fourth amended POC filed on 9 August 2013.
2344 The State also relies on the fact that the Yilka applicant has drawn from some of the evidence in the same form as was relied upon before Justice Lindgren. Some evidence has been augmented, some culled and further evidence in the proceedings is said to be ‘substantially the same as earlier evidence but has been given a fresh and different sequence with the benefit of having been rehearsed and appraised before Justice Lindgren, in some cases by the same witnesses, in other instances by different witnesses.’ If this were a fair account, it would present a difficulty.
2345 This ground, however, has been covered on several occasions before. It is not, in my view, an accurate summary of the position. I do not accept the State’s characterisation of this evidence.
2346 The State points to the fact that the Yilka applicant is and has at all times been HM on behalf of the native title claimants. As was the case in the Cosmo claim, HM is the applicant as the representative of the persons which, in conformity with s 61 NTA, profess to hold the common or group interest comprising the particular native title claim in the Yilka proceedings.
2347 As previously noted, because the proceeding is a representative proceeding, the Yilka applicant merely represents a native title claim group. The group, however, is comprised of different people.
2348 There is no difficulty reconciling there being two different groups involved and authorising HM as the named applicant. As the outcome of the Cosmo claim shows, sometimes authorisation is deficient. In any event, there is no rule against a person being a member of two different groups or being their authorised applicant. It cannot be an abuse of process merely because the same person is the representative litigant in both cases. The same person can pursue different causes of action without abuse of process.
2349 The State’s submission on this point appears to be that those advancing the claim have simply dressed it up differently from Cosmo, but the differences in the Yilka claim group definition are artificial. It is expressed in the following terms (footnotes omitted) (at [152]-[163]):
152. As was the case in relation to the Cosmo claim, (see paragraph 39 above) the Yilka claims are pursued on behalf of persons that [sic] capable of including and which do include the Murray and Westlake families. Those who were put forward as holding native title include others, but not in numbers capable of ousting these family groups from controlling influence over the Yilka claims. But for the exclusion after 22 November 1999 (see paragraph 47.c) above) of Wongatha claimants from the description of Cosmo claimants, the description of Yilka claimants includes or could be construed as including all of the Cosmo claimants included by the description of the Cosmo claimants advanced at the hearing of the Wongatha proceedings.
153. The Yilka Applicant describes the native title rights and interests as the individual rights and interests of each of the persons on whose behalf the Applicant has made the Yilka claim in their respective (though substantially overlapping) 'my country' areas.
154. The description of the Yilka claims as "individual claims" should not be allowed to deflect from the emphasis in the evidence upon the existence of a group and the basis of the claim as discernible from the evidence in the proceedings, but in any event as is noted below, the Cosmo claim was clearly conducted with an awareness of and in a manner which accommodated individual rights to particular areas or tracts of country.
155. An explanation of what is meant by the 'individual claim' was provided in the opening address by senior counsel for the applicant, Mr Blowes S.C. where he said:
"Yes your Honour and individuals in a broader context. They're not stand alone individuals, they're individuals in a community context or social context; how that plays out with the requirements of the [NTA] we have to further consider and discuss."
156. Further, Mr Blowes S.C., described the nature of the individual claims as being:
" ... - that these are individuals in the context of society. In other words, they are individuals in a communal context."
157. It has not been explained how this description differs from the position as understood by Lindgren J in the Cosmo proceedings where his Honour found the Cosmo Applicant's case to be one of a number of individual 'my country' areas. The State submits that whatever the Yilka Applicant means by the term 'an individual claim' the concept does not differ from the case as was put in the Cosmo proceedings.
158. The State says that the asserted differences are mere rearrangement of words amounting to a re-packaging and re-labelling of a now familiar case in an attempt by the Yilka Applicant to dress the Yilka claim in a form which masks its conformity in substance with the Cosmo claim and to attempt to overcome any suggestion of abuse of process or argument of estoppel.
159. If the Yilka claims are based on individual claims it would be expected that the various individual claim [sic] would each relate to a various fixed or limited areas of country representing the land and waters in respect of which each individual claims to hold individual native title rights and interest under their traditional law and custom. Whilst there would be some commonality in that, for example descendants of Marnupa relying on that connection would identify the same area, at least some of those descendants and certainly persons claiming a differently based connection would assert individual rights to additional, smaller or different areas. It defies belief that all of the 1000 odd individuals of the Yilka [claim] group could have connection to the whole of the same tract. The evidence has not been to that effect. The only alternative explanation is that the Yilka claims are the product of conflation and amalgamation of myriad claims by the individuals [sic] Yilka claimants to particular land and waters, just as was the case in relation to the Cosmo claim.
160. The State submits that it does not matter what description or terminology the authors of the Yilka application and Points of Claim use. The Court must look at the substance of the claim as it is presented and to an extent the evidence that has been adduced. The State says that on such an analysis it is apparent that the Yilka proceedings and Cosmo proceedings are the same.
161. A further point upon which the applicants in the Yilka claims may seek to differentiate the claimant group in those proceedings is the inclusion (although not in the form of the application as first filed) of persons with "senior ritual knowledge" as Yilka claimants. Properly examined however it is apparent that persons in this category [sic] amongst the people on behalf of whom native title was asserted in the Cosmo proceedings.
162. The applicant in the Yilka claims may seek to differentiate the Yilka claims from the Cosmo claim by reference to the absence of a "gatekeeper" limiting inclusion in the claimant group. Again the difference, if any, is one of form rather than substance as inclusion in the claimant group referred to in the Yilka claims is limited to person [sic] whose credentials for inclusion have been "recognised in according to [sic] traditional laws and customs".
163. The Yilka Applicant claims that additional people have been included who were not part of the Cosmo claim. The State argues that the rights and interests of these alleged additional members of the Yilka [claim] group were pursued in the Wongatha proceedings because they were either:
(a) included as part of the Cosmo claimant group;
(b) included as part of the Cosmo claimant group at one time or other, and at other times deliberately excluded;
(c) included in the criteria to be a member of the Cosmo claim group (but for artificial exclusions);
(d) included in related native title proceedings as a member of another claim group (namely, in the Wongatha claim); or alternatively,
(e) capable of inclusion and consideration in the Wongatha proceedings on one or more of the above bases.
2350 The Yilka applicant’s response to this point is extensive, but some of the response (at [206]-[212]) is extracted below:
206. The way the Yilka claim is put goes beyond any simplistic question of whether the rights claimed are properly characterised as “individual” or “group”. It challenges the existence of any need to critically fit a claim into one category or another and raises distinctions between the basis for the possession of rights and the manner of their holding and exercise.
207. It is clear enough that, in the context of the Wongatha proceedings, the Cosmo Applicant, whether or not he sought to do so, was unable to present the case so as to have any consideration of it otherwise than as a claim by a group or group rights and interests in a group area. This became the basis for any merits findings in the Cosmo and Wongatha claims. This was so notwithstanding that Lindgren J found, among matters general to all of the constituent claims heard in the Wongatha proceedings, that the evidence shows that:
… if anything, the claimants, as individuals, have individual rights and interests in a ngurra or ‘my country’ area, as distinct from constituting groups having group rights and interests in group areas.
208. The Yilka claim is not put on the basis of a group claim to group rights in a group area. Rather the Yilka claim is put, as is clear beyond doubt, on the basis that traditional law and custom sees the possession of rights and interests as based on a particular attribute of a person (or, in the case of descent-based rights, an attribute of a relevant ancestor) and as extending over an area associated with that attribute. Such rights are not dependent upon the existence of a ‘group’ in any sense beyond their [sic] being the people who possess rights. That the exercise of such rights according to traditional law and customs might in particular contexts be conditioned by the views and status of others makes no difference. The Yilka claim accordingly cannot be regarded, as put or on the evidence, as a group claim to group rights to a group area.
209. State Submission [158], alleging mere "re-packaging" of the claim, raises the difficulty for its argument that (even assuming contrary to the Yilka Applicant's submission that there was such re-packaging) it must identify what it means by such words and relate those meanings to relevant principles. It must identify the nature and extent of sameness or difference; and if by such language it intends to allege improper motive on the part of the Yilka Applicant it is bound to say so and substantiate any such allegation. An abuse of process allegation is not something to be sustained by mere colourful descriptions. It requires rigorous analysis and the proper attention to principle.
210. State Submission [159] rests on the assumption that the Yilka claim involves "individual claims", whatever is meant by that. It then relies on convenient assertions about what the State says might be ("would be expected") requirements for such claims. The difficulty for the assertions is that they proceed on simplistic, non-indigenous, property lawyers' assumptions about the holding of rights in country and entirely ignore the traditional laws and customs which give rise to the rights-holding system of the claimants' society and therefore which define the nature and extent of the claimed rights. No basis in the NTA or in traditional law or custom is shown for any need for individual claims to be made in respect of "various fixed or limited areas".
211. The fact that in the Yilka claim, some persons claim less than and different parts of the claim area is not shown to be problematic on any view. Why it "defies belief" that all of the persons in the Yilka claim group have "connection" (in whatever sense that word is used in the State Submission) to the whole of the same tract is simply that they do not all claim to possess rights over the entirety of the claim area. That is why the "evidence has not been to that effect".
212. The colour and self-serving logic of the final sentence in State Submission [159] ignores all alternative explanations unhelpful to it and deliberately obfuscates the position of the Yilka Applicant. In particular the choice of words "conflation and amalgamation" is unhelpful to any detached analysis required here in that those words carry suggestions that the traditional laws and customs basis for claiming rights has been tampered with for the purpose of the claim. They do not admit the possibility that the claim is both properly brought under the NTA and on the basis of a proper understanding of traditional laws and customs.
2351 I see this area of the State’s submissions as being more a matter of commentary because the topic has been dealt with many times previously in the submissions of the parties and in these reasons. The way in which the Yilka claim has been put and the approach to the constitution of the claim group is novel, or at least supportable by only relatively recent authority. I have previously reached the conclusion that it can be supported by that authority. Moreover, in my view and importantly, the constitution of a claim group in part of the Western Desert will almost certainly be inherently different as a product of centuries of lifestyle from a claim group from more populous and less arid locations. These additional submissions have little place, it seems to me, in an abuse of process argument, but are relevant to the initial question which has already been resolved in these reasons. There is no abuse of process on this ground.
7.3 The area that is the subject of the Yilka proceedings
2352 It is common ground that the Yilka claim area is an irregular polygon, the boundaries of which coincide with parcels granted, reserved or otherwise dealt with in the post-sovereignty period by the State. The State says that the boundaries are not otherwise aligned with any features of the landscape and do not coincide with the limits of any area delimited by reference to Aboriginal tradition.
2353 The Yilka applicant seeks a determination of native title in respect of part of the area which was the subject of the Wongatha claim and the whole of the area which was the subject of the Cosmo claim and is now also the subject of the Sullivan claim. I note that the boundaries of the Cosmo claim area were neither an evidentiary nor an ultimate issue in the Cosmo claim. Nor is there an issue raised in the pleadings about the boundaries of the Yilka claim.
2354 The State also contends that the Yilka claim area is an aggregation of individual ‘my country’ areas of the individuals in a group. Each individual Yilka claimant asserts rights to a ‘my country’ area. Within that cumulative area, additional rights of a different character are asserted to be held by related Aboriginal persons with ritual authority in relation to certain places, seemingly those associated with particular Tjukurrpa. While the relevance of the State’s submission to the abuse arguments is not readily apparent to me, I accept the Yilka applicant’s submission that the Yilka claim simply recognises that if the areas in which the people of the claim group respectively claim to possess rights and interests under their traditional laws and customs were readily mappable (such that they could be overlaid on a map of the Yilka claim area), the respective claims would together cover at least the whole of the Yilka claim area. To the extent that the State submission suggests otherwise, I do not consider that this in any way suggests that the Yilka applicant somehow subverted traditional laws and customs in order to bring the claim.
2355 The Wongatha claim covered the area of the Yilka and Sullivan claims and sought a determination of native title. But the Yilka claim area forms only a small part of the Wongatha claim area and the Yilka claimants are small in number relative to the number of Wongatha claimants. There is no analysis in the State submission of laws and customs said to give rise to rights and interests so as to enable a comparison of issues between claims in that respect. The State appears to rely on the bare proposition that the claim relies on the laws and customs of people of the Western Desert for the conclusion that the laws and customs relied on ‘are not materially different’ to those relied on in the Cosmo, Yilka and Sullivan claims. I accept the Yilka applicant’s submission that this vagueness of the State submission speaks again of the absence of any capacity to satisfy the heavy onus on a party alleging abuse of process. Wongatha discloses that the articulation of laws and customs in relation to the claims the subject of that judgment was generally less than fulsome and clear, and without any great correspondence from claim to claim.
7.4 The rights and interests claimed in the Yilka proceedings
2356 The rights and interests claimed in the Yilka claim comprise rights in the nature of exclusive possession in relation to the parts of the area that is the subject of the proceedings in which there has been no extinguishment of native title and lesser rights, such as rights of access in relation to those parts of the area in which partial extinguishment has occurred and remains effective. Insofar as exclusive possession is claimed, it is the same as that claimed in Cosmo. As noted in Pt 3.5 of this chapter, as to alternative claims to less pervasive rights, the State says they are not materially different from those claimed in Cosmo, this being confirmed by HM in his evidence. The Yilka applicant has previously suggested that the difference between the claims is the omission from the Yilka claim of ‘rights of related Aboriginal persons’. This had the effect of introducing recognition of ‘rights of Aboriginal ritual authority’ into the Cosmo applicant group a process of inclusion which was substantially identical to that undertaken in different language in the Yilka application. The State says that the rights of related Aboriginal persons are not omitted, they are just dealt with in an immaterially different way. The Yilka applicant does not agree with this submission. I turn to this in more details in connection with the State’s ‘additional persons’ submission at Pt 9.3 below.
2357 The State also points to the fact that Justice Lindgren acknowledged that the Cosmo claim was an aggregate of claimed individual rights and interests, the unifying aspect of which was the country itself being the claim area. Justice Lindgren (at [929]) in Wongatha said:
The evidence that I have discussed at some length above shows that, if anything, the claimants, as individuals, have individual rights and interests in a ngurra or ‘my country’ area, as distinct from constituting groups having group rights and interests in group areas.
2358 In relation to this, the State submits that his Honour’s conclusion and a claim based on the aggregation of the rights and interests of individuals and ‘my country’ areas appears to be the very attribute of the Yilka proceedings (or one of the attributes) upon which the Yilka applicant seeks to rely as differentiating the two proceedings. His Honour found (at [225] of the Wongatha judgment) that the claim was put as one of communal or group rights and not based on individual rights and interests for the purposes of s 61 and s 223(1) NTA, which appears to be the same point as the Yilka applicant has sought to make in the various editions of its POC and by reference in its amended Form 1.
2359 The Yilka applicant says that the State submission at this point focusses on the (translated) native title rights claimed, not on the rights as they are said to be possessed under traditional laws and customs. It is important also to consider the rights as so described. As previously stated, the advances in jurisprudence concerning proof, formulation and extinguishment of native title rights have been significant over the time between the Cosmo and Yilka claims and have continued as indicated in the recent decisions of North J in Pilki People and Birriliburu People.
2360 I accept the Yilka applicant’s submission that the fact that a native title right of exclusive possession was claimed in the Cosmo claim and is claimed in the Yilka claim tells little of the story in a comparison of the claims so far as issues about proof and formulation of rights is concerned. More importantly, the fact that from HM’s perspective his traditional rights have not changed since the Cosmo claim is unremarkable; and says nothing about the comparison of jurisprudential issues in the two proceeding concerned. That the Cosmo and Yilka claims were each essentially a claim that native title exists over the claim area is obvious. Importantly, however, there was no merits dismissal of the Cosmo claim on the basis of a finding that native title rights do not exist in the area. To any extent it can be said (contrary to the Yilka applicant’s submission), the dismissal for abuse of process purposes to have been 'on the merits', was the dismissal of the particular claim on the basis of an adverse finding which turned on the way the particular case way put. Even if some elements of the Yilka claim correspond to elements of the Cosmo claim, when each is considered as a whole, they are very different claims.
2361 Further, questions about the nature and extent of any native title rights were not the subject of any adverse finding in the Cosmo claim. There was no such finding because of the preceding finding that the evidence did not establish that ‘group rights and interests’ exist in the claim area.
2362 Although of less significance, I note that, in my view, the Yilka applicant does not accept that there is no material difference between the rights claimed in the Yilka claim and the rights claimed in the Cosmo claim. As previously noted, there are differences in relation to the nature and extent of the rights claimed as native title rights. In the Cosmo claim the rights said to arise were pleaded elaborately in line with the understandings and uncertainties in the jurisprudence at the time to refer to ‘exclusive rights’, ‘non-exclusive rights’, ‘qualified exclusive rights’, ‘activity based rights’ and ‘rights of related persons’. In contrast, now that many more questions in native title jurisprudence have been determined, the Yilka claim pleads the native title rights differently apart from the right of exclusive possession.
2363 There is a dispute as to whether the Yilka claim involves the aggregation either in the terms described by Justice Lindgren or in the terms described by the State’s submissions. The aggregation issue will be dealt with further below.
7.5 The laws and customs relied upon in the Yilka proceedings
2364 As has been stated many times, both proceedings relied upon the traditional laws and customs of the people of the Western Desert (as other claims have done).
2365 The Sullivan applicant also points out that the Wongatha and Cosmo decisions were not on the merits of the case. The State contends this assertion is unsustainable for the same reasons made in relation to the Yilka claim and the State relies on [1270] of Wongatha where Justice Lindgren said:
I hold that the Court does not have jurisdiction to hear and determine the Wongatha application. Against the possibility that I am wrong, however, I will proceed to deal with the Wongatha Claim on its merits.
2366 Specifically, the State relies on the following four points:
(a) the fact that each member of the claim group has already made a native title claim over the same area in the Wongatha claim;
(b) the Wongatha claim was a significant contested hearing over many years, including around 100 days of evidence; various Form 1 native title applications, multiple statements of facts and contentions, detailed expert evidence (not limited to only expert anthropologists), and numerous detailed and well thought out written submissions;
(c) the time, expense and resources exhausted by the Court, the Commonwealth (as the ultimate funder of all applicants participating in the Wongatha proceedings), the State and other parties; and
(d) the interests of other potential native title holders (or persons who might assert traditional rights and interests in the Claim Areas), who may be of the view that they are in the same or similar situation as the Sullivan and Yilka claimants.
2367 The Sullivan applicant says that the Sullivan claim is precisely the possible type of claim referred to by Justice Lindgren. It is that of a smaller group of individuals, namely, a family who are all the descendants of one apical ancestor, Kitty. The claim is linked to Kitty’s birthplace at Kaarnka, sometimes referred to as ‘Little Kaarnka’, which, according to an anthropologist, means ‘crow’ and is associated with the crow Tjukurrpa. The claim area was determined by reference to the constellation of sites in the Cosmo Newberry claim area that is associated with the birth and long association of Kitty and with the Tjukurrpa that formed and pervades the area in accordance with the Sullivan applicant’s beliefs consistent with traditional Western Desert laws and customs. In addition, each of the members of the claim group claims rights and interests in the area of the claim, as distinct from Wongatha which was an aggregated group claim (with some claimants asserting rights and interests on behalf of the group in one part of the claim area and others in another).
2368 I accept these submissions.
2369 This topic has been canvassed in the previous section of Pt 8.
2370 The State argues that the composition of the Sullivan claim, to the extent that the claimants were claimants in the earlier Wongatha proceedings, is relevant for the purpose of the abuse arguments.
2371 The Sullivan claim is made on behalf of descendants of named two persons. Those persons were all claimants in the Tjinintjara Family Group claim, the United North East claim and subsequently the Wongatha claim. Their claims were aired in the Wongatha proceedings.
2372 The Sullivan applicant appears to concede that the Yilka claimants also hold rights and interests in the area in question. In this respect the Sullivan claim follows the inclusive approach taken by the Wongatha applicant in respect of the Cosmo claim.
8.3 The area the subject of the Sullivan proceeding
2373 The Sullivan applicant seeks a determination of native title in respect of part of the area which was the subject of the Wongatha claim and the whole of the area which was the subject of the Cosmo claim and is the subject of the Yilka claim.
2374 The area covered by the Sullivan claim comprises an aggregation of the individual ‘my country’ areas of the individuals in the group. Individuals in the Sullivan claim group assert ‘my country’ areas. Within that cumulative area additional rights of a different character are asserted in relation to certain places associated with Tjukurrpa.
8.4 The rights and interests claimed in the Sullivan proceeding
2375 By reason of the substantial adoption of the Yilka POC in respect of the Sullivan claim, the rights and interests asserted in the Sullivan claim are no different to those asserted in the Yilka claim.
8.5 Laws and customs relied upon in the Sullivan proceeding
2376 By reason of the substantial adoption of the Yilka POC in respect of the Sullivan claim, the laws and customs are also substantially similar to those in the Yilka claim.
2377 The State’s arguments in relation to Pt 7.1-Pt 7.5 mirror those advanced in respect of the Yilka claim which have been discussed extensively above. To repeat my responses would be superfluous. My treatment of the State’s arguments in relation to the Sullivan claim is the same as it is with respect to the Yilka claim.
9. YILKA – CURRENT AND PREVIOUS CLAIMS
2378 The State submits that the viability of aggregating rights or ‘my country’ areas was the subject of consideration and adverse conclusion by Justice Lindgren in the Wongatha proceedings. The Yilka claim is put as ‘an aggregation of persons who have a pathway to connection’.
2379 The State contends the Yilka claim is, in effect, both an attempt to overcome the failings of the Cosmo claim and a challenge to the findings made in respect of the Cosmo claim. Prior to the commencement of the Yilka claim, advisors to the Cosmo applicant sought for the Cosmo applicant, not as a part of a general ethnographic inquiry, expert opinion from Dr Sackett, anthropologist, as to whether the Cosmo claim was sustainable. Advice was provided following an analysis by Dr Sackett of the Wongatha judgment. The State says that Justice Lindgren’s decision was treated as a template for a redescription of the claimant. His Honour’s findings as to presence or absence of affiliation of individuals with the Cosmo claim area was taken as advice as to be considered in formulating the redescription. Some of the matters raised by his Honour have been heeded, some have not, according to the State.
2380 The State submits that the expert anthropological reports filed in the Yilka claim rely heavily on evidence that was given in the Wongatha proceedings and, particularly, in the reports of Dr Sackett. Although Dr Sackett was present in Court during the oral evidence in the Yilka claim and presumably had access to the affidavit evidence in the Yilka claim, the great majority of references to Aboriginal evidence relied upon in providing his expert opinion have been based on the evidence given in the Cosmo and Wongatha claims, the State submits. In this respect, the hearing of the Wongatha proceeding is treated as if it were field work that was yet to be analysed.
2381 The State contends that no fresh field work was undertaken by Dr Sackett or Dr Cane specifically for the purpose of the Yilka claim. This is a feature of the Yilka proceedings that the State says is indicative of the nature of the proceedings as being a follow-up to the Cosmo claim, with the Cosmo claim being treated, more or less, as a practice run to be improved upon. The lack of further field work was explained by solicitor, Mr O’Dell, on the basis that ‘… all the issues had been canvassed so much, and certainly if anthropologically …’.
2382 There is no difference, the State says, in the laws and customs relied upon as between the Cosmo claim and the Yilka claim. The Court does have before it, however, different evidence, albeit of the same nature, of those laws and customs. The witnesses called differ across the two proceedings and the precise evidence given also differs. In most respects, the State says this is not material, but the prospect that the body of evidence in the distinct proceedings might be interpreted or assessed differently gives rise to the potential for conflicting decisions on essentially the same facts. An example of the obstacle posed can be seen in relation to GM, who gave evidence in the Cosmo claim, but did not give evidence in relation to the Yilka claim. Whilst there is evidence, the State says, in the Yilka claim of GM’s view in relation to births at Minnie Creek, where he is recorded as saying ‘in those days (that is, Wunu’s generation) lots of people were born at Minnie Creek because they were there for ceremonies. This didn’t mean that Minnie Creek was their country’. The State says the different courses taken in the successive proceedings will inevitably lead to different emphasis and possibly inconsistent conclusions.
2383 The State says the Yilka claim is basically made on behalf of the members of the Cosmo claim group, together with some additional members who were formerly claimants under the Wongatha claim. The additional persons and family groups identified seem to be relatively few in number: the Winter and Harris families, and possibly a few others. These persons would have been included in the Cosmo claim group description, but for the artificial exclusion of Wongatha claimants and the requirement of recognition by the claimant group.
2384 There is a deal of repetition in these arguments and the response. In response, the Yilka applicant submits:
(a) the flaw in the State’s position is its unwillingness to accept the fundamental distinction between the existence of a right and the manner of its exercise. That distinction is firmly established in native title jurisprudence at least following Akiba HC and Brown HC. Simply because a right might arise from a personal attribute and thereby might attract a characterisation of being an ‘individual right’ does not entail that there may not be laws and customs governing the exercise of those rights;
(b) indeed, it could not be expected that rights arising from the attributes of an individual may only be exercised (entirely) on an ‘individual’ basis in circumstances where the areas the subject of the rights overlap. It is a requirement of logic and practicality (and therefore unremarkably) of traditional law and custom that where two or more people hold rights in an area, there must be cooperation between rights holders or rules governing the exercise of the rights. That must be so, whether the rights involved are held jointly, in common, individually, as a group, communally or in any other way;
(c) that said, there is nothing ‘uncomfortable’ (as the State submission suggests) about the idea that there must be a process for laws and customs about making decisions about country in which more than one person holds rights (whether rights of the same kind or rights of different kinds). Nor is there a basis for the assertion by the State that if such process exists, the Yilka claim must be a ‘group claim’; and
(d) the Yilka applicant has not done anything other than seek, on behalf of those claiming to hold native title rights in the Claim Area, to have their claims heard and determined in a claim in which it has standing and the Court has jurisdiction.
2385 I do not think there can be any doubt that the Yilka applicant has been guided by findings made in the Wongatha case in the way it has cast this particular case. It is not clear though why this should constitute an abuse of process. The same point may be made about the absence of new field work. Ultimately, the matter falls to be determined by findings made in each case, measured against the correct statement of relevant principle. The process by which the Yilka applicant came to assemble its evidence does not bear on these considerations.
9.1 The nature of the claim group
2386 The State submits that the evidence of procedures undertaken leading up to and surrounding the authorisation of the Yilka No 1 claim sheds some light on the nature of the claim.
2387 The State throughout has firmly submitted that the evidence does not support a suggestion that the Yilka No 1 claim was conceived by resort to traditional law and custom, but, rather, it paints a picture of reluctant concessions by the Cosmo claimants in response to ‘advice’ from CDNTS and Dr Sackett based on an examination of where the Wongatha proceeding went wrong.
2388 The State contends that the nature of the traditional decision-making process identified and apparently followed in relation to some decisions whereby a group meeting is held and consensus is sought and then, in the event of an absence of consensus, decision-making is left to a smaller group rests uncomfortably with an argument that the Cosmo claim or the Yilka claim are claims in respect of rights and interests held by individuals. The State says that neither the Yilka applicant nor the Cosmo applicant:
(a) suggests that each individual authorise the claim;
(b) claim individual areas of land and waters for individuals or subgroups of individuals at any level of aggregation less than the whole group;
(c) describes or otherwise demonstrates to the extent of each individual claim; or
(d) reconciles the existence of apparently independent claims of individuals over a single area of land and waters where there is a collective claim of exclusive possession.
2389 The State argues that if the entitlements of particular Yilka claimants are individual claims, the Court cannot be expected to infer that all individuals named or included in the claim group hold native title rights and interests based on the evidence of some other members of such a group. This, particularly where there are approximately a thousand members of the Yilka claim group who have the potential to present myriad bases for their variously configured claims. If it is suggested that this is a matter to be worked out within the claimant group, then that in itself suggests a form of government or conjoint holding and distribution of rights within a group or community. This type of proceeding is no different, the State says, to a group claim or a group of individuals claiming aggregated rights of ‘my country’ areas as was put forward but found to be impermissible in the Cosmo proceedings.
2390 The State argues that if the Yilka claim is argued to be different based on a misunderstanding by Justice Lindgren of the Cosmo claim or failure of the Court to address the Cosmo claim as it was put then the appropriate remedy is an appeal. This distinction is illustrated in the opening address on behalf of the Yilka applicant, where Mr Blowes SC says:
In short the Wongatha and Cosmo claims fell over because they were considered by the court only as group claims to group areas and thereby to involve the impermissible aggregation or pooling of groups so as to assemble groups and land areas not recognised at sovereignty.
2391 The Cosmo applicant provided a very broad and inclusive basis for inclusion of claimants. The Fourth Amended Native Title Determination Application in the Cosmo proceedings described the claim group as follows:
The native title claim group, subject to paragraph 7 [which removed any person who was a claimant in the Wongatha claim], comprise those people:
(a) who have a personal connection to the area covered by the application including through their own birth or the birth of their ancestors by which they claim the country; and
(b) in respect of whom that claim is recognised by the native title claim group according to its traditional decision-making processes.
2392 The State submits that whilst Justice Lindgren noted (at [210] and [2955]) the deficiency in this description, the paragraph above from the Fourth Amended Native Title Determination Application does not state the nature of the required ‘personal connection’. The prosecution and dismissal of a widely framed claim cannot be said to permit the subsequent pursuit of a narrower claim.
2393 The Yilka applicant’s real complaint, the State says, is that his Honour found that such a claim was not permissible or made out. His Honour considered the nature of the individual claim along with the meaning of the terms ‘communal’, ‘group’ and ‘individual’ in s 223(1) NTA (at [1129]-[1165]).
2394 This is, once again, a repetition of the State’s submission that the Yilka claim is really a group claim to group rights like the Cosmo claim. The essence of the Yilka applicant’s response is that there are no difficulties with a claim under the NTA to native title rights that under traditional law and custom arise from the personal attributes of an individual. Individually attained rights are exercisable pursuant to laws and customs that provide for the exercising of those rights in and making of decisions about areas held by more than one individual. Difficulties do not arise in relation to authorisation in accordance with such laws and customs and those laws and customs provide any necessary reconciliation between the existence in the manner and acquisition of rights and the manner of their exercise. The fundamental distinction the Yilka applicant points to is the difference between the existence of rights and the exercise of rights. I reiterate what is said in the previous section (Pt 9).
2395 If the primary reason for rejecting the Cosmo claim was lack of authorisation, the Yilka applicant says, then it is better to pursue a revised and corrected claim with proper authorisation than to appeal a claim which failed primarily on jurisdictional grounds.
2396 This I think is correct, but more importantly in this instance I think is the fact that Justice Lindgren’s intentions in specifically leaving the door open for a further claimant necessarily contemplated that a properly authorised claim, supported by proper evidence, might be pursued.
2397 The State refers to the evidence from HM that he thought that there were well over one thousand members of the Yilka claim group, as opposed to 128 Cosmo claimants. However, HM was not able to identify anyone who, apart from births and deaths, was part of the Cosmo applicant group and who was not also a Yilka claimant. Dr Sackett was also unable to identify any such person.
2398 The State says it does not appear to be suggested that there are now introduced in the Yilka claim group persons or categories of persons who are no longer claimants in the Cosmo claim. It appears that the Yilka applicant may suggest that some former Wongatha applicants are ‘additional persons’ of this kind.
2399 In this regard, the State makes two points. The first is that the specific identification in the Yilka POC of Charlie Winter, Mr Harris, Mr Watson, Jayden Smith and Victor Fraser does not meaningfully change the composition of a group previously described in the Cosmo applicant’s ‘Further Amended Points of Claim’ as comprised of people ‘who have a personal connection to the area covered by the application including through their own birth or the birth of their ancestors …’. Secondly, the State says it cannot be said that these persons were not represented in any claim in the Wongatha proceedings. In the case of Victor Fraser, he was, at least for a time, expressly represented by the Cosmo applicant. Rhys Winter, a descendant of Charlie Winter, and Mr Harris were also likely to have been part of the Cosmo claimant group until excluded by the embargo on inclusion of Wongatha claimants. Rhys Winter and Mr Harris were, in any event, represented in the Wongatha proceedings as part of the Wongatha group.
2400 On this topic, the State makes the following points:
214. The Yilka Applicant cannot seek to take advantage of the consequence of the exclusion of Wongatha claimants from the Cosmo claim as a differentiating feature of the Cosmo and Yilka claims. The election to take such a course was clearly deliberate and was not met with a similar approach by the Wongatha Applicant, so the more inclusive proposition that might have allowed that Cosmo claimants and some Wongatha claimants held rights in the Cosmo area was, courtesy of the Wongatha Applicant, put before Lindgren J. In addition, any suggested significance of this difference in the Cosmo and Yilka claims becomes even more trivial when it is remembered that the Wongatha claim no longer existed at the time the Yilka [No] 1 claim was instituted and that there was, at that time, no other claim in respect of the area. The Yilka Applicant thus, unlike the Cosmo Applicant, navigated its way to registration and the right to negotiate without any inconvenience arising from NTA s190C(3).
215. The Yilka applicant (HM) describes the exclusion of members of the Wongatha group from the Cosmo claim as "artificial", and seeks to present the absence of such artificiality in the requirements relating to membership of the Yilka [claim] group as a virtue and a distinction which (with other considerations) enables the Yilka application to be seen as distinct. This, it is submitted offends good conscience in the [sic] HM is in fact seeking to make a virtue of ceasing to perpetrate a vice. It seems in any event that there is a significant remnant of the artificial exclusion of Wongatha claimants at play in the continuing exclusion from the Yilka group of Mervyn Sullivan and others. So the distinction the Yilka Applicant seeks to make may not be completely factually correct.
216. The Yilka Applicant claims that additional people have been included who were not part of the Cosmo claim. The State argues that the rights and interests of these alleged additional members of the Yilka [claim] group were pursued in the Wongatha proceedings because they were either:
(a) Included as part of the Cosmo claimant group;
(b) Included as part of the Cosmo claimant group at one time or other, and at other times deliberately excluded;
(c) Included in the criteria to be a member of the Cosmo claim group (but for artificial exclusions);
(d) Included in related native title proceedings as a member of another claim group (namely, in the Wongatha claim); or alternatively,
(e) Capable of inclusion and consideration in the Wongatha proceedings on one or more of the above bases.
217. The description of Yilka claimants makes it clear that an ancestral link is only one of an undefined range of pathways to legitimate assertion of a claim. Similar widely inclusive formulations of the criteria for eligibility to be a claimant appear in earlier versions of the Cosmo application, in "pleadings", in evidence and in addressing the Court: [sic]
218. It is apparent from the evidence that the ancestors identified by the Yilka Applicant and listed on the Yilka claim as persons whose descendants hold or may hold rights, do not represent any departure from the lines of descent included in the Cosmo claim.
219. Changes to the description of claimants which identify a different generational level as the starting point for the determination of descent do not, in themselves, "represent significant differences between the groups". Whilst such changes are as a matter of logic capable of incorporating eligible siblings and descendants of eligible siblings (by identifying a higher generation) or excluding such persons (by identifying a lower generation), whether or not there is in fact any difference depends first upon whether there actually are in the particular cases in which different generations have been nominated, eligible siblings (or descendants of eligible siblings) and secondly whether any such persons otherwise meet the criteria for membership of the relevant group: ie in the case of the Cosmo application are: “recognised by the native title claim group” or in the case of the Yilka application: "recognised according to traditional laws and customs". The applicant has not provided any instance in which an identifiable person has been added or removed by this kind of adjustment to the group description.
2401 The Yilka applicant’s response to this is that, on the assumption that all persons who are represented in the Cosmo claim were also represented in the Yilka claim, there would be no difference, the Yilka applicant says, on application of the relevant principles. However, the definitions of the respective claim groups are quite different and there are persons represented in the Yilka claim who are not represented in the Cosmo claim. It says that it is clear on the principles that this is a relevant and significant matter. This submission is correct. Those persons, at the very least, cannot be said, in any event, to be involved in re-litigation whatever argument is put.
2402 The Yilka applicant says that, as it happens, the difference in membership of the claim group in Cosmo and Yilka by reference to named persons is numerically significant. However, even if only one person was not represented in the Cosmo claim, but is represented in the Yilka claim, that person’s claim cannot be estopped by the dismissal of the Cosmo claim, even if it were a dismissal on the merits. Nor could it be regarded as an abuse of process for such person to bring his or her claim. Further, that person’s claim can be brought or prosecuted, except in a claim which all persons claiming to hold native title are members of the native title claim group because of the requirements of s 61 NTA. As such, the different claim group would be a complete answer to the abuse of process allegation, even if there had been a final merits finding in the Cosmo claim. It is unnecessary to consider this submission as the fact is that there are several different members.
2403 Additionally, it is clear that the inclusion of persons of senior ritual authority constitutes the addition of a new category of persons and rights.
2404 I do not consider that there is anything in this aspect of the State’s complaint.
9.3 Persons with ritual knowledge
2405 The State’s suggestion in respect of this aspect is that the distinction between the Cosmo claim group and the Yilka claim group because of the inclusion of persons with ‘senior ritual knowledge’ in the Yilka claim group is one of nuance, not of substance. It is clear that the entitlements of wati were contemplated during the Wongatha proceedings. The State has always said much about the difficulty of inclusion of this category in previous submissions. The State also submits that, in relation to the assertion that persons of ritual knowledge are now included in the Yilka proceedings (and not in the Cosmo proceedings):
(a) it was contemplated that there would be evidence of Minnie Creek by persons of ritual knowledge;
(b) evidence was given by persons of ritual knowledge;
(c) there is no suggestion that the Cosmo claim was amended to reflect any unwillingness of persons of ritual authority to give evidence;
(d) the Yilka applicant has not provided any evidence as to why persons of ritual authority were not included in the Cosmo proceedings, (if indeed they were not part of the Cosmo proceedings);
(e) the Yilka applicant does not point to any evidence that is relied upon to provide a reason why persons of ritual authority are now included in the Yilka claim; and
(f) the Cosmo applicant has chosen to run the Cosmo proceedings in a particular way.
2406 The Yilka applicant has claimed that a person is a native title holder if it is recognised that the person has a connection to the Yilka claim area through holding senior ritual authority with respect to places on the claim area. This is a specific part of the definition of the native title claim group sought in the draft determination. The fact that there was consideration of such persons in the Cosmo claim or the Wongatha claim does not elevate passing consideration of those persons to being a specific part of the definition of the native title claim group. There was no mention of persons of ritual authority in the definition of native title claim group in the Cosmo proceedings. Relevantly, the Cosmo POC was to the effect that ‘the native title rights and interests … include the “rights of related Aboriginal persons”’. ‘Related Aboriginal persons’ as an expression was defined differently, as were the rights of such persons and in the Cosmo claim. An important difference between the description of the native title holder is that the formulation under the Cosmo claim had the effect that an Aboriginal person with ritual authority who is a member of an Aboriginal group could have rights in respect of the land and waters of the determination area, subject to recognition by members of the native title claim group as such and ‘subject to the rights and interests of the native title holders’. I accept the submission for the Yilka applicant that it is difficult to conceive that the wati that gave (particularly restricted) evidence would consider their rights were ‘subject to the rights and interests of the native title claim group’ or that their ritual status was a matter requiring recognition by the members of the native title group. Justice Lindgren (at [3064]) drew attention to the confusion between the formulation of the draft determination, the way the POC was put and the way the final submissions were advanced.
2407 There is no scope for any argument about the fact that the Yilka claim includes the watis. This can be contrasted with the Cosmo claim, which those men were not claimants.
9.4 Evidence in relation to Minnie Creek
2408 The State points out that a number of the witnesses in the Cosmo and Wongatha claims did have ritual knowledge and some of them gave men’s restricted evidence. Justice Lindgren noted the importance of Minnie Creek, where his Honour said (at [3101]):
There is a sacred site at Pirlpirr (Minnie Creek) in the eastern part of the Cosmo claim area. It is for men (watis) only to visit and to know about. Both Cosmo and other witnesses spoke of its ‘wati-only’ aspect. Albert Newland, a non-wati non-claimant, said that when he was sandalwooding around Minnie Creek, he did not go to the restricted men’s place because a man named Jimmy Waya, who was sandalwooding with him, told him where that place was. Hudson Westlake, a Cosmo wati, said :
‘Brian Jennings, Tommy Simms, Barney Morrison, Mr Watson, that Warburton and Tjirrkarli mob give us a hand with Pirlpirr. They not claiming the country, they help us looking after things that place’.
None of those men are Cosmo claimants. Barney Morrison is a Wongatha claimant. [Mr] Watson from Tjirrkarli and Cyril Simms and Phillip West from Warburton, who are all watis, and not claimants on any Claim before the Court, gave evidence of the importance of Minnie Creek for all watis. [Mr] Watson said that Minnie Creek is not owned by any one man, and that when he was living at Cosmo in the 1970s, the tjilpi (the old bosses) told him that he must keep an eye on the place because he was ‘living close’ to it. He added, ‘Hudson Westlake does this now’.
2409 The State points out that it is clear that his Honour accepted the evidence as to the importance of Minnie Creek. With that in mind, the State says that the Yilka applicant has not pointed to any other evidence that it would seek to rely on in support of its argument about Minnie Creek.
2410 It is also to be noted that in Wongatha (at [378]) Justice Lindgren noted that although at one stage it was proposed that members of the Wongatha and Cosmo claim groups would give evidence in relation to Minnie Creek (Pirlpirr), no such evidence was led.
2411 Similarly, the position in these claims was entirely different in my assessment. I accept the submissions for the Yilka applicant where it is pointed out that the circumstances surrounding a change of plan were explained and amplified in an affidavit of the late Mr Daniel O’Dea, sworn on 14 June 2002. Mr O’Dea was then the principal officer of the Ngaanyatjarra Council representing the Cosmo Newberry respondents in the Wongatha matter and deposed to the following facts:
(a) the orders made on 17 May 2002 provided that the Court visit Pilpirr/Minnie Creek to hear restricted evidence relating to that site for the Cosmo Newberry Respondents (at [4]);
(b) that, in the course of discussion on or about 3 June 2002 with Cyril Simms, Phillip West, Mr Watson, Mr [Hudson] Westlake and [MW], Mr O’Dea advised that there was a potential for the Judge to vary the restricted orders in the case of the Minnie Creek evidence, including to de-restrict transcript (at [7]-[8]);
(c) that the wati (initiated Aboriginal men) all expressed their concern about Aboriginal women or non-initiated Aboriginal men hearing about the story for Minnie Creek through variation of the Orders or through the wrong people turning up at Minnie Creek. Further, they told Mr O’Dea that, because Minnie Creek is one of the most important men’s sites in the Western Desert regions, they needed to consider the possible consequences very seriously (at [9]);
(d) that the watis instructed Mr O’Dea to tell the Court they didn’t want to risk telling so much of the story of Minnie Creek as they would probably do if physically in attendance at the site (at [10]); and
(e) that, on 7 June 2002, the Ngaanyatjarra Council wrote to the other parties advising that the wati who were to give evidence about Minnie Creek no longer wished to give evidence at the site itself, but would give general evidence about Minnie Creek at the Cosmo Newberry community (at [5] and see Exhibit “DOD/4”).
2412 As the Yilka applicant’s submissions on this topic also note:
280. In addition to the above matters, Mr O’Dea expressed the following opinion (at [11]):
Given the concerns of the witnesses in regard to Minnie Creek and the extremely short time frame in which to present the Cosmo Newberry evidence, in my opinion it [was] a more efficient use of time to present what evidence the witnesses are prepared to give about Minnie Creek at the Cosmo Newberry Community rather than take a whole day to travel to the site for a short period of evidence.
281. Lindgren J therefore did not have the advantage that your Honour has had of viewing places in the Minnie Creek area and hearing what, it is submitted, was compelling, on-site evidence about them. Nor did Lindgren J have the advantage of having before him restricted evidence from members of the Cosmo native title claim group and others about Minnie Creek and associated places.
282. The reasons why this evidence was not before the Court are explained in Mr O’Dea’s affidavit. The importance of this evidence can be gauged by comparing your Honour’s impressions of it (having seen and heard it) with the approach taken by Lindgren J to a passage from the Cosmo submissions about ‘the relative lack of evidence given about men’s knowledge of restricted areas’.
283. Lindgren J set out the relevant Cosmo submission in Wongatha [393]:
This was due to the great reluctance of Western Desert men to discuss restricted matters in the Court proceedings, but it does not mean that they do not observe ritual obligations within the Cosmo Newberry claim area. Inferences must be made by their general conduct, through what statements the men were prepared to make and that Dr Sackett obviously held sufficient knowledge to inform both the Site Register and a restricted site register that was subpoenaed but not tendered due to the wishes of the Cosmo Newberry claimants.
284. His Honour’s response to this submission, at Wongatha [393], was as follows:
I do not infer that ‘the relative lack of evidence given about men’s knowledge of restricted areas’ in the case of the Cosmo Claim, was ‘due to the great reluctance of Western Desert men to discuss restricted matters in the Court proceedings’. It was always open to counsel to seek an order that particular evidence be given in a gender restricted (men only or women only) session. The GLSC applicants sought and obtained such orders. The Cosmo applicant did not do so. I therefore proceed, in relation to the Cosmo Claim, on the basis that there is no testimony that could have been given in such a session but not in a public hearing. (original emphasis)
(bold emphasis added)
2413 The extent of the evidence in the Yilka claim in relation to Minnie Creek was entirely different. It was not evidence which could be given in a public hearing.
2414 Again, the State suggests on this topic any differences to which the Yilka applicant points are matters of form, not of substance. The point in relation to this issue is that the requirements for qualification as a Yilka claimant do not include a stipulation, pressed in the Cosmo proceedings, that native title be held by a person with a personal connection to the area in respect of whom that claim of personal connection is recognised by the native title claim group according to its traditional decision-making process.
2415 Rather, in the Yilka proceedings, this has been replaced by a formulation identifying descendants of 11 apical ancestors and their descendants, including the Murray and Westlake families, as unconditional members of the applicant group. It then provides for the inclusion of others asserting connection by reason of birth, ancestor’s birth, long association or the holding of ritual authority where ‘that claim [of connection] is recognised according to traditional laws and customs’.
2416 The State points out that, just as in the Cosmo proceedings, the necessary ‘personal connection’ was not identified. That is, in the Yilka proceedings the traditional laws and customs in relation to recognition of members is still not articulated. What is stated, however, is that ‘a significant extent of localised difference in relation to laws and customs and their acknowledgment and observance should be tolerated …’, and that asserted rights may be contested (by whom is not clear). Senior counsel for the Yilka applicant explained in opening that there is a difference between the ‘gatekeeper’ roles in the Cosmo proceedings and the Yilka proceedings. The State say the evidence disclosed no substantial difference in this respect.
2417 The State also relies on the recognition requirement of the pathways to rights and interests. It says this aspect is indicative of the Yilka claim being an abuse of process. The relevant pathways for participation in the Yilka claim as a claimant required recognition from those within the claim group. This aspect was the exclusive adjudicator or ‘gatekeeper’ role as found by Justice Lindgren in the Cosmo claim. Thus the exclusion of Mervyn Sullivan, as an example, from the Yilka claim group, in spite of his long association with Cosmo Newberry (and claims through his mother, Mrs Sullivan and through birth of his maternal grandmother, Kitty), strongly suggests, the State says, that a gatekeeper remains on duty. That exclusion may flow from the dispute between families and provide a catalyst or part explanation for what appears to be some antagonism between the families. There appears to have been little, if any, consideration given by the Yilka claimants to the possibility of rights and interests arising from the birth of the mother of Mrs Sullivan at Bishop Riley’s Pulpit/Little Kaarnka or Mrs Wingrove’s birth in the Cosmo area.
2418 According to the State, there is no evidence to establish a degree of precision as to the persons who are to make decisions in relation to the credentials of the claim of another. The State notes that HM’s evidence was that such consideration would only come from the ‘old people’ for the Yilka claim group or that country, whereas Mervyn Sullivan says the consideration would be by the wati who are in the area at the time.
2419 The State says that there are numerous references in the evidence of the Yilka claimants that they are accepted by people from other areas as the right people for the Yilka claim area. Yet when the status of another is to be determined (e.g., members of the Sullivan claim or anyone else who may assert traditional rights), it will be decided not by according recognition by people from other areas but by the local ‘old people’ who decide the merits of any such claim, thereby exercising that gatekeeping role. This gatekeeping role was also said to be evident from:
(a) the minutes of the Cosmo Newberry meeting held on 27 November 2007 where Sian Hanrahan (solicitor for the CDNTS) asked ‘but who decides what is enough? Where do we draw the line? and GM replied ‘we decide as we are the strongest’; and
(b) the minutes of the Cosmo Newberry meeting on 8 October 2008 where it is noted: ‘HM said to put [Junior] on so long as he stay behind and keeps quiet.’ It is further recorded in the minutes: ‘[Mrs Murray] also said to put [Junior] on “put him on but he is not to say anything”.’
The State points to the unsatisfactory explanation in relation to the reluctance to accept the Sullivan family as having rights in the Claim Area, as is evident from the excerpts of the Cosmo Newberry meetings.
2420 The State also contends there is no satisfactory explanation as to why native title rights and interests do not arise from births at nearby areas, such as Laverton or Little Kaarnka, where their distance from the boundary of the Claim Area appears to be no greater than the distance from Minnie Creek to Cosmo Newberry. This distinction on behalf of the Yilka claim group appears to exclude anyone who is born outside the Claim Area in circumstances where the claim boundary in many instances follows a straight line, in line with pastoral boundaries, as opposed to any specific delineation of traditional laws and customs.
2421 Even these submissions, however, do acknowledge at least the possibility of some difference between the Cosmo and Yilka claims in relation to the ‘gatekeeper’ or ‘exclusive adjudicator’ role. The State submissions appear to acknowledge that the way the Cosmo claim was put included the proposition that only persons who had a requisite connection and ‘in respect of whom that claim is recognised by the native title claim group according to its traditional decision-making processes’ are native title holders. On the other hand, in the Yilka claim it is put on the basis that the recognition requirement for the possession of rights and interests is a recognition under WDCB laws and customs. That is reflected in the Form 1 and POC in the Cosmo claim, which also includes the statement that a requirement is not satisfied by any person who is a claimant in the Wongatha claim when the current application was made. There is no such qualification in the Yilka claim.
2422 Although this is a difference which the State says is merely of form, the Yilka claim is put on a different basis. In my view, in the Yilka claim, as the Yilka applicant submits, there cannot be denial of recognition of claims to have the requisite traditional connection through birth, descent, long association, or ritual authority except ‘under WDCB laws and customs’. That is provided expressly by [25(b)] of the Yilka POC and [5] of the Yilka Form 1. So as the Yilka applicant says, for example, a claim to birth of an ancestor on the area or of a ritual authority relative to a place is amenable to a regional, not just local, influence.
2423 In my view, there is a difficulty concerning the Sullivan claim, when the Yilka claim is put on this basis, having regard to the findings I have reached as to the true basis for the Yilka applicant refusing at this stage to admit the Sullivan claim. This issue aside, however, I do not think that the distinction between the Yilka and the Cosmo claims is a distinction without difference and I do not consider that the State has made out this submission in support of its abuse of process claim. Much of this debate was covered in Chapters 1 and 2.
10. SULLIVAN – CURRENT AND PREVIOUS CLAIMS
2424 Much of this material has also been covered. The State’s submission on this point is brief. There is nothing to add to the previous submissions and my conclusions in relation to them, other than the fact that the Sullivan applicant is obviously in a different position concerning the exclusive adjudicator contention. The State does not contend that members of the Sullivan claim group have acted or are acting as a gatekeeper in barring membership or in consideration of the claim group. The State does, however, say that this mechanism or process is a relevant consideration in the State’s abuse argument. This is put on the basis that in both the Wongatha and the Sullivan claims recognition of rights and interests is required for membership of a claim group. In the Wongatha claim, a person’s connection was required to be recognised by other members of the applicant group. In the Sullivan claim, the required recognition is defined in the POC and requires a person’s claim to rights or interests to the land and waters to be recognised under WDCB laws and customs. The State says this is another example of the applicant’s case having been varied to overcome adverse findings by Justice Lindgren and forms part of the State’s abuse of process argument. In my assessment, such a variation could only support the abuse of process argument if it was a variation without any substance and purely cosmetic, designed or having the effect of constituting an abuse of the Court’s process. I do not consider this aspect of the State’s submissions falls within this category.
11. ABUSE OF PROCESS: CONSIDERATION
2425 The primary submission for the State is that the Yilka and Sullivan claims are attempts to agitate issues that have already been determined in the Wongatha proceedings or which could or should have been so agitated and such an attempt constitutes an abuse of process in each instance. The State also submits that, in relation to the Yilka claim, the abuse is exacerbated by the concurrent maintenance of the Cosmo appeal.
2426 The power to dismiss on such a basis should be issued sparingly. However, such a cautious approach does not amount to a discretion or a barrier to exercise the power in appropriate circumstances.
2427 The Yilka applicant complains that the State has not attempted to distinguish or identify the relationship between the general notion of abuse of process and the specific doctrines of res judicata, issue estoppel and Anshun estoppel. Rather, the State’s argument proceeds on an assumption that the effect of the general notion of abuse of process and its application to questions about re-litigation of matters or issues is to plug any gaps in, or extend, the application of the specific doctrines in a way that somehow reduces the burden on, or increases the prospects of a party alleging an abuse. It assumes the general notion is available at large and that there are no limitations on its application in the field also covered by the specific doctrine.
2428 Given the seriousness of the consequences, the Yilka applicant submits it would seem improbable that application of the general doctrine of abuse to the same question could provide a different result than that attained by application of the specific procedural doctrines.
2429 Perhaps slightly uncharitably, the Yilka applicant says:
The tactic of the State Submission appears to be to throw a mix of complex facts into a mix of complex principles, to push the matter uncritically towards the general notion of abuse of process and hope for the best.
2430 The Yilka applicant complains that the State’s reliance upon the citation in Ridgeway as being a citation from the High Court is inaccurate as the quotation is from the reasoning of Gaudron J, when her Honour was the only member of the majority who based her decision on an abuse of process ground. Even within that observation by Gaudron J, the critical expression is proceedings instituted for an ‘improper purpose’. The Yilka applicant says that at no point in the very lengthy submissions for the State on this topic has it contended that the Yilka applicant has instituted proceedings for an improper purpose. But the State does assert that the improper motive is derived from re-litigating a second claim in circumstances where the Yilka applicant seeks findings contrary to the judgment of Justice Lindgren and/or which could and should have been sought before Justice Lindgren, and in circumstances where such re-litigation has been preferred (at least in priority) to the Cosmo appeal. I reject this contention.
2431 The Yilka applicant also notes that there is reference in the Ridgeway passage to proceedings that are ‘frivolous, vexatious or oppressive’, ‘seriously and unfairly burdensome, prejudicial or damaging’, or ‘productive of serious and unjustified trouble or harassment’. The State has not specifically advanced these contentions, although it may be accepted that it takes the view, which I accept, that considering and/or opposing the Yilka application is productive of a great deal of expense and hard work. This is an important consideration. The State’s concern is reflected in its lead counsel’s observation in reply in oral closing submissions when he said:
MR WATERS: - - - in terms of the integrity of the judicial process and the extent to which my client might be vexed, it might be expected, depending upon what happens in these proceedings, that persons asserting interests in other parts of that area, that larger Wongatha area, in the Wongatha proceedings or in one of the other overlapping proceedings relating to that larger expanse, will be watching very carefully what occurs in relation to this case.
HIS HONOUR: Yes.
MR WATERS: And the state can look forward in certain circumstances to being the subject of re-agitation of other claims including, I might say, further or other claims by each of the respondents that are present in court today...
HIS HONOUR: Yes.
MR WATERS: …indeed, other areas connected and disconnected with the Cosmo Newberry area that are part of that larger envelope that were the subject of the Wongatha proceedings have the potential to – having been dealt with by Lindgren J in very much the same way as the Cosmo and the Wongatha proceedings, those matters have the potential to arise and re-arise and perhaps even re-arise again after that, your Honour, because if there is no barrier to proceeding, then it’s not going to be uniquely these applicants that are beneficiaries of that result.
2432 Even within the scenario forecast by counsel, it must be recognised that those claims are not claims by the same people seeking the same relief for the same reasons for the same area. The differences have been discussed. But it is difficult to identify any reason why others should not be permitted to pursue claims for other areas of land covered by the Wongatha claim. If the pursuit of such claims for some reason is obviously an abuse, the State would apply at an early stage for summary relief.
2433 Claims of this nature are significant, expensive and protracted especially when almost every aspect of them is opposed. This is not necessarily the same as being prejudicial to the State in the sense used in Ridgeway. In any event, Ridgeway is such a different case that it may be readily seen that the principles there applied fell for special consideration. In Ridgeway there had been a challenge as to the status of evidence concerning the illegal importation of heroin, which evidence had been adduced by the Australian Federal Police as part of an operation aimed at apprehending Ridgeway in possession of heroin. The conviction of Ridgeway was quashed with the prosecution being permanently stayed, not on the grounds of an abuse of process, but on the basis that the evidence should have been excluded on the grounds of public policy. A permanent stay was granted only because there could be no successful prosecution without the availability of the evidence. Indeed, a plurality of the majority (Mason CJ, Deane and Dawson JJ) rejected the notion of an abuse of process having any application to the case saying (at 40):
Once it is concluded that our law knows no substantive defence of entrapment, it seems to us to follow that the otherwise regular institution of proceedings against a person who is guilty of a criminal offence for the genuine purpose of obtaining conviction and punishment is not an abuse of process by reason merely of the circumstance that the commission of the offence was procured by illegal conduct on the part of the police or any other person. To the contrary, to institute and maintain proceedings in a competent criminal court for that purpose is to use the process of that court for the very purpose for which it was established.
2434 Brennan and Toohey JJ in separate passages (at 46 and 60 respectively) emphasised an abuse of process occurring when the judicial process is used for an improper purpose. No such suggestion has been made in relation to the Yilka claim.
2435 In relation to the State’s reliance on Spalla, that case involved an interlocutory application in a case with a long and complex history of commercial and criminal proceedings and a long and complex history of pleadings. It concerned an application to strike out a statement of claim largely on the basis that it was an abuse of process. French J, as the Chief Justice then was, adopted the heading ‘Relitigation as Abuse of Process’ for paragraphs [58]-[70] of his reasons and referred (at [58]) to the re-litigation of matters decided in earlier proceedings or which should reasonably have been raised in those proceedings, as a ‘species of abuse of process’. At [59] his Honour said that:
The court may be protected against such use of its procedures by the doctrines of res judicata and issue estoppel and their analogical extension to issues which ought reasonably to have been litigated in original proceedings as enunciated in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
2436 At [60] French J distinguished that species from ‘the general concept of abuse of process’, which he said ‘in this context subsumes that afforded by the specific doctrines of res judicata’, issue estoppel and their Anshun extension (emphasis added).
2437 At [62] his Honour identified the nature of the task of the judge in such matters as evaluative; and (at [69]), citing Stenhouse, said that the power to dismiss an application as an abuse of process is to be exercised sparingly and upon an examination of the relevant circumstances of the particular case before the Court.
2438 In argument the parties appropriately gave close attention to the Stenhouse factors. But, rather than repeat them as part of these reasons, given that (a) the content of the arguments has already been addressed; and (b) I accept the applicants’ arguments on those matters, I will set them out verbatim.
2439 In addressing the factors identified by French J, as the Chief Justice then was, (set out above in Pt 2.1) the Yilka applicant submits in substance, and I accept (with one qualification to which I will advert following this paragraph):
A. In relation to the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue
479. In relation to this factor, the State Submission argues only that the ultimate issue in the Cosmo proceedings is identical to the ultimate issue in the Yilka proceedings, namely whether native title is held by those represented by the Yilka Applicant.
480 At the level of abstraction identified by the State, it may be that the ultimate issues are identical. However, addressing matters at this level does not advance the State's abuse of process defence. The State Submission lacks substance because it makes no mention of, and fails to grapple with, important matters including:
(a) the differences between the persons represented by the Cosmo Applicant and the persons represented by the Yilka Applicant;
(b) the differences between the native title rights and interests sought to be recognised in the two claims and the bases on which those rights and interests are sought to be recognised;
(c) the fact that the Cosmo claim (and the Wongatha claim) were decided on authorisation (and hence jurisdictional) grounds, and that the ultimate merits issue was not determined; [and]
(d) the Wongatha claim (on which it also relies) and the obvious differences between it and the Yilka claim.
B. The opportunity available and taken to fully litigate the issue
481. The Yilka Applicant submits that the Cosmo proceedings did not provide the opportunity to fully litigate issues with respect to native title rights and interests in the Cosmo claim area. The reasons for this are set out below:
(a) the overall circumstances prevailing at the time that the Cosmo claim was prepared and heard resulted in a compromised environment for litigation;
(b) persons who are part of the Yilka native title claim group, but who were not part of the Cosmo native title claim group, did not give evidence in the Cosmo claim;
(c) instead of the restricted site visits that were undertaken by the Court and the restricted men's evidence heard by the Court in the present matter, no restricted site visits were undertaken in the Cosmo matter, nor was any restricted men's evidence given, in particular in relation to sites in the Minnie Creek area; [and]
(d) instead of the open site visits such as those undertaken by the Court in the present matter, the Court in the Cosmo matter was merely shown videos of sites about which witnesses then spoke.
482. When assessing the "opportunity available", it is submitted that the Court should not consider the matter from the point of view of what was theoretically possible; rather, it should consider the matter from the point of view of the real and practical constraints that were operative at the time of the hearing of the Cosmo claim.
483. … [I]t should be remembered that the Wongatha claim entirely overlapped the Cosmo claim area. Together both claim groups faced a formidable array of opponents, including both State and Commonwealth governments seeking a negative determination. Thus, it was incumbent on both native title claim groups to balance their competing interests against their common interests in achieving a positive determination of native title. There was understandably incentive to minimise differences between them in order to maximise their position as against opponents of both claims. While the Cosmo claim was 'defensive' relative to the Wongatha claim it was compromised in its conduct by its common interests and thus, the way it was presented. The ways in which it could have been put were not unconstrained.
484. Given the requirements of the NTA, the history of the claims and their management and the representation of the various applicants in the Wongatha and Cosmo proceedings, the reasons why those claims were configured and presented as they then were and for the configuration of and exclusions from and inclusions in particular claim groups, involved reasons that went beyond negligence, inadvertence or accident (Henderson at 319; Anshun [at] 598). All reasonable diligence would not have solved the difficulties that were undoubtedly present.
485. In relation to the matters referred to at [481(b)] above, the persons who are part of the Yilka native title claim group but who were not part of the Cosmo or Wongatha native title claim groups or at least not part of the Cosmo native title claim group are identified.
486. In relation to the matters referred to at [481(c)] above, the Yilka Applicant refers to and repeats the discussion of the once-proposed Minnie Creek site visit and restricted evidence during the Cosmo hearing. The State is incorrect to [suggest there was a] “forensic decision”, presumably made by the Cosmo Applicant, "to pass up the opportunity that had been provided for" to give restricted evidence at Minnie Creek. It is with respect clear on the basis of Mr O'Dea's affidavit evidence that no "forensic decision" was involved; rather, there was a change of heart about the proposed site visit and restricted evidence by the wati (not by the Cosmo Applicant) and it was based on the high level of cultural sensitivity associated with Minnie Creek.
487. In relation to the matters referred to at [481(d)] above, Lindgren J made reference to the site videos that formed part of the Cosmo case at Wongatha [3293], [3321] and [3322]. Although Lindgren J said at Wongatha [3293] that he was "impressed by the Cosmo witnesses' familiarity with the land" and that he accepted that "the video showed indigenous people who appeared to me to be 'comfortable' at, and familiar with, the places in question", it may be inferred that the richness of the Yilka site visits is unlikely to have been conveyed by the videos. The value of "on-country evidence" has been commented on by a number of judges.
C. The terms and finality of the finding as to the issue
488. In relation to factor C, the Yilka Applicant refers to [its earlier submissions in relation to matters including the proper evolution of the Cosmo claim, absence of adverse finding about ‘society’ in the Cosmo proceedings, and absence of express final conclusion on the merits of a number of issues raised by the Cosmo claim].
D. The identity between the relevant issues in the two proceedings
489. As noted already in this submission:
(a) the Cosmo and the Yilka native title claim groups are not the same; in fact there are substantial differences between them
(b) further, there are differences in the rights and interests claimed in the two proceedings
(c) further, there are substantial and significant variations in the formulation of the laws and customs relied upon in the two proceedings.
490. The State refers only to the Cosmo proceedings and the Yilka proceedings. In these circumstances, the Yilka Applicant does not address the very obvious differences between issues arising in the Yilka proceedings and those arising in the Wongatha proceedings.
E. Any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings
491. The Minnie Creek evidence heard by the Court in the Yilka matter is fresh evidence. The reasons why this evidence was not adduced as part of the Cosmo hearing have been canvassed above and need not be repeated.
492. Other examples of important fresh evidence relate to the claims that have been made by the descendants of [Jayden] Smith and Mr Paul Simms and by [Victor] Fraser and his descendants. In this regard, the Court has had the benefit of hearing detailed evidence given by [Jayden] Smith, Warwick Simms (a son of Mr Paul Simms) and Victor Fraser. Our searches of the Cosmo transcript have failed to reveal any mention of [Jayden] Smith, [Victor] Fraser or Mr Simms, and certainly none of them gave evidence.
493. The uncontroverted evidence before the Court is that [Jayden] Smith, Mr Simms and [Victor] Fraser were each born in the Minnie Creek area and that each therefore had (or, in the case of [Victor] Fraser and the descendants of all three men, have) customary rights in that country.
494. Mr Smith gave evidence that he was not involved in the previous proceedings because he was at Warburton. When asked whether anybody contacted him or gave him advice about the matter, [Jayden] Smith replied: "No. But I was- no one ever asked me to put in a claim in". Warwick Simms gave evidence that his father passed away in the mid-1980s. He said that he was not aware of another court case a few years relating to the same country, the Cosmo claim. [Victor] Fraser gave evidence that he didn't know anything about a case called the Wongatha case to Cosmo and lots of other places too. No lawyer or anthropologist came to see him about Minnie Creek or the Cosmo area; no-one came to talk to him about it.
495. The State Submission draws attention to the fact that, according to Schedule A of the Amended Native Title Determination Application dated 24 December 1998, each of Victor Frazer [sic] and Paul Simms was said to have connections to the Cosmo claim area by virtue of his own birth. It is also said that the description of the claim group is wide enough to have included [Jayden] Smith, even though he was not individually named. The relevant description could not have been wider, as it encompassed generally persons who “have a connection to the Claim Area in accordance with their traditional law and custom”.
496. The Yilka Applicant makes the following points about this submission. First, the Native Title Determination Application referred to is not the application that was ultimately considered by the Court in Wongatha. At the time of trial, the current application was the Fourth Amended Native Title Determination Application dated and filed on 14 August 2003: see Wongatha [61]. That application did not name [Victor] Fraser or Mr Simms i.e. no claim was advanced on their behalf or on behalf of their descendants. Nor did it include the very wide description referred to above which is said by the State to have included [Jayden] Smith, albeit not by name.
497. Secondly, the fact that somebody else has included [Victor] Fraser and Mr Simms and/or their descendants as members of the Cosmo native title claim group at some stage prior to trial is not relevant. On the claim that was considered by Lindgren J and assuming (contrary to the evidence referred to above) that these men were aware of the claim and had been properly consulted about it, it would not have been open to them to give evidence of their interests in the Cosmo claim area because such interests were not part of the claim as it was presented. In these circumstances, their evidence is properly characterised as fresh evidence and the reasons that they did not seek to give evidence at the Cosmo trial have been explained.
F. The extent of the oppression and unfairness to the other party if the issue is re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice
498. The State Submission addresses this factor (the 6th Stenhouse factor) in only a few lines, and refers only to the potential for unfairness or oppression and for raising concerns about the integrity of the legal system.
499. The State rightly stops short of any suggestion that it regards itself as having suffered any unfairness or oppression by reason of the prosecution of the Yilka claim. It could not have made such a suggestion, having actively and successfully sought the dismissal of the Cosmo claim on the ground it was not authorised and having actively acquiesced at all times in the continuation to conclusion of the lengthy and expensive hearing of the Yilka claim. The word "oppression" does not appear anywhere else in the State Submission. Nor do the words "unfair" or "unfairness" appear in the submission, except in passages quoted from the authorities.
500. The gravamen of the State Submission in relation to this factor is its bare assertion that the costs and resources involved "are self-evidently capable of amounting to unfairness and oppression". It does not explain why this is self-evident, nor does it identify in specific terms any consequences said to have been suffered by the State. The State does not argue that to allow the Yilka matter to proceed to a determination of native title on its merits would cause oppression or unfairness to the State (or anyone else). Nor does it argue that, having allowed or at least acquiesced in the matter proceeding to this point, it has in fact caused oppression or unfairness to the State. The State merely makes the passing suggestion in the abstract, that it could do so. On any view, that is not enough to sustain the serious allegation of abuse of process.
501. In any event, it is important to bear in mind that the costs and resources expended by the State in relation to the Yilka claim will all have been expended prior to the determination of the abuse of process question. It is noteworthy this factor uses the words "if the issue is re-litigated"; but, by the time the abuse of process question is determined, the issue will in fact have been re-litigated.
502. The State Submission raised no concern by the State as a party about the integrity of the system of administration of justice.
503. The passage quoted by French J in Spalla [62] from the decision of lord Diplock in Hunter v Chief Constable of the West Midland Police [1982] AC 529 (at 536) suggested that the general notion of abuse of process would include circumstances of manifest unfairness "to a party to litigation" or which "would otherwise bring the administration of justice into disrepute among right-thinking people". Here there is no identified, or even claimed, unfairness to a party; and no evidence, or even allegation, that the proceedings have brought the administration of justice into disrepute.
504. Any consideration of the integrity of the system of administration of justice should extend to a consideration of the objects of the NTA (which include to recognise and protect native title: NTA s 3(a)) and the whole context in which the Cosmo claim was heard and determined, including the difficulties caused by multiple and variously overlapping claims being heard in the one proceeding and the novelty and complexity of the litigation.
505. If anything, it was the circumstances, conduct and outcome of the Wongatha and Cosmo proceedings that was manifestly unfair to those claiming to hold native title interests in the present claim area and which was apt to raise concerns about the reputation of the administration of justice.
506. As already stated, the statutory provision regarding 'authorisation' which required the Cosmo claim to be dismissed was subsequently (and in response to the very decision relied on to found the abuse of process argument) amended to make clear that the Court does not lack jurisdiction to hear and determine a claim in respect of which authorisation is defective: s 84D(4), was introduced into the NTA a matter of months after the dismissal of the Wongatha claim.
507. The amendment would have had clear application to the Cosmo claim and permitted it to have been determined truly on the merits had that been the law at the relevant time. Thus, it is clear Parliament accepted that under the NTA as in force at the time, the Court had no discretion to hear or determine a claim that was not properly authorised. By NTA s 84D Parliament has made clear that native title claims should be determined on their merits where the interests of justice require it; rather than on technical questions about authorisation. However, the amendment (included in Act No 125 of 2007, which received Royal Assent on 20 July 2007) can have no operation in respect of a proceeding that had been dismissed prior to its enactment.
508. The attempts by the State to succeed for a second time on a procedural rather than substantive basis against some of its constituents may seem unfair and oppressive to those constituents. But it is not the substance or content of the Yilka claim that raises any concerns in that regard.
509. Further, unfairness to those Yilka claimants who were not members of the Cosmo native title claim group is to be taken into account.
G. An overall balancing of justice to the alleged abuser against the matters supportive of abuse of process
510. In relation to this (the 7th Stenhouse) factor, see also [498]-[505] above.
511. The State's failure to address this factor is a glaring omission from its submission on the application of abuse of process principles. It may be inferred from this failure that the State has nothing to say about it that would assist its case.
512. In the present case, this factor should be regarded as decisive, or at the least it should be given much weight. It clearly favours the Yilka Applicant. There could be no justice or appearance of it in denying to people who claim to hold native title in the claim area an opportunity to have their claim heard and determined on its merits.
513. The Cosmo claim was a complex part of a complex case (Wongatha) involving an area of land that formed part of a larger area where customary land tenure is well-known to be particularly complex (the area associated with the WDCB), a new and complex statute (the NTA) and an embryonic jurisprudence. The Wongatha and related proceedings were heard between 19 February 2002 (opening addresses) and 11 June 2004 (final oral submissions following written submissions): Wongatha [10]. By the latter date, there had been only nine determinations of native title following contested hearings and four of these had occurred in the previous six months.
514. As noted above, the jurisprudence at that time was embryonic. Some indication of the complexity and novelty of the issues arising in native title jurisprudence around that time can be gleaned from the fact that the 2001 hearing of the appeals to the High Court in Ward HC occupied eight days of the Court's time and the Court's judgment occupied some 400 pages of the Commonwealth Law Reports. Although various native title issues are still to be authoritatively decided, the jurisprudence today is substantially more settled than it was a decade ago.
515. It is well known that native title cases involving land associated with the WDCB have peculiarities and complexities over and above those found in other native title cases. This is illustrated by the fact that each of the three Western Desert cases that have gone to trial were lost at first instance, although the result in De Rose v South Australia was corrected on appeal. Wongatha comprised eight overlapping applications, all of which failed: Wongatha [1], [3998].
516. There is no abuse of process in the Yilka Applicant availing himself of an opportunity to have a matter heard in a context where it can properly be heard and determined on its merits: in a context in which it is not doomed to fail for technical reasons and can be formulated and put, unconstrained by matters previously beyond the control of the applicant; and prepared and presented with the benefit of further research and consideration, some of which was suggested by the previous proceeding. The State argument, which seeks another pre-emptory conclusion and determination of the claim in the circumstances, mocks the purposes and objects of the NTA and is not supported by the principles which underpin the notion of abuse of process.
517. Having regard to these matters and to the passages from the Preamble to the NTA and the objects of the NTA, there could be little doubt that an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process favours the dismissal of the defence in this instance.
(emphasis added)
2440 In addressing the factors identified by French J (set out above in Pt 2.1), the Sullivan applicant submits (footnotes omitted), and I accept:
a. The importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue
The ultimate issues between Wongatha and the [Sullivan claimants] are different as the Wongatha Applicant sought aggregated group native title rights and interests on behalf of the Wongatha people. The [Sullivan claimants] seek rights and interests on an unaggregated basis where each claimant asserts native title rights and interests to the whole claim area.
b. The opportunity available and taken to fully litigate the issue
The Wongatha trial was not fully litigated and determined as the Court found that it did not have jurisdiction. Thus the [Sullivan claimants] have not had the opportunity to fully litigate to a resolution the issues of their native title rights and interests over the claim area. Further, and importantly, as the Wongatha proceedings went off on a jurisdictional issue, there was no real opportunity for the Wongatha Applicant, let alone the [Sullivan claimants], to appeal the merits "findings". The [Sullivan claimants] therefore had no opportunity to fully litigate their claim to native title rights and interests otherwise than through the within application.
c. The terms and finality of the finding as to the issue
As the Wongatha matter was decided on a jurisdictional issue there was no finality of issues in terms described in (b) above. It is submitted that his Honour Lindgren J recognised this in specifically referring to the potential for the bringing of new claims on another basis.
d. The identity between the relevant issues in the two proceedings
There are patent differences between the Wongatha claim and the [Sullivan claim], some of which have already been referred to. Differences include:
i. Different parties. Each has a single applicant (s61(2)(c) [NTA]) and they are different.
ii. The areas of claim are different geographically, and in size (as mentioned above, the Wongatha area is much larger).
iii. The claim groups are different - and very different in size (the Wongatha claim group had some 820 members, the [Sullivan claim] has a small family based membership). The fact that members of the Sullivan Edwards family were members of the Wongatha claim group is of no moment.
iv. The nature of the claims is different. The Wongatha claim sought aggregated group rights for the Wongatha people … The [Sullivan claim] seeks rights and interests for their family members over all of their claim area.
v. There are differences in the basis of claim (although [WDCB] law and custom is looked to in both claims).
vi. Rights and interests claimed are expressed differently.
e. Any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings
Although there is no plea for fresh evidence, it can be recognized that the current proceedings have given the Sullivan [applicant] the opportunity to fully canvass the evidence relating to their particular claim as a family for native title rights and interests to this area. The Wongatha proceedings were held in the context of evidence directed to showing aggregated group rights for a large body of persons to a much larger area, and so was not similarly focussed.
f. The extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice
There is no risk to the principle of finality of judicial determination, as the Wongatha decision was as to jurisdiction and not on the merits. In relation to public confidence in the administration of justice, [the State] received some implied criticism from Justice Lindgren in the Wongatha judgment at [1263] - [1264] for not bringing an early strike out application for lack of authorization. This had added to the length and expense of the Wongatha proceedings. Thus it does not lie in the mouth of the [State] to criticize the Sullivan [applicant] for the extended process of the earlier proceedings.
g. In fact if the [Sullivan proceedings] are determined, rather than stayed or struck out, as sought by the [State], this will bring finality of litigation, as no further application for native title over the [Sullivan claim area] will be able to be brought (s61A(1) [NTA]).
h. An overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
The [Sullivan claim] is within the description of fresh claims as referred to by Lindgren J. We repeat what was said by the Full Court in Dale and quoted above. The application by the Sullivan Edwards family is not only an application for themselves, but for future generations. Although they were members within a claim group of approximately 820 people in the Wongatha claim, they were not the Applicant and hence did not have the carriage of the claim. It is submitted that it would not be just for them to now be barred from having their claim determined based on the actions / inactions of the Wongatha Applicant given that the Wongatha Applicant was found by Lindgren J not to be authorized.
2441 A minor qualification on my acceptance of this passage of the Yilka applicant’s arguments arises from the submission at [501] in the cited portion. While the timing of the expenditure is correct, the State did seek to raise these arguments at an earlier stage of the proceedings.
2442 As previously noted in Pt 2, in Dale FC, the Full Court upheld the first instance dismissal of a claim as an abuse of process in circumstances where the claim:
(a) was brought by the same claim group on the same basis;
(b) had been dismissed wholly and only on the merits on a basis that made it impossible for that claim group to satisfy the definition of native title, including on the basis that the society asserted by the claim group did not exist;
(c) had been dismissed in the context of the making of an approved determination of native title in favour of competing claimants on a claim with which the proceeding in question was directly inconsistent and the three claims had been heard together. (Thus they were bound by the judgment in rem); and
(d) followed the hearing and dismissal of an appeal by the claim group from the dismissal of its previous claim.
All of the factors in the present case are very different from those in Dale FC (a) to (d) above.
2443 The two other authorities relied upon by the State can also be distinguished. In the decision of Quall v Northern Territory (2011) 286 ALR 374, which was after Dale FC, Reeves J (at [88]-[89]) dismissed the Quall application on the ground of an abuse of process stating it was unnecessary for him to consider the alternative issue estoppel ground. The abuse was manifest. In that case, the court proceeding was amongst more than 20 native title determinations pursued by Quall, most of those applications having already been dismissed by earlier judgments. Eleven of Quall’s claims had been heard along with a Larrakia People’s claim and were dismissed by Mansfield J in Risk. These cases are fundamentally different in nature. Fazeldean (No 2), which was also relied upon by the State and which was subsequent to the Full Court decision in Dale FC, involved a native title determination application commenced after an earlier consent determination. In that case, the State framed its application for summary dismissal under s 190F(6) NTA and as an abuse of process. The abuse of process argument was not successful in that context (see Fazeldean on behalf of the Thalanyji People (No 2) v Western Australia [2012] FCA 1163 per Barker J at [98]).
12. RES JUDICATA: CONSIDERATION
2444 In Jackson v Goldsmith, Fullagar J held (at 467) that, in relation to a defence of res judicata, ‘only the actual record is relevant’. Although there has subsequently been some confusion about this point, the better view is that a court should not have regard to the previous court’s reasons when determining whether or not a defence of res judicata has been established’: see Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (In Liq) (1993) 43 FCR 510 per Northrop and Lee JJ (at 513); Pollnow v Armstrong [2000] NSWCA 245 per Meagher JA (at [9], [13])) Priestley and Sheller JJA agreeing; Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98 per Pullin JA (at [27]-[28]), with whom Wheeler JA (at [1]) and Miller JA (at [68]) agreed. On this basis, the State’s task of establishing the defence of res judicata appears even more difficult.
2445 The State does contend that the principle of res judicata prevents the applications from proceeding. The identification of the Cosmo proceedings by a different name, Yilka, is not a difference of substance it says. The State argues that the identical applicant, the substantially identical groups (whether they were characterised as a collection of individual claims or otherwise), the identical area, the identical society on whose laws and customs the claims are propounded, the substantially identical rights claimed and the determination of Justice Lindgren of the earlier proceedings lead to the application of res judicata principle.
2446 The Yilka applicant relies upon Northern Territory v Alyawarr (at [63]) per Wilcox, French and Weinberg JJ in support of its contention that the State’s reliance on res judicata is driven by an intention to impermissibly avoid a hearing on the merits, contrary to the statutory purpose of the NTA:
The preamble declares the moral foundation upon which the NT Act rests. It makes explicit the legislative intention to recognise, support and protect native title. That moral foundation and that intention stand despite the inclusion in the NT Act of substantive provisions, which are adverse to native title rights and interests and provide for their extinguishment, permanent and temporary, for the validation of past acts and for the authorisation of future acts affecting native title. The first of the main objects of the NT Act set out in s 3(a) is:
to provide for the recognition and protection of native title;
The overview of the NT Act, in s 4(1) states:
This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.
2447 The State’s submission, again, does not address the fact that the earlier proceedings failed on jurisdictional grounds. Fullagar J (dissenting) said in Jackson v Goldsmith, which was approved in Anshun, that res judicata is a broad rule of public policy at large, but rather is a rule that it is based on two maxims. The first, interest reipublicae ut sit finis litium means that it concerns the state that there be an end to lawsuits or that it is for the general welfare that an end be put to litigation. The second maxim, nemo debet bis vexari pro eadem causa, means that no one should be twice harassed for the same cause.
2448 While the State’s submission contends that the principle of res judicata prevents the Yilka application from proceeding, it makes no attempt to identify the rights or the cause of action that is said to have merged with Justice Lindgren’s dismissal of the Cosmo claim. The State focusses on the fact that various matters are common between the two cases.
2449 The Sullivan applicant stresses, and I accept, that the Wongatha judgment was a dismissal on the grounds of lack of jurisdiction. The current application is an entirely different proceeding and the merits of the Sullivan claim and the question of jurisdiction of this Court in regards to it have not merged into the Wongatha judgment.
2450 The State’s contention that res judicata operates in respect of either the Yilka claim or the Sullivan claim cannot succeed.
13. ISSUE ESTOPPEL: CONSIDERATION
2451 It would be inappropriate to treat the ‘real doubt’ expressed by the Full Court in Dale FC as anything other than persuasive and well-founded. I also note that another matter, although not referred to in Dale FC, that tells against the applicability of the doctrine of issue estoppel in native title cases is the fact that an approved determination of native title may be varied or revoked in certain circumstances by virtue of provisions of the NTA: see s 13(1) and (5) and s 61(1). The grounds in s 13(5) contemplate that post-determination changes (for example, to the native title holders or the native title rights) may occur and that the original determination may have contained errors or omissions.
2452 I would proceed on the basis that issue estoppel does not apply to native title cases. However, if that is wrong, it would be necessary, and I will (out of an abundance of caution), consider the circumstances in which the doctrine might apply and whether or not those circumstances present themselves in these claims.
2453 In Ashwin v Western Australia (No 2) (2010) 191 FCR 549 Siopis J cited (at [14]) the following passage from Spender Bower and Handley, Res Judicata (4th ed, Butterworths Common Law Series, 2009(at p 113) in relation to issue estoppel:
These cases illustrate the principle that a decision in favour of a defendant does not bar proceedings ‘founded on any new or altered state of circumstances’, and the statement by Dixon J that an issue estoppel created by a dismissal is limited to “the actual ground upon which the existence of the right was negatived.”
(Footnotes omitted.)
2454 Although the State asserts that issue estoppel deals with an issue or fact, it is important to recall that there must be issues indispensable to a prior decision that found an estoppel. The only issue indispensable to the decision of Justice Lindgren in relation to the Cosmo claim, was the issue of authorisation dealt with at [2893.1]. That decision has not been held to be wrong and remains in force.
2455 At [2893.2-8] of Wongatha, his Honour set out his reasons why the Cosmo claim would fail if his Honour was wrong on authorisation. Those reasons were in the alternative or supplementary and related to evidentiary facts, not ultimate facts. For example, findings that:
1. the Cosmo Claim Area is not an area that is ultimately defined by reference to the Tjukurr (dreaming) sites or tracks; and
2. the present Cosmo claim group has resided at Cosmo only since 1989 and as a group its connection to the Claim Area dates only from that time.
2456 In Quall FC in the Full Court, the applicant was precluded from pursuing a further claim because to do so would have been inconsistent with findings by Mansfield J in relation to an issue about the relevant society at sovereignty and the substantial interruption to the acknowledgement and observance of traditional laws and customs. The Wong-Goo-TT-OO group was precluded in Dale FC from pursuing a further claim because it would have been inconsistent with the findings of Nicholson J in Daniel in relation to issues about whether the Wong-Goo-TT-OO constituted a relevant society for any native title purpose, not just the earlier claim. Those matters were indispensable elements of native title proof.
2457 The State has not identified indispensable findings of Justice Lindgren in relation to issues of society, substantial interruption, the existence of native title or other issues of ultimate fact. The fact that the State has identified various matters that are in common between the two cases does not satisfy the requirement of pinpointing indispensable findings in issue.
2458 I have characterised the finding of Justice Lindgren on a number of occasions, but, while it was final in respect of the claim before his Honour on the basis of lack of authorisation and lack of jurisdiction, even if there was finality about the other matters in which views were expressed, it was finality only as against the claim group in relation to a group area by those particular applicants.
2459 In summary:
(a) no issue is fatal to the Yilka application being heard and determined;
(b) while the dismissal of the Cosmo claim by Justice Lindgren might be relevant in a ‘final’ sense, it must be regarded as limited to the question of whether he had jurisdiction to determine, namely, authorisation; and
(c) the Yilka claim group is not the same as the Cosmo claim group. The Yilka applicant does not argue that the ‘same parties’ requirement is not satisfied merely because the parties in the Cosmo claim are different in some respects from the parties in the Yilka claim. What is necessary is that the relevant parties (or their privies) are common to both sets of proceedings.
2460 In my view, issue estoppel does not arise in the circumstances of the present proceedings. As noted, it is now most doubtful whether the principles apply to native title proceedings, but particularly in the present circumstances. The earlier proceedings failed on jurisdictional grounds, but, in any event, to the extent there were provisional findings made in Wongatha or Cosmo, they are not findings which establish an issue estoppel.
2461 For similar reasons, issue estoppel does not arise in connection with the Sullivan claim. In particular, I accept the submission for the Sullivan applicant that findings in Wongatha relating to the merits of any claims were not essential to the Wongatha decision by reason of the purposed basis leading to dismissal being lack of jurisdiction. That is, there is no ‘matter necessarily decided by the prior judgment, decree or order’ in the language of Dixon J, as his Honour then was, in Blair v Curran (at 532).
14. ANSHUN ESTOPPEL: CONSIDERATION
2462 It is the State's submission that the assertions of the Yilka applicant in the Yilka proceedings are so relevant to the subject matter of the first action (the Cosmo proceedings) that it can only be found that it was unreasonable for the applicant not to have relied on those matters (if indeed the Yilka applicant did not do so).
2463 The State submits that the issues sought to be raised by the applicant in the Yilka claim (if they weren't already raised in the Cosmo application), were plainly open to be agitated in the earlier Cosmo proceedings.
2464 There is no application for the principle of Anshun estoppel in the present proceedings. It requires identification of matters that were not raised, but which reasonably should have been raised in prior proceedings. It presupposes that the same persons are parties to at least two proceedings and calls for examination of the unreasonable conduct of one or more of those parties in the earlier proceedings. There can be no unreasonableness in circumstances where the earlier proceedings were dismissed because of a lack of jurisdiction arising from a failure to prove authorisation.
2465 Furthermore, after the Cosmo claim, the Cosmo applicant had an unadjudicated cause of action (its claim to the existence of native title was dismissed, but not determined). The Yilka applicant brings a fresh (and different) proceeding where the circumstances in which the case have been conducted, the issues and facts relied on are different.
2466 The State has not pointed to unreasonableness in the context of the authorities which deal with Anshun estoppel. There is nothing so obvious that it should have been put forward in the Cosmo claim and is now put forward in the Yilka claim.
2467 To succeed on Anshun estoppel the emphasis is on unreasonable conduct. Such conduct is not readily established.
2468 The burden is on the State to establish unreasonableness so far as it relies on it. The State does not identify any relevant unreasonableness or explain why the Cosmo applicant ‘should have’ put forward the Cosmo claim with all that is part of the Yilka claim, beyond that it (technically) ‘could have’. A finding of unreasonableness is not to be made lightly. In R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232, Bryson AJ said (at [23]):
In my opinion a finding that it was unreasonable not to bring a claim in some earlier litigation is not a finding to be made lightly. In this context unreasonableness is a severe test, to be distinguished from a test of inconvenience, even severe inconvenience. Consideration starts at the point that there is free access to courts and that it is not compulsory to bring forward all claims on related subjects at the same time. This is well illustrated by the outcome in Cromwell v County of Sac (1876) 94 US 351 cited in Anshun at 599.
(emphasis added)
2469 Helpfully, the observation of Warren CJ in Solak v Registrar of Titles (2011) 33 VR 40 (at [74]) was that the risk of inconsistent or conflicting judgments is the most important factor going to the existence of Anshun estoppel. There is no risk of a conflicting judgment in the present circumstance where the earlier native title case has not been the subject of a native title determination. There has been no determination of rights in relation to the area of land and waters in question, positive or negative.
2470 It is misleading to refer to the Sullivan claim group as the ‘successor’ to the Wongatha claim. The two claims are entirely different in terms of, amongst other things, area and composition. The Wongatha claim was over some 159,048.165 square kilometres and comprised a large claim group of 820 members (Wongatha (at [2] and [127])). The Sullivan claim, much like the Yilka claim, is a family-based claim over a much smaller area comprising part only of the Wongatha claim area.
2471 It was not unreasonable, given the uncertain landscape of native title at the time, for the Sullivan applicant to have proceeded by seeking native title within the Wongatha claim, which was prosecuted as a combined claim on their behalf and on behalf of numerous other claimants, albeit unauthorised, by the regional native title representative body
2472 Furthermore, s 61 NTA is a beneficial provision for the protection of members of the claim group. Hence, even though the Sullivan claimants were members of the Wongatha claim, it would be inappropriate to sheet home to them in any punitive manner the conduct of the Wongatha applicant in the Wongatha proceedings, given that the Court found the Wongatha applicant was not authorised to make the application (including by the claimants themselves).
2473 There is no Anshun estoppel that operates in respect of these claims.
15. CONCLUSION ON THE ABUSE ARGUMENTS GENERALLY
2474 In summary and conclusion, neither the specific doctrines, nor the general notion of abuse of process can operate in relation to persons who are not parties to previous litigation. Such parties cannot be precluded from seeking to have their native title rights and interests recognised in accordance with the provisions of the NTA. Thus, any of the doctrines on which the State relies cannot have operation in respect of any of the following persons who were neither part of the Wongatha nor the Cosmo native title claim groups:
(a) Mr Watson and his descendants;
(b) the late Jayden Smith and his descendants;
(c) Victor Fraser and his descendants;
(d) the late Paul Simms and his descendants; and
(e) non-traditional owners, that is, regional senior wati.
2475 Neither can the doctrines have any application to the Yilka claim in relation to the following persons who were not part of the Cosmo native title claim group, even though they were part of the Wongatha native title claim group:
(a) Mr Harris and his descendants;
(b) Charlie Winter and descendants;
(c) the deceased sister of Dulkie Rundle and descendants;
(d) Dulkie Rundle and descendants; and
(e) Barron Bonney and descendants.
2476 These observations are additional to the primary conclusion that none of the defences or strike out grounds raised by the State are available. In particular, in relation to abuse of process, regard should be had to the heavy onus of proof resting with a party alleging abuse of process. In Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, McColl JA (with whom Giles and Campbell JJA agreed) said (at [78]-[79]):
78 The term “abuse of the process of the Court” (of which Anshun estoppel, the third principle referred to in Dow Jones, forms part) is used in many senses. What amounts to abuse of court process is insusceptible of a formulation comprising closed categories: Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 (at [1], [9]) per Gleeson CJ, Gummow, Hayne and Crennan JJ. While accepting this proposition, in PNJ v R [2009] HCA 6; (2009) 83 ALJR 384 (at [3]), French CJ, Gummow, Hayne, Crennan and Kiefel JJ said that many cases of abuse of process exhibited at least one of three characteristics:
(a) the invoking of a court’s processes for an illegitimate or collateral purpose;
(b) the use of the court’s procedures would be unjustifiably oppressive to a party; or
(c) the use of the court’s procedures would bring the administration of justice into disrepute.
79 The power to stay proceedings permanently on the ground that they are an abuse of process should be exercised with caution (Moore v Inglis (1976) 50 ALJR 589 (at 593) (upheld on appeal (1976) 51 ALJR 207) per Mason J (as his Honour then was)) and only in the most exceptional or extreme case: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 (at 392) per Mason CJ, Deane and Dawson JJ (approving the Court of Appeal’s formulation of the test in Gill, Herron and Gardiner v Walton (1991) 25 NSWLR 190). The onus of satisfying the court that there is an abuse of process lies upon the party alleging it, it is “a heavy one”: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (at 529) per Mason CJ, Dawson, Toohey and McHugh JJ.
2477 In relation to both the Yilka applicant and the Sullivan applicant, the defences raised by the State in this chapter cannot succeed. In my view, in the present case, no departure from the ratio in Wongatha is required in permitting the Yilka claim and the Sullivan claim to proceed and be determined on its substantive merits. There is no risk of conflicting judgments and there being no suggestion of usage of the judicial process for an improper purpose, there would be manifest unfairness in the merits of the claim not being determined.
2478 In my opinion both the Yilka applicant and the Sullivan applicant have made out their respective claims. It follows that they would be entitled to hold native title together. Subject to confirming there is certain extinguishment as set out in the reasons, I propose to determine that native title exists in relation to the determination area claimed by each applicant.
2479 Rather than say more at this stage about the form of any determination or determinations, I will allow the parties a reasonable opportunity to consider those matters in light of the findings I have made.
2480 The Court orders that:
1. With respect to settling the form of the Determination or Determinations, the parties consult in relation to all matters that may be pertinent to a proposed form of Determination or Determinations to give effect to these reasons.
2. By 26 August 2016, the parties notify my Associate as to the form of Determination or Determinations if agreed, or if not agreed, each party is to notify my Associate of its proposed form of Determination.
3. There be liberty to apply to vary these orders.
4. Any order dismissing the State’s interlocutory application dated 15 October 2012 be made at the date of making the Determination or Determinations.
I certify that the preceding two thousand four hundred and eighty (2480) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. |
Associate:
Dated: 29 June 2016
ANNEXURE 2 – YILKA DETERMINATION SOUGHT
ANNEXURE 3 – PROPOSITIONS AND EXPERT OPINION SUMMARY
ANNEXURE 4 – YILKA SITE MAP (EXH A1A)
ANNEXURE 5 – SULLIVAN DETERMINATION SOUGHT
ANNEXURE 6 – SULLIVAN EXTERNAL BOUNDARY DESCRIPTION
ANNEXURE 7 – SULLIVAN CLAIM AREA MAP
ANNEXURE 8 – SULLIVAN EDWARDS SITES EVIDENCE SUMMARY
ANNEXURE 10 – SCHEDULES TO THE STATE EXTINGUISHMENT SUBMISSIONS
