FEDERAL COURT OF AUSTRALIA

Rrumburriya Borroloola Claim Group v Northern Territory of Australia

[2016] FCA 776

ORDERS

THE COURT ORDERS THAT:

1.    The parties do bring in within a period to be specified minutes of the determination and orders to be made to give effect to these reasons for judgment.

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

ORDERS

THE COURT ORDERS THAT:

1.    The parties do bring in within a period to be specified minutes of the determination and orders to be made to give effect to these reasons for judgment.

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

REASONS FOR JUDGMENT

MANSFIELD J:

INTRODUCTION

1    These applications for the determination of native title rights and interests in relation to areas within the Township of Borroloola are made under s 61 of the Native Title Act 1993 (Cth) (the NTA). They have been heard together. The evidence has been received on each application. In the course of their conduct, to the credit of the parties, the issues have narrowed to a very specific set of foci.

2    The application in NTD 6014 of 2000, as ultimately amended, is brought on behalf of the Rrumburriya Borroloola Group in respect of Lots 825 and 826 Town of Borroloola (both being part of Lot 803) containing areas of about 4750 square metres and 9990 square metres respectively. It appears to have been prompted by two notices of proposal of 25 August 2000 and 27 July 2000 respectively under the Lands Acquisition Act (NT) (LAA).

3    The application in NTD 6003 of 2003, as ultimately amended, is brought on behalf of the same group in respect of the land and waters in the Town of Borroloola (excluding the land claimed in NTD 6014 of 2000).

4    Thus, whilst the earlier application was brought in response to certain proposed compulsory acquisition notices, the two applications combined cover the whole of the land and waters in the Town of Borroloola. I will call the claim areas combined “the claim area” or “the Town”. I will also refer to the combined applicants as “the Applicants”.

5    In each application, the persons comprising the native title claim group are the same, and the traditional laws and customs they assert are the same. Subject to the correct identification of the correct claim areas in each application, the terms of the recognition of their claimed native title rights and interests in the Determination sought is the same.

6    It is accepted that each claim was duly authorised to be made by the persons named as the Applicants under s 251D of the NTA. It is accepted that the relevant group who authorised the claims, the Rrumburriya Borroloola group (the Claim Group) as described in the applications are the Group of Aboriginal peoples who now hold such native title rights and interests as the common law recognises. It is accepted that the Claim Group possesses those rights and interests under traditional laws and customs acknowledged, and traditional customs observed, by their ancestors within the claim area at the time of sovereignty. It is accepted that the Claim Group hold and exercise their traditional rights and interests as the successors to and by transmission from, the Aboriginal society which, at the time of settlement, enjoyed and exercised those traditional laws and customs and rights with respect to the land and waters in the claim area. I have used the term Claim Group, because to an extent it will be necessary to address matters relating to areas adjacent to and in the region of the claim area where the native title rights and interests may not be held, or may not have been held, by precisely the same persons as the Claim Group.

7    With one qualification, the description of the claimed native title rights and interests in each application is also not in dispute, that is with one qualification it is accepted that the native title rights and interests which the Applicants assert on behalf of the Claim Group are rights and interests which should be recognised by a Determination by the Court on each application.

8    Hence, subject to the one qualification, the matters required to be satisfied for the purposes of each application would be made out provided the Court was satisfied, on the material made available by the parties, that it was appropriate to do so. See generally Western Australia v Ward (2002) 213 CLR 1 (Ward HC).

9    The principal issue (other than those arising from the question of extinguishment) arises from the rights and interests claimed by the Applicants on behalf of the Claim Group in each matter.

10    The Applicants claim that, both at the time of sovereignty and at the present time, the rights and interests possessed by estate group members within the Claim Group in relation to their estate were and are rights and interests:

(1)    Where native title has not been extinguished to any extent over the area covered by this application, or where any prior extinguishment must be disregarded, the native title rights and interests claimed comprise the right of the Primary Native Title Holders to possession, occupation, use and enjoyment as against the whole world. This right incorporates the right to access and take for any purpose the resources of the area covered by this application.

(2)    Where native title has been partially extinguished over the area covered by this application the native title rights and interests claimed are the following rights of the Primary Native Title Holders:

(a)    to access, remain on and use the areas;

(b)    to access and to take for any purpose the resources of the areas; and

(c)    to protect places, areas and things of traditional significance on the areas.

(3)    Where native title has not been extinguished to any extent over the area covered by this application, or where any prior extinguishment must be disregarded, and where native title has been partially extinguished over the area covered by this application the native title rights and interests claimed are also the rights of the Other Native Title Holders:

(d)    to access, remain on and use the areas;

(e)    to access the resources of the areas.

11    The issue is as to the extent of the right claimed to take resources for any purpose, and related to it the right to control access to and use of the claim area (in the case of exclusive rights), which is contentious. The right in (b) to access and to take for any purpose the resources of the areas where there has been partial extinguishment is also contentious.

12    The Northern Territory does not acknowledge or accept that the rights claimed to access, and to take and use for any purpose the resources of the claim area, were at time of sovereignty exercisable for commercial or business purposes, or for any purpose other than for personal or communal purposes of a domestic or subsistence nature. Consequently, the right to take resources, and to the extent to which the right to control access to the claim area carries with it the right to control the taking of resources, are said to be rights which should be expressed not in the terms sought by the Applicants but in the following terms:

(a)    to access and to take the resources of the estate, but not for commercial or business purposes, or for any purpose other than personal or communal purposes of a domestic or subsistence nature; and

(b)    to control access to and use of the estate and its resources by others, but not for commercial or business purposes or for any purpose other than personal or communal purposes of a domestic or subsistence nature.

13    The Commonwealth adopted the same position.

14    Although there was some suggestion in the course of submissions that the Territory (and the Commonwealth) had adopted slightly inconsistent positions between that taken in the exchanged pleadings and in oral submissions, the position is in my view quite clear. There is no element of inconsistency nor any question of the Applicants being taken by surprise by the Territory or by the Commonwealth. Senior counsel for the Territory said on the first day of the hearing:

… there is really only one substantive issue as between the parties and that is the content of the native title right to take resources.

15    Counsel for the Commonwealth also said at the time that the issue is whether the asserted rights to access and take resources are exercisable for commercial or business purposes, or for any purposes other than those of a personal or communal purpose of a domestic or subsistence nature. Hence, it was explained, the evidence relating to a ceremonial exchange system in interactions between different Aboriginal groups or societies, and the interactions between Aboriginal people (including the Claim Group) and the Macassans, did not inform or illustrate the nature of the right to control access and to take resources from the claim area. Reference is, of course, made to that evidence later in these reasons in considerable detail.

16    It is also useful to note at this point the contention of senior counsel on behalf of the Applicants that the claimed right is not specifically said to be a right to trade, or a right to access and to take resources for commercial or business purposes, but an unconfined right to take resources and to access and take for any purpose the resources of the claim area.

17    It is also noted that the Applicants further claim, on behalf of those who enjoy rights and interests in an estate possessed by secondary rights holders that, both at the time of sovereignty and at the present day, they were and are (subject to the rights and interests of the estate group members’ rights and interests) entitled to access and remain on and use the claim area, and to access the resources of the claim area. Both the Territory and the Commonwealth maintain the consistent assertion, that to the extent to which secondary rights holders enjoy native title rights and interests in the claim area, those rights were not at the time of sovereignty and still are not rights exercised or capable of being exercised for commercial or business purposes or for any purpose other than for personal or communal purposes of a domestic or subsistence nature.

18    As to extinguishment, the claim of the Applicants in each matter is for exclusive native title rights as expressed over the claim area. They acknowledge that some native title rights and interests in respect of certain parts of the claim area have been partially extinguished with the result that only non-exclusive native title rights and interests exist in those parts of the claim area. The issue of extinguishment will be addressed in due course, and its consequences in relation to the expression of the rights and interests enjoyed where there are no longer exclusive native title rights and interests, will largely follow from the Determination to be made in relation to the exclusive areas.

19    No respondent parties, other than the Territory and the Commonwealth, elected to participate in the hearing or to make any submissions.

BACKGROUND

The claim area and surrounding areas

20    As in many claims under the NTA in the Northern Territory, the area the subject of the claim, the Town of Borroloola is surrounded by land granted to the traditional owners (as defined in the Aboriginal Land Rights (NT) Act 1975 (ALRA), and now held by the Narwinbi Aboriginal Land Trust. Under the ALRA, only unalienated Crown land was available to be the subject of a claim that the land is held by or on behalf of the traditional owners of that land. The claim area, as a declared township, was ineligible for that purpose.

21    Surrounding the claim area, there are also areas which were ineligible for grant under the ALRA because of the grant of other interests in that land, principally pastoral interests. It is remarked that the other nearby areas, insofar as they are not addressed in any report by the Aboriginal Land Commissioner under the ALRA, have largely now been recognised by Determinations of the Court as held by the Claim Group, in some cases slightly redefined because of local considerations, under the NTA. The present issue as to the nature and extent of the right to control access to the claim area, and to take and use the resources of the claim area, was not contentious in those determinations: see Durrayjaba v Northern Territory [2015] FCA 1242; Charlie v Northern Territory [2015] FCA 1237; Peter v Northern Territory [2015] FCA 1238; McDinny v Northern Territory [2015] FCA 1239; Rory v Northern Territory [2015] FCA 1240; Rory v Northern Territory [2015] FCA 1241; Jurluba v Northern Territory [2015] FCA 1248; Ngajapa v Northern Territory [2015] FCA 1249; Jack v Northern Territory [2015] FCA 1250; Miller v Northern Territory [2015] FCA 1251; Green v Northern Territory [2015] FCA 1252; Brown v Northern Territory [2015] FCA 1268; Largut v Northern Territory [2015] FCA 1269.

22    Borroloola lies inland of the south-western corner of the Gulf of Carpentaria. In that section of the Gulf of Carpentaria there is the Sir Edward Pellew group of islands (the larger ones of which are West Island, South-west Island, Centre Island, North Island and Vanderlin Island). There are numerous smaller islands. I will call them collectively the Islands. They are variously proximate to the coastline, which features significant saline coastal flats with mangroves and extensive water channels. Relevantly, for present purposes, the McArthur River flows into the Gulf of Carpentaria by a broad delta of channels proximate to South-west Island and runs inland roughly from the south-west, affected by the tides, for some 40 kms to and past Borroloola. Significantly further upstream, is the McArthur River Mine. The McArthur River flows further upstream from that mine as well. It is not necessary, for present purposes, to describe in any detail the full extent of the water courses in that area flowing into the Gulf of Carpentaria.

23    The declared Town of Borroloola is very roughly rectangular, and about 2 kms across at its northern point and about 4 kms running north-south. It is somewhat cut off at its south-eastern corner. The Carpentaria Highway runs across the bottom section of the Town, and vertically Robinson Road roughly bisects the Town running north and south.

24    The McArthur River in the vicinity also runs roughly north and south within the eastern side of the Town.

25    At its northern extremity, Robinson Road runs into an area called the Mara Camp, adjacent to which is a ceremony ground, on the land of the Narwinbi Aboriginal Land Trust. Shortly before that point, another road runs off to the north-east towards King Ash Road, and then towards the Gulf of Carpentaria itself.

26    At a point a little above the halfway point (north/south) and on the eastern side of the Town, as the McArthur River flows through the Town, there is an area identified as “Rocky Junction” where Rocky Creek (which flows from within and across the claim area from the west) flows area into the McArthur River.

27    Further south, there is another junction of the Pear Tree Creek also running partly across the Town from the west and into the McArthur River.

28    To the east of the McArthur River but still within the Town area are two areas known as Garawa No 1 Camp and Garawa No 2 Camp.

29    In the course of a view, and evidence given “on-country”, various sites were visited and evidence taken at some of them. The location of those sites, as necessary, will be further described both for the purposes of understanding and appreciating the significance of the evidence given, and of course to an extent because of the issue of extinguishment.

30    At this point, it is only necessary to note a few other significant features.

31    To the east of Robinson Road and between McArthur River and Robinson Road in the northern section of the Town is an occupied area known as Yanyula Camp.

32    The south-western section of the Town contains the air strip. It is partly the area of the formerly declared Borroloola Township (a description used to distinguish it from the Town of Borroloola) which is, as addressed later in these reasons, significant in relation to an issue of extinguishment.

33    Apart from the on-country evidence, the evidence taken at Borroloola was given in what is called the Rrumburriya building, adjacent to Marlene Timothy’s house, which is just to the east of Robinson Road and above the northern tip of the air strip, about half-way between the top and the bottom of the Town as declared. From that point, returning to Robinson Road and travelling north, Robinson Road crosses over Rocky Creek.

34    Somewhat further north and, by turning to the west, there is an area known as the “Subdivision” about which there was considerable evidence, and which includes Mulholland Street and other streets. Again, too, certain areas in the Subdivision are addressed when considering the issues of extinguishment.

35    About halfway between Robinson Road and Rocky Junction (the junction of Rocky Creek and the McArthur River) along Rocky Creek is a site known as Bunu Bunu, on the northern side of Rocky Creek and accessed by a roadway from Robinson Road.

36    To the east of Yanyula Camp and to the west of McArthur River, about halfway between Robinson Road and the McArthur River is an area identified as a ceremony ground.

37    In the northernmost section of the Town on the western side of Robinson Road is a police station, providing access up a steep hill to a water tank. It provides a significant panoramic view looking down and south and south-east over the Town. It is one of the sites where evidence was taken.

38    The western extent of Rocky Creek as it flows into the Town is served by a further creek called Two Dollar Creek, when it is running.

39    On the continuation of the Carpentaria Highway from the west, it runs across the bottom section of the Town and then extends to run north-east by Wollogorang. Still within the Town adjacent to that road is a site called Warralungku, where the Arts Centre is located.

40    Access to Garawa No 1 Camp and Garawa No 2 Camp is by a basic roadway running from the Wollogorang road and slightly north. Evidence was given at one site in that area which itself provides an elevated view to the west back towards the Town. At Warralungku, also called the Warralungku (Burketown) Crossing, significant evidence was given about that area, as well as of things within that area.

41    There is also a small creek running from the McArthur River as it continues roughly south or south-west from the southern part of the Town.

The uncontested facts

42    On the basis of the admissions made by the exchanged pleadings in relation to connection, and as was made clear in the course of submissions by all parties, the Court was invited to proceed largely on an uncontested basis. Rather than rehearse the evidence which supports those acknowledgments, it is sufficient for the Court to indicate that, upon the whole of the evidence, and taking into account the role and responsibility of both the Territory and the Commonwealth before acknowledging such matters, those uncontested issues are proved to the satisfaction of the Court. Consequently, the Court makes the following findings which will facilitate a precise focus on the principal area of dispute.

43    The acquisition of sovereignty over the claim area occurred on 7 February 1788.

44    Significant non-indigenous settlement of the claim area and claim region did not occur until the 1880s.

45    At the time of sovereignty, the Binbinka, Gudanji, Yanyuwa, Garawa, Mara and Wilangara language groups were or were part of a body of persons (the original society) who were united in and by their acknowledgement and observance of a body of laws and customs. They occupied the claim area and a wider adjacent area.

46    The laws and customs of the original society included that primary rights or interests in relation to particular areas of land or waters (estates) were ordinarily possessed through descent from one’s father and father’s father, mother’s father, father’s mother and mother’s mother (estate groups) and included the right to access, remain and use the estate.

47    The laws and customs of the original society included that certain other rights and interests were, subject to the rights and interests of estate group members, held in an estate by the following classes of persons:

(i)    members of the estate groups associated with neighbouring estates;

(ii)    spouses of estate group members; and

(iii)    persons who were spiritually conceived on the estate but who were not members of the estate group associated with that estate.

48    The laws and customs of the original society included that strangers could be refused access, or have conditions imposed on access, to sites in an estate or be accompanied by a person who possessed rights or interests in and knowledge and authority in respect of the estate. Strangers were ideally required to ask permission from such a person.

49    The laws and customs of the original society included that access to some places on an estate was restricted on the basis of age, gender and/or ritual status, and/or knowledge or authority in respect of the estate.

50    The members of the original society held beliefs about the Dreamtime and about the spiritual properties of particular Dreamings and sites, as were appropriate to their age, gender and/or ritual status, and/or knowledge or authority. The Dreamtime was believed to be an ancient formative period during which the world was inhabited by mythical beings (Dreamings) whose travels and actions generated human life and instituted rules of social interaction, including those relevant to descent, kinship, ritual and social propriety and who were responsible for the existence and form of the physical landscape.

51    After the time of sovereignty, certain demographic changes occurred and affected the people of the claim area and claim region, including that:

(i)    the Binbinka estate groups ceased to function as such and the Binbinka and Wilangara language groups ceased to exist as identifiable groups; and

(ii)    the original claim area estate group either died out or became severely depleted.

52    As a result of such demographic changes, there were changes to the composition of the claim area estate group, including the inclusion in that group of certain members of the estate group associated with Vanderlin Island. Such changes took place in accordance with the laws and customs of the original society (subject to any relevant adaptation thereof that had occurred by that time).

53    From the time of sovereignty to the present day, the members of the original claim area estate group holding the primary rights and interests, the members of the estate groups associated with neighbouring estates and the spouses of members of the original claim area estate group and each generation of their successors (including the Claim Group) have transmitted the laws and customs of the original society (subject to such adaptation as has occurred) by word of mouth and common practice and have acknowledged and observed those laws and customs.

54    Gudanji, Yanyuwa, Garawa and Mara language groups continue to be or to be part of a body of persons who are united in and by its acknowledgment and observance of a body of laws and customs.

55    The laws acknowledged and the customs observed by the persons referred to above are both traditional and “traditional laws and customs” within the meaning of s 223(1)(a) of the NTA. Those traditional laws and customs derive from a normative system that has had a continuous existence and vitality since the time of sovereignty. Further, the members of the claim group have continued to acknowledge and observe those traditional laws and customs, in particular in relation to the claim area, without any substantial interruption.

56    By those traditional laws and customs, the members of the Claim Group have a connection with the land and waters of the claim area within the meaning of s 223(1)(b) of the NTA and they and their antecedents have substantially maintained that connection since the time of sovereignty.

57    Certain primary native title rights and interests in relation to the claim area are possessed by members of the Rrumburriya Borroloola group, that is by the Claim Group.

58    Certain (non-primary) native title rights and interests in relation to the claim area are possessed, subject to the rights and interests of the Rrumburriya Borroloola group, by persons who are members of one of classes of persons who comprise the secondary rights holders as described above.

59    Under the relevant traditional laws and customs and subject to:

(i)    a disputed qualification in relation to the utilisation of the resources of the claim area; and

(ii)    other qualifications that are at least in substance a matter of agreement;

the nature and extent of the rights and interests possessed in relation to the claim area are the rights of possession, occupation, use and enjoyment as against the whole world.

LEGAL FRAMEWORK

60    It is important not to lose sight of the relevant statutory provisions relating to the determination of claims under the NTA. The applicable principles are not really contentious. The legal debate, to the extent it is a live one, concerns matters of onus of proof and characterisation of the contentious rights on the evidence.

61    Section 225(b) of the NTA requires a determination of native title to include a determination of the nature and extent of the native title rights and interests in relation to the determination area.

62    Section 223(1) of the NTA defines “native title” and “native title rights and interests” as follows:

Common law rights and interests

(1)    The expression native title or native title rights and interests means the communal, group, or individual rights and interest of Aboriginal peoples … 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 …; and

(b)    the Aboriginal peoples …, 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.

63    As the Commonwealth pointed out, while subs (a) and (b) of s 223(1) are based on the judgment of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo No 2) at 70, it is to the terms of the NTA that primary regard must be had in any determination of native title: see Ward HC per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [16].

64    The starting point for the matter is that upon the acquisition of sovereignty on 7 February 1788, the Crown acquired radical title, but that the rights and interests held by Indigenous people in land or waters under their traditional laws and customs were recognized by, and became enforceable under, the common law: Mabo (No 2) at 15 per Mason CJ and McHugh J, at 52 per Brennan J and at 109 per Deane and Gaudron JJ; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [77] per Gleeson CJ, Gummow and Hayne JJ (Yorta Yorta).

65    Thus, as was observed by the majority in Yorta Yorta:

[43]    … It is important to recognize that the rights and interests concerned originate in a normative system, and to recognize some consequences that follow from the Crown’s assertion of sovereignty. Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.

[44]    That is not to deny that the new legal order recognized then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognized by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognized included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be “significant adaptations”. But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognized after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.

66    The Territory and the Commonwealth emphasised the concluding sentence of each of those paragraphs. Thus, they say, while it is to be accepted that rights and interests, which are the products of laws and customs which adapt or develop, may themselves change without losing the entitlement to recognition, in these claims the proper enquiry is whether the claimed native title right to access and take for any purpose the resources of the area finds its origin in pre-sovereignty law and custom.

67    It is clear enough that the Applicants have the burden of proving that there was a traditional right to take resources from the land as claimed, and to prove to the extent they can, the particular resources which were taken and the specific circumstances and manner in which that right was exercised. The burden of proof is the civil standard, that is, on the balance of probabilities.

68    The Commonwealth stresses the potential difficulties in demonstrating the content of traditional law and custom, as explained by the majority in Yorta Yorta where Gleeson CJ, Gummow and Hayne JJ 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 Native Title Act.

69    The evidence of the Aboriginal witnesses about their traditional laws and customs and their rights and responsibilities with respect to land and waters deriving from them is of the greatest importance in a native title claim: Sampi v Western Australia [2005] FCA 777 at [48] per French J (which aspect of the judgment was not overturned on appeal in Sampi v Western Australia [2010] FCAFC 26); see also Alyawarr, Kaytete, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 (Alyawarr SJ) at [89] per Mansfield J and De Rose v South Australia [2002] FCA 1342 at [351] per O’Loughlin J. In addition, as here, anthropological evidence will provide considerable assistance to the determination of the issues. As observed by the Court in Alyawarr SJ at [89]:

… 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 … Not only may anthropological evidence observe and record matters relevant to informing the court as to the social organization 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 organization 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.

70    Caution must be taken in considering anthropological evidence if it is based on hearsay statements from claimants living at the time of the trial and who were either not called to give evidence or who did not give evidence in terms of the statements contained in the anthropological report. Those circumstances will be relevant to the weight to be accorded to such evidence: Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548 at [2] and [26] per Cooper J; see also TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No. 3) [2015] FCA 1359 at [9] and [10] per Rares J and Bodney v Bennell (2008) 167 FCR 84 (Bodney FC) at [92] and [93] per Finn J, Sundberg and Mansfield JJ.

71    Given the real nature of the contentious and complex issue in these applications, all parties submitted that the proper approach to the complex fact finding, that is the factual issue ultimately required to be resolved and which may be informed by consideration of a series of primary or other qualitative factual findings, would be informed by consideration of a series of earlier decisions of the High Court and of this Court, largely in a chronological sequence and ending with the decisions in Akiba v The Commonwealth (2013) 250 CLR 209 (Akiba HC) and in Western Australia v Willis [2015] FCAFC 186 (Pilki FC).

72    An appropriate theme running through all the decisions is that the existence and content of native title is a question of fact, to be ascertained by evidence as to the laws and customs of the applicants, on a case by case basis. It is therefore highly fact specific: Commonwealth v Yarmirr (1999) 101 FCR 171 at [16] per Beaumont and von Doussa JJ, citing Mabo No 2 at 58 and 61, Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 452 and Wik Peoples v Queensland (1996) 187 CLR 1 at 169. Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the applicant group; the ambit of the native title right is a finding of law: Yanner v Eaton (1999) 201 CLR 351 at [109] per Gummow J.

73    The relevant task is to find how rights and interests possessed under traditional law and custom can properly find expression in common law terms: Ward HC at [89].

74    Subject to the question of extinguishment, evidence of activities on land or how land is used is relevant to the extent that it focuses attention upon the right pursuant to which the land is used: Ward HC at [78]. The exercise of native title rights or interests may constitute powerful evidence of both their existence and their content: Yorta Yorta at [84].

75    The Applicants’ case is that, at the time of acquisition of sovereignty, their ancestors held rights to access and take for any purpose the resources of the estate, and to control access to and use of the estate and its resources by others. Whether that can be established depends upon the whole of the evidence.

76    The Territory says, relying on Pilki FC at [38]-[39] per Dowsett J and at [112] per Jagot J, that if the relevant traditional law and custom at the time of sovereignty distinguished between use of land and/or resources for commercial or business purposes and use of land and/or resources for purposes of a domestic or subsistence nature, there would be a foundation for defining rights by reference to such purposes. It acknowledges that, if at the time of sovereignty land and/or resources were not used for commercial or business purposes, the search for such a distinction will necessarily be unsuccessful. However, it says, it does not follow from the absence of such a distinction that a “purpose-less” right is established, again relying on Pilki FC per Dowsett J at [37]. It is also said that, if traditional law and custom at the time of sovereignty placed constraints upon the use of resources taken, which are either directly or indirectly against use for commercial or business purposes, there would also be a foundation for defining rights by reference to such purposes: Pilki FC at [113] per Jagot J.

77    The Territory also pointed out that, where the native title rights and interests are non-exclusive because of the extinguishment by the grant of pastoral leases (or other tenures not conferring rights of exclusive possession), there is a loss of the right to control access to that land: Ward HC at [92], [417] and [422] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

78    It is convenient to address, and put aside, one further matter advanced by the Territory.

79    It is about the significance of the fact that past consent determinations, both in the Northern Territory and Queensland, have not recognised a right to take and use resources except as a limited one. That is a correct description of the traditional right recognised by a number of consent determinations.

80    Since King v Northern Territory [2007] FCA 1498, it has been common in the Northern Territory to determine a native title right of possession, occupation, use and enjoyment of an area to the exclusion of all others, and/or a non-exclusive native title right to share or exchange subsistence and other traditional resources obtained on or from the claim area, but to provide that the native title rights and interests are for the personal or communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose: see also for example, Rory v Northern Territory [2015] FCA 1240; Roberts v Northern Territory [2012] FCA 223; Pwerle v Northern Territory [2016] FCA 304; Young v Northern Territory [2011] FCA 583; Brown v Northern Territory [2013] FCA 1082. A similar approach has been taken in Queensland, where non-exclusive native title rights have been expressed as rights to hunt, fish and gather or take and use water, or take, use, share and exchange natural resources, but only “for personal, domestic and non-commercial communal purposes”: see for example, Lampton on behalf of the Juru People v Queensland [2015] FCA 609.

81    The terms “commercial”, “business”, “domestic” and “subsistence” are routinely not defined in determinations of native title. Dowsett J in Pilki FC at [9] observed that they are not terms susceptible of precise definition. However, the Territory says, the terms “commercial” and “business” clearly contemplate enterprise or activity in which a transaction or a system is directed, via buying and selling or barter or exchange of goods, to the making of profit or material gain and the latter two terms “domestic” and “subsistence” are used in contrast to refer to provision for a person’s or a community’s sustenance and necessities of life.

82    It also points out that the Full Court in Northern Territory v Alyawarr (2005) 145 FCR 442 (Alyawarr FC) held (at [156]-[157]) that evidence limited to evidence of sharing and exchanging (or “swapping”) ochre, spears, boomerangs, feathers and hair belts for personal use; evidence of sharing and exchanging goods in a ceremonial context, which witnesses described as “like a thank you” or “to pay him off”; and evidence of the collection of beans to make beads sold to a shop for purchase by tourists, did not support a finding of a native title right to trade in the resources of the claim area. The Court re-defined the determined right as “the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters”.

83    It also points out that in Yarmirr v Northern Territory (1998) 82 FCR 533 (Yarmirr SJ), Olney J rejected a claimed right to trade in the resources of the waters and land of the clan’s estate, notwithstanding evidence that, prior to sovereignty, ancestors of the applicants engaged in a “form of trade” both amongst themselves and with the Macassan trepangers. His Honour held (at 588) that the evidence suggested no more than that the Macassans sought and received permission to take trepang from the waters of the claim area, and that it fell short of establishing that the applicants’ forbears had traded with the Macassans. His Honour also found (at 588) that there was no evidence to suggest that trade in the resources of the claim area formed part of the traditional laws and customs of the applicants’ ancestors.

84    To the extent that those decisions reflect terms agreed between the parties, they do not in my view provide any assistance in determining the present applications. There may have been a range of factors taken into account by the applicant and by the relevant State or Territory leading to the agreed terms for the consent determination.

85    Alyawarr FC involved an appeal on a broad range of issues: firstly concerning the proper definition of the native title holders; secondly concerning the native title rights and interests as recognized in the determination; and thirdly concerning the application of s 47B of the NTA to a township in the particular circumstances. The particular passage relied on by the Territory concerns the second broad issue, and within it the relevant subheading is “the native title rights and interests – the right to trade”. It comprises only a short section of the Full Court’s reasons at [152]-[157]. The terms of the determination, relevantly, recognized: the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters.

86    In that case, the Territory submitted that the right to trade is not a right or interest in relation to land or waters: see at [152]. The Full Court in Alywarr FC rejected that proposition at [153]-[156].

87    The Territory then said that the right to trade in resources necessarily implies a native title right to exclusive possession, and that the evidence did not support any right to trade: see at [156]. The summary of the evidence, the Territory contended in that case, made no reference at all to any commercial or profit motives or any level of organized business operation.

88    The Full Court (Wilcox, French and Weinberg JJ) referred to evidence of the asserted right to use the natural resources of the claim area including water, trees, bark medicines, soakages, sacred sites and other things including ochre from various places in the claim area. At [157], their Honours concluded:

In the circumstances it is difficult to see how this evidence was capable of supporting a finding of a native title right to trade in the resources of the area. There appears to have been no evidentiary support for this aspect of the determination.

Hence, the refinement of the determination as noted.

89    The decision at first instance in Alyawarr SJ is also quite brief in dealing with this topic. The claimed right, as recognised in the determination (but varied on the appeal) is set out in [67]. It was separate from claimed rights to use the resources of the land: see at [66] and [67]. The finding of a right to trade is then made at [160] on the evidence (as summarised to the Full Court) and without any detailed consideration of what evidence might in particular have supported the “trading in” resources.

90    In those circumstances, I do not think that decision on that topic can be viewed as establishing any particular principle. It is a decision based upon an analysis of the available evidence.

91    Yarmirr SJ concerned a claim to have recognized native title rights and interests in the seas in the region of Croker Island in the Northern Territory. In the recital of the issues, Olney J at 539-540 did not refer to an issue specifically as to whether, either as a matter of principle or as a matter of fact, there could be or was a native title right to trade in the resources of the sea, as distinct from a right to use and enjoy the marine resources. Nevertheless, the claimed right to trade was said at 586 to be a “separate right of some importance”.

92    The Full Court in Alyawarr FC at [154]-[155] explained that that decision concerned evidence of an activity, but not evidence of the exercise of a right in relation to the [land and] waters of the claim area. As their Honours then said, there was no evidence establishing an historic trade between the forbears of the Croker Island claim group and the Macassans, and no direct evidence since European contact of any sale or exchange in the resources of the waters in the claim area, or suggesting that such trade formed part of the traditional customs of their ancestors. As the Full Court pointed out, there was no finding of a right or interest in relation to the land or waters of the claim area. The finding in Yarmirr SJ at 588 was that there was, on that evidence, no basis for a finding of consensual dealings with the Macassans, nor any evidence of any dealing with others by “sale or exchange” in the sustenance resources of the waters.

93    Again, in my view, that decision reflects particular findings of fact on the evidence. It does not set down any direct principle which necessarily leads to the consequence that, without regard to the evidence in these claims, the claimed right under consideration should be rejected.

94    Indeed, it is fair to say that the Territory and the Commonwealth did not pitch their contentions at that high level.

95    Having referred to the contentions, and having considered certain of the authorities referred to, I now revert to the guidance provided by the High Court, and certain of the more recent decisions specifically addressing issues such as the present.

96    In Ward HC at [14] the plurality said:

As is now well recognised, the connection which Aboriginal peoples have with “country” is essentially spiritual: In Milirrpum v Nabalco Pty Ltd (129), Blackburn J said that: “the fundamental truth about the aboriginals’ relationship to the land is what whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”. It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture.

97    Their Honours then pointed out and explained the difficulty of expressing that relationship in terms of rights and interests: “The spiritual or religious is translated into the legal”.

98    As to the right to speak for country, their Honours said at [88]-[89]:

It may be accepted that, as counsel for the Ningarmara claimants submitted in reply, “a core concept of traditional law and custom [is] the right to be asked permission and to ‘speak for country’”. It is the rights under traditional law and custom to be asked permission and to “speak for country” that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others (cf s 225(e)). The expression of these rights and interest in these terms reflects ow only the content of a right to be asked permission about how and by whom country may be used, but also the common law’s concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.

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. In particular, to speak of “possession” of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify ow rights and interests possessed under traditional law and custom can properly find expression in common law terms.

99    It is therefore the task of the Court to identify, from the evidence, the rights and interests possessed under traditional laws and customs and then to address how they can properly be expressed in common law terms. The observations at [88] tend to support the position put by the Territory, and accepted by the Applicants, that the task of doing that is more complex where non-exclusive rights and interests only are established.

100    It is the common position that the two most directly informative decisions, because they concerned a similar issue to the present one, are the decisions of Finn J in Akiba v Queensland (No 3) (2010) 204 FCR 1 (Akiba SJ) and of North J in Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714 (Pilki SJ). Akiba SJ was reversed by the Full Court of this Court by majority: Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (2012) 204 FCR 260, but the decision at first instance was restored by the High Court: Akiba HC. An appeal from Pilki SJ was dismissed by the Full Court: Pilki FC. The Full Court as constituted by Dowsett, Jagot and Barker JJ delivered separate judgments, but each agreed on the outcome of the appeal.

101    Pilki SJ was heard and determined by North J with another case BP (Deceased) on behalf of the Birriliburu People v Western Australia [2014] FCA 715 (Birriliburu). Following the decision in Pilki SJ, a determination was made by McKerracher J in terms potentially relevant for present purposes: Willis v Western Australia (No 2) [2014] FCA 1293 (Pilki D). No similar step has apparently yet been taken in Birriliburu, so it is not necessary to refer to it in any detail.

102    Each of those decisions in Pilki SJ and in Birriliburu related to a remote and arid part of Western Australia, associated in each case with the Western Desert Cultural Bloc. The Pilki claim concerned a remote part of the Western Desert region situated between the Nullabor Plain and the Great Victoria Desert. The application area was infertile, saline and flat, though it contained some distinct environmental zones within it. In each case, the applicants claimed the right under traditional law and custom to “access resources and to take for any purpose resources of the area”. In each case, the State did not accept that there was any traditional right to access and take resources for commercial purposes. It accepted that the claimants were entitled to take the resources of that area, but only for the purpose of satisfying their personal, domestic or non-commercial needs, including social, cultural, religious, spiritual and ceremonial needs and by way of sharing and exchange. This was the only contentious issue in either case: Pilki SJ at [4]-[6], [10]; Birriliburu at [15]-[17], [21].

103    The determination in Pilki D makes it clear that exclusive rights were determined in respect of the whole of the determination area. Order 3 provides that “the nature and extent of the native title rights and interests is the right of possession, occupation, use and enjoyment of the Determination Area as against the whole world including the right to access and take for any purpose the resources of the land and waters”.

104    That determination was made, having regard to the claimed rights (as here, in relation to areas of exclusive native title) to “access resources and to take for any purpose resources of the area”.

105    As North J said in Pilki SJ at [7], the question whether there was a right under traditional law and custom to access and take resources of the area for commercial purposes depended on a “proper understanding of the evidence”, and his Honour described it as an “evidentiary exercise” informed by ss 223(1) and 225(b) of the NTA.

106    The relevant issue being a question of fact, it is not really helpful to refer to the evidence in that case from the four Aboriginal witnesses (which his Honour described at [31] as “not expansive”). The State did not challenge the evidence of the Indigenous witnesses that their traditional laws and customs gave them “complete control over their country, including all that was on, in and under it”: Pilki SJ at [47]. But North J concluded at [46] that any gaps in the elaboration of the relevant laws and customs were addressed by the evidence of the anthropologist Dr Cane.

107    The position is not so clear in these matters, by reason firstly of the strongly competing views of the two anthropologists who gave evidence: Mr Stead called on behalf of the applicants and Professor Sansom called on behalf of the Territory, and secondly because of the contention of the Territory and the Commonwealth that the use of Mr Stead’s views, if accepted, should be confined to areas of his personal knowledge or his expertise based upon appropriate materials, but excluding any “hearsay” information, that is factual information which might have been provided by the direct evidence of an Aboriginal person. In any event, I observe that what was or might have been a traditional law or custom of the Western Desert society in relation to “commercial” activities does not routinely transport to the present Claim Group. Nor is it to be assumed that the ethnographical, historical and other material to which Dr Cane referred, even though his references appear to extend to a much wider area of Australia than the claim area of the Pilki People or of the wider Western Desert society of Aboriginal people, is applicable to the present application.

108    It is however of note that, in the section of his reasons referring to the contentions of the parties, North J in Pilki SJ at [104] referred to the contention of the State that it was necessary for the Pilki People to prove that commercial activity had been conducted by them. The nature of that submission was described at [104]-[106] as follows:

The State contended that there was no evidence of such activity in the present case. The evidence would need to show a regular and systematic regime of commercial exploitation undertaken as a right under traditional laws and customs. The State accepted that there was evidence of a right to take resources to share, and to engage in gift exchange, but contended that this was not evidence of a traditional right to exploit resources commercially.

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

Other evidence of trade, so it was argued, was far removed from commercial exploitation.

In the circumstances of that case, where (it said) there was no such evidence, the State submitted that the Pilki People were forced to “rely on trading as an incident of an underlying ownership of the land”, but to do so was inconsistent with Ward HC.

109    As to that contention, North J at [118] and [119] said:

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

…

Thus, without evidence of actual trading activity, if the evidence of traditional laws or customs which give a right to access and take for any purpose the resources of the country is accepted by the Court, then the right would be established.

Jagot J in Pilki FC at [99]-[100] expressly agreed with that observation.

110    In my view, the difference between the existence of a right under traditional laws and customs is (as North J said) logically separate from the fact of its exercise. The nature and extent of an activity may inform the existence of a right, but it is the possession of the right, not its exercise, which is the proper question. That point was forcefully made by the High Court in Yorta Yorta per Gleeson CJ, Gummow and Hayne JJ at [84], albeit in a somewhat different context.

111    In Pilki FC, Western Australia took issue with the second step taken by North J of relying on the anthropological evidence. It argued that:

(1)    the right to take resources for any purposes, including commercial purposes, could not be established by broad rights or ownership or dominion over land, rather than having to be proved more specifically; and

(2)    the same right (a “use right”) could not be proved without proof that the activity the subject of the right has ever been conducted, or was conducted, over the land or waters in question.

112    Dowsett J at [7] noted those contentions, and observed at [8] that the State’s contentions used the word “commercial” in a way which did not include “sharing” or “exchange” or “barter” (the latter word otherwise requiring a commercial rather than a personal, domestic or cultural or spiritual purpose). After referring to the evidence in detail, and to the reasons for the decision at first instance, Dowsett J at [35] said that he was not satisfied that the evidence showed that the ancestors of the Pilki People, prior to first European contact, “took resources form the claim area at all, let alone for commercial purposes”. However, his Honour said at [36], it was not critical to the claim that the Pilki People prove that resources were taken for commercial purposes (a conclusion also reached by Jagot J). He there said:

The question will always be whether the evidence satisfies the court, on the balance of probabilities, that a claimed right or interest is recognised by traditional law and custom and has not been abandoned.

That step involved rejection of the State’s first contention.

113    Jagot J’s reasons largely address what her Honour perceived, and rejected, as a qualitative attack on the findings made by the primary judge based on the evidence. It is significant to note what her Honour said at [112] in relation to the appeal:

Sixth, the submissions in support of the appeal seek to draw what, in the specific context of this case, is an arbitrary distinction between the use of land for some purposes (domestic, communal, spiritual, ceremonial and exchange) and use for another purpose (commercial). The distinction is arbitrary because virtually all of the pleaded facts about the Pilki People were accepted (as summarized above) including their right to exploit land for, apparently, any purpose other than a purpose described as commercial. Yet nothing in the evidence supported any distinction in traditional law or custom, or any difference in activity that was or could properly be inferred to have been carried out in accordance with traditional law and custom, between use of land for purposes other than commercial purposes and use for commercial purposes. This lack of distinction, in common with the lack of any prohibition to which the primary judge referred at [124], is to be understood in the context of the evidence that was available – being evidence about the continued observance and meaning of the Tjukurrpa and its significance to the relationship of the Pilki People to their land, the opportunistic nature of these societies in terms of resource exploitation, the location of the claim area and its context in a larger overall system of desert societies, the relationship between the claim area and the two vast and ancient trade routes, and the limited resources, being the hardwoods, of the claim area and the likelihood of them being exploited for trade.

Barker J at [115] agreed with those conclusions.

114    As to the that proposition, Dowsett J said at [16]:

As I understand the law, it is not a sufficient basis for such an inference that the claim group claims to “own” the claim area, and that which is on or under it. On the other hand, the claim group need not prove a specific canon of traditional law and custom, dealing expressly with taking resources for commercial purposes. In effect the claim group must show that had the question of taking for commercial purposes arisen at any relevant time, traditional law and custom would have permitted the claim group to act in the relevant way.

115    Having reviewed the evidence, his Honour concluded at [44] that:

Given the history of trade in the wider Western Desert area, one must ask why the resources of the claim area, such as they were and are, would not have been used for trade or commercial purposes. There is no obvious answer to that question. It is more likely that the absence of evidence of trade in resources from this area is attributable to the lack of resources than to any limitation upon the general right to take and use them. The claim to be entitled to take resources from the claim area should not be seen as a claim to lesser rights and interests than those exercised in other parts of the Western Desert by the larger group of which the claim group is part. In my view the primary Judge’s conclusion was correct.

116    That conclusion is also reflected in Jagot J’s conclusion at [113].

117    In short, in Pilki FC Dowsett J considered that there was evidence to support the finding of use of resources, that the Pilki People (like others) were “opportunistic exploiters” of what was available to them, and there was nothing to suggest that, in their traditional laws and customs, there was any distinction drawn about the use of land for one or other purposes, in particular to exclude other than commercial purposes.

118    Barker J in Pilki FC took a somewhat different approach in his consideration of the appeal. Having regard to ss 223(1) and 225 of the NTA, to their origin in the judgment of Brennan J in Mabo No 2 at 59-60 and 70, and to the plurality judgment in Ward HC at [89]-[93] and to the joint judgment in Yorta Yorta at [40], he said that the finding that native title rights and interests are exclusive will not generally satisfactorily elucidate the particular rights and interests which are possessed by the relevant Aboriginal people. He concluded at [154], consistently with what is said earlier in these reasons and in other decisions, that the question in any case as to what rights should be determined under the NTA ultimately is an evidentiary one.

119    As to the right to access and take resources, his Honour noted the finding of Finn J in Akiba SJ at [847], and the rejection by Finn J of the submission at [751]-[752] that such a right could only be determined if the claimants established exclusive native title rights (which they did not assert in that case). Reflecting the general conclusion referred to in the preceding paragraph of these reasons that the issue is an evidentiary one, his Honour said at [150] that:

The point ultimately is that, in Akiba TJ, the trial judge found that there was, on the evidence of the claimants’ traditional laws and customs led before him, an unrestricted right to use resources. The question of the purposes for which resources were to be used was irrelevant to the existence of that right.

120    His Honour also noted that that understanding was accepted when the matter subsequently went on appeal to the High Court in Akiba HC.

121    Barker J further noted that French CJ and Crennan J at [21] said in Akiba HC that the right may be exercised for commercial or non-commercial purposes and that “[t]he right is one thing; the exercise of it for a particular purpose is another” with the rider:

That proposition does not exclude the possibility that a native title right or interest arising under a particular set of traditional laws and customs might be defined by reference to its exercise for a limited purpose. That is not this case. The right defined by … the Determination, which, save for the extinguishment question, was not in dispute, was a right “to take for any purpose resources in the native title areas”.

Reference was also made to the judgment of the plurality (Hayne, Kiefel and Bell JJ) in Akiba HC at [66]-[68] to the same effect.

122    The subsequent analysis by Barker J of the reasons of the primary judge in Pilki SJ, and of the evidence, led his Honour to observe at [169] that ordinarily evidence of the exercise of a right between sovereignty (or the early European presence) and the present would be adduced. He added at [170]:

While it might, at least in theory, be possible for a court to be satisfied that the particular right contended for is proved without any such activity evidence, it must be said that, without any evidence of the exercise of a right, a court would ordinarily be reluctant to find that the right exists. It is one thing for claimants to say that, under their laws and customs, they own everything on, under and above their traditional country, and that their “ownership” rights include the right to take any resources and use them as they wish, and another thing to support what might otherwise be at risk of being untreated as a mere assertion with corroborating evidence. While it may be said that the failure to adduce activity evidence in many, if not most cases, is likely to prove fatal to claimants’ contentions that they possess certain rights, it should also be said that each case will ultimately depend on the nature and quality – relevance and probative value – of the evidence led.

123    Thus, as he said, it is a matter of careful consideration of the evidence in a particular case. The mere assertion of “ownership” or that the land “belongs” to a particular group is but a beginning to the inquiry as to the nature of the traditional rights and interests: per Barker J in Pilki FC at [183]. Then, his analysis of the evidence was found to support the conclusion of the primary judge at [212], although taken alone the evidence of the four Aboriginal witnesses would not have satisfied his Honour of that conclusion.

124    In Akiba SJ, because the claim area was seaward of the high water mark, it was accepted that any native title rights and interests were non-exclusive.

125    As in these two applications, the claimed rights were broadly framed to include rights to access the resources and to take the resources of the sea: Akiba SJ at [512]; and to a livelihood based upon accessing and taking resources: at [522]. The evidence referred to at [523]-[524] shows that taking was subject to the injunction against waste and to conserve resources for the next generation, and in some instances the manner of taking.

126    Finn J at [526] observed that taking the resources of the sea, and using them in trade, has a long and well chronicled history, so the fundamental resource-related right of use was the right to take, and the use of what was taken was unconstrained, except by internal communal rules: at [529]. His Honour found that there was a native title right to access and take marine resources, not circumscribed by the use to be made of the resource taken. That was so, even though it was accepted at [847] that, where the taking is for a discrete purpose, the activity may be treated as a distinct incident of the right for extinguishment purposes: at [847].

127    In Akiba SJ, it was held that that native title right had not been extinguished by the relevant fisheries legistration of Queensland. That was the principal focus of the decision in Akiba HC. In the course of its consideration of that issue, Hayne, Kiefel and Bell J at [66] remarked:

The relevant native title right that was found to exist was a right to access and to take 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.

French CJ and Crennan J at [21] made observations to the same general effect.

128    The consideration of the authorities to which the Court was referred leads to the conclusion that the nature and extent of the native title rights and interests is to be determined upon the careful consideration of the whole of the evidence.

129    It is to that task that the Court now turns. It may be desirable to refer back to those decisions, or some of them, depending upon the findings which are made.

130    To inform that process, it is noted that the Territory and the Commonwealth say that the decision in Pilki FC, on the facts, was made in the context of the right to take resources for personal or communal purposes having been acknowledged (as here) and the anthropological evidence of trading in resources was uncontradicted. The Court has already remarked upon that feature, compared to the present circumstances.

131    It is also said by the Territory and the Commonwealth that the mere assertion of a right to take resources for any purposes, of itself, is not sufficient to conclude that the claimed right existed “where there was no supporting evidence of the custom or activity which gave rise to the right”. That it is necessary to show a traditional right to take resources is not contentious. The evidence of the exercise of such a right may inform the answer to that question. Expert evidence may also inform the answer to that question (as was the case in Pilki SJ and in Pilki FC). Ultimately, and in my view uncontentiously, it is said that each case will depend on the nature and quality of the evidence adduced.

132    I do not think that the decisions in Akiba SJ or in Lardil v Queensland [2004] FCA 298 (Lardil) in themselves take the evidentiary challenge confronting the applicants on these applications any further.

133    Akiba SJ clearly resulted from findings of fact in quite different circumstances, including “activity evidence”.

134    Lardil was a decision finding a right to take resources was confined, so as to exclude doing so for commercial purposes, notwithstanding evidence of “ownership” of the seas and the sea resources. Again, the focus was on what the evidence in that case showed, or did not show. Cooper J at [180]-[181] said that the evidence showed the right to take resources from the sea was confined to taking only that which was sufficient to satisfy immediate needs, and that there was no evidence of a traditional right to take and use those resources “for organized trade or commercial exploitation”. It is, of course, clear from the references above that constraints upon the taking of resources having regard to preservation of the resources or, depending upon their significance, requiring specific approval to do so, or cultural restrictions on the manner of taking resources, do not routinely or necessarily mean that the right to take resources is confined to doing so for domestic or personal non-commercial use: see Akiba SJ at [523]-[524] and [529].

135    Nor do I accept that observations of Gummow J in Yanner v Eaton (1999) 201 CLR 351 at [72] or of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta at [47]-[50] or [75]-[77] further inform the nature of the factual inquiry. At [84] of that judgment, their Honours said:

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

136    In my view, that statement – made in the context of addressing whether there had been an interruption in the use or enjoyment of native title rights and interests – also does not require any different approach.

THE WITNESSES

(1)    Lay witnesses

137    Written witness statements and oral evidence was given from six Aboriginal people, and a further Aboriginal man, Billy Miller gave oral evidence only. Five of these witnesses are both senior and knowledgeable about the relevant traditional laws and customs of the Claim Group. The other of these witnesses, Wendy (Polly) Roper, is also knowledgeable about such matters, albeit that she is still a relatively young woman. Each of these six witnesses, save for Jack Green, is a member of the Claim Group. Jack Green, being a Garawa man, is a member of the relevant society.

138    Graham Friday was born in Borroloola in 1959 and is now 57 years old. Graham’s father was Short Friday, a Yanyuwa man who was ngimarringki for South West Island, and his mother was Larrlya, who was a Rrumburriya woman who was ngimarringki for Vanderlin Island and other nearby islands and for the country in and around the town of Borroloola. Graham grew up at Marlandarri Camp on the eastern side of the McArthur River. He has lived in Borroloola for most of his life and is now one of the senior jungkayi for the claim area and for the Rrumburriya estate of which it forms part.

139    Warren Timothy was born in Tennant Creek and is 49 years old. He is a grandson of Tim Rakawurlma and a son of Punch Walala Timothy, who was a Yanyuwa and Rrumburriya man with ngimarringki country on Vanderlin Island. Warren’s mother was Norman Timothy, whose ngimarringki country was West Island, which is Mara and Yanyuwa country. As a result of events before Warren was born, his grandfather Tim, his father, he and various others were or are ngimarringki for the Rrumburriya estate that includes the claim area. Warren has lived in Borroloola for most of his life.

140    Wendy (Polly) Roper was born in Katherine Hospital. Although only 34 years old, she speaks the Yanyuwa and Garawa languages. Wendy is a daughter of Borroloola Willy, a very senior Rrumburriya man who was ngimarringki for the claim area and the Rrumburriya country around it, as were his ancestors going back for many years. Wendy’s father died when she was young, so she was raised with the McDinny family at Wandangula (Police Lagoon), which is located on the same Rrumburriya country as the town of Borroloola. Her mother was a Garawa woman, Janie Charlie. Wendy has spent most of her life living at Wandangula, but has also frequently visited Borroloola and stayed at different places there for extended periods with family members.

141    Jack Green was born in 1953 and is a 62 year-old Garawa man who was born in a creek bed on Soudan Station near the Northern Territory and Queensland border. His mingirringgi (a Garawa word which means the same thing as the Yanyuwa word ngimarringki) country Warrul forms part of the Garawa ALT area at Robinson River and also extends on to Spring Creek North pastoral lease. His ngimarringki country Mambu is located in the headwaters of a tributary of the Wearyan River. Jack moved to Borroloola in the early 1970s and has lived there ever since, save for some times away working. Jack has a small outstation just to the west of Borroloola on Two Dollar Creek and is a board member of the Northern Territory’s Aboriginal Areas Protection Authority.

142    Dinah Norman was born in a canoe in 1933 near her father’s father’s (ganggu) country on south-west Island (Warnarrwarnarr). Dinah’s father was Tall Friday who was a cousin-brother of Short Friday. Dinah’s mother was a Rrumburriya woman, Minnie a-Wulbulinimarra. Dinah is a very senior Yanyuwa woman and a very senior jungkayi for the Borroloola town area and the Rrumburriya country nearby. She has lived in Borroloola for most of her life.

143    Mavis Timothy is 68 years old and a Yanyuwa Rrumburriya woman. She is a granddaughter of Vanderlin Jack (who was photographed by Spencer and Gillen at the beginning of the 20th century), a daughter of Tim Rakuwurlma / Old Tim (a man referred to a lot in the evidence) and is an auntie of Warren Timothy. Mavis’ mother, Judy a-Margawi, was ngimarringki for south-west Island and Mavis is jungkayi for this country. Mavis is ngimarringki for Vanderlin Island and other nearby islands and for the country in and around the town of Borroloola. She was born and grew up at Malandarri. Apart from three periods working away from Borroloola, Mavis has always lived in Borroloola, including when working for 30 years as a health worker in the town.

144    Each of these witnesses identified their main teachers in relation to cultural matters. These teachers were generally at least one generation above the witness, sometimes two generations.

145    As noted, in addition to the six primary witnesses, Billy Miller gave brief oral evidence on two occasions. Billy is the oldest male jungkayi for the Rrumburriya country of which the claim area forms part.

146    The statements of evidence as tendered did not include those parts of them to which objection had been taken or which were the subject of a request that the evidence be led orally

147    There was no cross-examination directed to showing that any one of those witnesses was other than a truthful and reliable witness. There was no submission that I should not accept their evidence. The submission was really that, accepting their evidence, it does not go far enough (with or without the expert evidence or such of it as I might prefer and accept as reliable, and even with the other material) to make out the contentious right in the terms claimed.

148    I have no hesitation in accepting all of those witnesses as both truthful and reliable. In particular, to the extent that they gave evidence of what they had seen or heard from their elders now deceased relevant to the existence at settlement of a traditional right to control access to the claim area and to take and use the resources of the claim area, and of the continuity of those traditional rights and the manner of their exercise of those rights, what they have said will of course be of significance.

149    The content or focus for the reference to the evidence generally which now follows is twofold. As appears in the uncontested or agreed facts and agreed issues, the existence or otherwise of the claimed rights, extending to “commercial activities” or being confined in the manner urged by the Territory and the Commonwealth, may depend first upon the evidence as to the extent and character of the dealings with the Macassans at settlement, and secondly upon the evidence as to the extent and character of the dealings with other Aboriginal groups (which includes for ceremonial or cultural purposes) at settlement.

(2)    Anthropological evidence

150    The two expert witnesses Mr Stead and Professor Sansom are both very experienced and well-respected anthropologists.

151    Mr Stead has very long, hands-on experience of studying and working with Aboriginal people in the Northern Territory. He has over thirty years’ experience working as an applied anthropologist. This experience dates back to 1972 and includes working as a Patrol Officer / Community Advisor for the Welfare Branch, Department of Aboriginal Affairs at various locations in the Northern Territory from 1972 to 1977. He was then a part-time historical/anthropological researcher in 1979 and an anthropologist (mining issues) from 1980 to 1983 for the Central Land Council in 1979, and an anthropologist for the Aboriginal Sacred Sites Protection Authority from 1983 to 1984 before returning to the Central Land Council from 1984 to 1986. He was then appointed as Manager, Anthropology and Land Tenure Branch, for the Northern Land Council from 1991 to 2003, and then as Chief Executive Officer of AAPA from 2003 to 2008. He has worked also as a consultant anthropologist from 1986 to 1991, and currently is performing such work.

152    Mr Stead has been the author or co-author of over thirty reports in relation to claims under the ALRA or native title anthropological reports and associated documents for various Aboriginal organisations, the Aboriginal Land Commissioner and the Federal Court. He has provided written reports to the Northern Territory and Commonwealth Governments on native title and ALRA matters. He has given expert anthropological evidence in ALRA land claim hearings and in native title hearings, as well as in prosecutions by the Northern Territory Aboriginal Sacred Sites Protection Authority.

153    He has, importantly, had substantial hands-on experience with the Borroloola region and the general surrounding region. He lived in Borroloola for approximately six or seven months during 1975/76, and then until the end of 1976 commuting there on a regular basis from another Aboriginal community, Ali Curung. During that period he undertook approximately 70 weeks’ field work for a range of projects, including the St Vidgeon Station native title claim, the Urapunga Township native title claim, McArthur River and Bing Bong native title issues and various ALRA claims. He has explained that in detail in an appendix to his Report: “Applied Anthropology Field Work: Gulf of Carpentaria/Roper River/McArthur River Region”. The St Vidgeon Station claim was heard by Olney J under the name Wandarang, Alawa, Mara and Ngalakan Peoples v Northern Territory [2000] FCA 923; (2000) 177 ALR 512. The Urapunga Township claim was heard by O’Loughlin J under the name Ngalakan People v Northern Territory (2001) 112 FCR 148.

154    Mr Stead also knew well Old Tim Rakawurlma (who featured prominently in the Aboriginal evidence), his brother Banjo and their sons and daughters, as well as other prominent Aboriginal people in Borroloola such as Musso Harvey (who was chairman of AAPA), Gordon Lansen and Roy Hammer (who was also chairman of AAPA and a senior jungkayi for men-only ceremonies in Borroloola). Musso Harvey was mingirringgi for the town area. Gordon Lansen was also ngimarringki for the Borroloola town area. Roy Hammer was a Mara man who was married into Yanyuwa. Musso Harvey, Gordon Lansen and Roy Hammer, each of whom is now deceased, were each identified as an important teacher of one or more of the Aboriginal witnesses.

155    To the extent that experience in relation to the present claims and the vicinity of the present claims is significant (as discussed below), his experience is very much greater than that of Professor Sansom.

156    Professor Sansom’s anthropological fieldwork has been conducted both overseas (South Africa, Libya and at Mt Lebanon in Lebanon), as well as Australia with the Aborigines of the Darwin fringe camps and hinterland principally only in the 1970s. Professor Sansom has done no direct research in the Borroloola or Gulf of Carpentaria regions.

157    On the other hand, as he said, his particular interest in anthropology has been in the economic adaptations of previously “tribal” people to modern conditions, and he has widely consulted in relation to claims under the ALRA and the NTA since 1998, both in the Northern Territory and in Western Australia. He has published extensively, including on the nature of and the demand system of “service exchange”, to show (as he says):

That Aboriginal conventions governing the use of money and material goods were incommensurate with ordinary economic practice characteristic of mainstream Australia.

158    The Applicants, in submissions, were somewhat critical of Professor Sansom’s evidence. I shall refer to that shortly. The Territory, on the other hand, whilst acknowledging Mr Stead’s more “hands on” experience with the Aboriginal people from the claim region, said Professor Sansom’s evidence provides a useful counterweight to any perception of a lack of neutrality and objectivity in Mr Stead’s evidence arising from his lengthy history of work with the Claim Group and their antecedents. The Territory also points out that, while anthropological evidence may provide a context in which to consider, or to provide an explanation for, the evidence of the lay witnesses, it is not a substitute for that evidence. Whilst that is undoubtedly correct, it would not be correct to confine the role of anthropological expertise to that function: for example, the use of the anthropological evidence in Pilki SJ and the observations in Alyawarr SJ quoted above at [69].

159    The Territory also stressed that the competing anthropological opinions were based, or largely based, on reading relevant literature, and on what they saw as the substance and interpretation of historical writings about Aboriginal people in the claim region in the period after settlement, including what could properly be made, as anthropologists, from those writings. Hence, the cross-examination of each involved some analysis of that material. The folder of that written material was itself tendered as Exhibit A20.

160    As a “starting point” in the further reference to that material, and the submissions concerning it, it was common ground that the claim group, and the Aboriginal people in the claim region are accepted as being within the “Gulf Cultural bloc”, and that to the further north of Borroloola there is a separate “Arnhem Land Cultural bloc”.

161    It is a somewhat contrived process to address the respective criticisms of the anthropologists for what they drew from particular historical or other writings, or for what they did not refer to. The Territory integrated its criticisms of Mr Stead’s opinions in its submissions about the effect of the evidence generally. Whilst the applicants also did that to a degree, they made specific separate submissions about Professor Sansom’s views.

162    I note that one point of distinction is that Professor Sansom did not consider the report of Dr Cane (part of the evidence in the Pilki SJ case, and included in Exhibit A20). Professor Sansom’s report commences with a “reservation” on that very point.

163    Mr Stead cites Dr Cane to support the proposition that ceremonial exchange systems in Aboriginal Australia were, at one and the same time, systems of exchange of ritual items and systems for exchange of things of everyday economic (and non-spiritual) worth. Professor Sansom says Mr Stead recounts one of the ethnographic facts on which Dr Cane would have based his argument, but then relies on the opinion of another expert that pertains to another native title case to support his views. Mr Stead says that “it is reasonable to assume that many of the economic practices recorded by Cane occurred in the claim region”. It is probably more accurate to describe Professor Sansom’s reservation as a criticism, rather than as a reservation. There are two particular paragraphs of the Stead Report which Professor Sansom refers to. The first at [2.66] is under the subheading “Other Socio-Economic Transactions”, a sub-section of six paragraphs, in Section 2 of the Stead Report “Access to and Control of Land and Resources”, comprising 107 paragraphs. It is a recital, with some comment of Mr Stead, on other anthropological research not specific to the claim area. It refers to Dr Cane’s conclusions after noting that Dr Cane has examined ethno-historic accounts, and Dr Cane’s own research. It is, in essence, a descriptive section of Dr Cane’s views. The other paragraph of the Stead Report referred to by Professor Sansom is at [3.59] in Section 3 – Terms of Reference and Opinions, also a lengthy section of 84 paragraphs, broken into eight subsections separately responding to the eight terms of reference to Mr Stead. The paragraph specified is in the paragraph subsection addressing “TOR Five” [Terms of Reference 5] in the following terms:

TOR Five: Identify and consider the geographic extent at and since sovereignty over which the material goods of the claim region were traded (directly or indirectly) and from which material resources were brought into the claim area/region pursuant to the existing laws and customs.

164    There follows the views of Mr Stead on what historical data and analysis of that data shows, both specifically from the claim region in exposure to the Macassans and more generally. That section of the Stead Report specifically says it reflects Mr Stead’s understanding of those analyses. In its context, it does not appear to me that the reference to Dr Cane is any more or less appropriate than the reference to the other sources referred to, and which do not appear to attract the same criticism by Professor Sansom.

165    As counsel for the Applicants pointed out, the range of ethnographic resource material to which Professor Sansom referred is more confined than that to which Mr Stead referred. Of itself, that does not take the matter far. But I did not think Professor Sansom explained, at least in a way which satisfied me, that (for example) the work of Bradley was appropriately disregarded, or the works of Baker merited only passing reference, or the works of McCarthy and Mulvaney should be given little significance. Those materials are all in Exhibit A20.

166    Bradley is an anthropologist who was for a time a school teacher at Borroloola and who speaks the Yanyula language, and whose PhD research related to Yanyula concepts of the sea and use of the marine environment. Baker is a cultural geographer who addressed the history of the Yanyula and Garawa people, including their history of contact with and dealings with the Macassans. Both McCarthy and Mulvaney were said by Professor Sansom to be saying “Aboriginal cross-country transactions count as economic trading relationships” so that such views, as an interpretive and etic (scientist-oriented) approach, as distinct from Professor Sansom’s emic (analysis of how the relevant local Aboriginal people thought about and understood what they were doing) approach, should carry little or no weight. None of them, in my view, are of apparently little relevance or significance, despite the views of Professor Sansom.

167    That is not to say that his comments about the views of those ethnographers should be accorded particular weight, compared to other views. That ultimately is a matter for the Court, informed by the evidence. Nor is it to say that his views or his report, by its lack of or only brief references to that material, do not merit very careful consideration. They do. But where the reference material is, on its face, well-informed and apt because of its particular geographical or other focus, and has been accepted as useful and reliable by other anthropologists (such as Berndt and Berndt), I did not find his decision to discount its significance as persuasive.

168    It follows that I do not readily reject Mr Stead’s views because of their reference to, and reliance upon, that material, particularly given his own extensive and close dealings with the people of the Borroloola region. It cannot be said of Mr Stead that his views were etic only.

169    In forming my views about the appropriate findings, apart from the extent to which the lay witnesses’ evidence assists, I record that I also formed the impression from the whole of the evidence that the very firm and clear lines which Professor Sansom sought to draw are not necessarily appropriate.

170    In relation to the dealings with the Macassans, which are well recorded both in the claim region and elsewhere, it is certainly a possibility in relation to the claim region that they were initially simply invasive, but it does not follow that, for whatever reason and despite (any assumed) physical superiority and resource superiority of the Macassans and their desire to take advantage of it, the dealings between the Macassans and the people of the claim region did not become in part or in whole consensual. Uneven bargaining or negotiating power, assuming that state of affairs existed, does not necessarily imply a lack of preparedness to bargain or to negotiate at all. It is also appropriate to acknowledge that, in the absence of any history of non-Indigenous engagement by the people of the claim region prior to the advent of the Macassans, there may have been nothing in the traditional laws and customs of those people to deal with that engagement. It is very unlikely that there were not traditional laws and customs of the people of the claim region about how they intersected with Indigenous people of adjoining regions, especially other people from the Gulf people society. The evidence also shows that they had traditional laws and customs dealing with their intersection with more remote Indigenous people, including ceremonial intersections. It may be that those traditional laws and customs were called into play when responding to the advance of the Macassans. It may be that, having been confronted with the advance of the Macassans, they applied and perhaps adapted their traditional laws and customs to address those new circumstances.

171    In my view, the views of Mr Stead should not be readily discounted, as Professor Sansom urged. Indeed, given the observations above, I am disinclined to accept the very firm views of Professor Sansom that the engagement of the people of the Gulf region with the Macassans was entirely outside of, and in no way managed by reference to, their traditional laws and customs. The finding on those contrasting views is not reached simply by adopting Professor Sansom’s view in his evidence and in his Report.

172    I will consider the whole of the evidence carefully to reach my conclusions.

173    One critical issue is whether at settlement the people of the claim region dealt with the Macassans according to their traditional laws and customs. The evidence on that necessarily is sparse.

174    The observations made by those European settlers who first had contact with the people of the claim area, some decades later, does not routinely or necessarily support the inference that what existed at the time of those observations also existed at the time of settlement. That is the sort of circumstance confronting North J in Pilki SJ, where his Honour used the more general anthropological evidence of Indigenous trading practices within the Western Desert Society and more generally within Australian Indigenous societies to support the inference which he drew. That analysis was, in the circumstances of that case, upheld in Pilki FC.

175    As I have observed, in the case of the clear evidence of “ceremonial exchange” which Professor Sansom said described (in terms not consistent with the claim of the Applicants) their right to use the resources of the claim area, again it is not necessarily appropriate to draw the firm line which he drew to exclude transactions in the case of resources which did not strictly fall within the pure “ceremonial exchange” concept.

176    It is clearly correct to say that, at the time of settlement, and indeed until some time after their exposure to European settlement, the people of the claim area had no independent unit of currency by which interchanges of objects or services were measured. However, the claim of the Applicants is not dependent on such a currency unit or units existing. I also accept that the utilisation of resources of the area by the people of the claim region with other Indigenous groups, even if it were based originally on purely ceremonial exchange, may have evolved. It may be that the exchanges which took place had, as Professor Sansom acknowledged, some “utilitarian consideration”.

177    In his evidence, Professor Sansom addressed a 1949 article by Thomson “Economic Structure and the Ceremonial Exchange Cycle in Arnhem Land”. That article has a section on the “Conception of Wealth, the Giving of Presents and the Idea of ‘Payment’”. It notes that in the Arnhem Land Society, all material objects are divided sharply into either sacred (ceremonial) or profane objects. In that section, there is a description of the six chief ways in which objects change hands. They include:

(5)    Buku djauyun, straight-out exchange or barter, in which one article is balanced against another. In Arnhem Land, where the ceremonial aspect even of transactions in which commodities change hands, is stressed, it is the “giving” that is the important matter, the rite, the gift and counter gift, rather than the assessment of its value or equivalent (see below no.6).

(6)    mȁlli, buy or purchase. The idea of direct purchase is foreign to the Arnhem Land socio-economic pattern and probably owes its origin to the influence of Indonesian culture. In former times the Macassar voyagers arrived on the coast of Arnhem Land with the north-west monsoon and dispersed along the coast to their regular fishing stations, vessels returning again and again to the same areas which they had visited in previous years and where they set up depots on shore for the boiling and smoking of bêche-de-mer or trepan.

178    Professor Sansom said that category (5) did not accept that that reference involved any utilitarian or opportunistic use of resources, despite the use of the words “straight out exchange or barter”. It is hard to see where the line should then be drawn. The fact that objects exchanged or bartered may not represent some parallel objective value (if there was one) does not mean that they necessarily, in the Gulf Society including the claim group, exchanged or bartered for purely ceremonial purposes.

179    In the end result, that is not critical to my conclusions, but I consider the words used, whilst explaining the ceremonial context in which exchange or barter took place, in Arnhem Land Society, may convey some economic distribution function of such exchanges or barters in a cultural context. As (6) shows, Thomson did not consider the Arnhem Land Society engaged in direct buying or purchase (or selling or sale) with the Macassans. He notes that, whilst the Macassans “paid tribute” each season to the Indigenous owners of the areas they fished for trepang and pearls, the Arnhem Land people did not actually work for the Macassan trepangers: “… occasionally, when men were short, some Indigenous people did help to make up the crews of canoes for the Macassans diving for trepang”. He there recognises also that the word “mȁlli”, with the idea of “payment” is used principally in connection with the manufacture of wooden dugout canoes, as part of the residual cultural legacy from the exposure to Macassans.

180    More importantly, Professor Sansom was prepared to accept as relevant (as with Thomson’s paper about the Arnhem Land Society) the paper of Professor Stanner in 1933 dealing with the “Ceremonial Economics of the Daly River Indigenous people”. His paper deals with the merbok (a complex system of economic inter-tribal exchange) and the kue (a ceremonial gift exchange with a sacramental and legal function in marriage).

181    Professor Stanner says:

Systems of simple barter between tribes have been reported from many parts of Australia, but they have been very inadequately studied. The primitive economics of the aborigine have been so imperfectly recorded as a whole that complex institutions of the merbok type may well exist over a much wider area. The fact that they are not recorded and not reported proves very little, for the merbok does not obtrude itself upon the attention of the alien in the same way as the Melanesian kula which it in so many ways resembles.

In essence, merbok is a complex system of delayed economic exchanges between individuals in the same tribe and in different tribes. A great variety of articles is involved in this exchange, nearly all of them, if not all, being of intrinsic utilitarian value. Merbok, however, is more than merely an economic exchange on a utilitarian basis: it has a specific, though subdued, “ceremonial” content.

182    In addition, he introduces the word ninymer to convey the meaning of both “valuable” and “material object”. Within the shadow of more impressive events, such as large inter-tribal gatherings for initiation, communal food-gathering or for various ceremonial activities”, the author says:

The merbok, of course, came along the actual native pads which link the countries of different tribes, dusty tracks worn deep into the earth by the feet of generations. Sometimes these pads are actually themselves called merbok, as are the articles which pass along them. Merbok is not a stream. There is no constant flow. The path is always there, but only from time to time does ninyer come along it. At various points on the path this ninyer might be swollen by contributions, or by replacements, or it might dwindle by being milked by someone through whose hands it passes, for “milking” is part and parcel of the merbok.

183    The articles travelling along the merbok paths include ochre, kaolin, hair belts, boomerangs, spears, beeswax, gums from various trees, pearl-shell ornaments, dilly bags, string-work, stone axes and knives, and small ornamental objects and, after European influence other goods. It is also observed that tradition associates certain merbok articles with certain directions, as:

The inter-tribal economy draws certain articles in one direction, from which there comes a demand for them, and to send other articles back as compensation.

184    The author also describes the receipt of merbok from a partner (noting from the above that merbok largely operated between families) is to create an obligation at some future time to return a merbok or ninymer of comparable or greater value. He says that, often, the “entire aboriginal economy” offers the things which are sent along in merbok, and that the utilitarian motive is generally present so the use or “milking” before being passed further on is commonplace.

185    Professor Sansom agreed that that picture was one of a cultural overlay on an economic system, and a system that has the objective consequence of distributing goods that are needed to persons who want them or need them, not for the pure enjoyment of possession but for their intrinsic utilitarian value.

186    That document does not support the strict separation or isolation of, and confinement to, religious or cultural exchange or transmission of goods which underlies Professor Sansom’s views. Indeed, I do not think that, ultimately, his evidence was that such a strict separation from any utilitarian exchange or barter existed, so as necessarily to directly contravert the views of Mr Stead that the dealings of the people of the claim region with other Indigenous tribes or groups may have (or do have) a utilitarian or opportunistic element.

187    The difference between their respective views may not be as great as Professor Sansom suspected, because, for his part, Mr Stead did not present a view that it is “all economics”, or that the social and ceremonial exchange of objects is not the context in which many or most such exchanges take place. Mr Stead agreed that most such transactions have interwoven cultural and economic aspects, and that they are “difficult to disentangle”.

188    In this instance, in my view, the views of Professor Sansom categorising the dealings of the people in the claim region with other Indigenous tribes or groups as incapable of supporting the claimed right, and similarly that their dealings with the Macassans as not supporting their claimed right because those dealings were not rooted in their traditional laws and customs, are not supported by the evidence as a whole, or by other material to which his attention was drawn in the course of his evidence. His views do not fit readily with the views of the lay witnesses, or of the informants to earlier anthropologists or ethnographers. As I have noted, to some extent, I think he qualified his views in the course of his evidence.

189    It is with that assessment of his evidence, that I turn to consider the totality of the evidence.

FINDINGS

(1)    General

190    The parties identified six broad topics of dispute (reflecting their collective issues). Those issue are not issues which all of them collectively said were either necessary or were critical. In closing submissions, senior counsel for the Applicants reduced the questions to a few principal issues. I think that they conveniently provide a focus for considering the competing positions of the parties, having regard to the evidence.

191    They are:

(1)    interactions between Aboriginal people and the Macassans;

(2)    resource utilization activity and resource rights at sovereignty;

(3)    exchange activity between Aboriginal people or groups at sovereignty; and

(4)    resource utilisation and resource rights since sovereignty.

192    As counsel said, issues (1) and (3) together occupied the major part of the hearing as the focus of the evidence.

193    I have noted certain matters which are accepted by the exchanged pleadings. In addition, the parties agreed in a Joint Memorandum upon certain further facts concerning the claim area and the general Borroloola region, and about the activities of the Macassans in the broad Borroloola region up to and after sovereignty.

194    On the basis of that agreement, I accept the following.

195    Prior to sovereignty, long distance exchange routes criss-crossed the continent.

196    Prior to sovereignty (and thereafter), the general Borroloola region was divided into three general environmental types: marine (coastal); the adjacent inland; and the subsequent adjoining inland plain or tableland areas that stretched well inland of Borroloola. Each type featured different resource bases and unique technologies were developed to exploit each unique resource base. Resources taken from the marine region focused on foods such as sea turtles, dugongs and sea bird eggs and the technologies needed to exploit these such as canoes, paddles, harpoons and native ropes. Resources taken from the inland zone featured species such as fish, small game and specific flora species and the technologies required to utilize such resources included spears, fish nets, fish traps, dilly bags, and the containers required to process flora. Resources taken from the plains / tableland zone featured resources such as seed, grass, tubers, wild honey, reptiles and small marsupial species and the technologies required to exploit these included stone tools such as axes, spear heads and grinding stones. Material non-food items were taken such as ochre, stone, fibres and wood.

197    Prior to sovereignty, Macassan trepangers came annually from the Celebes to northern Australia, including to the islands of the Sir Edward Pellew Group, to capture trepang, which were in great demand in parts of Asia. The Macassans needed and obtained access to places on shore for cooking and curing the trepang. A plentiful supply of firewood was needed to do these things. The Macassans also took away with them other resources from the land or sea, including pearl and tortoise shell.

198    The Macassans provided Aboriginal people with items that were of high value to them, including the dugout canoe, the steel axe, iron for harpoon tips, glass, rice, tobacco and a kind of rum called arrack.

199    The Macassans had sexual relations with Aboriginal women. Sexual relations between Aborigines and Macassans involved both commercial and social aspects. Husbands and relatives of the women concerned expected regular gifts from the Macassan men involved.

200    The Macassans negotiated a form of agreement with their Aboriginal hosts that was probably an agreement grounded in economic considerations of bargaining and mutual advantage. The Macassans sought and got permission from Aboriginal land holders.

201    The Macassan visitations continued until 1907 when Australian waters became closed to them.

(2)    Interactions with the Macassans

202    It is desirable to refer to the dealings with the Macassans at or prior to sovereignty in more detail than those general acknowledgments.

203    Flinders visited the Sir Edward Pellew Islands in December 1802 and gave that name to the group of Islands. His diary refers to an old Dutch chart on which Cape Vanderlin was represented so that Cape Vanderlin had been named prior to that time.

204    He noted substantial signs of the prior presence of Macassans on the Islands. It is not necessary to refer to the diary, as its effect is not in issue.

205    In February 1803, at the English Company’s Islands (located off north-east Arnhem Land), Flinders encountered six “prows from Macassar”. The chief of the six prows was an elderly man called Pobasso who advised that 60 prows (praus) belonging to the Jajah of Boni and carrying 1000 men had left Macassar with the north-west monsoon two months before. This fleet was on a course “south-eastward into the Gulph of Carpentaria”. According to Flinders’ Journal: “Pobasso had made six or seven voyages from Macassar to this coast, within the preceding twenty years, and he was one of the first who came”. The journal noted the presence on Pobasso’s vessel of a type of black rope, of which Flinders and his companions had found pieces at the Islands. Whilst the six “chiefs” (prau captains) were on board Investigator “several canoes were along-side for the purpose of barter”.

206    The earliest reference to trepang being collected in Australia dates from 1754 when the Dutch authorities in Batavia reported that, as far as they knew, the “Southland” southeast of Timor produced nothing but trepang and wax. It was visited now and then from Timor and Makassar. Macknight believes that this is a reference to the Kimberley coast. In relation to the waters of the Arnhem Land coast and adjacent areas, Macknight said in 2013: “I now accept the evidence recorded by Flinders and Brown that the abundant resources of trepang in this area only began to be exploited from about 1780 …”. It is reasonable to assume that these adjacent areas included the Sir Edward Pellew Islands.

207    Professor Sansom accepted that the beginning of the exploitation of trepang in the claim region started prior to sovereignty.

208    In 1792, Captain Thomas Forrest published A Voyage from Calcutta to the Mergun Archipelago. Macknight accepted that it described, by that time, the exploitation of trepang in the Gulf of Carpentaria which had commenced some years prior to sovereignty.

209    I accept that the trepang “industry” had commenced in the Sir Edward Pellew Islands at least several years prior to sovereignty. Indeed, it is a matter of agreement between the parties that, prior to sovereignty, Macassan trepangers came annually from the Celebes to northern Australia, including to those Islands to capture trepang. Macknight’s date of “about 1780” relates to the exploitation of trepang, not to any kind of preliminary trips that might have occurred. Pobasso’s estimate of 20 years takes the date back to the beginning of 1783. He was “one of the first who came”. The scale of the cooking facilities and the clearance of an acre and a half of mangroves observed by Flinders indicates that the industry was well established by late 1802.

210    The following statement by Thomson is noteworthy:

From the general demeanour of the natives of the Gulf of Carpentaria, as recorded by Flinders in the narrative of his voyages, it is highly probably that praus from Indonesia had visited Arnhem Land, at least sporadically, for a very long time, much longer than the statement made to Flinders would suggest. But even on the information which he recorded, we know that regular voyages to Australia occurred at least as far back as about 1780.

211    The Applicants submit that the estimate of 1780 for the commencement of the exploitation of trepang may well be conservative and that at least some Macassan visitation occurred prior to this time.

212    To take that additional step would be speculative.

213    Significant aspects of the nature of the interactions between Aboriginal people and the Macassans are agreed. Not only were the Macassans seeking goods that were of high value to themselves for sale to the Chinese, the Aboriginal people received form these dealings items of utilitarian value.

214    In my view, it is also appropriate to accept that the provision of goods by the Macassans to Aboriginal people was not random and that it was in return for access to their land and waters and the resources. The Macassans needed access to land to cook and cure the trepang taken from nearby waters. Processing the trepang involved the Macassans having to obtain access to stone (for the purposes of building the kind of facilities described by Flinders in 1802) and a supply of firewood. The Macassans no doubt also needed access to fresh water, marine foods and perhaps other resources as well. Sexual relations with Aboriginal women were also in demand.

215    That the goods provided by the Macassans were in return for such things is borne out by Gillen’s diary entry for 3 November 1890 at Borroloola:

The Malays have been fishing and trading on this coast for over a hundred years and we are rather afraid that the coast blacks will have adopted some of their customs. On the Sir Edward Pellew group of Islands … there are a great number of blacks who collect tortoise shell and pearl shell for the Malays who in return give them rice tobacco and a sort of rum called Arrack.

I take the reference to “tortoise shell” to be referring to the shell of sea turtles.

216    Mr Stead referred to some other early sources in his report, and in terms which I consider to be appropriate:

The anthropologist Spencer also confirmed the commercial/economic aspects of these contacts, stating that the Aboriginal people of the coastal areas to the north and east of Borroloola collected pearls and trepang and received dugout canoes in return (cited in Avery 1985: 115-116). Stretton (1893: 227), a customs officer and Protector of Aboriginals at Borroloola in the late 1880s and early 1890s, confirmed that trade occurred between the people of Vanderlin Island and the Macassans with the former receiving dugout canoes and arrack from them.

217    I note, too, that Thomson wrote in relation to the situation in Arnhem Land that the Macassans recognised the native ownership of land, and the people say they paid tribute each season to the owners of the territories for the right to fish for trepang and pearls. He also said of dugout canoes, that they (lippa lippa) are valued greatly. The Macassans brought them to Arnhem Land each season in their praus and that a prau carried as many as eight or ten lippa lippa. On departure, the Macassans presented the canoes to the natives as part of their farewell payment, and this became a ceremonial occasion.

218    Macknight noted in his 1976 book that tortoiseshell and pearl shell could be easily gathered by Aborigines and kept for exchange. In return, the Macassans supplied food, tobacco, alcohol, cloth, axes, knives and many other miscellaneous items.

219    It is agreed between the parties that the Macassans took away with them trepang, pearl shell and tortoise shell. The evidence also suggests that a number of other resources were taken away as well, in particular, timbers of various kinds (Macknight) and pearls, sandalwood, tin, manganese, dried shark tails and buffalo horns (Baker).

220    It is clear that the Sir Edward Pellew Islands were important to the Macassans’ operations, and that the scale of operations there was significant. Baker conducted field work on the Islands in 1982 and 1983 and this lead to his report Macassan Site Survey and Bibliography. In this he recorded some 20 “Macassan sites”: one on West Island, two on South-west Island, six on Centre Island, three on North Island and eight on Vanderlin Island. Baker gives the names of these sites and cites informants such as Tim Rakuwurlma, Musso Harvey and Steve Johnson. Baker was accompanied to most of these sites by Steve Johnson; Musso Harvey accompanied him to three of them. Steve Johnson was living at one of the sites (Yukuyi) at the time of the survey, as had his father. His father carried out trepanging on the Islands after the Macassans ceased to visit and was taught how to trepang by Aborigines who had previously worked for the Macassans. Steve Johnson’s mother was an Aboriginal woman who also had some Macassan heritage.

221    As indicated, it is common ground that the assertion of sovereignty over the claim area occurred in 1788. It was not until significant non-indigenous settlement of the claim area and the claim region occurred in the 1880s that significant coherent evidence of the traditional laws and customs of the Claim Group in the region were systematically observed.

222    I accept the cautionary submissions of the Territory about relating those observations back to sovereignty. It is both necessary and permissible to draw inferences about the content of traditional law and custom at the time of sovereignty from evidence of laws and customs as they existed after “first contact”: Harrington-Smith v Western Australia [2007] FCA 31 (Harrington-Smith) at [341] per Lindgren J citing Gumana v Northern Territory (2005) 141 FCR 457 at [194]-[202] per Selway J. As the Territory said, there are, however, constraints on the retrospective inferences that can properly be drawn, and care is required in inferring (by the application of logic and human experience to the facts that are provided by admissible evidence) from evidence of the conduct by a person or persons of some activity that they have exercised some form of right under a system of rules recognised by the common law. The discussion of those matters by Lindgren J in Harrington-Smith at [331]-[342] is necessarily to be borne in mind.

223    The lay evidence may also inform the findings about the nature and character of the people of the claim region with the Macassans at sovereignty.

224    Graham Friday is also a Yanyuwa and Wuyaliya man. He said he is ngimarringki for those places because under Aboriginal Law, he is ngimarringki for his father’s country, and jungkayi or custodian for his mother’s country and his father’s mother’s country. Both roles are important. That applies across the claim group.

225    He said:

If strangers want to go hunting in or around Borroloola, they have to ask permission from the Borroloola ngimarringki or jungkayi. … The old people taught me that you have got to get permission to go onto someone else’s country, including their sea country. … The permit system is a white fella law, but it works the same way under Aboriginal law: you need to ask permission to enter someone else’s country.

Under Aboriginal law, the ngimarringki and jungkayi have got that power because they are responsible for the country and all the resources in it.

226    He also said that, under Aboriginal law, resources like animals, trees and plants belong to the land and the land belongs to the traditional owners. Hence, traditional owners have the right to use most resources on their country without talking to their ngimarringki or jungkayi as long as they follow the rules about respecting country”. He said he has the right to get wood and build a bough shed because “I’m a jungkayi; I get whatever I think I need from area around his house and bring it back and use it; nobody can stop me using the resources of this area for doing this kind of thing”.

227    Warren Timothy, through his father and his grandfather is also a Yanyuwa and Rrumburriya man and ngimarringki for Vanderlin Island. His mother’s name was Norma Timothy. Her ngimarringki country was West Island (Mamandanbuda) in the Gulf of Carpentaria, which is Mara and Yanyuwa country. He is jungkayi for his mother’s country. He said:

My teachers taught me that being traditional owners of country means that the country belongs to you. It’s yours. You can do what you want there, so long as you follow the rules. You speak for that country. You control who can come there and you make the decisions about the country. The traditional owners also own all the different things that are in the country like the animals and bush foods.

I have every right to use whatever it is on my ganggu country, yes. And I can …”

When asked about the situation with the country of his other grandparents, Warren said: “Yes, I’m – I do have rights too to use it – use that country because I’m jungkayi too”.

228    He described that strangers have to see the traditional owner to do things on the land. The ngimarringki and jungkayi do not have to say “yes” if they do not want that person on their land: “[t]here’s no law in stopping us getting payments. … we have the right to – to demand what we want, you know, out of it to – to make money out of what – what they want to do to our land”. He said that applied “back before land rights”.

229    Wendy Roper said she and her brothers are ngimarringki for the claim area and the country around it. In their culture they are ngimarringki “for the country that we get from our fathers and our ganggu (father’s fathers). The ngimarringki, she said, are like “the bosses of the country”. She confirmed directly the evidence of both Graham Friday and Warren Timothy. As to the resources of the country, she said that nobody would stop her getting various resources from the country: “because it’s our country and we can do what we want. … And use the resource from our land”.

230    When asked whether all the things that make up the country belong to anyone, Wendy said: “The people of this country”. She said that “Our law” allows the traditional owners to make agreements with people who want to use the country. They have to talk to the elders, the ngimarringki and jungkayi and see if they agree or disagree. They can say yes or no.

231    Jack Green is a Garawa man and he is mingirringgi for his father’s and his ganggu’s Mambilayi Wurrul and Mambu countries. He asserted that: “When strangers want to come hunting, camping or fishing on his family’s country at Robinson River, they need to ask permission.

232    When asked how he looks at the various resources in the country in terms of who they belong to, Jack replied: “Because it my country, you know, I’m a ngimarringki for that country, I have to look after the country because it – it’s my country”. When asked whether these things belong to anyone, Jack replied: “No, it belong to me … [y]es and my family … and my sons, daughters”. When asked are there any rules about what you can do in your own country, Jack said: “Yes, I can do a lot in my country, yes”. When asked what he can’t do in his own country, he said: “the only thing that ngimarringki can’t touch is the sacred site”.

233    When asked if there was anything in his laws and customs that says that trading things from the country is somehow wrong, Jack replied: “Well, it wrong for me if I have to trade off my own sacred site. … But if it’s something outside of that, I think it to be benefit of my people to if they – if there’s a better agreement in place”. He then agreed that there is no rule against or no problem with selling things, or trading things, from clear places if there’s an agreement about it”, adding “proper agreement in place”. Jack then explained that by “proper agreement”, he meant “fair agreement”. “Like, I mean, people get compensation properly for the damage of that country and make sure they don’t do too much damage …”.

234    In re-examination, Jack was asked a hypothetical question about the sale of biggigi if there was a market for it. He said: “I said early part on, if that tree, biggigi, goes through sacred site, they can’t touch that, but outside they can, you know?” This was followed by the question and answer below:

Does that mean that people could come and take every single biggigi in this country and – and sell it, so there’s never be any more biggigi left?

No, they’ll – like I said early part on, there has to be a – some sort of agreement that they can only sell some and some have to stay there so we can teach our kids, you know?”

235    Dinah Norman is a very senior Yanyuwa Wuyaliya woman and jungkayi for Borroloola town and the Rrumburriya country nearby. She said:

Under Aboriginal Law you follow you father for country, so I am ngimarringki for the same islands as my father and my grandfather … The countries that I’m jungkayi for and my mother’s mother’s country are all still important to me. I still have strong connections there.

236    As to the use of resources, she gave the following evidence:

If I wanted to build a house here, we can do that.

Why?

Well, I’m Jungkayi.

If you wanted to take things from around here and sell them, is there any problem with that?

No, I’m like – yes.

You’re what?

I’m right to sell them. I’m a Jungkayi, yes.

Dinah then said that she in fact makes baskets and sells them through the Arts Centre.

237    Mavis Timothy said she is ngimarringki for Vanderlin Island, and in and around the town of Borroloola. Under Yanyuwa law, she gets her ngimarringki country down the father’s line, but she also has strong connections to her mother’s country. She described jungkayi as being like policemen because their role is to make sure the ngimarringki and others follow Aboriginal Law. She confirmed that, under Aboriginal Law, strangers (leng-unji) need to ask permission before entering the claim area. She said: “If we don’t know people who come to Borroloola, we say to our family something like, nunga leng-unji lija: ‘We don’t know who you are’”.

238    In relation to taking and using resources, she said there is no rule under Aboriginal Law that says she cannot use the resources on her country for what she wants: “As ngimarringki I can use the animals, bush tucker, bush medicines, trees and water on my country. But there are some rules that I need to follow”. And she said: “It is right for us to do that, to collect the woods around if we get the fish down there and shark and barramundi. … Because I’m allowed and I’m a traditional owner of the country …”. When asked whether her law says anything about taking resources from her country and selling them, Mavis replied: “Well, the people that make things from this land, they’re allowed to do that and sell it, yes. … And they bring it up here to the Arts Centre and they make it and then any tours come along and they buy it off the Arts Centre”. When asked why they are allowed to do that, Mavis replied: “Well, because they make them and they’re allowed to do that. And we don’t say anything about it. We are the traditional owners with it”. When asked about receiving money for things like sand or gravel on her country, Mavis replied: “Well, it’s the right way they go through the ngimarringki and jungkayi, yes. We say yes, we agree to that”. If somebody wants to do something people are not happy with: “People will go and talk to them if they not agree to that”.

239    She recalled that the Macassans provided tobacco, knives and clay pipes: “Yes, they give them those things because of that trepang and they’ve used the sea to collect them, and the island”. When asked if that kind of a deal is right or wrong in her law, Mavis replied: “That’s right”.

240    Billy Miller is the oldest male jungkayi for the claim area. His evidence included:

What about – not talking about ceremony though, talking about just everyday things like getting food and ---

Oh yes, we go down the river and they get fish and everything we cook. Well, you’ve got biggigi. You know, we used to go a long time now hunting for kangaroo, turtle and goanna and all that, yes.

And the Ngimarringki and the Jungkayi, is there any – are they allowed to do that on their own country?

Oh, yes.

What else can they do on their own country, like ---

Well ---

--- you tell me?

--- you see – well, you can do whatever you want if it’s your country. You can do whatever you want.

Is that some new idea or is that ---

No, no, no.

Where’s that idea come from?

That was there all the time.

From old people?

Yes. Say but before I go back to my country over there, I’ll do what I want.

Yes.

But the island – I’m an island man and not mainland.

241    He said that under the laws and customs, “our mob is allowed to make an agreement with Cairns Contracting. There’s no problem with that. You can use things in the country and make money from them”.

242    The issue is whether those dealings are consistent with either the Applicants’ proposition that they were – by the time of settlement – carried out in accordance with the traditional laws and customs of the Aboriginal people in relation to the land and waters in the claim region, or the Territory’s proposition that they were – up to and for a little time afterwards – carried out as an activity outside of and unrelated to those traditional laws and customs. If that consideration leads only to a state of being agnostic, that is the findings about those dealings are capable of supporting either proposition, it will be necessary to consider whether there is other evidence which informs the decision on which of those propositions is more probably correct.

243    It is clear enough from the lay evidence that up to 1907, when dealing in trepang was made unlawful, the people of the claim region had quite extensive dealings with the Macassans. That covers the period from about the late 1800s, because their inter-generational informants reported it to them, including reporting some personal observations.

244    The earlier observations confirm the common ground that, commencing from approximately 1783, Macassan trepangers came annually to northern Australia, including the Sir Edward Pellew Islands, to capture trepang. They used places on shore for cooking and curing the trepang. They used firewood and took away other resources including pearl and tortoise shell. The Macassans provided Aboriginal people with items of high value to them. They negotiated a form of agreement with the Aboriginal people probably grounded in economic considerations of bargaining and mutual advantage involving permission from the Aboriginal people. The Macassan visits ceased in 1907.

245    The significance of that material will be addressed in more detail later in these reasons for judgment. However, subject to further considering the particular submissions about the character of those dealings, it is appropriate to record that the evidence indicates strongly that from about 1783 onwards, and until 1907, the people of the claim region dealt with the Macassans on a regular basis exchanging the partial access to the resources of the waters in the vicinity of the Islands, and the partial use of the physical resources of the Islands themselves in exchange for material objects seen by the people of the region as having value and practical utility. Those dealings, at least as the lay evidence shows – going back in memory of their informants as to the later part of the 19th century – was, at the least, consistent with the traditional laws and customs of the Aboriginal people then holding native title rights over the Islands.

246    Before considering the particular submissions on that material, I will refer to the other main topics referred to above.

(3)    Resource Utilisation Activity at Sovereignty

247    Senior counsel for the Commonwealth, in the analysis of the evidence at what was described as a “thematic level” accepted that at sovereignty the Applicants, as members of, and as part of, a wider group through their ancestors took and used the resources of the claim area and of the claim region generally. He accepted that those resources were taken and used, and at the same time there was a passage of goods between the claim group at sovereignty and the Macassans, and separately some intra-indigenous passage of goods. He described those transactions as being only for social, political or religious reasons, and not amounting to the exchange of, or bargain for, those goods for commercial purposes.

248    They are obviously significant questions the Court must address.

249    However, I do not accept the submission, to the extent that it was made, that there is a need to support a finding of the wider right to take and use the resources of the area as claimed, that there be some inherent objective measure of the value of the goods or resources taken from the claim area. I do not consider that there is a need for the Applicants to show that they had a unit of currency as that is conventionally understood, or an objective measure of value, before the claimed right can be established. Nor, as my subsequent findings indicate, do I accept that the only reason for the taking and use of resources was for social, domestic or religious purposes.

250    It is obvious that the absence of a unit of currency or an effective measure of value of individual resources from the claim area, measured one against the other, or against resources exchanged or brought for social, political or religious purposes, does not mean that the only reason for the taking of those resources was social or religious. To take that step as a matter of logic would be wrong. In the course of considering the evidence, however, I have borne in mind the assertion made by the Commonwealth that the basis of any transactions with the Macassans at and immediately following sovereignty was a “tribute basis”, and the further contention that the basis of any intra-indigenous dealings with resources from the area or the reception of resources of other Aboriginal groups was either exclusively ceremonial or religious, or exclusively social. Both experts acknowledged that goods exchanged with the Macassans had high utilitarian value (and the agreed facts in the Joint Memorandum says that).

251    As a refinement or alternative proposition in relation to the description of any transactions with the Macassans as on a tribute basis only, it was said additionally that those exchanges occurred for the purposes of a political alliance only. To acknowledge that the exchanges had some utilitarian value really is inconsistent with such a proposition. It is not necessary to disentangle “political” purposes from practical purposes, or indeed to accept that there is a sharp and necessary contra-distinction between those two descriptions of the nature of a transaction. Any exchange may have multiple purposes in the minds of the individuals. The article of Thomson to which I have referred above recognises that in many of the transactions in which property, or “gerri”, changes hands have an aspect which is more than strictly economic, but it does not support the proposition that the existence of a social or ceremonial aspect necessarily excludes any more opportunistic or utilitarian considerations. That, too, is a point made by Avery in his 1985 article “The Law People: History, Society and Initiation in the Borroloola Area of the Northern Territory” included in the book of exhibits, and in particular at 123-124. He makes the point that the relationships between the Aboriginal people of the region and the Macassans went much deeper than “momentary trading”. He does not, upon my review of that article as a whole (at least to the extent it is reproduced in the material provided), adopt the thesis advanced on behalf of the Commonwealth that there was no element of opportunism, utility or exchange for mutual benefit, as distinct from tributary or religious exchange, in the dealings between those people and the Macassans. The fact that the Macassans had sexual relations with Aboriginal women, involving both commercial and social aspects, and in exchange for which the husbands and relatives of those women expected gifts from the Macassans, does not support the thesis that their general dealings in the resources of the claim region were religious only or were an element of tribute only. Of course, that sort of arrangement does not, on the other hand inform or reflect in any material way the extent to which, if at all (and as ultimately I have found it did), a traditional native title right of character claimed was exercised.

252    At a general level, too, I do not accept the stark conceptual distinction that the Commonwealth sought to assert in relation to intra-indigenous dealings. Accepting, as the parties do, that there was a traditional right to take the resources of the area, and to say that mainly the exchange of such resources was on ceremonial occasions, and may have had elements of political/social motivations or the achievement of social prestige, does not demonstrate necessarily that the claimed right did not exist. The motivations for transactions, or the individual benefits to be derived from them, even if involving increased social prestige, do not support a conclusion that the right to take resources and to exchange or barter with them for other objects was not an unrestricted right. In short, it does not tend to demonstrate that the traditional right to take resources was confined to social or domestic, or religious or cultural usage only.

253    As I have said, it is plain that there was no unit of currency, or no accepted objective and independent measure of value, used by the people of the region in the exchanges of the resources of the region either with the Macassans or with other Aboriginal groups. That does not lead to the conclusion that the right to take the resources of the region was restricted to personal or domestic use, or cultural use only. A form of exchange or barter for mutual benefit is not any the less so because it has as its motivation some particular increase in social prestige as part of its motivation. Indeed, at one point, Professor Sansom said that he was using the word trade in “the usual primary sense as the buying and selling of commodities”. The barter or exchange of the resources of the region with others, in my view, as I record later in these reasons, was on an unrestricted basis, but of course with inherent internal or intramural rules governing the circumstances in which they may take place. That is consistent with many societies, including our own.

254    It is common ground that at sovereignty, there were extensive resources that could be, and were, taken from the claim area and the surrounding region. They are recorded in the Joint Memorandum referred to and noted earlier in these reasons. There was also extensive evidence from the Aboriginal persons who gave evidence as to their own and others taking and using of the resources from the claim area and nearby to it which was clearly genuine and reliable. The Applicants in written submissions have provided a table of that evidence, which I will not replicate. As it is, in essence, uncontested, I will simply record that information.

255    It is set out alphabetically, rather than thematically. The resources taken on and near the claim area at present, and in the memory of the Applicants through their lay evidence, and anecdotally from what they had been told by their elders, included the taking of barramundi, biggigi (green plums), not simply used for food but used as an antiseptic to sores and its skin used separately as an antiseptic, black pine tree to make spears, black plums (ma-karlawumbi), blood wood used both for construction of accommodation and for necklaces, blue tongue lizard (a-wayurr), bream (marrinda), brinimum tree used by taking the bark and chewing with tobacco, bush turkey (a-kurndabarra), catfish (awarndimuda), crabs, dumbyumbu (sandalwood) used as a bush medicine, boiled and drunk as a medicine, and made into an ointment for use and sale, and used for bathing as an antiseptic, firewood, fresh water crayfish (majika), freshwater mussels (abiya), freshwater turtle (short neck, bal-wir), freshwater turtle (long neck), garlwa garlwa (white plums), gingal crushed and boiled to make red dye for baskets, goanna (wadapa), ground sugar bag (not the sugar bag found in trees), jubardirri (bush blackberries), kalabirr (tree used to make fishing lines and boiled to treat sores), kangaroo, iamurra (ironwood) used extensively for smoking ceremonies, for cooking, for trade with salt water people, for boomerangs, digging sticks harpoons, coolamons and fighting sticks, lemongrass (a-winga) boiled and drunk as bush medicine, lilly seeds (makakayi) ground for damper, ma-kawurrka rarrvi (wattle tree) used for digging sticks, to make string from bark for canoes, for clicking, and to indicate the change of hunting seasons; ma-manja (bush passionfruit) used not only for eating, but to wrap fish in paper bark for cooking, ma-murala (bush cucumber), ma-wabarl (vine bush potatoes), mawalung (coolabah) used as bark for chewing with tobacco, for building material for bough sheds and for cooking; ma-wungan as medicine to treat diarrhoea, r-makkir, used as white paint in ceremony and traded in ceremony, paper bark tree (a-binjirri) used as burned bark for chewing with tobacco, to wrap shark for cooking, and its leaves boiled for medicine by inhaling, as building material for humpies, to make dugout canoes, for burial ceremonies, and to cover the underground ovens; pandanus used for making baskets and eating its nuts; perch (mijgurndi) used as live bait to catch barramundi; red ochre used for burial ceremonies; red snapper (ngarradaurna), rifle fish (jurlbi), sand used to soften the ground for dancing in ceremonies; shark (adamu), stone used for grinding, sugar bag (durlbarri, wild honey), tamarind, both seeds and fruit mixed with tobacco for chewing; tea tree and tea tree bark used for making humpies and as other building materials for bough sheds; trevalli (wandaranda); wanyiya (single-stemmed bush potato); water collected from streams for general use; water goanna (aiya-rraga); and yathawula (eucalypt tree) used for making spears.

256    That is an extensive list. There is no reason to think that, subject to knowledge increments, and things falling into and out of favour from time to time, that catalogue does not indicate (subject to that principal issue) the unrestricted right to take and use the resources of the claim area at the time of sovereignty, and continuously thereafter.

257    In addition, there are additional resources from other parts of the claim region about which evidence was given by the same witnesses. I will refer to it more briefly. It includes crabs, dugong (both for eating and for ceremonial exchange); lye cart pine (mabuyarra) used for making float for dugong hunting and to make canoes; messmate (budanja) used to make canoes and to make harpoons for hunting dugong; mussels; paperback trees (waragi) to make canoes; pine (waguwagu) used to make clapsticks and to make paddles for canoe; sea turtle used for eating, for ceremonial use, and for shell painting and sale, and its eggs are also eaten; trepang (tharriba) (collected for the Macassans).

258    That description represents a broad description of the resources of the area now taken, and to a degree previously taken, from the claim area and from the claim region by the Indigenous people. To list the resources in that way does not do justice to the depth of knowledge, or the intensity of feeling, which the indigenous witnesses each conveyed in relation to their relationship with the country, their history, and their cultural associations with each other and with other groups and the depth of their connection with the country. But it is sufficient for present purposes.

259    I have referred above to the evidence of each of the lay witnesses, when addressing the dealings with the Macassans. The evidence was directed to that particular topic and, inevitably, also addressed as part of the material the more general dealings with resources of the Claim Group and the people of the claim region.

260    I shall not repeat those references, save to add a few additional observations based on the lay evidence.

261    The evidence of Graham Friday, Wendy (Polly) Roper and Dinah Norman was not specific to the Macassan dealings, but addressed generally what they knew about the laws relating to taking and dealing with the resources of the claim area and the wider region. Warren Timothy specifically addressed the area of the Islands, as well as the general area. So too did Mavis Timothy. She provided a strong link between the people for the Islands and the Town itself. Her evidence specifically founded the dealings with the Macassans in traditional laws and customs. Billy Miller, although his evidence was generic rather than focused on dealings with the Macassans, identified himself as “an island man”. As his evidence related to the Town and to the areas surrounding the Town (including the Cairns Contracting arrangement), he too presented a picture of a coherent and functioning set of traditional laws and customs addressing the right to access and take the resources of the claim area and the wider region.

262    It is also apparent that in contemporary times there have been a number of transactions between the Claim Group through the Narwinbi Aboriginal Land Trust (NALT) and others which clearly have a commercial character. In January 1995, the NALT leased premises at Wondangula (Police Lagoon), located on the same Rrumburriya country as the Town of Borroloola, for the purposes of a general store and associated facilities and on the basis of a lease payment and other benefits. In 2007, the NALT entered into the Meat Harvest Agreement between Katherine Wholesale Pet Meats, the Northern Land Council (NLC) and NALT in respect of feral horses, buffalo, camels, dogs, goats, deer, donkeys and cats for the whole of the NALT area, excluding certain designated areas. That agreement also provided for monetary consideration. In 2009, there was an agreement between NALT, the NLC and Cairns Industries Pty Ltd called the Sand and Gravel Extraction Agreement relating to extractive minerals, mainly gravel and sand, and associated activities in part of the land of NALT, at a site somewhat past the Borroloola Cemetery. Again, that provided for monetary consideration.

263    In 2009, a further sand and gravel extraction agreement was made between NALT, the NLC and Mabunji Aboriginal Resource Association Inc again relating to the right to extract gravel and sand from an area which is part of the NALT area. Again, monetary consideration was agreed. Also, in 2009, NALT and the NLC entered into a further meat harvest agreement with Howard Springs Pet Meat Supplies Pty Ltd in similar terms, in respect of the whole of the NALT area, except for designated excluded areas. Again that agreement was for monetary consideration. In 2011, a further sand and gravel extraction agreement was made between NALT, the NLC and Mabunji Aboriginal Resource Association Inc in similar terms as the earlier agreement. In 2012, NALT and the NLC entered into an agreement to lease to Power and Water Corporation, part of NT Portion 2087, that is land in the immediate vicinity of Borroloola commonly known as the Sewer Pond. Monetary consideration was agreed. The Meat Harvest Agreement of 2007 was preceded by a previous agreement of September 2006. There have been a number of other agreements in respect of petroleum, mineral and infrastructure interests over land subject to native title around the Town of Borroloola, as the affidavit of Charlotte Deans of 16 December 2015 discloses. Their contents have not been proven, because they contain confidentiality clauses.

264    Graham Friday said that he was involved in the making of the agreement with Cairns Contracting, and the negotiations leading up to it. He said that, as he understood it, it was a similar sort of arrangement to what the old people did with the Macassans, except that they had no money (in the sense of currency).

265    Other activities said to be significant by the Applicants include the making of baskets and their sale to tourists through the Waralungku Arts Centre in Borroloola, by Tim Rakuwurlma and Borroloola Willy having carved animals, boomerangs and the like and swapping or trading them at ceremonies or at occasions such as NAIDOC Week with other Aboriginal people. Warren Timothy described that activity. He also described or said that he had been told by the old people how they would sometimes send dancers to Roper (Ngukurr) for marntiwa. He said they sometimes used to send a young man to collect the dancers from Roper when they did not have enough dancers in Borroloola. He said also that when that occurred, the dancers got paid, perhaps in boomerangs or something else of value. He also described how, when young boys now go through marntiwa, their families pay the singers of the ceremony with money, tucker or other things to thank them and they also cater for the dancers. He also described how some people from the salt water country near the mouth of the McArthur River paint and sell the shells of turtles that they catch in that area. He said that was a proper activity. When he was growing up, he described how Roy Ross (who was related to his grandmother and to his grandfather, Old Tim) used to make some boomerangs and he said that, sometimes Old Tim used to sell them to tourists when they came over to the pub. He said his grandfather was authorised to do that because he was the traditional owner. He also said another Rrumburriya man called Norman Kingsley used to do the same, selling boomerangs at Mara Camp or at the Arts Centre, and Warren Timothy used to sell those things for Norman Kingsley.

266    He also described holding a ceremony where there used also to be trade or exchange at the time of the ceremony. He said things like boomerangs and clapsticks, fighting sticks and other such objects, produced from the lamurra tree which is peculiar to the area, were used and in exchange people on the coast brought meat up to Borroloola and traded it for the lamurra tree. He said that does not now occur.

267    Wendy Roper described how Nancy McDinny and Peggy Mawson make dumbuyumbu into a paste or ointment that is sold in jars.

268    Jack Green referred to the long history of marriage, ceremonies and trade between the Garawa people and the Mornington Island people.

269    Dinah Norman described the making of grass skirts using pandanus leaves and gingal (red dye). She gives them away or sells them. She said that was in accordance with her traditional laws and customs. Other old people were similarly making baskets and coolamons and selling them to others. She also makes clapsticks and coolamons and baskets which she sells through the Arts Centre.

270    Mavis Timothy described that her sister-in-law, Norma Timothy does much the same things, and sells them at the Arts Centre. She said her mother also had made baskets like these at Marlandarri but she kept them for her own use. She knew about the sale of sand and gravel from the country and agreed that it was in accordance with the traditional laws and customs of the community at present that they should do so. She did not have much knowledge of the agreements with the pet providers. She described also, in September of each year, a Turtle Camp on her mother’s country at West Island. She said a lot of Yanyuwa people go, and tourists also attend. The tourists are told stories and hear Macassan songs and other corroboree dancing. They pay to camp on the island.

271    On this topic, which necessarily required the consideration of the resource utilisation and resource rights since sovereignty because the lay evidence directly relates to the present and the past, the picture is quite clear.

272    The resources taken from the claim area (and the general Borroloola region – using the expression in the Joint Memorandum) were extensive, and unrestricted save by cultural considerations such as conservation, protection of sacred areas, and the regulation imposed by the group hierarchy. The resources were used for utilitarian purposes and for consumption. More recently, the resources have clearly been “traded”, subject to the cultural considerations referred to.

273    There is nothing to suggest that the access to and use of the resources at sovereignty was not, subject to the cultural considerations referred to, equally available and utilised.

274    Again, the findings to be made on the principal issue will be addressed later in these reasons.

(4)    Exchange activity between Aboriginal people or groups at sovereignty

275    Professor Sansom’s evidence concerning the solely ceremonial exchange quality of any dealings in resources of the area depends heavily on Thomson’s findings, as set out in his 1949 work Economic structure and the ceremonial exchange cycle in Arnhem Land, being found to be applicable to the people of the relevant society and their forebears.

276    Based primarily on Thomson’s work (and also Stanner’s work on the Daly River in the western part of the Northern Territory), Professor Sansom opines that the ceremonial exchange system was “drastically unlike” commerce on a series of counts, and that an appeal cannot therefore be made to the traditional exchange systems in order to establish that commercial dealings find any precedent in “customs observed” and “traditions acknowledged” at sovereignty.

277    The Applicants case is that:

(a)    there is no basis on which it can be held that Thomson’s findings are applicable to the claim area or claim region; and

(b)    even if Thomson’s findings are applicable, the Applicants claimed native title right to access and to take for any purpose the resources of the claim area is still established, principally because the ceremonial exchange system that operated in Arnhem Land:

(i)    governed only the circulation of a particular class of material items, which in Professor Sansom’s view were “objects of virtue”; put another way, the circulation of this class of material items by no means covered the field; and

(ii)    performed significant economic functions and conferred significant economic benefits on its participants, particularly because it allowed participants to “milk” goods from it for their own use.

278    Professor Sansom wrote in his report at [53]:

Ancestors of the Applicants had ceremonial exchange links with people of east Arnhem Land and so were integrated into the exchange cycle described for east Arnhem Land by Thomson (1949).

279    He explained that he relied on Avery: The Social and Economic Organisation of Life in the Borroloola Area Prior to the Pastoral Industry, an unpublished manuscript included in Exhibit A20. Avery noted at p 15 that Yanyuwa people’s “strongest ties have traditionally been to the west, to the Mara people and as (even: handwritten addendum) far as the Nungkubuyu people at Wiyakiba beach near the Rose River”. The location of Rose River appears on a map that forms part of Thomson’s work, located to the north of and reasonably close to the Roper River.

280    Avery stated at p 16:

Mobility between these quite distant places was in the past made possible by the canoe; preferably the dugout canoe and less satisfactorily the sewn bark canoe.

He then noted at p 16 that, up to the early decades of this century (apparently the 20th century), Yanyuwa people travelled as far as Wiyakiba under the pandanus matting or calico sails of their dugout canoes. He expressly referred to “the Rhumburriya islanders” and “Old Tim”. He described the people at Wiyakiba beach as Nungkubuyu people. That is consistent with Mr Stead’s evidence that Wiyakiba is located between the Roper River and Numbulwar (Rose River), and that the acquisition of dugout canoes increased people’s travelling range at least up to Wiyakiba.

It is what is assumed from that which is important. It is likely that Yanyuwa people from the Islands probably had access to some dugout canoes from the Macassans by sovereignty, but whether or not they had taken them as far afield as Wiyakiba prior to sovereignty is debateable. Any such connection prior to sovereignty, in the circumstances, is not probable and the existence of similar laws and customs in relation to ceremonial exchange at settlement, at most, would be incipient. People with rights in the land and waters associated with one society will typically have a range of connections with people from other societies. But the access between those societies by dugout canoes would have been just beginning. Even so, this does not mean that the societies concerned have the same or even very similar laws and customs.

281    I agree with Mr Stead, who said that there is “hardly any evidence of that at all” in relation to the proposition that a ceremonial exchange system similar to that of Arnhem Land is or was operating in the claim region at the time of settlement. He made the point that none of Spencer and Gillen, Avery, Bradley or Baker talk about a ceremonial exchange system at all. Spencer and Gillen spent approximately four months in the claim region and three months at Borroloola with many of the groups that constitute the Gulf Cultural bloc. Bradley and Baker each undertook study, Bradley in respect of the Yanyuwa people and Baker in respect of Yanyuwa and Garawa people. So too did Avery, as the title of his PhD thesis indicates.

282    Professor Sansom responded to that material by saying that ceremonial exchange systems existed the world over and that European observers were “absolutely blind” to them for many years, until the works of Malinowski and Mauss in particular, and that Malinowski and others “absolutely revolutionised western thinking”: Argonauts of the Western Pacific: An Account of Native Enterprise and Adventure in the Archipelagos of Melanesian New Guinea, London: Routledge & Kegan Paul, 1922.

283    Malinowski’s work concerned the Trobriand Islands, some hundreds of kilometres east of New Guinea. Professor Sansom also referred to Mauss: An essay on the gift: the form and reason/rationale of exchange in archaic societies, Annee Sociologique, new series, vol. 1, 1924. He was a French sociologist. He did not do field work anywhere. No specific pages of Malinowski or Mauss were cited in Professor Sansom’s Report, and in the course of submissions it was not demonstrated how the works of Malinowski or Mauss supported or warranted the extrapolation of Thomson’s findings in respect of Arnhem Land to the Gulf region.

284    None of Avery, Bradley and Baker, all of whom came much later, referred to those works. Baker talked in terms of “trade” and “trading”, both in terms of transactions with the Macassans and transactions with others, as variously noted by Mr Stead in his report at [1.21]-[1.24]. Nor does it appear that either Thomson or Stanner (in the material relied on in evidence) pay any especial reference to Malinowski or Mauss. Stanner does say: “Systems of simple barter between tribes have been reported from many parts of Australia, but they have been very inadequately studied” and he describes merbok in a way that suggests that it has fundamental economic functions: see [181] above.

285    Thomson’s article at 1 does commence with the following:

The work of Malinowski, Firth and others has done much to dispel the idea which was long prevalent that most native people live in a kind of idyllic “pre-economic” state. Many years ago Malinowski showed that a well-developed economic structure underlies the activities of the people of the Trobriand Islands. He showed that these people possess appropriate ideas of wealth and definite mechanisms for its distribution, as well as a system for the organisation of work and of communal enterprise, including extended trading voyages with the ceremonial background of the kula.

286    There was considerable cross-examination on Professor Sansom’s opinion. It is sufficient for present purposes to say that I was left with uncertainty about the correctness of treating the Arnhem Land (Cape York) society (which, relevantly, Thomson and Stanner were addressing on the matters relied on by Professor Sansom) with (it was said) ceremonial intra-or inter-tribal trade only as indicative of the same restriction of intra or inter-tribal ritual trade as carried out by the Gulf Society, including the people of the Borroloola and related region.

287    There was other evidence that merbok or ceremonial trade was not in evidence at material times in the claim region at all, and certainly not exclusively ceremonial, and that there are significant cultural differences between the peoples of the regions, as acknowledged both by Professor Sansom and by Mr Stead, and there are particular features of the Arnhem Land Society (noted by Thomson in his paper, especially at p 5), which tend to point to a contrary view: that widely separated Aboriginal groups would not have had freely encouraged intercourse and communication. Indeed, Thomson at pp 5-6 refers to the “virile Indonesian culture” to which both the Arnhem Land and Gulf Societies became exposed as possibly overcoming “the effects of the intensely segmentary organisation” in Arnhem Land Society.

288    In addition, there is an alternative path to rejecting (as I do) the proposition that intra-Indigenous exchange and bartering at settlement, at least in relation to the people of the Borroloola and related region, were solely and exclusively pursuant to religious or cultural structures or ceremonies. It is that, on the evidence, the hard and sharp line that may have existed in relation to the Arnhem Land Society (to which Thomson was referring) was not drawn by the people of the claim region.

289    Thomson divided material objects into two categories. The first is mardai’inboi or yarkomirri (sacred) – these objects “are sacred by reason of dedication to, or association with, a totemic ancestor or a clan totem”, and include fine ceremonial armlets made from material that has been removed from the actual totem after the narra ceremony, all weapons and implements such as canoe-paddles, certain spears, baskets of a special type, smoking pipes which carry the mintji, the special totemic patterns of the clan. The second is Wakkinnu (non-sacred or profane) – these objects included all of a man’s ordinary possessions, his spears and other weapons, canoe, fishing lines, nets, harpoons and all his personal equipment, and for a woman, her yam stick, domestic implements and utensils, her baskets – and in fact all her possessions.

290    Even within the first category, a number of the items mentioned are not included generally but only for objects with particular qualities.

291    Moreover, in relation to the first category of objects, Thomson reported that they are given regularly to friends and to members of other clans, particularly to those who stand in particular relationships. Thomson said at 48: “although they carry the obligation to make heavy ceremonial presentations in return, any idea of straight-out exchange – in the sense of economic equivalence, of barter or trade, in connection with things that are yarkomirri, is unthinkable”. He also recognised that under certain circumstances and after a lapse of time, a rite may be performed to remove the taboo from objects in his first category, so they become wukkinnu, “ordinary” or non-sacred, and lose their marr, their “power” (to the initiated) and their “danger” (to the profane).

292    In respect of Arnhem Land Society, as noted earlier, Thomson identified and described the six chief ways in which possessions change hands, including the malli (buy or purchase) referred to above. Hence, the sharp and exclusive line supported by Professor Sansom was not drawn by Thomson.

293    Berndt and Berndt’s 1965 work The World of the First Australians. Aboriginal Traditional Life: Past and Present relevantly summarises the ethnographic evidence from all over Australia. Mr Stead and Professor Sansom agreed that the Berndts are well regarded researchers. Under the heading “Economic Exchange and Trade”, Berndt and Berndt set out their findings in relation to six main kinds of gift exchange. It does not do justice to their full analysis to use the following summary, though it is sufficient for present purposes:

(1)    gift exchange on the basis of kinship;

(2)    gifts made to settle grievances or debts, arising from an offence by a single person or group of persons eg to settle a blood feud, and prevent or finalise revenge.

(3)    gifts in return for services or goods;

(4)    formalised gift exchange, involving trade between various defined partners, in a series which may cover a wide area;

(5)    trade: “If we look at any given locality in Aboriginal Australia, in traditional terms, we can see that there is a more or less constant movement of goods, some coming from one direction and some coming from another. These follow what are called roads or paths. … There are hundreds of examples of such trade, all over Australia and McCarthy (1939a) has given a detailed description”; and

(6)    the economics of sacred life – when gift exchange occurs within the context of large sacred ceremonies. “It covers a wide range of activities which must be reciprocated or compensated for in some way”.

294    In my view, when one considers the substantial limitations on the range of objects included in Thomson’s first category and, further, the range of options (other than through the ceremonial exchange system) by which possessions or objects may change hands, and having regard to the materials referred to, it is clear that, even if a ceremonial exchange system of the kind described by Thomson had applied in the Gulf region at sovereignty, it is not an answer to the claimed right to access and to take resources for any purpose.

295    That conclusion does not cut across the views of Stanner in relation to the Daly River area. He described merbok as “more than merely an economic exchange on a utilitarian basis”, noting that it has “a specific, though subdued, ‘ceremonial’ content”.

296    The Applicants accept that the ceremonial exchange system observed by Thomson in Arnhem Land was not one of pure economic exchange, but it appears that the elements of economic exchange were nevertheless central to it. Stanner describes the economic underpinnings and economic consequences of merbok at 162 of his paper, including the system performing economic functions of taking goods to areas where they don’t otherwise exist. As indicated, he said at p 166:

To receive merbok from a partner is to place oneself virtually in debt. One is committed to an obligation to make at some future date a return merbok of ninyer of at least comparable or, preferably, greater value. The merbok is strictly reciprocal, but the return need not be made immediately.

297    Professor Sansom agreed that merbok goods do not travel indefinitely from person to person. They travel until someone takes them out of the chain. Someone would do that because the person needs them for whatever reason or because they wish to use them for a bit, then put them back in, and he accepted Stanner’s statement that “the utilitarian motive is never far absent from the exchange”.

(5)    Resource utilisation and customary resource rights since sovereignty.

298    There is extensive evidence of resource utilisation by claimants at the present time and by their forebears in the past. It has already been referred to.

299    The claimants and their forebears have exploited, and continue to exploit, the resources of the claim area and its surrounds in a pervasive way. This extends to the large range of resources on the surface of the land, but also to resources in waters that overlie the land and to resources that are found beneath the surface of the land. Examples of underground resources that emerged in the evidence are goannas, bush potatoes and perhaps other underground vegetables and the red dye gingal used for dyeing pandanus for basket making. Ground sugarbag is found under rocks on the country and is extracted using a digging stick or crow bar.

300    Other activities mentioned in the evidence involved ground disturbance. For example, people who died at Marlandarri were buried in a burial ground downstream from the camp, various foods were (and are) cooked in ground ovens and stone and were used for various purposes.

301    For decades in the 20th century up to about 1970 (about which time people moved from the eastern to the western side of the river), canoe makers such as Mara man Mac Riley sold canoes to a diverse range of buyers, for example, the Welfare Branch and old Tim Rakawurlma. Some forebears of claimants such as Old Tim and Norman Kingsley made boomerangs and sold them at places such as the pub, at Mara Camp or the Arts Centre. The old people, including people from the family of Dinah Norman, made baskets and coolamons. Dinah Norman herself made coolamons for sale. Baskets, necklaces and jars of dumbuyumbu continue to be made by persons such as Nancy McDinny and Peggy Mawson, a Garawa woman who has lived in Borroloola for a long time, and sold through the Arts Centre. Through the NALT, claimants have entered into a range of commercial agreements relating to resources on their country. On the evidence, all these things are done as of right.

(6)    Conclusions

302    It may be accepted that the pre-sovereignty normative system may well have undergone adaptation from its pre-sovereignty status. It is not necessary to refine the analysis of the adaptations, because the reference point is the traditional laws and customs as at 1788. To the extent that traditional laws and customs have undergone relevant adaptation since 1788, such adaptation is permissible.

303    In this regard, the great adaptability of the people of the claim region should be kept in mind, as should the pace at which adaptation to the Macassan era occurred and the enthusiasm for what the Macassans had to offer. Leichardt’s account of Aborigines running after his party on the McArthur River in 1845 and of them wishing to make a return present as soon as they saw that Leichardt was intending to make a present is reminiscent of the following account given by Finn J in Akiba SJ at [34]:

By the end of the eighteenth century, the Islanders were positively soliciting from passing ships the exchange of “every kind of iron” (to quote Matthew Flinders), for their own artefacts and commodities.

304    The Joint Memorandum, as noted above, identifies (but not exclusively) the issues.

305    At sovereignty, the asserted native title rights are set out in the applications (as amended) and at [10] above.

306    I do not consider that, at sovereignty, the resource access and utilisation activities of the Claim Group were confined to a ceremonial exchange system in accordance with their traditional laws and customs.

307    I have made extensive findings as to the nature and extent of the dealings between the people of the region and the Macassans. The issue remaining is to determine whether those dealings, at the time of sovereignty, took place in accordance with their traditional laws and customs or represented a distinct sphere of activity of economic participation and endeavour, remote from their traditional laws and customs.

308    And, looking backwards, from the present exercise of the rights of access to and use of the resources of the claim area and surrounding areas, which in my view plainly demonstrates the exercise of those rights (and therefore the nature of the substantive rights) as not being confined to personal or domestic usage, whether that present position represents what was in existence at sovereignty, or whether the present practice represents an exercise of rights which is different from that which existed at sovereignty.

309    It should be acknowledged that the current right to access and use the resources of the claim area, and surrounding areas, is not unconstrained. They are referred to above in the recital of the evidence, and their nature and significance is also referred to later in these reasons. They are part of the normative system under the traditional laws and customs of the claim group and the people of the Borroloola region which, I find, existed at sovereignty and which was applied to the dealings with the Macassans.

310    There is no basis in the evidence for a finding that any post-sovereignty changes to laws and customs relating to resource rights constituted a new rule reflecting a lack of continuity of the traditional normative system.

311    The Territory says it is not clear that the interactions with Macassans occurred with the Aboriginal people of the Islands, at a time the Claim Group became incorporated into the land holding group of Borroloola; indeed it may have been long after those interactions ceased.

312    It also says that it is also reasonable to infer that the trepanging activity was Macassan driven: it was not undertaken by Aboriginal people in the absence of the Macassans, who were only present for about a month each year, they provided the equipment and methodology, almost all of the labour force, and took the produce away with them to sell. Hence, the Territory says, the interactions with the Macassans were both geographically, and as a sphere of exchange activity, distinct and separate from the sphere of exchange activity which otherwise took place amongst the Aboriginal people of the claim area. In the absence of information in the historical literature, it is said that it cannot now reasonably be inferred what terms underlay the form of agreement between the Macassans and the Aboriginal people of the Islands, or what the Macassan goods received by the Aboriginal people represented to them.

313    It is accepted that the evidence of the lay witnesses about these interactions suggests various possibilities, including that the goods were gifts given on the basis of friendship, or as payment for labour, or as payment for land use.

314    The lay evidence on the topic of interaction between Aboriginal people and the Macassans shows a moderately detailed knowledge of those dealings in the current generation, obviously at least to a significant degree passed down anecdotally.

315    Although it is agreed that the dealings with Macassans stopped a long time ago, obviously at the time of the statutory proscription in 1907, some of those witnesses clearly had learned of those dealings through their direct descendants. Warren Timothy said that that was taking place whilst his grandfather Tim Timothy was around. Dinah Norman also referred to being told of those dealings through her elders, but including through Tim Timothy and an old man called Banjo who was a brother of Tim Timothy. She understood both those men had seen those dealings. She knew a song about the Macassans which she said had been passed down from the people who used to work for the Macassans. She described others who had that song, and who knew that Old Tim used to sing it. She says that she and others still sing that song sometimes. Billy Miller also described that “old fella Tim” who used to tell him and others the stories of the Macassans coming to the Islands. He did not know much about the extent of those dealings.

316    There is only a slight suggestion in the evidence about whether the Macassans dealt with people from the claim region who occupied the Islands, or only with Aboriginal people further to the north in Arnhem Land. Some of the evidence of Warren Timothy might suggest the latter. But there is clear evidence that it was not confined to Aboriginal people from the northern parts of Arnhem Land. Jack Green, in his painting “Flow of Voices” put an image of Macassan ships which he said came from what his great grandfather had seen, and which had been passed down to him. Part of that boat is preserved and is in the Borroloola Museum. Dinah Norman said that, from her understanding, the people who dealt with the Macassans included some people from “here” (meaning in or in the vicinity of Borroloola) and some from Vanderlin (one of the Islands). Mavis Timothy had identified her father as Old Tim Rakuwurlma, and his father in turn was called Vanderlin Jack. She said her father had described dealing with the Macassans, and had in fact seen those dealings occur. She also knew of Old Banjo, whom she described as her uncle, as another old man who had seen the Macassans. That too was “around Vanderlin Island in our country”. Billy Miller was also aware of the Macassans, and that they came to the Islands looking for trepang, particularly on Vanderlin, and that they dealt with the Yanyuwa people living in Vanderlin at the time. He said that he believed those people were scared of the Macassans, but then became friendly, and received some tobacco from the Macassans. He described it as pretty important as the people wanted the tobacco and it was a way of developing a relationship with the Macassans. That, he said, was in “the Rrumburriyah … Mavis country”. (I take that to be a reference to Mavis Timothy).

317    Each of those witnesses referred to knowledge or understanding they had as to the relationship between the Aboriginal people on the Islands and the Macassans. The knowledge was from what they had been told by old people, including some generational recollections based on what the direct informants had observed. Graham Friday described quite vividly being told by the old people who would “sit around at night in the fireplace and tell us all these story”. He described exchanging, hunting and collecting trepang and giving it to the Macassans for tobacco and axes, and that metal axes (as distinct from the stone axes which were indigenous) were much easier to use to make dugout canoes or to chop down trees. He did not assert detail or any knowledge of laws and customs regulating those dealings with Macassan people. Warren Timothy described an event, which his mother told him, of the Macassans and the Arnhem Land Aboriginal people kidnapping his mother’s father’s two little mothers. He did not accept that that was a consequence of aggressive behaviour by the Macassans, but attributed it to the people from Arnhem Land. He did not accept that he had been told that the Macassans simply intruded in an aggressive way and without some consensual behaviour on the part of the Aboriginal people of the Islands. He, too, identified his informants directly as Old Willow McKinnon and his grandfather Old Tim. He said that in those days the Macassans and the people of the Islands used to trade, so that the Island people would be given something so that the Macassans could take things from their land. He said they were given steel axes and knives and tobacco. Like Graham Friday, he said that steel axes were very useful and faster than stone tools. The knives were quicker to cut up meat and dugong, and the axes were used to make dugout canoes. The dugout canoes were faster and safer for travel. He clearly understood that the Macassans gave his ancestors those things in exchange for the entitlement to hunt on the land and to use the things which were there. Given the context, the fact that he did not know about “the terms of an agreement” between the Macassans and the Islanders is not of particular significance. Clearly, he said, there was some sort of agreement or understanding between the Macassans and the Island people when they were trading. As indicated, he introduced through his answers the words “traded” and “trade”, and later those words were picked up and used in questions, as was the word exchanged. He said he was unaware that the Macassan objects which were exchanged or traded were traded along ceremony routes by the Aboriginal people.

318    Jack Green was asked about the relationships between the Macassan people and the coastal Aboriginal people in his cross-examination. His elders had not told him anything about fights between them. He described it simply as being told that:

When they came down they – they used to give axe and knives and things like that, and some old people used to give them boomerangs or spear --- … show them where the water.

He identified his informants as Old Pyro and Old Blue Bob, who he said was stepfather to his cousin’s sister. He described being told about how the Macassans had come up to somewhere near Five Mile and had helped unloading the boat and were given tobacco and things like that. It may have been at King Ash Bay where the Macassan boats came in. He said that his ancestors used to give the Macassans spears and boomerangs and things like that, and in exchange were given tobacco, flour and sugar. He did not understand much of what the Macassans had come to the southern part of the Gulf of Carpentaria for. He was asked about his informants [his father, grandfather and uncles]:

Did they teach you any laws and customs about trading with Macassans or dealing with Macassans?:

They only said that, when they came here, they had to, like, help them unload and things like that, and they used to give them spear, hair belt and, you know, show them where the water is and everything.

319    Dinah Norman also rejected any suggestion that she had been told about fights between the Macassan people and the Island people, or of the Macassans having guns or rifles. She said that the relations between the Macassans and the Island people was consensual, and that the Island people wanted them to come to the area because they were given tobacco. The Macassans were taking trepang. Some of the old people worked for the Macassans and in exchange received tobacco, sugar, and flour. As noted, during her examination, she was asked whether it was right or wrong for the Macassan mob to be giving those things to the Yanyuwa people. She acceded to the proposition that, in her customs, it was right to receive those things in exchange for what was given to the Macassans.

320    Mavis Timothy gave the same evidence, that is that she had heard nothing of fighting with the Macassans or of confronting behaviour in relation to guns and bows and arrows. She knew of a song that was sung on Turtle Island which was got from the Macassans, and which was associated with corroboree dancing. She was told of those things by her father, about what her uncle and her uncle’s brother had done on those occasions. She said that the song was made up by her uncle, Old Jack Rrumburriyah, her father’s brother. It describes the Macassans coming, having a strange physical look compared to the locals, but not much more. She recalls being told of “trading” (again, a word she introduced in her evidence) involving knives and similar objects. She had not seen them herself. Her father had not described them in detail. She also said pipes were traded made out of clay for smoking and tobacco. She said that those things came from the Macassans because the local people did not have them. She said the Macassans provided pipes, knives and so on to the Island people so that they could come to the Islands and collect trepang. She said that it was right, in accordance with her customs and laws, that there should be the giving of those things to the people and in return for taking the trepang and because they used the sea to collect them and the Island itself. She agreed that that was a kind of deal which was right to do under her law. She also said she was aware that some Yanyuwa people worked for the Macassans probably diving for trepang and collecting it for them or with them. She said they were not paid money but were given the things which she described in exchange. She also said that those transactions took place unrelated to ceremonies or ceremony times. They happened in the Islands, not the inland and not around Borroloola. She said that it was proper to do so because the trepang was in “our country, in our island” and that is why the Macassans gave things over in exchange.

321    As noted above, Billy Miller understood that initially the people on the islands were scared because they had not seen Macassans before. He then described the Macassans giving them some tobacco and things and they became friendly. The Island people wanted the tobacco, and the Macassans apparently wanted to be friendly. He did not know whether any Island people actually worked for the Macassans, or how frequently they had come to the islands. He did know that, in addition to tobacco, the Macassans had given the people knives and axes, which they used then to cut dugouts and so the Island people were able to travel further than previously. They were able to chop wood more easily and also to cut the bark off stringy bark trees more easily to make canoes.

322    It is also important to note that Warren Timothy, in his cross-examination agreed that the steel tools that the Macassans exchanged or gave to the local people were considered “pretty special”. He was asked whether they were traded along ceremony routes to other Aboriginal groups or as part of ceremonies, but said he had not been told about that.

323    As I have indicated, the evidence does not support the finding which the Territory submitted should be made, that the Macassan goods were either used only for subsistence purposes (the perishables) or were only incorporated into the ceremonial exchange system (non-perishables). Although that is the opinion of Professor Sansom, there is no basis in the contemporary lay evidence to support it. I have explained why I do not accept that view. I do not think it can be said that the evidence supports the finding that the objects received from the Macassans were used only for the ceremonial exchange system referred to. Nor do I think it is significant that the tobacco provided to the Aboriginal people by the Macassans during the time of those observations or reported observations, may not have been consumed by them as perishables. The contrary is the case.

324    I find that, having regard to the evidence as a whole the interactions with the Macassans occurring at and from the time of sovereignty comprised the exchange or trade of the resources of the land and waters of the Islands within the traditional laws and customs as then existed, rather than outside them. Over time, those interchanges in my view had come to be built into the traditional laws and customs regulating the relationships between the Macassans and the people of the region. It is a separate question, and one which I shall address as to whether, because that exchange or trade or commercial activity had taken place for a relatively brief period prior to sovereignty (some four or five years or so), that time was of an insufficient duration to permit the application of the existing traditional laws or customs to those dealings or to develop a response to the Macassans and their dealings with the Macassans within those traditional laws and customs.

325    In my view, the evidence clearly shows the barter or exchange of commodities. From the Macassan side, it was the facility of using the lands of the Islands, and apparently some nearby coastal land and to fish for trepang. I exclude from that consideration the exchange of labour provided by the people of the region, because I am not satisfied that the provision of labour is or can be a native title right in relation to the land or waters of the region on the one hand, or that the provision of labour was part of the consideration for the Macassans for accessing the resources of the area (trepang and the use of the land areas). From the viewpoint of the native title holders, it was the material objects received in exchange for permitting the Macassans to access those resources of the sea and of the land areas of the Islands which is important. The partial giving of the entitlements which are within the native title rights and interests which they possessed under their traditional laws and customs at the time, and which are rights and interests in relation to the land or waters of the region, of itself means that the native title holder was permitting access to the resources of the area in exchange for the material benefits referred to.

326    On one view, that is sufficient to resolve that issue. I do not think it is helpful, or necessary, to endeavour to confine the nature of those dealings to one or other of the conventional terms: trade, barter, buy and sell, or exchange. The fact is that they were giving access to the Macassans to their land and waters for the purpose of the Macassans using the resources there, when at the time the people of the region under their traditional laws and customs had the exclusive right to access and use those resources. It was therefore an exercise of their rights under their traditional laws and customs to allow the Macassans access to the resources of the land and waters of the area.

327    If it is necessary to describe the nature of the transactions by which the Macassans received that entitlement to take trepang and to use the resources of the Islands whilst they were in the area, the term malli (referred to above, by reference to Thomson’s material) is appropriate. In my view, the transactions involved the giving of limited access to the resources of the land and waters for material and useful purposes for the Macassans in exchange for the objects and consumables which they received from the Macassans. They are sensibly described as transactions of a commercial kind. I do not consider it necessary for there to have been some intermediate currency, against which the value to the Macassans of what they received and the value to the native title holders of what they received, was each measured. It is not necessary to take that step to move to the course of commercial barter or exchange. It is simply demonstrative of the existence of the claimed native title rights and interests in the terms set out at [10] above. Nor is it necessary that, in some objective sense viewed from the distance of some 150 years, there was an equivalence of value in what was received on either side of the transactions and measured by that theoretical (or actual) intermediate currency. I note that both Macknight (at 284, 285 and 287) and Avery (at 121-123) each use the term trade to describe the transactions between the Macassans and the native title holders of that area.

328    Indeed, Professor Sansom acknowledged that the Macassans “negotiated a form of agreement with their Aboriginal hosts that, as Mr Stead remarks, was probably an agreement grounded in economic considerations of bargaining and mutual advantage”. The agreement itself is a matter of consensus between the parties, as is the fact that the Macassans sought and got permission from the Aboriginal landholders to enter upon and to take or use the resources of the area.

329    With that review of the material, in my view the “sphere of exchange” (to use Professor Sansom’s description) was both regular and annual. It went beyond exchange for subsistence purposes. The exchanges were not confined to exchanges for ceremonial purposes. I do not consider the evidence indicates that they were primarily or commonly only for ceremonial purposes. They were, in the same sense as used in Pilki SJ, opportunistic.

330    Nor is it appropriate to conclude that the exchange relationship and transactions, on those annual visits, were separate from and outside of the traditional laws and customs of the native title holders of the time. I conclude to the contrary, even though the period of such transactions pre-sovereignty was only a period of five years or so duration.

331    The evidence does not show that the exchanges were, or were confined to, a form of “tribute”, in the now conventional dictionary sense (as urged by the Commonwealth), that is as a tax or impost paid in acknowledgment of submission or as the price of peace, security and protection; or, as rent or homage paid in money or an equivalent by a subject to his sovereign or a vassal to his lord …”: SOED, Vol 2, 6 3 Ed. The use by Thomson in his publication (at 51) of the word “tribute” which is in part the basis for that submission does not in its context support that confined meaning, as noted above when referring to that author’s term “malli”.

332    On this aspect, I broadly speaking accept the contentions on behalf of the Applicants, as they much better fit my own assessment of the evidence. Apart from the mere fact of the trading indicating the exercise of traditional rights by involving the limited sharing of one of those traditional rights, as well as its inherent nature, the trading took place in the context of, and with, the normative system.

333    Firstly, clearly the dealings with the Macassans were something other than part of the ceremonial exchange system. The agreed matters note that the agreement between the Macassans and the Aboriginal people was grounded in economic considerations of bargaining and mutual advantage. In the light of Mr Stead’s views, which I accept for the reasons already given, it is likely that the norms that governed the dealings between Aboriginal people and the Macassans included:

(a)    the exercise of the right to control permission to use the country which can be granted or refused;

(b)    the restriction in any event of permission to use the area where it might take place in a sacred area;

(c)    the exercise of the right of the senior people like jungkayi and ngimarringki to make decisions about large use of country;

(d)    the control of behaviours as necessary, with the threat of permission being withdrawn; and

(e)    the control of the use of resources so they take place on a sustainable basis.

334    As noted above, and contrary to Professor Sansom’s statement that the dealings with the Macassans involved only the small minorities of coastal Aborigines, the evidence referred to a great number of Aboriginals who collect tortoise shell and pearl shell for the Malays on the Islands, and Baker surveyed a good number of Macassan sites across the islands, not just Vanderlin Island.

335    There is also no reason to confine “the Island Rrumburriya people”, as Professor Sansom did, only to the persons who are ngimarringki for some of the islands. That takes no account of those persons who have interests in Island Rrumburriya country through their mothers’ fathers, their fathers’ mothers and their mothers’ mothers. Baker found one or more Macassan sites on West Island, South-west Island, Centre Island, North Island and Vanderlin Island. Mr Stead explained that these islands are not all owned by the one group i.e. semi-moiety or moiety of people: they include Rrumburriya, Wurdaliya and Wuyaliya as owners ie ngimarringki. Mr Stead also referred to the evidence of Aboriginal people travelling from Borroloola to the islands when the Macassans were there. The Aboriginal evidence to which I have referred confirmed the diversity of interests in the Islands. However, the Rrumburriya ngimarringki have strong interests in the islands, as Graham Friday explained.

336    Moreover, on the evidence, the effects of the interactions with the Macassans spread beyond the Islands to the coastal fringe and beyond. Based on the evidence from Leichardt, and Spencer and Gillen, Mr Stead expressed the view that Macassan goods were “traded inland from the coast to other groups”. He noted in his Report at [1.20] that:

The ethnographers Spencer and Gillen spent approximately four months in the claim region and three months at Borroloola with many of the groups that constitute the Gulf Cultural Bloc. They noted that iron and tomahawks were being traded to areas with: “… very little intercourse with white men”. As well as tomahawks there was trade between groups for items such as hoop iron with iron replacing stone spear tips (Spencer and Gillen 1904: 634).

The further sources he referred to of Spencer and Gillon: Avery; Stretton and Leichardt confirm that.

337    It does not, in any event, follow that even if these dealings involved only small numbers of coastal Aboriginal people, contrary to my findings, the norms associated with those dealings were somehow outside the normative system of the relevant society. Such norms would apply to whichever members of the society were dealing with the Macassans. Norms that govern the behaviour of uninitiated males are nevertheless societal norms, notwithstanding that they apply to only a fairly small proportion of the overall population. That is, in prat the basis of the reasoning of North J in Pilki SJ.

338    I consider those conclusions are also consistent with, and to a degree supported by the fact that, the annual visitations by the Macassans are an important part of the history of the Claim Group and the other people of the claim region. The effects of that history are enduring. I have referred at length to that evidence above.

339    I therefore conclude that the Macassan visitation to the Islands involved the activities of trade, barter or exchange of a commercial kind, dating from at least 1780. They are transactions of the kind accepted by Barker J as evidencing the right claimed in the proceedings: see Pilki FC at [208]. His Honour described how the claimants or their forebears “exchanged with persons outside their territory resources that come out of their traditional territory in return for other things that were useful to them, such as grindstones or tobacco”. I therefore conclude that the dealings with the Macassans was conducted by the Indigenous people of the region in exercise of their unrestricted rights to control access to the region, including the Islands, and to access and take the resources of the region without restriction. I also conclude that the people of the region were part of a wider group of Indigenous people which included the present claim group.

340    I now revert to the question of timing which I foreshadowed above. I accept that at the time of settlement, those arrangements were made in accordance with the traditional laws and customs of the Aboriginal people. The fact that the at-sovereignty customary system itself incorporated limitations on the right of estate group members to take resources at a point in time makes it likely that those normative rules were applied to those dealings. The fact that the persons subject to that customary system (or at least the great majority of them) had no knowledge or experience of commerce or business does not mean that the exercise of the right to take and deal in the resources of the area was external to, and remote from, that normative system when those dealings took place, as the respondents contend.

341    The Macassan dealings commenced prior to sovereignty, at least by several years. If there was any time when those dealings were outside the normative system, I infer that they had fallen within the normative system within a year or so of their commencement. The respondents (and indeed Professor Sansom) accept that these dealings occurred pursuant to a negotiated form of agreement i.e. one which both parties were willing to make. In my view, this agreement was not divorced from or unrelated to the pre-sovereignty normative system. In the absence of any reason to think otherwise, I accept that this agreement was based on and consistent with the pre-sovereignty normative system. There is also evidence that dealings of the kind that occurred at the Islands between the Aboriginal people and the Macassans could occur and did occur as part of the normative system elsewhere. The sixth of Thomson’s “chief ways in which possessions change hands” in Arnhem Land is described above and relates to “direct purchase”, a phenomenon that Thomson considered was likely to owe its origin to the Macassans. It is apparent that Thomson regarded it as a part of the customary system at the time that his research was undertaken.

342    Whilst the Applicants do not accept that Thomson’s findings are applicable to the claim region, it is highly likely that something that might be described as “direct purchase” between the Macassans and the Islanders did occur prior to sovereignty.

343    Apart from the immediate evidence about the traditional laws and customs of the native title holders, as first observed and (as I infer – consistently with the agreed facts) at settlement, which supports that conclusion, there is other more generic evidence of the traditional laws and customs of the wider Aboriginal communities, particularly in the northern parts of Australia and around the Gulf of Carpentaria, which supports that conclusion.

344    That is, adopting the approach of North J in Pilki SJ as upheld in Pilki FC in the ways described, the material from the ethnographers (including Thomson) relating to the wider areas itself warrants the inference which Mr Stead was prepared to draw, based on his specific exposure to the Claim Group and the claim region, that more widely such rights existed.

345    Those conclusions are also consistent with both specific and more generic evidence about the Aboriginal use of resources at sovereignty, apart from the dealings with the Macassans.

346    Mr Stead gave evidence that there was “a great adaptability” in the Aboriginal people of the claim region at sovereignty and that this was evidenced by their dealings with the Macassans. The observations show that they got from the Macassans, for example, dugout canoes, iron spear and harpoon points and sails to go out further and to hunt dugong and turtle more easily and to extend their social reach. The evidence from Leichardt, as Mr Stead explained, suggests that Aboriginal people quickly came to the view that they wanted to deal and trade with foreigners. Flinders’ observations of works undertaken and infrastructure established on islands in 1802 (referred to earlier in these reasons) confirms that.

347    Mr Stead gave evidence that, at sovereignty, Aboriginal people generally had enormous knowledge of the environment, which was utilised to make a living. They also had religious use of that environment, which helped them to control it. They had an ability to adapt to particular circumstances. It might be observed that claimants today still have enormous knowledge of the environment, as noted from that evidence discussed above.

348    It may be accepted that, at sovereignty, some resources would not have been used because there was then no known use for them or because something else was more useful. For example, there is no evidence that Aboriginal people ate trepang or did anything else with it. As Mr Stead explained, and I accept, a great majority of species would have been utilised in whatever way was available to that mode of life.

349    Professor Sansom broadly agreed that it is reasonable to assume that, with the peopling of the continent, people came to an environment that was very different from that where they had come from and that, bit by bit, those people and their successors acquired knowledge of the country’s resources and how they might be used. He also accepted that people in this area had, at sovereignty and still have today, a vast knowledge of what the resources of the land and waters are and how they might be used. This knowledge was accumulated incrementally over time, perhaps partly by trial and error and partly as a result of obtaining knowledge from other groups. When asked whether it was reasonable to assume that people used from their country whatever assisted them in their mode of life, Professor Sansom said: “It’s reasonable to assume that they made a pretty good deal of what the country had to offer, yes”.

350    I therefore do not accept that a “frozen-in-time” approach should be taken, to define and limit the extent of the right to access and take the resources of the area.

351    The traditional right to take and use the resources of an area is not to be limited to the resources actually used at the moment of sovereignty. For instance, the use of ochre for ceremonies would exist in relation to such ochre resources as were known at the time of settlement and to other ochre resources which came to be known five or ten or fifty years later on the same country. The traditional right to take and use ochre is evidenced by that activity, but it is a right in itself. The use of a particular plant for medicinal purposes would not be confined only to those plants growing at the time of settlement. If it were learned that another type of plant could be used for a similar purpose, but that was learnt only five or ten or fifty years after settlement, that would not mean the use of that type of plant was not one accessible in accordance with the traditional laws and customs of the area. If it were not known at settlement that the plant could be used for a specific purpose but could be used for a different purpose, that does not restrict or confine the nature of the traditional right to take and use the resources of the area including that plant. Degrees of biological relationships, or degrees of utility, or nuances in the perceived benefit to be derived of or from particular resources, do not provide a basis for defining and restricting traditional native title rights and interests. The respondents did not put any propositions which are really to the contrary, but at least at one point in his evidence Professor Sansom may have suggested that the precise knowledge at a particular point in time is a defining limitation on the right to take and enjoy the resources of an area.

352    Indeed, it is accepted that the estate group members had the unqualified right to access, remain on and use their estate subject to and in accordance with the laws and customs of the original society, and that estate group members had the rights to access and take the resources of their estate and to control the access to and use of the estate and its resources by others. As noted, the only issue is whether such rights were exercisable for commercial or business purposes, or for any purpose other than personal or communal purposes of a domestic or subsistence nature. The respondents accept that position also in relation to secondary rights holders in respect of the estate or estates in which they hold such rights. In effect, it is admitted that they had the rights to access, remain on and use the estate and to access its resources, subject to the respondents’ general non-commercial qualifier.

353    Within the claim group, there were (as admitted) some secondary rights holders and, with respect to control over access by strangers, laws and customs restricting access to some places on the basis of age, gender and/or ritual status, knowledge or authority in respect of an estate. Estate group members had the capacity to control the taking and using of an estate’s resources by others.

354    I observed earlier in these reasons that I would allude to the normative constraints on the exercise of the right to access and control the resources of the area.

355    Access to estates is controlled by the estate group members and there is a hierarchy of property rights in the resources of the estate: possessory rights are most clearly held in respect of immovable objects such as trees and the strength of the rights reduces for moveable objects. In his report, Mr Stead said at [3.19]-[3.20]:

The Ngimarringki are described in Aboriginal/English as the owners or traditional owners of their estate (country). They have a right to enter their country and exploit its resources. … However, their rights to access their country are not unfettered, especially with regard to those aspects associated with the spiritual powers (Wirrimalaru) or presence of their ancestral beings (Dreamings). Whilst the Jungkayi are in a powerful position with regard to access to land, their authority also has its limitation. Avery and McLaughlin’s research reveals that whilst the Ngimarringki are directed by Jungkayi in some aspects of country use, the Ngimarringki can take the initiative in other areas (1977: Part B: 29-43). …

In my experience the proprietary interest with regard to control of access to a country and its resources are balanced between the spiritual authority of the Ngimarringki and the enforcement and mediating prerogatives of the Jungkayi.

356    I have referred above to the evidence which I accept:

(a)    about the right of estate group members under traditional law and custom to control the activities of strangers on their country and about their right to take action in respect of others (whether strangers or not) who breach law and custom;

(b)    to the effect that estate group members are the owners of their country – they have the right to speak for it, to make decisions about it and to control what happens on it; and

(c)    to the effect that estate group members have the right to take whatever resources they need from the country (including resources in waters and underneath the surface of the ground) and to use them as they see fit (including to sell them or to use them in the production of articles for sale), and that nobody has the right to stop them doing so, subject only to certain customary constraints.

357    Within the exercise of those rights, the evidence showed a number of customary constraints on the exercise of their resource rights. Those constraints are accepted as being traditional, on the basis that they have been handed down by the claimants’ forebears. Aboriginal witnesses spoke of the need under traditional laws and customs for them to avoid waste and to take only what they need. These requirements related in particular to food resources.

358    Customary requirements in relation to waste and conservation are entirely unsurprising. They are also a feature of other Indigenous societies. Jack Green said that the rule about waste (and the rules about sites) are not just for Garawa people: “No, it’s right across the – and to, you know, Australia”.

359    Similarly, there are requirements not to leave a mess in the country and not to wantonly destroy things in the country, for example, chopping down trees for no reason. Such things are viewed as disrespectful and native title holders are unhappy when they find that they have occurred. Before things like chopping down trees should occur, it is necessary for the people who wish to do this to talk to the traditional owners. When asked how people would feel if a contractor left the country in a real mess, Wendy Roper said that they would be “upset”. When asked why, she said: “Well, they’re supposed to look after that country while …”.

360    Another clear constant on the exercise of the right to take and use resources is that the exercise must not involve any damage to sacred sites or places such as ceremony grounds, nor must it involve persons going to places that they are not permitted to go to under traditional laws and customs. There was some evidence that, in their minds, they could utilise the resources for their own purposes, but if it was for a larger purpose, the ngimarringki and jungkayi had to agree about that. The lay evidence was explained and contextualised by Mr Stead.

361    There was also evidence of certain rules or restrictions that may apply either generally or to certain people in relation to the capture, slaughter, eating and disposal of certain animal species. Thus, there was evidence that:

(a)    dugong and turtle should not be hunted using a gun – these should be hunted the traditional way, using a harpoon or sometimes in the case of turtles, grabbing them by hand;

(b)    dugong and turtle meat should not be sold because they are sacred, though at one stage it was said in addition by Warren Timothy that their numbers made them endangered;

(c)    dugong should be butchered facing towards the sea;

(d)    certain species cannot be consumed or harmed by certain individuals.

362    The constraints referred to above are addressed in Mr Stead’s Report: in relation to waste at [2.50], [3,21] and [3.27]; in relation to damage to sites or country at [2.19, [2.25], [2.40], [2.41], [2.55], [2.56], [3.18], [3.27], [3.84]; in relation to the non-exploitation of particular species or foods by particular people at [1.44], [2.18], [2.26], [2.49]; in relation to the capture, treatment, preparation and distribution of certain foods at [2.47], [2.48], [3.21]; in relation to dear resources, being resources made dear by reason of their Dreaming associations or use in ceremonies, at [2.15], [2.36], [2.42]-[2.45].

363    The constraints referred to above relate to the exercise of claimants’ resource rights. They do not detract from the rights themselves. They are the same sort of customary constraints as Finn J found existed in the Torres Strait: Akiba SJ at [285], [246], [523]-[582] and [649]. Nevertheless, Finn J included in his determination a native title right “to access resources and to take for any purpose resources in the native title areas”: Akiba v Queensland (QUD 6040/2001), determination of native title made 23 August 2010, Order 5(b).

364    In the light of the above, in my view, the right to take resources was not confined to taking for personal or communal purposes of a domestic or subsistence in nature. There is no basis in the Aboriginal or the expert evidence which I have accepted for concluding that the admitted right to take resources was confined in this way (or at all).

365    Counsel for the Applicants, no doubt rhetorically, said that if the customary right to take resources was confined in the manner for which the respondents contend, it would seem to follow that the dealings that took place under any form of agreement negotiated between the Macassans and their Aboriginal hosts and which continued for nearly 120 years were, from a customary point of view, somehow unlawful. As my findings indicate, that was not the case.

366    On the evidence, I find the right to access and take the resources possessed by estate group members is the right claimed on their behalf, namely the right “to access and to take for any purpose the resources of the estate”. The resource right possessed by secondary rights holders is also the right claimed on their behalf, namely the right “to access the resources of the estate”. It is not restricted in the manner urged by the Territory and the Commonwealth.

EXTINGUISHMENT

367    The issues arising under this topic are now relatively confined. It is accepted that the Territory has the evidentiary onus of proving the extinguishing act and the rights (or powers) exercisable. It is also accepted that the effects of an executive act upon native title, once that is proved, is a matter of law. See generally: Harrington-Smith obo the Wongatha People v Western Australia (No 9) [2007] FCA 31 at [339] per Lindgren J citing Western Australia v Ward (2000) 99 FCR 316 (Ward FC) at [118]-[120] per Beaumont and von Doussa JJ; Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244 at [159] per Branson and Katz JJ.

368    The exchange of Points of Claim (relevantly the Amended Points of Claim of 18 January 2016 (APOC), Points of Defence (relevantly the Third Further Amended Points of Defence of the Territory of 15 February 2016) (FPOD) and the Points of Reply (relevantly the Amended Reply filed on 20 October 2015 (Reply) [which did not require further amendment following the APOD and the FPOD] largely identify the areas over which native title rights and interests are accepted as having been extinguished either totally or in part.

369    The applicants have acknowledged in Schedule D of the proposed Determination the areas within the claim area where native title has been wholly or partly extinguished, and where there is no requirement to consider whether that extinguishment is to be disregarded under ss 47A or 47B of the NTA.

370    The areas are set out firstly in items 1-7 of Schedule D where specified allotments are identified. Secondly, item 8 of Schedule D accepts that native title has been extinguished over a number of areas within certain allotments where public works have been carried out and the necessary adjacent land or waters used or required for those public works. There are a few areas of residual contention addressed under the heading “Public Works – General” below. There are additions to be made to Schedule D by reason of certain further amendments in the Reply (as noted in the Territory written submission at [6] and fn 6. Thirdly, item 9 of Schedule D accepts that various identified roads within the claim area have extinguished native title. There are a few exceptions to that acceptance, in particular:

(a)    24 roads, referred to as “historic roads” where it is admitted that they were created and that they thereby extinguished native title, but it is said that s 47B requires that extinguishment to be disregarded; and

(b)    the extension of Mulholland Street running between Lots 650 and 672 in the Subdivision.

Fourthly, it is accepted by item 10 of Schedule D that native title has been surrendered over Lot 828 under an Indigenous Land Use Agreement.

371    The applicants have also accepted that native title has been partially extinguished by item 1(b) to Schedule D, and to some further degree as accepted in [10]-[17] of the Reply, so that non-exclusive native title rights and interests are claimed over the areas there applied. Those areas, in broad terms, are certain specified lots, parts of lots where public works have not totally extinguished native title, in a few instances where the area is covered by an Occupation Licence, and the waters of the McArthur River that are affected by the ebb and flow of the tide.

372    I shall address only the issues identified by the parties in their submissions. I shall also take up the suggestion offered by the parties that they will confer, in the light of these reasons for judgment, with a view to agreeing upon the terms of the Determination which should be made to reflect these reasons. The present version of the proposed determination is that put forward by the applicants as Schedule D annexed to the APOC.

Public Works - General

373    There remains a range of issues concerning the nature or extent or consequence of certain public works. The Applicants’ written submissions provided 15 subheadings to this topic. I will briefly address them in sequence, to the extent now necessary.

374    The area between Lots 652 and 653 in the Subdivision: there is a dispute as to whether there is a “road or track” between those lots. It is accepted that the area is that marked as “Public Road 6 Wide” between those lots from Mulholland Street as depicted in Annexure GWF1 to the affidavit of Garry Fisher of 12 February 2016. Mr Fisher is the Director of Corridor Management at the Territory, and manages all road opening and closing in the Territory. It is addressed under the heading “Mulholland Street Extension” later in these reasons.

375    Lots 806 and 790: the issue is whether native title is extinguished over parts of these two lots by the Garawa A town camp access road or the Garawa B town camp access road. It is accepted that the Garawa A town camp access road as depicted on the plan entitled “Roadworks and Services Plan Garawa 1” of 4 September 1991 extinguishes native title to the extent it is upon Lot 789 and it is accepted that the Garawa B town camp access road as depicted on the plan entitled “Roadworks and Services Plan Garawa 2” of 4 September 1991 extinguished native title to the extent it is upon Lot 790. In the event, the Territory did not contend for any further areas of extinguishment on Lots 806 and 790 by roadworks beyond those acknowledgments. It is not necessary to address extinguishment over these allotments further.

376    Lot 773: the Applicants acknowledge that native title is extinguished over part of the lot by the Yanyula town camp access road as depicted on the plan: Reply. There is no greater extinguishment now asserted by the Territory. This matter no longer requires specific attention.

377    Lots 818 (proposed) and Lot 797: the issue concerns the extent of extinguishment in areas adjacent to the McArthur River boat ramps adjacent to the communications tower on Lot 797, and concerning the tracks on Lots 653, 654 and 655 adjacent to the bores on Lot 679. The parties agree that the Court need not determine this issue, as its resolution should be able to be resolved informally if the Court’s Determination recognises that areas necessary and incidental to the performance of public works effect extinguishment, and the Determination, as agreed, preserves liberty to apply in the event that any practical limitation becomes contentious.

378    Lots 653, 654 and 655: the Territory does not assert extinguishment beyond that acknowledged in the Reply, so there is no need to address this aspect further.

379    Lots 597, 769 and 770, 773, 789, 790 and 825: the issues concern the extent of extinguishment in relation to drainage easements, as asserted in [68(f)(v)] of the FPOD. The applicants Reply at [16] admits that certain drainage works as described in the relevant sub-paragraphs have extinguished native title to the degree specified. The Territory does not take the matter further than as so admitted. That will be reflected in the Determination. The issues require no further consideration by the Court.

380    The disputes anticipated by the Applicants in relation to Lots 497 and 809, in the light of [68(f)(v)] and [68(g)(iii)] of the FPOD and [16(i)] of the Reply, and [68(f)(v)] of the FPOD and [16(dd)] of the Reply did not arise. The Territory accepted the state of affairs as disclosed by those pleadings.

381    The Applicants dispute the extinguishment asserted in the FPOD at [68](f)(ii)] in relation to Lot 786. It is now accepted that any extinguishment of the exclusive native title rights and interests that exist over this lot must be disregarded on the basis that s 47B of the NTA applies.

382    There are further potential disputes identified in [6] of the Applicants’ submissions on extinguishment which, the parties now agree, are addressed adequately through the APOC, the FPOD and the Reply. There is, again, no need to address them further. In short, the Applicants accept that the proposed Determination in Schedule D does not reflect the admissions in the Reply concerning lots 1, 524, 525, 597, 645, 773, 789, 790, 794, 803, 806, 807 and 825 (concerning extinguishment by various public works) and Lots 920, but that it should do so.

383    It is also noted that the Applicants did not maintain what was said in their written submissions at [7] and [83]-[94].

384    It is now necessary to address the remaining extinguishment issues. It is convenient to do so in the sequence they were addressed by the Territory.

Historic Roads

385    This issue concerns “historic roads”, being the roads or parts of the roads which have been the subject of executive acts creating those roads, but where “the roads” have now been closed, and where the roads were never constructed.

386    The Applicants have identified the “historic roads” as the 24 main roads or parts of those roads appearing on the Town of Borroloola Plan No 7 prepared in 1885 and survey plans TBK 1/37 and TBK 1/38 prepared in 1886. Those roads were “closed” pursuant to statutory processes in 1979 and 1981: notices in the Northern Territory Government Gazette which effected the closures pursuant to s 21 of the Control of Roads Act (NT): see Northern Territory Government Gazette No G28, 13 July 1979 and Northern Territory Government Gazette No G38, 25 September 1981 and the relevant plans.

387    It is acknowledged that, by the 1885 and 1886 plans, the roads were formally “established” pursuant to the applicable statutory processes, and that if they were constructed they would have extinguished native title rights and interests in the areas the subject of those roads. That acknowledgment is consistent with the decision of the Full Court in Fourmile v Selpam (1997) 80 FCR 151 (Fourmile).

388    Section 253 defines “public work” in the following way:

(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:

(iii)    a building, or other structure (including a memorial), that is a fixture; or

(iv)    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

(v)    a well, or bore, for obtaining water; or

(vi)    any major earthworks; or

(b)    a building that is constructed with the authority of the Crown, other than on a lease.

389    Section 47B of the NTA relevantly provides:

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.

390    The provision particularly relevant is s 47B(1)(b)(ii).

391    The Applicants’ submissions are firstly that, because of the historic roads having been closed in any event, none of the descriptions referred to in s 47B(1)(b) covered the claim area when the applications were made, s 47B simply applies on its face. Alternatively, and secondly, they say that s 47B applies because:

(a)    the creation of the historic roads created in third parties (members of the public) the enforceable right of free passage over the relevant parts of the claim area and denied to all persons the right to use that land for any other purpose than free passage or purposes incidental to that;

(b)    the creation of such a right extinguished native title at common law: Fourmile;

(c)    extinguishment by the creation of such a right was extinguishment by the creation of a prior interest within the meaning of s 47B(2) and in the circumstances, s 47B applies to the historic roads where they have not been constructed or established at the time of the applications so that the extinguishment is to be disregarded.

The other criteria for its application are not contentious.

392    The affidavit of Carlos Puig, as Manager of the Aboriginal Land Unit of the Northern Territory Department of Lands, Planning and Environment, of 30 October 2015 exhibits the township plans TBK 1/37 and TBK 1/38 and the Town of Borroloola Map 1885. From that material, and other material, he has helpfully prepared a map of the old subdivision of Borroloola as Exhibit CJP3 to his affidavit, and it is marked so as to indicate the historic roads (and other features). The original township appears to have been planned in an area which presently is occupied in part by the northern end of the air strip and is broadly speaking to the west of Robinson Road in the south-eastern section of the present Town. Obviously, the historical roads occupy a not insignificant area.

393    The Applicants appropriately acknowledge that the real issue, on this topic, is whether the unconstructed roads have been “established” for the purposes of the definition of “public work” set out above. In short, their contention is that the unconstructed roads are not “established” for the purposes of that definition.

394    There are several decisions of the Court touching upon that issue. It is fair to say that the consideration given to this particular issue was not a significant area of contest in the respective actions where it was considered, at least so far as the extent of the consideration of the issue appears.

395    In Daniel v State of Western Australia [2003] FCA 666 (Daniel), Nicholson J at [640] took the view that he was bound by the Full Court decision in Fourmile to conclude that “the setting apart by the Crown, under legislative authority, of the land in question for immediate use as a public road is, in my opinion something quite different, even if no carriageway is constructed on the land …”: per Drummond J in Fourmile at 167. Hence, his Honour said, that mere constitution of the road is sufficient to extinguish native title, irrespective of whether there was no evidence to show usage of the road. Therefore, the constitution of the roads lawfully wholly extinguished native title. In the case of roads dedicated after the commencement of the Racial Discrimination Act 1975 (Cth), those dedications were validated by the validating legislation of the NTA or the complementary Western Australia legislation. It does not appear there that there was any particular focus on the expressions “constructed or established” in the definition of public work.

396    In Neowarra v Western Australia [2003] FCA 1402 (Neowarra), again in a very lengthy judgment addressing a wide range of issues, Sundberg J at [621] observed that it was appropriate to include in the areas of extinguishment those roads that have been “reserved, dedicated or otherwise with some formality classed as a road”, but would not include private roads and unformed tracks which extended beyond the opening words of para (a) of the definition of public work. Again, it is fair to observe that particular focus of the present submissions was not the subject of consideration.

397    More recently, in Banjima People v State of Western Australia (No 2) [2013] FCA 868, the issue was directly addressed by Barker J. Certain “historical roads” were dedicated under the relevant Western Australian legislation by virtue of being marked as a “road” on a plan publicly exhibited in the public office of the Department of Lands and Surveys, or in the Office of Titles. By that process they came to be vested in the Road Board, by s 158 of the Road Districts Act 1919 (WA). His Honour said at [1417] that the dedication by those means amounted to “establishment” of the road by or on behalf of the Crown, so as to constitute a public work attributable to the Crown. That, his Honour said, was consistent with the definition of “public work” in s 253 of the NTA, as accepted by Nicholson J in Daniel and by Sundberg J in Neowarra. It was therefore unnecessary to consider the alternative submission on behalf of the State in that case that dedication of the roads under statute created rights in the public inconsistent with native title and so extinguished native title. That latter proposition would appear to have been derived from the decision of the Full Court in Fourmile.

398    In Doyle v State of Queensland [2016] FCA 13, Reeves J determined that the depiction of an area as a road on a designated plan constituted a previous exclusive possession act within s 23B of the NTA. His Honour’s starting point was the decision in Fourmile, accepted by the applicant in that case, so that the road dedication (if properly made) would lead to the extinguishment of native title: at [23]. The issue in that case appears to have been whether the road was properly identified and dedicated: see at [24]. In short, it was an evidentiary dispute. His Honour inferred at [37] that the appropriate procedures had been followed, so that, in accordance with Fourmile, the land marked as a road constituted the dedication of that area of land as a public road and that the road therefore was regarded as a “public work” as defined in s 253 of the NTA, and further that its dedication was validated and operated as a previous exclusive possession act under s 23B(7) of the NTA to extinguish all native title rights and interests that existed in the area of land comprising that road.

399    That description of that case indicates that, again, the precise issue which arises in the present matter was not debated.

400    In Hayes v Northern Territory [1999] FCA 1248, in respect of a claim for the determination of native title concerning a significant number of separate parcels of land in and near Alice Springs, the issue arose as to the status of “closed roads”, a topic addressed by his Honour at 114-116. There were a number of roads and areas of land within the claimed land which were previously roads, but certain of them by Gazette had been closed as roads. The Territory in that case argued that, by reason of s 7 of the Control of Roads Act 1979 (Cth) (formerly the Control of Roads Ordinance), all roads in the Northern Territory are the property of and are vested in the Territory. Olney J at 115 noted the definition of “public work” in s 253 of the NTA, as including a road that is constructed or established by or on behalf of the Crown, and that “roads” under the Control of Roads Act was somewhat more widely expressed. His Honour noted that s 7(c)(iii) of that Act included as a road land which is reserved or left as a road in a subdivision of Crown Land, but his Honour continued:

… 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. It necessarily follows that by simply providing evidence of the closure of a road under the control of the Roads Act, the respondent cannot hope to assert that the land in question has been affected by a public work. Evidence of the construction of a road by or on behalf of the appropriate authority is needed. In the instances referred to by the respondent there is no evidence before the Court from which it can find that any of the closed roads were or are public works.

401    It does not appear that the words “or establishment” in the definition of public work were the subject of any specific submissions in that case.

402    In those circumstances, in my view, it is appropriate to address the contentions which have been advanced, as part of the process of determining whether the Court should simply follow one or other of those lines of authority.

403    The Applicants point out that the definition of “public work” in the NTA when first enacted in 1993, in what is now (ii) of the definition, had instead the terms “a road, railway or stock-route; or” and that it did not have the reference to a bridge in that part of the definition. There are other changes introduced by the 1998 Amendments; in the light of the submissions, they have no particular present significance. Stock routes became the subject of (iia) of the definition as it now appears. The reference to stock routes at all is probably prompted by the decision under the ALRA in Re Warumungu Land Claim; Ex parte Attorney-General (NT) (1987) 18 FCR 163 that stock routes are not roads for the purposes of ss 11 and 12 of the ALRA. It is also pointed out that the Explanatory Memorandum to the Native Title Bill 1993 (Cth) says that the “use of the word ‘established’ in the definition [of ‘public work’] recognises that many stock routes are not normally constructed but are marked out or identified as stock routes”. They submit, in that light, that with the exception of stock route all things “constructed or established”, ordinarily involve some physical structure or some physical construction or activity, and that established was included to refer to a physically identifiable route, as shown by usage over time.

404    In my view, it is also noteworthy that the 1998 amendments inserting Divisions 2A, 2B, Division 3, and significantly amending Division 4 by the insertion of ss 47A and 47B, appear to support that view.

405    Division 2B dealing with the confirmation of past extinguishment of native title by a certain valid or validated acts includes s 23B dealing with previous exclusive possession acts. There are a number of definitions of that expression, including in s 23B(7) that an act is a previous exclusive possession act if it is valid, and if it consists “of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996. I think the commencement event referred to relates both to the construction or to the establishment of a public work.

406    Section 23C(2) similarly provides in respect of extinguishment of native title by previous exclusive possession acts of the Commonwealth in (2) that:

(2)    If an act is a previous exclusive possession act under subs 23B(7) (which deals with public works) and is attributable to the Commonwealth:

(i)    the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and

(ii)    the extinguishment is taken to have happened when the construction or establishment of the public work began.

Those expressions in my view contemplate both the commencement of some physical activity in relation to the land, and the use of the expression “establishment” can maintain its relevance to accommodate the use of stock routes which have an identifiable physical presence. In that way, both the construction or the establishment can have an identifiable time of commencement and completion. As the Applicants contend, it is a stretch of language to say that the statutory or executive actions leading to the declaration of the former Township of Borroloola amounted to the “establishment of a public work” beginning or defining when the establishment of that public work began and in the case of its establishment its completion also. Also, it may be said, as the creation of a road is a public work, there is no apparent reason why any public work is not “established” by the relevant executive instrument, so there is no need to refer to its construction or the time of its construction starting or completing.

407    On the other hand, as counsel for the Territory pointed out, s 47B(2), that is the operative provision once the section applies, provides for the extinguishment “by the creation of any prior interest in relation to the area” to be disregarded. The “prior interest” is not routinely an expression which would require the physical construction of some activity. Indeed, it is the act of granting the prior interest which, in many instances, is the extinguishing act. That emphasis indicates why, in my view, the observations of Olney J in Hayes do not really have any direct application. It is because they refer to requiring proof of the closure of a road. The comments are directed to whether and when the closure of the relevant roads took place, not to when they were constructed or established.

408    Here the evidence shows the establishment of the historic roads by the instruments concerned and, at least subject to s 47B, the admitted the extinguishment of native title by that establishment. The proposed Determination in Schedule 4 to the APOC specifically says that “the creation of the historic roads extinguished native title, but this extinguishment is to be disregarded pursuant to s 47B …”.

409    So there is an interpretive choice to be made, and one which is capable of supporting either contention from different contextual considerations within the legislation itself.

410    In my view, Fourmile is authority to the effect that, where land is surveyed and declared available for allocation and development, in accordance with a statutory process prescribed under legislation, and the land includes areas clearly identified by official survey plans as roads, there has been a dedication of that area of the land as a public road. That was the effect of the reasons of Drummond J (with whom Burchett J agreed on this topic) in Fourmile, particularly at 168-169. The road in question was found to have been effectively constituted as a public road by the executive actions taken under the applicable legislative provisions. His Honour reached that conclusion even though, as he said at 169:

No roadway was ever formed on the land, but neither that nor the absence of direct evidence of public user of the road, prevents it having the status of a public road. If the public has the requisite right of passage over the land, it is a highway even though passage is difficult.

411    It is accepted that in Fourmile the Full Court (Burchett, Drummond and Cooper JJ) firmly indicated that, by the establishment of those rights, native title was extinguished. As Cooper J said at 187, the appropriation by the Crown of the land constituting the road and the creation of the rights of user are inconsistent with common law rights of native title.

412    In my view, it is consistent with that overall conclusion that the focus is on the rights created by the instrument concerned, rather than on the way in which those rights are exercised: cf Western Australia v Brown (2014) 253 CLR 507 (Brown). It is also consistent with the fact that, at the same time as the roads were created by the two survey plans, other parcels of land were established and subsequently freehold tenure has been issued in respect of some of those parcels. But the creation of the rights in relation to those other areas than the roads itself tends to focus on the instrument which creates the rights as being the relevant establishment of those rights.

413    Consequently, I conclude that the establishment of the historic roads pursuant to the applicable statutory process was, and is, a previous exclusive possession act within s 23B(7) of the NTA, and that it wholly extinguished native title rights and interests over that area. It constituted an act as defined in s 226 which is valid, by reason of having occurred prior to the commencement of the Racial Discrimination Act 1975 (Cth), by the establishment of a public work on the part of the Crown on or before 23 December 1996. It is more consistent with Fourmile that the expression “construction or establishment” in the definition of public work should encompass the establishment of rights of access by the instrument, rather than be read as requiring some additional activity before there is an establishment of those roads.

414    That conclusion is consistent with the authorities to which I was referred, albeit that – apart from Fourmile – the issue does not appear to have been considered in detail. It is, as I have pointed out, also consistent with the focus on the nature of the rights at the time of their creation which indicates the nature and extent of any extinguishment of native title, as determined in the recent High Court decision in Brown.

415    It is not necessary, therefore, to consider the application of s 47B directly (as the applicants first contended), but is still necessary to consider whether, in the circumstances including where the historic roads have been closed, s 47B in any event is enlivened so as to direct that the extinguishment of native title over the historic roads should be disregarded. As the applicants accepted, one consideration relevant to that alternative contention is to identify whether Erubam Le covers the present circumstances.

416    In Erubam Le, the Full Court held that the extinguishment of native title by the construction or establishment of public works brought about by operation of the provisions of Div 2B in Pt 2 of the NTA did not fall within the scope of operation of s 47A(2), in particular because it did not amount to the establishment by the creation of any other prior interest, other than the grant or vesting which brings s 47A into operation: see eg per Black CJ, French and Cooper JJ at [84]-[90]. I observe that the Full Court did not seek to refine the meaning of “establishment” in the way in which the Applicants now contend for it, although that was not directly in issue in the proceeding. That decision has been followed in a number of subsequent decisions. It is not necessary to refer to them.

417    The applicants accept that the reasoning of the Full Court in Erubam Le in relation to s 47A(2) applies with equal force to the application of s 47B(2) in the present circumstances.

418    I have carefully considered the submissions of the Applicants that the decision of Erubam Le is distinguishable because it concerned statutory extinguishment rather than, as here, extinguishment at common law. In that case, the acts which were said to constitute the extinguishing acts took place subsequent to the commencement of the RDA. Consequently, they were invalid unless validated either by the NTA or (as in that instance) the Native Title (Queensland) Act 1993 (Qld). Thus, in the particular circumstances, it was necessary for the Full Court to address whether the public works took place prior to 23 December 1996 but were validated by processes applicable to acts of that character or whether they took place post 23 December 1996; that is, it was necessary to determine whether they were “past acts” as defined in s 228, “intermediate period acts” as defined in s 232A or “previous exclusive possession acts” as defined in s 23B or “future acts” as defined in s 233. Those considerations do not apply in the present circumstances.

419    Nevertheless, in my view there is nothing in the reasoning of the Full Court in Erubam Le which requires extinguishment at common law prior to the commencement of the RDA, and therefore valid extinguishment, to be treated differently for the purposes of considering whether or not either under s 47A (as in that case) or under s 47B (as in these cases) extinguishment should be disregarded for the purposes of a determination of native title. I do not see that the extinguishment found to have been effective in that case by the construction or establishment of public works by virtue of the provisions of Div 2D of Pt 2 of the NTA would have a different application. Indeed, at [93] the Full Court specifically observed that the NTA acknowledges the reality of extinguishment in relation to acts occurring before the RDA came into force, but notes that it seeks to address the uncertainty attaching to the validity of certain acts in between the commencement of the RDA and either the commencement of the NTA or occurring after its commencement (respectively, past acts and future acts). Their Honours conclude at [94] in terms which, in my view, do not permit of the distinction for which the Applicants contended:

With a broader application, s 47A operates beneficially to protect native title within the area it marks out. When it applies, it has the effect that extinguishment effected by the Act, or by the operation of the common law, must be disregarded.

420    Whether or not the historic roads are characterised as a public work, in my view, Erubam Le directs the outcome of the consideration of s 47B(2) in this matter.

421    The establishment of the historical roads pursuant to a legislative or executive process authorised by legislation led to the extinguishment of native title over the historic roads because of the creation of rights of members of the public to traverse the historic roads, and as a corollary because it denied the right of persons to use the land for a purpose which might interfere with that right of free passage: see eg per Drummond J in Fourmile at 170 and per Cooper J at 187. By reason of the decision in Erubam Le, which in my view is not distinguishable and must be followed, the establishment of the historic roads is then not the creation of any prior interest within the meaning of s 47B(2) of the NTA. The consequence of the establishment of the historic roads means that, at the time of the applications, the parts of the claim area covered by the historic roads do not fall within the excluded category under s 47B(10(b)(ii) of the NTA.

422    Finally, to indicate that it has not been overlooked, I accept the Territory’s submission that there is no basis upon which it can be said that ss 47B(2) may operate because the historic roads no longer have that status following the 1979 and 1981 instruments referred to above. There is nothing in the language of s 47B(2) which would enable that provision to operate, peculiarly, in that circumstance.

Mulholland Street extension between Lots 652 and 653

423    The Applicants acknowledge that Mulholland Street was one of the roads within the claim area in relation to which no native title can now exist. They do, however, assert that the “roadway” between Lots 652 and 653 referred to above are in a different category. I note that there is possibly some confusion about the lots abutting this extension, but the plan referred to is clear. They have been elsewhere referred to as Lots 650 and 672, but there is no road between them.

424    It is also accepted that the Mulholland Street extension under consideration was also created pursuant to a statutory process as a “public road” on 31 January 1986. That occurred by the approval and registration of survey plan S84/36A. It was following that survey plan that various freehold grants were registered under the Land Title Act (NT) in respect of the parcels of land created by that survey plan, and which are accessible via the public roads including the extension of Mulholland Street. So much is confirmed by the affidavit of Mr Fisher referred to earlier in these reasons, including the survey plan which is Exhibit GWF1 to his affidavit.

425    As the Applicants point out, the only issue between the parties is whether the extension is a “public work”. If it is, they accept that it extinguishes native title. However, because the construction did not start on or before 23 December 1996 (on the evidentiary material) it would not constitute a relevant public work because (it is contended) unconstructed roads are not public works. That is so even though it is now established by the affidavit of Mr Puig that the extension of Mulholland Street between those two allotments has been constructed, as a dirt or gravel road.

426    That may be a matter of degree, as the submission is that it “looks more like a track established by use than a constructed and maintained gravel road” and there is no other evidence of construction. There is also no evidence of construction (whatever that may amount to) having commenced on or before 23 December 1996. If it was not commenced, and had to be commenced, prior to 23 December 1996, the argument runs that it is an invalid past act because it is within the residuary category of the past act description, to which the non-extinguishment principle would apply: see s 19 of the NTA and s 8 of the Validation (Native Title) Act 1994 (NT).

427    The short answer is that, in the light of my consideration of the status of the historic roads, and for the same reasons, I find that the extension of Mulholland Street was established on 31 January 1986. And I find that it constituted a public work by that date.

428    For the purposes of the Control of Roads Act 1986 (NT), road is defined to include land reserved or left as a road in a subdivision of Crown Land. The Planning Act (NT) regulated the subdivision of land, prescribing the activities required to be undertaken to achieve a subdivision. The Borroloola Town Plan was made by the Minister for Lands on 27 March 1984 pursuant to s 61(1A) of the Planning Act. Part V of the Planning Act then applied to subdivisions. It required a survey plan by the Surveyor General, and in turn the Surveyor General could not approve the survey plan unless he was satisfied of the compliance with Pt V of the Planning Act by the relevant consent authority, in this instance the Minister. Those processes were duly undertaken. It was only following the survey and preparation of a survey plan that the Subdivision could proceed, including the Mulholland Street extension. The consent to the Subdivision was given by the Minister, by a delegate, on 30 January 1986. It is not necessary to refer in detail to the instrument processes. Nor is it necessary to refer to the grants of freehold subsequently made in respect of the subdivided land from 17 June 1986. Those matters are in evidence.

429    In my view, the effect of that evidence is that the Mulholland Street extension (and the other public roads on the survey plan referred to) were established as public roads by the statutory process. Consistent with my conclusion in respect of the earlier part of these reasons, the absence of evidence of actual physical construction of a roadway on the Mulholland Street extension prior to 23 December 1996 is not necessary to have or to achieve that effect. Consequently, its establishment was a past act, validated pursuant to the NTA, and it is a previous exclusive possession act within the meaning of s 23B(7) of the NTA. The result is that native title was wholly extinguished in relation to the Mulholland Street extension, as the Applicants accept was the case in relation to Mulholland Street itself. It also follows, for the same reasons, that the extinguishment of that right cannot be disregarded by operation of s 47B of the NTA.

Tidal Waters

430    There is really no outstanding issue on this topic.

431    It is generally accepted that there are no perennial or permanent waters in the claim area that are physically more extensive than the waters said to be relevantly affected by the ebb and flow of the tide – those waters being the McArthur River and that part of Rocky Creek around its confluence with the McArthur River.

432    It is clear on the evidence of Dinah Norman, Billy Miller, Graham Friday and Warren Timothy that Rocky Creek generally dries up in the dry season and that tidal waters travel a certain distance up the creek from its confluence with the McArthur River. I accept that evidence. The Territory did not seek to controvert it.

433    That evidence was loosely that tidal waters travel up Rocky Creek as far as the place Bunubunu and that this place was on the McArthur River side of the “old crossing” across Rocky Creek. The precise location of Bunubunu or the precise point to which tidal waters at times extend and the precise circumstances in which tidal waters extend that far up the creek are not clear on the evidence. Dinah Norman’s evidence was that, in the dry season, the tide comes in “[l]ike halfway around Bunubunu” and “[o]nly halfway along Bunubunu”, Billy Miller said that the tide “only just go where that Bunubunu Dreaming is”, but he then agreed that this occurs on the biggest tide.

434    In these circumstances, the Applicants contend that the relevant part of the determination of native title should not be framed by reference to the location of the place Bunubunu.

435    The evidence is that Rocky Creek dries up in the dry season, but is affected by the ebb and flow of the tide coming in from McArthur River as far upstream as a place called Bunubunu, which is to the east of the “old crossing” across Rocky Creek and approximately 500 meters from the McArthur River. The evidence of Allan Russ in his affidavit of 5 November 2015, is consistent with that.

436    Mr Russ is an expert in hydrology, and as the Operations Manager of the Water Monitoring Group with the Territory Department of Land Resource Management, his expert evidence addresses the extent to which the McArthur River in the claim area is subject to tidal influence. As the Department does not collect data on Rocky Creek, he did not presume to give expert evidence on the extent of tidal water within Rocky Creek, but his own observations did not give any reason to doubt the other evidence referred to.

437    In relation to tidal waterways, the common law does not recognise exclusive native title rights and interest in waters affected by the ebb and flow of the tide: see Gumana v Northern Territory (2007) 158 FCR 349 at [119]-[134], esp [120] per French, Finn and Sundberg JJ referring to tidal waters landward of the low water mark. See also Gumana v Northern Territory (No. 2) [2005] FCA 1425 at [24]-[29] per Mansfield J. Consequently, any native title rights and interests that subsist in the McArthur River and the tidal extent of Rocky Creek, can only comprise non-exclusive rights. There is no evidence of any other tidal waterways in the claim area.

438    Consequently, in my view, the Determination of native title should record that the non-exclusive rights regime based on the ebb and flow of the tides only applies below the mean high water mark of the ebb and flow of the McArthur River as it extends in the Rocky Creek, that is to a point about 500 east of the junction of the McArthur River and Rocky Creek, and of course in the McArthur River itself insofar as it runs through the claim area.

Non-tidal Waters and Subterranean Waters

439    The Territory took a broad approach to this issue.

440    Its position is that any exclusive native title rights and interests in respect of other waters (flowing or subterranean) in the claim area were extinguished by the passage of the Control of Waters Ordinance 1938 (the CWOrd). The CWOrd was repealed and replaced by the Water Act (NT) in 1992. By the CWOrd, the Crown asserted rights in and/or powers over waters in lakes, springs and watercourses (including the bed and banks thereof). For example, it provided that property in, and the right to the use and flow of water, and to the control of, water at any time in any lake, spring or watercourse vested in the Crown, subject to certain rights: s 3(1). It also provided that no person shall divert or take or use any water at any time in any watercourse, lake or spring save in the exercise of certain rights: s 5, and provided for certain riparian rights: ss 6 and 7.

441    While this statute did not wholly extinguish native title rights and interests in relation to waters, the Territory says it is inconsistent with and extinguished any native title right to possession of the waters and waterways covered by the CWOrd to the exclusion of all others. For that proposition it relies on Ward FC at [400] and [405] per Beaumont and von Doussa JJ; and Ward HC at [263] per Gleeson CJ, Gummow, Hayne JJ, and at [820] per Callinan J.

442    The Territory takes the further step of saying that that extinguishment was effected legislatively and via the Crown’s assertion of its rights and powers over the subject matter, and not “by the creation of any prior interest” within s 47B(2) of the NTA; and flowing and subterranean waters cannot be occupied by a member of the claim group as required by s 47B(1)(c): see Griffiths v Northern Territory (2006) 165 FCR 300 at [779] per Weinberg J (Griffiths).

443    The Applicants make the fair comment that subterranean waters cannot really be occupied in any relevant sense. In addition, they say the occupation requirements of s 47A(1)(c) and s 47B(1)(c) relate to areas, not to particular resources found underground.

444    They disagree with what the Territory draws from Griffiths at [779]. Their submission is that Weinberg J did not hold that waters cannot be occupied within the meaning of s 47B(1)(c). His Honour merely said at [779]: “There is difficulty with the notion that waters of a creek can be occupied”. His Honour then referred to the decision of the Full Court in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (at [170], [196]) requiring that “a broader view of that term” be taken and to Merkel J’s decision in Rubibi Community v Western Australia (2001) 112 FCR 409 in which his Honour accepted the possibility that in some cases there may be sufficient “use” of the waters to constitute “occupation”. Weinberg J then concluded at [779] that the evidence in that case did not connote “occupation” of the creek there in issue in any relevantly acceptable sense.

445    The Applicants point out, too, that if it be necessary to establish “occupation” of any parts of the claim area that are permanently or at times covered by waters, there is an abundance of evidence about the use of both the McArthur River and Rocky Creek and the areas in their immediate vicinities: the evidence of Graham Friday and Warren Timothy confirms that.

446    More fundamentally, the Applicants do not agree with the Territory submission that any exclusive native title rights and interests in respect of other waters (flowing or subterranean) in the claim area were extinguished by the passage of the CWOrd.

447    There have been numerous determinations or judgments of native title relating to land and waters in the Northern Territory (and elsewhere) where exclusive native title rights have been recognised in at least parts of the determination areas and where there has been no provision limiting the nature of those rights in respect of flowing or subterranean waters: see, for example, Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539, [2004] FCA 472; Gumana v Northern Territory (No 2) [2005] FCA 1425; Griffiths v Northern Territory (2007) 165 FCR 391 (FC) and King v Northern Territory [2007] FCA 1498.

448    On the other hand, there have been determinations of native title that have included a provision of the kind sought by the Territory. Thus, in Attorney-General (NT) v Ward (2003) 134 FCR 16, [2003] FCAFC 283 (AG v Ward), the final determination of native title rights on the Western Australian side and the final determination on the Northern Territory side of the border each included a provision to the effect that the rights and interests in flowing and subterranean waters are non-exclusive.

449    The Applicants say that the effect of the CWOrd is fully and appropriately accommodated by the provision included in the proposed determination sought at [13(b)] that the native title rights and interests are exercisable in accordance with, and subject to, the laws of the Northern Territory and the Commonwealth, including the common law. A similar provision appeared in the determination on the Western Australian side in AG v Ward: see the relevant determination at [13].

450    They say that the native title right of exclusive possession is not relevantly inconsistent with a limitation on the use of particular kinds of water. Because the claimants could use water from the claim area in exercise of their right of exclusive possession without breach of the CWOrd and without abrogating rights vested in the Crown under the CWOrd, there was no extinguishment of the exclusive right. In the case of their non-exclusive rights, so far as the exercise of those rights might properly have been read as limited by reference to the CWOrd, it remains possible to exercise them in a manner that did not and does not infringe the statue or abrogate any right vested in the Crown.

451    Hence, they say there was and is no extinguishment by the CWOrd, as it can exist and be accommodated in the present form of the determination sought.

452    The Applicants contend that the Territory effectively is asking the Court to make findings in terms of rights that are narrower than those that have been claimed, so that one or more of them can be found to have been extinguished. The Court, however, is required to consider the broadly stated rights that have been claimed and the evidence that supports findings in favour of those broadly stated rights.

453    They add that, if considered necessary, the rights of the Crown under the CWOrd (or its current equivalent) could be recorded as “other interests” in Schedule E of the determination sought.

454    Obviously, the terms of the applicable legislation are important.

455    The Water Act has a long title which reveals a broad and comprehensive intention. The definition of “ground water” in s 4 clearly includes water occurring or obtained from below the surface, and it specifically covers bore or aquifer sourced water. The word “water” is separately defined to mean water (including water with impurities). The definition of “waterway” is wide, so it clearly includes intermittently flowing channels and intermittently occurring collections of ground water.

456    Section 9 provides that water flowing or contained in a waterway and ground water is the property of the Territory, and the rights to its use, flow and control is vested in the Territory. Certain statutory rights are given for domestic and stock purposes and to owners and occupiers of land including land adjacent to the banks of a waterway: ss 10-14.

457    In somewhat different (and perhaps less detailed) terms, the CWOrd has a similar effect: see ss 3(1), 5, 6 and 7.

458    In either enactment, the vesting of title in water in the Territory was subject to statutorily recognised, or statutory, rights. The Water Act is more extensive in its coverage, as it clearly covers ground water whereas the CWOrd covered, and so was confined to, water in any “lake, spring or watercourse”. By use of the word “spring”, the CWOrd appears to envisage water emerging from underground, whereas the Water Act makes that more explicit. Each, in somewhat different ways, allows for a public right to take water for domestic or stock purposes, including by land owners or occupiers adjacent to any watercourse or lake.

459    The Applicants sought to contrast those statutory provisions with the Rights in Water and Irrigation Act 1914 (WA) (RWIA) as in force at the time of the Ward HC decision. It is therefore helpful to note the comparative provisions of that Act. Section 4 of the RWIA clearly extends to water in any watercourse and any ground water, and covers subterranean water sources. The Crown right of use and control in s 4 is also subject to the public right to take water for domestic and stock use: s 6, and the right of landowners and occupiers to adjoining watercourses and ground water to do so: s 7. Section 4 also permits the land owner or occupier to store water in dams or tanks, subject to restrictions.

460    In my view, there is no reason to discount the observations of the High Court in Ward HC by reason of any material difference in the legislation. In each instance, the vesting in the Crown of the property in, and the right to the use and flow of, water and to the control of water is subject to exceptions.

461    Having regard to the plurality reasons in Ward HC at [89], and set out earlier in these reasons, it would be clear enough that in an area where there are exclusive native title rights, including the right to control access, the right would not be subject to the public rights referred to in the CWOrd or the Water Act because the public could not access the areas adjacent to the water. Nor does that legislation diminish that right, save to restrict the exclusive native title holders from taking water within the area of exclusive native title rights except to the extent permitted by the legislation or unless a licence under the legislation to more actively take and use water is required.

462    There is also, as the Applicants point out, in the NTA no apparent suggestion of native title rights and interests in relation to land or waters being of a different order or character: see ss 223(1) and 225. Although the definitions of “land” and “waters” in s 253 are expressed as alternatives, they both encompass geographical areas or spaces. It is also apparent, as pointed out, that the word “water” as a singular term may be used in a different sense: see eg s 212(1)(b), which appears to use that word as it is used (for instance) in the Water Act and the CWOrd, and see s 2KHA and the definition of “public work” in s 253.

463    So, which of the competing contentions should be reflected in the determination? The Applicants’ position is that it is not necessary to make any express reference to, or qualification of, the native title rights and interests by reason of, the flowing (including intermittently flowing) and subterranean waters within the claim area, or alternatively that they should be referred to only to recognise the Territory’s rights under the Water Act in Schedule E. The Territory says that, even in areas where exclusive native title rights and interests exist, the determination should record that there are no exclusive rights in areas affected by those waters, and s 47B cannot apply because those waters cannot be “occupied” within the meaning of s 47B(1)(c).

464    I do not think that the plurality reasons in Ward HC at [262]-[277] addressing the effects of the RWIA on native title rights and interests directly applies to the present issue. As noted at [262], the dispute was whether land held for future expansion of the Ord River project, as a buffer zone, for drainage and for protection against erosion and flooding is “used” in a manner so as to totally extinguish those rights. The precise content of the native title rights was not, on that aspect, the issue. Of course, in the light of Brown, the proper focus is upon the nature and effects of the rights granted, not dependent on how they might be exercised in the future. That focus was given by the plurality at [269].

465    One argument was whether the provisions of the RWIA meant that there was such inconsistency with native title rights over that area as to extinguish native title: at [262]. It was held that certain reserved land vested in the Minister under the Land Act for or in connection with the “Works”, and that dedication of the reserved land for that specified purpose was inconsistent with the continued existence of native title rights: at [273]-[274].

466    The plurality then turned its attention to the residual Crown lands, distinct from the reserved land. It did not conclude that the RWIA had the effect that those areas were “occupied” or “held” in connection to the works, so it could not be said on the evidence led that the vacant Crown land beyond the reserved land was within the area of the works for the project: at [276]-[277]. That was a question of fact, not to that point in the conduct of that claim the subject of findings.

467    The review of those reasons does not indicate that the particular matter raised by the Territory now under consideration was addressed in that decision, save to remark upon the uncontentious step taken by their Honours at [263] that under the RWIA:

The vesting of waters in the Crown was inconsistent with any native title right to the possession of those waters to the exclusion of all others.

That conclusion would follow also from the CWOrd, and from the Water Act as (as I have found) in the material respects, they are to the same effect.

468    The Applicant’s focus is not, however, on that point. It is upon the land areas themselves where there is, or may be, water from time to time, and (it says) the source of that water (whether above ground or subterranean) does not matter. The particular issue was not addressed specifically in Brown, or in Akiba. And, as the Applicants say, the statutory regulation of a particular activity, which is one of a much broader range of activities encompassed within a broader native title right should not be taken as extinguishing that native title right. It is the regulation of the manner of exercising that activity but not the extinguishment per se of that broader native title right.

469    In my view, in the present circumstances, the right to access the resources of the claim area, where that right has not already been extinguished for other reasons, has not been extinguished or partially extinguished by the CWOrd or the successor legislation in the Water Act. In those areas, there would be no meaningful right given to members of the public to access and take the resources of the areas, including water. The statutory rights to take water in the circumstances prescribed would be confined to the Claim Group, and having regard to Akiba HC would not themselves amount to the extinguishment of native title rights in relation to waters (as part of the resources).

470    Nor, in my view, can it be said that the CWOrd in the Water Act has vested in the Territory the land over which or upon which water lies: see s 3(1), CWOrd, and s 9, Water Act. As I have noted, the expression “waters” in the term “land or waters” in s 47B(10(b)(ii), applying the definitions in s 253, does not have the same meaning as “water” in that legislation; it encompasses both the water and the bed or subsoil. I do not accept that, because the words used in s 47B(1)(b) are “the land or waters in the area”, it was intended to allow for the legislative extinguishment of native title over the bed or subsoil, as well as water over the bed or subsoil (or subterranean water) by an enactment which related to water only. The reference to “area” in s 47B(1) is to address the particular areas within a claim area where, potentially, s 47B may have work to do.

471    Consequently, in my view, s 47B(1)(b)(ii) does not cover the CWOrd or the Water Act so as to preclude the operation of s 47B to the areas within the claim area where they would apply to water.

472    By taking that step, I do not consider it necessary to determine whether, as the Territory contended and the Applicants disputed, the water control vested in the Territory by the CWOrd or the Water Act is vested for public purposes. However, I indicate that I generally agree with the submissions of the Territory in its reply in relation to the Applicants’ Note of 25 May 2016 on this topic. The characteristics of the RWIA which Sundberg J identified and discussed in Neowarra at [741] are also present under the Water Act: its purposes; the regulatory administrative discretions in s 20; the primary obligation of the Controller under s  4 and the powers to fulfil them in ss 20, 34 and 35. I do not think the observations in Banjima FC at [107]-[108] and [114] or in Alyawarr FC at [174], [186] and [190] in their context really assist the Applicant’s contentions to the contrary. Whilst each of those cases in Banjima FC [91]-[92] and [98], and in Alyawarr FC [187], make the point that s 47B is beneficial legislation so that the restrictions on its application should be construed no more widely than is necessary to achieve its purpose, the focus of the CWOrd and the Water Act overall is not merely permissive so that it could be said, as it was in Banjima FC and in Alywarra FC, that interests or rights recognised could not of themselves lead to any particular areas being affected in any particular way. The CWOrd, and more clearly the Water Act, provide sources of power to make effective the vesting of water use and control rights, so they are complementary to the vesting rather than defining its scope.

473    Finally I note the debate in submissions about the word “spring” in s 3(1) of the CWOrd, used in the expression “the water at any time in any lake, spring or watercourse”. I do not consider that the decision in Taylor v Corporation of St Helens (1877) 6 Ch D 264 to which the Territory referred takes the issue very far. It is clear that the grant of rights by a landowner to a company in that case depended in part on the particular terms of the grant: see per James LJ at 278 and per Bramwell LJ at 279-280.

474    However, in my view, the use of the word “spring” in the CWOrd refers to the water at any time on the surface of an area and which emanates from a percolation of water from underground. The water in a spring is the water from that source. The exercise of including “underground springs”, that is subterranean water which is moving, is a contrived meaning which could readily have been included in the applicable definition (as was done in the definition of “ground water” in the Water Act, s 4). The detailed comparison of the definitions of “watercourses” in the CWOrd and of “waterway” in the Water Act, especially cl (d) of that definition, and of the vesting provisions in ss 3 and 9 respectively tend to confirm that.

475    Hence, I would conclude that the CWOrd did not encompass the vesting of subterranean water in the Territory, save when and if it emerged as surface water in a lake, spring or watercourse.

476    It is necessary then to address the nature of the rights created by the CWOrd (and the Water Act) to determine how, but for s 47B of the NTA, they may affect native title. As I have said, I do not regard them as impeding any native title rights to access the areas of the claim area where exclusive native title would otherwise exist, whether the area is dry (as it will be much of the time) or is temporarily covered by water, whether ponded or running.

477    In the circumstances, I do not consider it appropriate in the Determination to qualify the expression of the right to take and use the resources of the claim area, where that right is still an exclusive right, by breaking that right (conceptually) into a series of activities and then treating one of the activities as constrained, so that it should be broken off from the general right and treated as non-exclusive. However, in my view, it is appropriate and necessary to recognise that the enjoyment of that right is qualified by the provisions of the Water Act, by including reference to that Act in Schedule E of the Determination, as it is an important “other interest” impacting on the enjoyment of the native title rights and to the extent that it does so it impacts on them directly and to constrict the enjoyment of that general right.

478    I note that, in respect of the parts of the claim area over which non-exclusive native title rights exist, there is no significant dispute which requires separate consideration of this topic.

Application of s 47A, NTA to various lots

479    The Applicants assert in the proposed Determination in Schedule 3, item (a) annexed to the APOD that s 47A of the NTA applies to Lots 331(part), 545, 549-553, 555, 568, 825 (part) and 830. The Territory does not admit that, in respect of those Lots (or parts thereof), there was a grant or vesting within s 47A(1)(b)(i) of the NTA, and does not admit that the lots were held within s 47A(1)(b)(ii) at the time the claim was made.

480    Section 47A(1)(b) of the NTA provides that the section applies if, 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

(3)    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.

481    There is no dispute about the fact that none of the grants over the identified lots took place under legislation within s 47A(1)(b)(i). They were all made or undertaken pursuant to the Crown Lands Act (NT). The issue is whether the Lots fell within s 47A(1)(b)(ii). More particularly, the issue is whether the lots are “held expressly for the benefit of” Aboriginal peoples.

482    In Coulthard v South Australia (2014) 218 FCR 148 at [106], I held that the proper approach to determination of whether an area falls within s 47A(1)(b)(ii) is to consider the question whether land is “held expressly for the benefit of” Aboriginal peoples upon the whole of the evidence before the Court. In that case, the land was initially held by the Indigenous Land Corporation, a statutory body with functions of acquiring and holding land for Aboriginal persons, then granted to an Aboriginal corporation, subject to a deed, the terms of which obliged the Aboriginal corporation to apply the land expressly for the benefit of its members, who had to be Aboriginal people. The issue arose in Moses v Western Australia (2007) 160 FCR 148 at [138], [154] per Moore, North and Mansfield JJ (Moses), where the Full Court expressed a preference (which it said was “not free from doubt”) for an approach which proceeds from the perspective of the legislative or executive structure under which the grant or transfer was made or the instrument which grants the relevant interest, rather than from the perspective of the entity holding the beneficial interest in the land set in the legislative context in which the entity was established.

483    The former approach was taken by Olney J in Hayes at 83-84; by Mansfield J in Risk v Northern Territory [2006] FCA 404 at [881]; and by Nicholson J in Daniel at [943]-[955]. The alternative approach was taken by Sundberg J in Neowarra and by Merkel J in Rubibi Community v Western Australia (No 7) [2006] FCA 459.

484    The Territory urges the former approach. It points out that the Full Court observed, in expressing its preference for the former approach in Moses at[139]-[144], that it is supported by what appears in the Senate’s Supplementary Explanatory Memorandum to the Native Title Amendment Bill (No 2) 1997 (Cth). It also says that alternative approach would have the effect that s 47A(1)(b)(i) would have little or no work to do, and also that a lessee of an ordinary lease from the Crown could defeat the Crown’s reversionary title by the lessee’s own act of, for example, subleasing the area expressly for the benefit of Aboriginal people.

485    However, it must be noted that the Full Court decision in Moses was careful to say that each set of circumstances must be addressed separately: at [138] and [145]. It did not hold that Neowarra and Rubibi were decided incorrectly on this issue.

486    At this point, therefore, I think it is appropriate to proceed having particular regard to the legislative context, but also to the factual circumstances.

487    As the Applicants placed emphasis on Neowarra, I should consider its circumstances in more detail. In Neowarra, Sundberg J held that s 47A(1)(b)(ii) applied to a pastoral lease held by Kupungari Aboriginal Corporation Inc. His Honour held that the rules of that corporation showed that it held the pastoral lease “expressly for the benefit of” Aboriginal peoples. The material features of the corporation were that the objects in the rule book were all directed to the benefit of a group of Aboriginal people, and that the rules clearly and unmistakably disclosed that the corporation’s property is held by it for the benefit of Aboriginal persons: see at [706]. In Rubibi (No 7) at [97], Merkel J held that s 47A(1)(b)(ii) was satisfied in respect of parcels of freehold held by the Mamabulanjin Aboriginal Corporation on the basis that its rules were not relevantly distinguishable from those of Kupungari Aboriginal Corporation Inc.

488    The following table summarises the relevant entities, lots and interest granted under the Crown Lands Act (NT).

489    In my view, the evidence leads to the following conclusions.

490    In the case of Lots 331, 545 and 825, the grant was made under legislation of general application, but to an Aboriginal corporation with the specific objects referred to, with membership restricted to Aboriginal people, and with the exercise of powers directing the fulfilment of the objective. The grant cannot be transferred in a way which might subvert those objects. Consequently, despite the generic statutory source for the grant, its terms at the time in the circumstances lead me to the conclusion that the areas are held upon the basis set out in s 47A(1)(b)(ii) so s 47A applies to those grants.

491    In the case of Lots 549-553, again the grants were made under legislation of general application. In this instance, the grantee is also incorporated under legislation of general application in the Territory. Nevertheless the grantee has objects clearly directed to the benefit of Aboriginal people, with membership restricted to Aboriginal people, and ensuring that those objects cannot be subverted by the distribution of its assets beyond or inconsistent with its purpose. I note that it was incorporated in 1973, at a date prior to the enactment of the Aboriginal Councils and Associations Act 1976 (Cth). In the circumstances, as I have found in the previous paragraph, I am satisfied that the areas are held upon the basis set out in s 47A(1)(b)(ii) so s 47A applies to those grants.

492    In the case of Lots 555, 568 and 830, the Mabunji Resource Association also received its grants under generic legislation and was incorporated under generic legislation. As noted, its objects are somewhat less explicit than applied to the other two grantee entities under consideration. There is no rule specifically precluding its assets being dealt with in a way that may be for the benefit of non-Aboriginal people, whether directly or in association with the benefit of Aboriginal people. Whilst there is, in relation to the lots addressed in the previous two paragraphs, a close factual analogy with the Kupungari Aboriginal Corporation as grantee considered in Neowarra, these grants are in a somewhat different context. Putting the focus on what is shown at the dates of the three grants, unlike the two previous categories where the nature of the grantee assured circumstances to support a finding in terms of s 47A(1)(b)(ii), I do not have that level of satisfaction in relation to these three grants. I am not satisfied that the area of each of these grants is held expressly for the benefit of, or is held in trust, or reserved, expressly for the benefit of Aboriginal peoples.

493    In reaching those views, I have sought to give effect to the Full Court decision in Moses. I do not consider that it required a focus, at the time of the grant, exclusively upon the legislative framework applicable to either or both of the grantor or the grantee, although that will be a significant perspective. It clearly invites the focus on the time of the grant, where no facts are shown post the grant which might inform the current status of the grant. It accommodates the consideration of the status and structure of the grantee.

CONCLUSION

494    I noted at the commencement of these reasons concerning extinguishment that the parties invited the Court to express its reasons, so that they could then prepare a Determination with the detail necessary to give effect to them. I have also indicated that I accept that offer.

495    I propose, therefore, to publish these reasons for decision and to fix a time within which the parties may agree upon the terms of a Determination to give effect to them. I will then make a Determination in those terms.

Associate:

Dated:    30 June 2016