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Federal Court of Australia - Full Court Decisions |
Last Updated: 8 June 2007
FEDERAL COURT OF AUSTRALIA
Moses v State of Western Australia [2007] FCAFC 78
NATIVE TITLE – determination of
native title rights and interests – Native Title Act 1993 (Cth) s
223(1) – whether connection to land and waters by traditional laws and
customs – whether land-holding system "traditional"
NATIVE
TITLE – determination of native title rights and interests –
sufficiency of description of native title holders
NATIVE TITLE
– prescribed bodies corporate – Native Title Act 1993 (Cth)
ss 56(2) and 57(2) – where determination of native title rights and
interests recognises two separate native title holding groups – whether
ss
56(2) and 57(2) allow nomination of more than one prescribed body corporate in
respect of determination area
NATIVE TITLE – Native Title
Act 1993 (Cth) – extinguishment – extinguishing effect of grant
of pastoral leases
NATIVE TITLE – Native Title Act 1993
(Cth) – determination of native title rights and interests –
whether recognition of native title rights and interests
should be limited to
areas in which they are currently exercised
NATIVE TITLE –
disregarding extinguishment – Native Title Act 1993 (Cth)
s 47A(1)(b)(ii) – whether pastoral lease and freehold titles held
expressly for the benefit of Aboriginal peoples – where land held by
company incorporated under general companies legislation – where objects
of major shareholder concerned with benefiting Aboriginal
peoples
NATIVE TITLE – disregarding extinguishment –
reservations - Native Title Act 1993 (Cth) s 47B(1)(b) – whether
temporary reserves created under Mining Act 1904 (WA) "reservations"
under s 47B(1)(b)(ii) – whether evidence sufficient to establish
occupation of areas under s 47B(1)(c)
PRACTICE AND PROCEDURE
– appeals – certain appeal grounds only to be allowed by consent
– Federal Court of Australia Act 1976 (Cth) s 25(2B)(b) –
whether s 25(2B)(b) permits disposal of some appeal grounds by consent prior to
determination of balance of appeal
Native Title Act 1993 (Cth) ss 23B(9)(b),
47, 47A, 47B, 56(2), 57(2), 61, 68, 87, 94A, 223, 225, 228(3), 238,
251B
Racial Discrimination Act 1975 (Cth)
Federal Court of
Australia Act 1976 (Cth) ss 24(1)(a), 25(2B)(b), 27, 28
Aboriginal
Councils and Associations Act 1976 (Cth) s 58A
Aboriginal and Torres
Strait Islander Commission Act 1989 (Cth) ss 14, 191A
Aboriginal
Development Commission Act 1980 (Cth)
Native Title Amendment Bill
(No 2) 1997 (Cth)
Native Title (Prescribed Bodies Corporate)
Regulations 1999 (Cth) regs 5, 8, 9
Titles (Validation) and Native
Title (Effect of Past Acts) Act 1995 (WA) s 12I
Country Areas Water
Supply Act 1947 (WA)
Land Administration Act 1997 (WA) s
79
Mining Act 1904 (WA) ss 26, 275, 276, 276A, 277, 277A,
278
Land Act 1933 (WA) s 116
Companies Act 1961
(WA)
Associations Incorporation Act 1895-1969
(WA)
Miscellaneous Acts Amendment (Aboriginal Community Living Areas)
Act 1989 (NT)
Mining Act 1978 (WA)
Cossack-Roebourne Tramway
Act 1886 (WA)
Alyawarr,
Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory
(2004) 207 ALR 539; [2004] FCA 472 cited
Australian Anglo American
Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97 referred
to
Bodney v Bropho [2004] FCAFC 226 cited
Colbung v Western
Australia [2003] FCA 774 cited
CSR v Della Maddalena (2006) 224
ALR 1, [2006] HCA 1 referred to
Dale v Moses [2007] FCAFC 82
cited
De Rose v State of South Australia [2003] FCAFC 286; (2003) 133 FCR 325
cited
De Rose v State of South Australia (No 2) (2005) 145 FCR
290; [2005] FCAFC 110 discussed
Erubam Le (Darnley Islanders) No 1 v State
of Queensland [2003] FCAFC 227; (2003) 134 FCR 155 cited
Griffiths v Northern Territory
[2006] FCA 903 referred to
Gumana v Northern Territory of Australia
(No 2) [2005] FCA 1425 cited
Hayes v Northern Territory [1999] FCA 1248; (1999) 97
FCR 32 considered
Kokatha Native Title Claim v South Australia [2005] FCA 836; (2005)
143 FCR 544 referred to
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
referred to
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58;
(2002) 214 CLR 422 discussed
Minister for Immigration and Ethnic
Affairs v Kurtovic (1990) 21 FCR 193 considered
Munn v State of
Queensland [2002] FCA 486 referred to
Neowarra v State of Western
Australia [2003] FCA 1402 considered
Newcastle City Council v Royal
Newcastle Hospital [1957] HCA 15; [1959] AC 248 referred to
Northern Territory of
Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135;
(2005) 145 FCR 442 discussed
Risk v Northern Territory of Australia
[2006] FCA 404 considered
Rubibi Community v State of Western
Australia (No 7) [2006] FCA 459 considered
Rubibi Community v Western
Australia [2001] FCA 607; (2001) 112 FCR 409 cited
Sampi v Western Australia
(No 3) [2005] FCA 1716 referred to
Sampi v Western Australia
[2005] FCA 777 referred to
State of Western Australia v Ward [2000] FCA 191;
(2000) 99 FCR 316 followed, discussed
The Commonwealth of Australia v
Yarmirr [2001] HCA 56; (2001) 208 CLR 1 referred to
Thomson Australian Holdings Pty
Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 referred
to
Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 cited
VTAG
v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005)
141 FCR 291 referred to
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
followed, discussed
Wilson v Anderson [2002] HCA 29; (2002) 190 ALR 313 cited
DAISY MOSES, ROGER BARKER, JILL
CHURNSIDE, TREVOR SOLOMON AND LES HICKS (ON BEHALF OF THE NGARLUMA PEOPLE) AND
BRUCE MONADEE, MARY
WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA
RYDER AND JUDY ALBERT (ON BEHALF OF THE YINDJIBARNDI PEOPLE) v STATE OF
WESTERN
AUSTRALIA, P & D COOK, PETER COOK, COOLWANYAH PASTORAL COMPANY PTY LTD,
MALLINA STATION, PEDO PTY LTD (MALLINA STATION)
AND COMMONWEALTH OF AUSTRALIA
STATE OF WESTERN AUSTRALIA AND COMMONWEALTH OF AUSTRALIA v
DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS
(ON
BEHALF OF THE NGARLUMA PEOPLE) AND BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY,
MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY
ALBERT (ON BEHALF OF THE
YINDJIBARNDI PEOPLE); P & D COOK, PETER COOK, COOLAWANYAH PASTORAL COMPANY
PTY LTD, MALLINA STATION,
PEDO PTY LTD (MALLINA STATION) AND MT WELCOME PASTORAL
CO PTY LTD (ACN 008 772 441)
WAD 114 OF
2005
MOORE, NORTH & MANSFIELD JJ
7 JUNE
2007
SYDNEY (VIA VIDEO LINK TO PERTH)
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AND:
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BETWEEN:
AND:
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STATE OF WESTERN AUSTRALIA
First Cross Appellant COMMONWEALTH OF AUSTRALIA Second Cross Appellant DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS (on behalf of the Ngarluma People) BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of the Yindjibarndi People) First Cross Respondents P & D COOK, PETER COOK, COOLAWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) Second Cross Respondents MT WELCOME PASTORAL CO PTY LTD (ACN 008 772 441) Third Cross Respondents |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. Each party do within 28 days, or such further time as may be allowed, submit a final form of orders to give effect to these reasons for judgment.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS
(on behalf of the Ngarluma People) AND BRUCE MONADEE, MARY
WALKER, BRUCE
WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of
the Yindjibarndi People)
Appellant |
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AND:
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STATE OF WESTERN AUSTRALIA
First Respondent P & D COOK, PETER COOK, COOLWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) Second Respondent COMMONWEALTH OF AUSTRALIA Third Respondent |
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BETWEEN:
AND:
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STATE OF WESTERN AUSTRALIA
First Respondent COMMONWEALTH OF AUSTRALLIA Second Cross Appellant DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMONAND LES HICKS (on behalf of the Ngarluma People) BRUCE MONADEE, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT (on behalf of the Yindjibarndi People) First Cross Respondents P & D COOK, PETER COOK, COOLWANYAH PASTORAL COMPANY PTY LTD, MALLINA STATION, PEDO PTY LTD (MALLINA STATION) Second Respondents MT WELCOME PASTORAL CO PTY LTD (ACN 008 772 441) Third Cross Respondents |
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JUDGES:
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MOORE, NORTH & MANSFIELD JJ
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DATE:
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7 JUNE 2007
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PLACE:
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SYDNEY (VIA VIDEO LINK TO PERTH)
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REASONS FOR JUDGMENT
INDEX
FINDINGS OF THE PRIMARY JUDGE REGARDING THE NGARLUMA AND YINDJIBARNDI PEOPLES [35]
FINDINGS OF THE PRIMARY JUDGE REGARDING THE YABURARA AND MARDUDHUNERA PEOPLE [40]
FINDINGS OF THE PRIMARY JUDGE REGARDING THE WONG-GOO-TT-OO [44]
FINDINGS OF THE PRIMARY JUDGE REGARDING THE KARIYARRA PEOPLE [49]
FINDINGS OF THE PRIMARY JUDGE REGARDING EXTINGUISHMENT [51]
EVIDENCE OF OCCUPATION IN THE VICINITY OF POINT SAMSON [219]
EVIDENCE OF OCCUPATION IN THE VICINITY OF COSSACK [224]
EVIDENCE OF OCCUPATION IN THE VICINITY OF KARRATHA STATION [227]
EVIDENCE OF OCCUPATION IN THE VICINITY OF KARRATHA [229]
EVIDENCE OF OCCUPATION IN THE VICINITY OF THE BURRUP CAUSEWAY [232]
NORMATIVE CONTENT OF FOUND PRESENT ACTIVITY [277]
ABORIGINAL CONNECTION WITH THE CLAIM AREA FROM THE ACQUISITION OF EUROPEAN SOVEREIGNTY [292]
DEGREE OF CONNECTION ISSUE [293]
PROOF OF NORMATIVE QUALITY OF RIGHTS AND INTERESTS [296]
REASONING BACKWARDS [322]
ESTATE GROUPS [332]
SOCIETY [345]
TOO EXTENSIVE AN AREA [350]
NO FINDINGS IN RELATION TO THE KARRATHA AREA SEPARATELY [351]
THE COURT
1 On 2 May 2005 a judge of this Court made a determination of non-exclusive native title rights and interests in respect of a portion of land and waters in Western Australia under the Native Title Act 1993 (Cth) (the NTA). The holders of the native title rights and interests so determined were the Ngarluma people and the Yindjibarndi people. The learned primary judge dismissed, to the extent that they overlapped with the claim of the Ngarluma and Yindjibarndi peoples, three other native title claims over parts of the determination area.
2 Two appeals from the reasons and orders of the primary judge were subsequently instituted. The first appeal, proceeding WAD 114/2005, was lodged by the Ngarluma and Yindjibarndi peoples and concerns certain portions of the claim area in which his Honour found that native title had been wholly extinguished. The second appeal, WAD 120/2005, was lodged by the Wong-Goo-TT-OO people, whose competing claim of native title in respect of part of the claim area was unsuccessful. The appeals were heard together. These reasons are concerned with the appeal of the Ngarluma and Yindjibarndi peoples.
3 Native title rights and interests in the claim area were asserted by two other groups at first instance: the Yaburara and Mardudhunera people, and the Kariyarra people. Their claims were also unsuccessful. They are not the subject of any appeal.
4 The respondents to the first appeal are the State of Western Australia (the State), the Commonwealth of Australia (the Commonwealth) and certain pastoralists.
5 Cross appeals were filed by the State and the Commonwealth.
6 To properly identify the issues to be addressed on the appeal, it is necessary to set out in some detail the nature of the claims before the learned primary judge, and his findings and reasons with respect to those claims insofar as they are relevant to the appeal. The following is largely taken from the relevant portions of the reasons at first instance.
The reasons of the primary judge
7 The learned primary judge published reasons for several rulings prior to and during the trial: Daniel for Ngaluma People v Western Australia [1999] FCA 686; Daniel v State of Western Australia [1999] FCA 1541; (1999) 94 FCR 537; Daniel v State of Western Australia [2000] FCA 413; Daniel v State of Western Australia [2000] FCA 858; (2000) 178 ALR 542; Daniel v State of Western Australia [2000] FCA 1334; Daniel v State of Western Australia [2000] FCA 1356; Daniel v State of Western Australia [2001] FCA 223; (2001) 186 ALR 369. A further interlocutory decision in relation to certain proposed replacement applicants was given by French J on 13 September 2002: Daniel v State of Western Australia [2002] FCA 1147; (2002) 194 ALR 278.
8 The substantive decision of the learned primary judge on the native title claims was delivered on 3 July 2003: Daniel v State of Western Australia [2003] FCA 666 (the July 2003 reasons). The July 2003 reasons included a determination of native title in draft form. The parties were given a limited opportunity to make further submissions on various issues arising from the July 2003 reasons and the draft determination. His Honour’s subsequent rulings on those issues were delivered on 5 December 2003, 2 July 2004, 29 October 2004, 4 March 2005 and 21 March 2006. The nature of those further rulings is described below insofar as they are relevant to the issues on appeal.
9 Final orders were made on 2 May 2005.
10 The claim area, roughly rectangular in shape, is situated in northwest Western Australia, slightly west of Port Hedland. The area can be described as "roughly rectangular" because that portion of the Western Australian coastline which forms the northern boundary of the claim area runs in an approximately east-west direction. The northern boundary of the claim area encompasses offshore islands, including the Dampier Archipelago (also known as the Burrup Peninsula). The western boundary of the claim area approximately corresponds with the Maitland River and its eastern boundary runs between the Balla Balla and Peawah Rivers. The claim area extends southwards to the Hamersley Ranges, which form the southern boundary of the claim area.
11 In relation to the northern portion of the claim area, the learned primary judge used the term "the Burrup" as encompassing the Burrup Peninsula and the islands in the claim area surrounding that Peninsula (to the north and west). The Burrup Peninsula extends northwards from the coast near the western boundary of the claim area.
12 The claim area rises in altitude southwards from the coast. The area between the sea and the Chichester Ranges is generally described as the "lowlands". Some 60-80 kilometres south of the coast, beyond the Chichester Ranges and extending southwards to the foothills of the Hamersley Ranges is a plateau known locally as the "Tablelands". In the circumstances referred to in [25] and [26], that part of the claim area known as the "lowlands" can also be called the Ngarluma claimed territory and that part of the claim area to the south of the Chichester Ranges can also be called the Yindjibarndi claimed territory.
13 The claim area overlaps in part the shires of Ashburton, East Pilbara and Roebourne. Its major population centres – Dampier, Karratha, Wickham, Point Samson, Roebourne and Cossack – are located in the northwest coastal portion. The remainder of the region is sparsely settled, although there are some people living in the small settlement of Whim Creek (in the east) and on pastoral stations or centres associated with Millstream National Park and Harding Dam (Ngurin). The major population centres within the claim area of Dampier, Karratha, Wickham and Point Samson were excluded from the claims. That is reflected in the final determination and orders on 2 May 2005.
14 As at 23 December 1996 (the date by which certain acts must have taken place in order to effect complete or partial extinguishment of native title pursuant to Div 2B of Pt 2 of the NTA), the Karratha, Mt Florance, Warambie, Pyramid, Sherlock, Mt Welcome, Hooley, Mallina and Coolawanyah pastoral leases were in existence within the claim area, as well as an unnamed pastoral lease, no. 398/824.
The proceeding at first instance
15 In the proceeding at first instance, three applicant groups and one respondent group sought determinations of native title over parts of the claim area.
16 The proceeding originated from an application for determination of native title by representatives of the Ngarluma people and representatives of the Yindjibarndi people lodged with the Registrar of the National Native Title Tribunal on 8 June 1994. That application, and a further application lodged by the same applicants on 22 December 1994 which extended the scope of the claim, was lodged with the Federal Court on 25 November 1996.
17 The Ngarluma people and the Yindjibarndi people were ultimately described as the first applicants in the proceeding, WAG 6017/1996. Overlapping parts of two other native title determination applications were subsequently consolidated with the Ngarluma/Yindjibarndi claim, so that the Yaburara and Mardudhunera people became the second applicants to the proceeding and the Wong-Goo-TT-OO people became the third applicants. The Yaburara/Mardudhunera claim (WAG 127/1997) covers an area west of the Ngarluma/Yindjibarndi claim area and overlapped the north-western portion of the latter claim area in the designated Ngarluma area, including the Burrup and surrounding islands. The Wong-Goo-TT-OO claim area in WAG 6256/1998 also lies west of the Ngarluma/Yindjibarndi claim area, overlapping much of the Yaburara/Mardudhunera claim area. It covers roughly half of the Ngarluma claimed territory (including the Burrup) and extends southwards into a portion of the Yindjibarndi claimed territory.
18 The application by the Kariyarra people in Federal Court proceeding WAG 6169/98 also overlapped to some extent with eastern part of the Ngarluma/Yindjibarndi claim area in two portions of the claim area. The Kariyarra claim area is east of, and almost entirely separate from, the Ngarluma/Yindjibarndi claim area. The overlap was limited to two small portions of land along the eastern boundary of the Ngarluma/Yindjibarndi claim area, in the north in the vicinity of Depuch Island (Ngarluma claimed territory) and in the south in the area of Mungaroona Range Nature Reserve (Yindjibarndi claimed territory). The Kariyarra people were joined as respondents 19D to the proceeding and were represented by solicitors, but apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 at [192]- [193] (Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia [2005] FCA 836; (2005) 143 FCR 544 at [22]; Munn v State of Queensland [2002] FCA 486. Of course the obverse position, namely a decision that the Kariyarra people did not have native title rights and interest in those overlapping areas, was able to be made, because competing evidence that the Kariyarra people enjoyed native title rights and interests in these overlapping parts of the claim area was adduced. Such a conclusion did not have to address the issues arising under s 251B of the NTA.
19 The balance of the Kariyarra native title claim remains on foot and has recently been referred to a docket judge for case management.
20 Several other overlapping claims existed prior to the hearing of the matter, but it is not now necessary to refer to those applications.
21 Attached as Annexure A to these reasons is an extract from a map entitled "Native Title Claims – Gascoyne/Pilbara Region", showing the boundaries of the Ngarluma/Yindjibarndi, Wong-Goo-TT-OO, Yaburara/Mardudhunera and Kariyarra claims as filed. The map was produced on 20 December 1999 by the Department of Land Administration, and was provided to the Court as an aide memoire after the hearing by the solicitors for the Wong-Goo-TT-OO people. It should be noted, however, that at the hearing before the primary judge the Ngarluma and Yindjibarndi peoples limited the geographical area of their claim to waters within a boundary 3 kilometres seaward of the low water mark from the mainland and the outermost islands within the existing claim boundary but including the waters between the islands and the mainland and between the islands themselves: July 2003 reasons at [86].
22 The trial commenced on 20 September 1999. It occupied a total of 81 hearing days. The primary judge heard evidence from 76 Aboriginal witnesses, eleven expert witnesses, three pastoralists and three retired pastoralists. Closing submissions were heard on 25 February 2003, following a substantial adjournment of the proceeding pending delivery of the High Court’s decisions in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward (HC)), The Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 (Yarmirr) and Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 (Yorta Yorta).
The Ngarluma and Yindjibarndi claim
23 From September 2002, the named applicants in respect of the Ngarluma and Yindjibarndi application were a now deceased person DD, Daisy Moses, Roger Barker, Jill Churnside, Trevor Solomon and Les Hicks, on behalf of the Ngarluma people, and Bruce Monadee, Woodley King, Kenny Jerrold, Mary Walker, Bruce Woodley, Michelle Adams, Jimmy Horace, Linda Ryder and Judy Albert, on behalf of the Yindjibarndi people.
24 In their final submissions, the Ngarluma and Yindjibarndi peoples submitted that their claim group included members of the Wong-Goo-TT-OO group and some members of the Yaburara/Mardudhunera group (in particular, the Cosmos family).
25 It was claimed that the lands traditionally associated with the Ngarluma people are situated in the northern lowland areas of the claim area and those of the Yindjibarndi people are situated on the Tablelands. The learned primary judge identified an "indeterminate zone of mixed Ngarluma and Yindjibarndi" running more or less along the escarpment of the Chichester Ranges. In the course of his reasons, his Honour found that the Yaburara people were not a part of the Ngarluma tribal group at sovereignty, and observed that the consequence of that finding was that the claim of the Ngarluma and Yindjibarndi peoples to the Burrup would not succeed. This was apparently acknowledged by the Ngarluma and Yindjibarndi peoples: see July 2003 reasons at [372]. That was because the claim of the Ngarluma and Yindjibarndi peoples to the Burrup depended upon the membership of their claim group including certain members of the Yaburara people.
26 The Ngarluma and Yindjibarndi peoples asserted that in relation to the claim area (excluding the towns of Dampier, Karratha, Wickham and Point Samson) there are two groups who hold rights comprising native title rights – the Ngarluma people and the Yindjibarndi people. It was said that the Ngarluma and Yindjibarndi peoples each form, or are part of, a society with a body of traditional laws and customs on a range of matters, including ownership and management of land and waters. The primary submission was that the people holding the native title rights and interests are the Ngarluma and Yindjibarndi peoples; but it was submitted in the alternative that the people holding the native title rights and interests in the Ngarluma territory are the Ngarluma people and the people holding the rights and interests in the Yindjibarndi territory are the Yindjibarndi people. The latter formulation was ultimately favoured by the learned primary judge.
27 The content of the respective rights and interests claimed by the Ngarluma and Yindjibarndi peoples, the Yaburara and Mardudhunera people, the Wong-Goo-TT-OO people and the Kariyarra people are set out at [66], [73], [77] and [84] of the July 2003 reasons of the learned primary judge.
The Yaburara/Mardudhunera claim
28 The named applicants in respect of the Yaburara/Mardudhunera claim, from November 2002, were Valerie Holborow, Kevin Cosmos and Robert Boona, on behalf of the Yaburara and Mardudhunera people. They claim the lands said to have been originally occupied by the Yaburara people (the Burrup) and the country said to have traditionally been occupied by the Mardudhunera people, as briefly described above and depicted in the map attached to these reasons as Annexure A.
29 The Yaburara and Mardudhunera people’s claim extended to a range of specified native title rights and interests in respect of that portion of their claim area which overlaps with the claim of the Ngarluma and Yindjibarndi peoples – that is, a roughly triangular section of the north-west portion of the claim area extending southwards from the coast, with an inland extent of approximately 30 kilometres at its southern point. It included the Burrup and the surrounding islands and waters. They did not file any written submissions or call any expert or other evidence in support of that claim, but relied orally on the submissions for the Ngarluma and Yindjibarndi peoples. The primary judge observed that it was not clear on the pleadings whether the overlap area was said to be wholly Yaburara or wholly Mardudhunera, partly Yaburara and partly Mardudhunera or joint Yaburara/Mardudhunera.
30 The Wong-Goo-TT-OO claim was brought by Betty Dale, Tim Douglas, Wilfred Hicks, Dallas Hicks, Ernie Ramirez and Cane Hicks. The name "Wong-Goo-TT-OO" was adopted by those claimants for the purpose of their native title claim. It is not the traditional name of any group of Aboriginal people.
31 The Wong-Goo-TT-OO people divided the area the subject of their claim into a "core area" and a "non-core area". The core area of their claim was comprised of an area identified as "Pularra" (between the George and Nickol Rivers), the Thaluntha (Karratha) estate, and the Burrup. The core area overlaps with the Ngarluma portion of the Ngarluma/Yindjibarndi claim area. The Wong-Goo-TT-OO people asserted exclusive rights of possession, occupation, use and enjoyment of the land and waters in relation to that overlapping area. They submitted at first instance and on appeal that the claim of the Ngarluma peoples should be restricted to that part of the claimed Ngarluma territory lying east of the George River and identified in the evidence of Kenny Jerrold, Tim Douglas and Wilfred Hicks.
32 The Wong-Goo-TT-OO people claimed to hold native title rights and interests in the Pularra estate by "direct matrilineal descent" from Woodbrook Mary, an ancestor of the Hicks and Douglas families, and from Nyungurtu, an ancestor of the Ramirez family. Their claim to the Thaluntha estate was through cognatic descent from the families of Jack Hicks and his wife Charlotte (Wittingbung). In relation to the Burrup, the Wong-Goo-TT-OO claimed to be successors in title through the traditional interest and connection of the Hicks family to those lands, and by alleged transmission of interest to the Hicks family by the last known indigenous inhabitants of the archipelago, Maitland and Island.
33 In relation to the non-core area (which overlaps to some extent with the Yindjibarndi claimed territory, and being that part of the Wong-Goo-TT-OO claim area roughly south of the Chichester Ranges) the Wong-Goo-TT-OO people asserted that the native title rights and interests claimed were shared by the Wong-Goo-TT-OO people and the Yindjibarndi people but were otherwise held to the exclusion of all others (subject to certain exceptions, such as current use pursuant to a non-exclusive agricultural or pastoral lease).
The July 2003 reasons (Daniel v State of Western Australia [2003] FCA 666)
34 In relation to each of the claimant groups at first instance (including the Kariyarra people), the primary judge considered in the first place the evidence of presently observable behaviour in relation to the rights and interests claimed by those people. His Honour then considered, in respect of each party claiming native title, whether they could be described as a "group" for the purposes of the NTA; and whether they are sufficiently connected to the Aboriginal peoples who occupied the claim areas prior to European settlement so as to show that the community in occupation of the land at sovereignty was the predecessor of a community that now claims native title. Finally, his Honour considered whether each of the claimant parties had established the requisite continuity between the observable behaviour in relation to the rights and interests claimed, and the rights and interests existing at sovereignty, so as to satisfy the requirement in the NTA that those rights and interests are presently possessed under "traditional" laws and customs: see s 223 of the NTA.
FINDINGS OF THE PRIMARY JUDGE REGARDING THE NGARLUMA AND YINDJIBARNDI PEOPLES
35 The Ngarluma and Yindjibarndi peoples partly succeeded in their claim of native title.
36 The determination of their native title rights and interests extended (subject to the qualification referred to below) over the whole of the area claimed, excluding the Burrup. It included the inter-tidal zones, being the areas between the mean high water mark and the mean low water mark and areas of tidal waters inland of the mean high water mark. But, contrary to the claim of the Ngarluma people and the Yindjibarndi people to be treated as one claim group, they were treated as separate claim groups. The determination separately identified the native title rights and interests of the Ngarluma people in the Ngarluma claimed territory (excluding the Burrup) and the native title rights and interests of the Yindjibarndi people in the Yindjibarndi claimed territory. Consequently, the primary judge ordered that there be two separate prescribed bodies corporate in respect of those separate parts of the claim area.
37 A determination in draft form was attached to the July 2003 reasons, to reflect the findings of the primary judge as to the content of the native title rights and interests held by the Ngarluma and Yindjibarndi peoples. The native title rights and interests as found were rights and interests in the nature of non-exclusive rights over the claim area (excluding the Burrup). In some cases the exercise of the rights was limited to specific geographical areas within the proposed determination area.
38 The precise content of the native title rights and interests held by the Ngarluma and Yindjibarndi peoples as found by the primary judge (summarised below) was more limited than the rights as claimed. With one qualification, the content of those rights as determined is not challenged on appeal. Some of the recognised native title rights and interests were found to be confined to certain geographical areas within the claim area. The extent of the area in which the Ngarluma and Yindjibarndi peoples were determined to hold native title rights and interests was also more limited than the area claimed, to reflect his Honour’s findings on extinguishment. Some aspects of those findings are the subject of the Ngarluma/Yindjibarndi appeal.
39 To the extent necessary to address the matters raised on the appeal, the nature of the determination and the reasons for it are explained further when addressing the grounds of appeal or cross-appeal.
FINDINGS OF THE PRIMARY JUDGE REGARDING THE YABURARA AND MARDUDHUNERA PEOPLE
40 The claim of the Yaburara and Mardudhunera people failed.
41 His Honour found that those of the Yaburara/Mardudhunera people who claimed to be Yaburara had not established that to be the case. He concluded, on the evidence, that those persons having a claim in the claim area claimed as Mardudhunera.
42 Of the rights and interests claimed by the Yaburara/Mardudhunera people, his Honour considered that there was evidence of presently observable behaviour in relation to only two: use of, and enjoyment of resources of, the land and waters claimed; and maintenance and protection of places of importance on the land: July 2003 reasons at [308] and [310]. He was not satisfied that the Mardudhunera people exercised those rights continuously back to sovereignty. Therefore, the requisite continuity in respect of the laws and customs presently observed by those people had not been established.
43 His Honour was not satisfied that the Burrup was inhabited by the Yaburara; and that if (contrary to that conclusion) it was inhabited by the Yaburara or a group by any other name, that group disappeared as an identifiable group early in the 20th century.
FINDINGS OF THE PRIMARY JUDGE REGARDING THE WONG-GOO-TT-OO
44 The primary judge accepted that the Wong-Goo-TT-OO people qualified as a group for the purposes of the application of the NTA. He did not accept that the Wong-Goo-TT-OO group has had continuity back to sovereignty.
45 The Wong-Goo-TT-OO people sought to establish that their group has had continuity back to sovereignty in one or all of four ways: through the Douglas family; through the Hicks family; through the Ramirez family; or through the alleged transfer of interest in the Burrup from Maitland and Island to Jack Hicks, referred to above.
46 The primary judge accepted that the Douglas family (which is related to the Hicks family) and the Ramirez family could each trace their ancestry back to sovereignty. He also found that the Hicks family could trace its ancestry back to sovereignty, albeit only "through the Douglas link or as part of the Ngarluma/Yindjibarndi group": July 2003 reasons at [378]. However, his Honour rejected the Wong-Goo-TT-OO people’s claim that a genealogical connection between the Douglas and Ramirez families was established through the Hicks family. Thus, no continuity in the mutual or common relation based on family connection was established between all members of the Wong-Goo-TT-OO group.
47 Furthermore, as the primary judge was not satisfied that before the constitution of the Wong-Goo-TT-OO group its members had any common relation or purpose other than their claimed "familial commonality", he was not prepared to infer that the actions of any one family were taken on behalf of the three families constituting the group: July 2003 reasons at [384].
48 His Honour also rejected the submission of the Wong-Goo-TT-OO people that their continuity as a group could be established through a transmission of rights in the Burrup from Maitland and Island to Jack Hicks. As to the balance of the Wong-Goo-TT-OO claim area (the Pularra and Thaluntha estates), his Honour found that certain presently observable behaviours had been established on the evidence. However, his Honour concluded that connection could not be made out in respect of the rights and interests reflected in presently observable behaviour, even though they appeared in traditional form, because of the discontinuity in the group as found. Thus, the claim of the Wong-Goo-TT-OO people failed.
FINDINGS OF THE PRIMARY JUDGE REGARDING THE KARIYARRA PEOPLE
49 The assertion of the Kariyarra people to native title rights and interest in that part of their claim area which overlapped with the Ngarluma/Yindjibarndi claim area was rejected.
50 As noted above, no evidence was given at the hearing by the Kariyarra people. The primary judge observed that much of the evidence given by others relating to the Kariyarra did not relate to that part of the area of their claim which was presently under consideration. In those circumstances, his Honour found that the evidence was insufficient to establish that they presently exercised all or any of the rights claimed in respect of that part of their claim area.
FINDINGS OF THE PRIMARY JUDGE REGARDING EXTINGUISHMENT
51 The extensive findings of the primary judge on issues of extinguishment in the July 2003 reasons were expressed as "preliminary". Those findings were further refined in the subsequent decisions referred to below, the parties having been given an opportunity to make further written submissions "in relation to the preliminary views expressed in the reasons on inconsistency between extinguishing interests and the non-exclusive native title rights and interests as found."
52 The majority of the issues regarding extinguishment have not been re-agitated on appeal. However, certain of the findings at first instance on extinguishment by grant of pastoral leases, and on the application of ss 47, 47A and 47B of the NTA have been challenged by the Ngarluma and Yindjibarndi peoples.
(i) Extinguishment by grant of pastoral leases
53 The entire claim area, with certain limited exceptions, has been the subject of pastoral leases.
54 The primary judge noted that the grant of a pastoral lease is a "previous non-exclusive possession act" which has the immediate effect of extinguishing the exclusivity of any native title right to possess, occupy, use and enjoy the land the subject of the lease: July 2003 reasons at [586], citing Ward (HC) [2002] HCA 28; 213 CLR 1 at [192] and [422]. However, his Honour had not made any findings of native title rights involving exclusive possession or rights to control access or use of the land by others in any event.
55 The primary judge made specific findings regarding the validity and extinguishing effect of various pastoral leases in the July 2003, July 2004, and March 2005 reasons. In particular, despite his general observations on the extinguishing effect of pastoral leases, his Honour found that the grant of each of the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases, as well unnamed pastoral lease no 398/824 (adjacent to the Mallina pastoral lease) was a previous exclusive possession act within the meaning of s 12I of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (the TVA), and therefore that any native title in relation to the land or waters covered by the leases was taken to have been extinguished. The effect of this finding is that the Ngarluma and Yindjibarndi peoples currently have no native title rights in respect of the land covered by the five pastoral leases. Nor do they currently have any procedural rights under Div 3 of Pt 2 of the NTA in relation to "future acts" that may affect those areas.
56 The findings of the primary judge in relation to the extinguishing effect of the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases and pastoral lease 398/824 have been challenged on appeal. The Mt Welcome pastoral lease covers a large area in the north-western portion of the claim area (Ngarluma claimed territory), extending north to the Roebourne area. Parts of the Hooley and Coolawanyah pastoral leases overlap with the south-eastern portion of the claim area, in Yindjibarndi claimed territory. The Mallina pastoral lease extends roughly along the eastern boundary of the claim area, covering part of the Ngarluma claimed territory, part of the Yindjibarndi claimed territory and part of the "indeterminate zone of mixed Ngarluma and Yindjibarndi". The pastoral leases are marked on the map attached to these reasons as Annexure A (other than pastoral lease 398/824, which is that triangular pastoral lease area adjacent to the Mallina pastoral lease and north of the Millstream and Chichester Range National Park). It appears that his Honour identified those particular pastoral leases as having wholly extinguished native title, in contrast with the other pastoral leases in the claim area which were found to have extinguished native title rights only to the extent that they conferred exclusive possession, use, enjoyment and occupation of the land, because the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases (and pastoral lease 398/824) were all granted after the commencement of the Racial Discrimination Act 1975 (Cth) (the RDA). It is claimed that his Honour erred in making that distinction.
(ii) Disregarding extinguishment pursuant to ss 47 and 47A of the NTA
57 At first instance, the Ngarluma and Yindjibarndi peoples contended that any prior extinguishment of native title rights and interests in the area the subject of the Mt Welcome pastoral lease should be disregarded pursuant to s 47 of the NTA. Section 47 was said to be applicable to the area because at the time the native title application was made, the pastoral lease was held by the Mt Welcome Pastoral Co Pty Ltd on trust for the Ngarluma and Yindjibarndi peoples: s 47(1)(b)(ii). This argument was rejected.
58 On appeal, the Ngarluma and Yindjibarndi peoples have pursued their contention that any prior extinguishment in the area covered by the pastoral lease should be disregarded, but they now rely on s 47A of the NTA, not s 47, in support of that proposition. Neither the State nor the Commonwealth, nor any other party, objected to the new argument being raised on appeal.
59 In relation to the areas covered by certain freehold titles held by the Mt Welcome Pastoral Co Pty Ltd, the Ngarluma and Yindjibarndi peoples unsuccessfully contended at first instance that any prior extinguishment should be disregarded under s 47A of the NTA. This argument is also pursued on appeal, although under a different subparagraph of s 47A.
(iii) Disregarding extinguishment pursuant to s 47B of the NTA
60 Each of the groups claiming native title also claimed in their applications that s 47B of the NTA applies to all unallocated Crown land within their respective claim areas. That section provides for prior extinguishment over a certain area to be disregarded if the criteria in s 47B(1) are met. There are several pockets of unallocated Crown land within the claim area, the majority of which are located within its southern half. The applicability of s 47B to certain areas was contested by the State. In particular, the State contended that every reserve (including every temporary reserve) in the claim area is a "reservation" for the purpose of s 47B(1)(b)(ii) and therefore falls outside the operation of s 47B. The learned primary judge accepted the State’s contention regarding temporary reserves, and found in the alternative that temporary reserves also fall within the meaning of a "condition, permission or authority" under s 47B(1)(b)(ii) and should also be excluded from the operation of the section for that reason. His Honour’s findings on the application of s 47B to areas covered by certain temporary reserves have been appealed by the Ngarluma and Yindjibarndi peoples.
The December 2003 reasons: (Daniel v State of Western Australia [2003] FCA 1425)
61 The December 2003 reasons were concerned with the State’s contentions regarding alleged inconsistencies between the native title rights and interests as identified in the draft determination included within the July 2003 reasons, and the rights of the State and various other respondent parties in respect of pastoral leases, mining tenements, reserves for cemeteries, by-laws made under the Country Areas Water Supply Act 1947 (WA), nature reserves and jetty licences.
62 The specific content of some of those native title rights was refined by the primary judge, although on the whole he determined that if the exercise of native title rights is approached on the basis of "reasonable user", the alleged inconsistencies between rights did not in fact exist.
63 The rulings in the December 2003 reasons are reflected in the final determination. They are not the subject of any appeal or cross-appeal.
The July 2004 reasons: (Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254)
64 Several matters arising out of the parties’ submissions as to the form of the determination were addressed in the July 2004 reasons.
65 His Honour declined to hear further submissions on some issues raised by the Ngarluma and Yindjibarndi peoples after the handing down of the July 2003 reasons, including whether the native title rights as found should be subject to internal geographical limitations (that is, whether the exercise of the rights should be confined to those specific areas within the whole claim area in which the rights are presently exercised), and whether certain pastoral leases have wholly extinguished native title. As noted above, those particular matters are the subject of the Ngarluma and Yindjibarndi appeal.
66 Several further matters were canvassed in the July 2004 reasons in respect of which one or more of the parties seeks redress on appeal.
67 It was proposed in the draft determination that native title rights and interests were held by the Ngarluma people and the Yindjibarndi people in relation to their respective territories, with some overlap (the "indeterminate zone" referred to above) existing between those two claim areas. Upon consideration of the parties’ submissions, his Honour confirmed in the July 2004 reasons that there would be only one determination of native title over the entire area, but that two separate prescribed bodes corporate could be nominated as trustees of the native title. The latter ruling was contrary to the submissions of the Commonwealth, and has been challenged by the Commonwealth on its cross-appeal. The Commonwealth’s submission at first instance and on appeal was that the NTA permits the nomination of only one prescribed body corporate in relation to a particular determination area.
68 His Honour also considered the parties’ submissions in relation to the description of the native title holders in the determination, ultimately agreeing with the Ngarluma and Yindjibarndi peoples that they should be defined simply by language group and not by a number of criteria. The State’s submission was that the Court should provide some basis for deciding who is in the Ngarluma group and who is in the Yindjibarndi group as part of the making of the determination of native title. On appeal, the State has re-agitated its contention that a more specific description of the native title holders is required.
69 It was further determined in the July 2004 reasons that the Ngarluma/Yindjibarndi overlap area should include the area around the Ngurin (the Harding River); and that the determination should expressly state that native title does not exist within the "Ngarluma Total Extinguishment Area" and the "Yindjibarndi Total Extinguishment Area". Those terms were used at first instance simply to signify the parts of the claim area where, his Honour found, any native title rights and interests had been totally extinguished. The primary judge also considered the appropriate process for nominating a prescribed body corporate. There is no challenge to these particular findings on appeal.
70 In relation to the Wong-Goo-TT-OO claim and the Yaburara/Mardudhunera claim (to the extent to which they overlapped with the Ngarluma/Yindjibarndi claim), his Honour determined that each of these should be dismissed in the final orders, but in the case of the Wong-Goo-TT-OO claim with the proviso that the dismissal is "without prejudice to any right the [Wong-Goo-TT-OO people] may have as Ngarluma or Yindjibarndi people (and not as members of the [Wong-Goo-TT-OO]) to hold native title rights and interests". There is no challenge to these orders insofar as they relate to the Yaburara/Mardudhunera claim. The Wong-Goo-TT-OO people have separately appealed from the dismissal of their claim.
71 An additional appendix recording all unallocated Crown land as at the date of lodgement of the claim, and his Honour’s finding on whether s 47B of the NTA is applicable to those areas, was included at the conclusion of the July 2004 reasons. Some of those findings are challenged by the Ngarluma and Yindjibarndi peoples in the appeal proceedings. The findings and the issues are further explained when addressing the grounds of appeal.
The October 2004 reasons: (Daniel v State of Western Australia [2004] FCA 1388)
72 The October 2004 reasons addressed the State’s submissions that native title has been extinguished by certain acts in respect of which it had been given leave to reopen its case. In dispute between the parties was the extinguishing effect of three sections of road and an accommodation lease over land at Karratha, granted pursuant to s 79 of the Land Administration Act 1997 (WA).
73 His Honour found that the dedication of each of the three roads wholly extinguished any native title rights and interests, and that the accommodation lease, being a past act under s 228(3)(b)(i) of the NTA, also wholly extinguished native title rights and interests in the area of the lease. There is no appeal from the rulings in the October 2004 reasons.
The March 2005 reasons: (Daniel v State of Western Australia (No 2) [2005] FCA 178; (2005) 141 FCR 426)
74 In the March 2005 reasons his Honour accepted the State’s submission that it was appropriate to include pastoral lease 398/824 (adjacent to the Mallina pastoral lease) in the definition of the Ngarluma Total Extinguishment Area and the Yindjibarndi Total Extinguishment Area in the determination, that particular pastoral lease having been omitted from his previous judgments due to oversight. It was noted that the pastoral lease was legally indistinguishable from other pastoral leases found to have wholly extinguished native title (that is, the Mt Welcome, Hooley, Coolawanyah and Mallina pastoral leases). The issue as to the extent of the extinguishing effect of pastoral lease 398/824 is raised on the appeal: see [56] above.
75 The State’s notice of motion for leave to reopen its case in relation to certain additional extinguishing interests was also considered in the March 2005 reasons. The learned primary judge considered that it was appropriate to grant leave to reopen, and thus determined the extinguishing effect of the construction of Wickham High School on reserve 46193, the construction of a Roman Catholic Church on reserve 46888, and the construction of several roads or sections of roads. There is no appeal from these findings.
The orders (Daniel v State of Western Australia [2005] FCA 536)
76 The Ngarluma/Yindjibarndi Native Title Determination was made on 2 May 2005 at Roebourne. The determination stated that native title rights and interests (which do not confer possession, occupation, use and enjoyment of the land and waters to the exclusion of others) exist in the Ngarluma Native Title Area and the Yindjibarndi Native Title Area, as defined in the first schedule to the determination.
77 The native title holders were identified in the determination as the "Ngarluma People" in relation to the Ngarluma Native Title Area, and the "Yindjibarndi People" in relation to the Yindjibarndi Native Title Area. The term "Ngarluma People" was defined in the third schedule to the determination as:
Aboriginal persons who recognise themselves as, and are recognised by other Ngarluma peoples as, members of the Ngarluma language group.
And the term "Yindjibarndi People" was defined as:
Aboriginal persons who recognised themselves as, and are recognised by other Yindjibarndi peoples as, members of the Yindjibarndi language group.
On appeal, that description of the native title holders was challenged by the State as being incomplete and insufficient.
78 Native title was determined not to exist in the Burrup, Offshore Waters, Depuch Island, the Hamersley Ranges Area and the Total Extinguishment Area (as defined in the first schedule to the determination). The "Total Extinguishment Area" was defined in the first schedule as "the Ngarluma Total Extinguishment Area and the Yindjibarndi Total Extinguishment Area" and was visually depicted in the maps attached to the first schedule.
79 The following non-exclusive native title rights and interests were
identified in relation to the Ngarluma Native Title Area:
(a) a right to
access (including to enter, to travel over and remain);
(b) a right to engage in ritual and ceremony (including to carry out and participate in initiation practices);
(c) a right to camp and to build shelters (including boughsheds, mias and humpies), limited to the proximity of river courses within the Ngarluma Native Title Area, and to live temporarily thereon as part of camping or for the purpose of building a shelter;
(d) a right to fish from the waters, limited to the coastal areas landward of the low water mark, and inland water courses;
(e) a right to collect and forage for bush medicine;
(f) a right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, sea turtle, dugong, goanna, kangaroo, emu, bush turkey, echidna, porcupine, witchetty grub, swan), limited in the case of water fauna to coastal waters landward of the low water mark and inland water courses;
(g) a right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey);
(h) a right to take black, yellow, white and red ochre;
(i) a right to take water for drinking and domestic use;
(j) a right to cook on the land including to light a fire for this purpose, limited to the proximity of river courses;
(k) a right to protect and care for sites and objects of significance in the Ngarluma Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).
80 Similar non-exclusive native title rights and interests were identified in respect of the Yindjibarndi Native Title Area:
(a) a right to access (including to enter, to travel over and remain);
(b) a right to engage in ritual and ceremony (including to carry out and participate in initiation practices);
(c) a right to camp and to build shelters (including boughsheds, mias and humpies), limited to the Millstream-Fortescue Area, and to live temporarily thereon as part of camping or for the purpose of building a shelter;
(d) a right to fish from the waters, limited to the Millstream-Fortescue Area;
(e) a right to collect and forage for bush medicine, limited to the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
(f) a right to hunt and forage for and take fauna (including fish, shell fish, crab, oysters, goanna, kangaroo, emu, turkey, echidna, porcupine, witchetty grub and swan but not including dugong or sea turtle), limited to the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
(g) a right to forage for and take flora (including timber logs, branches, bark and leaves, gum, wax, Aboriginal tobacco, fruit, peas, pods, melons, bush cucumber, seeds, nuts, grasses, potatoes, wild onion and honey), limited to the Millstream-Fortescue Area and the upper reaches of the Sherlock River;
(h) a right to take black, yellow, white and red ochre, limited to the Millstream-Fortescue Area;
(i) a right to take water for drinking and domestic use;
(j) a right to cook on the land including light a fire for this purpose, limited to the Millstream-Fortescue Area;
(k) a right to protect and care for sites and objects of significance in the Yindjibarndi Native Title Area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm, but not including a right to control access or use of the land by others).
81 The determination also stated that the Yindjibarndi Aboriginal Corporation is to hold the native title rights and interest of the Yindjibarndi people in trust for the Yindjibarndi people, and stipulated a procedure for the nomination of a prescribed body corporate to hold in trust the native title rights and interests of the Ngarluma people. Subsequently, the Ngarluma Aboriginal Corporation was nominated to hold the native title rights and interest of the Ngarluma people in trust for the Ngarluma people: see Daniel v State of Western Australia [2006] FCA 271.
82 The Wong-Goo-TT-OO, Yaburara/Mardudhunera and Kariyarra applications were dismissed to the extent that they overlap with the Ngarluma/Yindjibarndi application, such dismissal being without prejudice to any rights of the members of the Wong-Goo-TT-OO claimant group as Ngarluma people or Yindjibarndi people to be native title holders.
83 Attached to these reasons as Annexure B is a copy of the map of the determination area which formed part of the first schedule to the determination, showing, inter alia, the Determination Area, the Ngarluma Area, the Yindjibarndi Area, the Total Extinguishment Area and the Burrup. It is not necessary to annex the various sub-maps referred to in Annexure B. They depict more clearly the areas identified in the legend.
SUMMARY OF ORDERS AND ISSUES ON THE APPEALS
84 The effect of the orders made by the learned primary judge on 2 May 2005 and the issues on this appeal, and the appeal by the Wong-Goo-TT-OO people in WAD 120/2005, is as follows.
The Ngarluma/Yindjibarndi claim (WAG 6017/1998)
85 The determination entirely disposed of the Ngarluma/Yindjibarndi native title claim in proceeding WAD 6017/1998. The claim failed insofar as it sought a determination of native title rights and interests over the claim area jointly in favour of the Ngarluma and Yindjibarndi peoples; but the claimants succeeded in their alternative claim that the Ngarluma people hold native title rights and interests in the Ngarluma claimed territory, and the Yindjibarndi people hold native title rights and interests in the Yindjibarndi claimed territory. It was determined that native title rights and interests had been wholly or partly extinguished in relation to some parts of the claim area. No native title was found to exist in the Burrup, originally claimed as part of the Ngarluma country, the claim to that land by the Ngarluma and Yindjibarndi peoples having failed because the learned primary judge did not accept that the relevant members of the Yaburara group were in fact members of the Ngarluma people.
86 The Ngarluma and Yindjibarndi peoples did not succeed in proving that they held all of the native title rights and interests claimed. Those rights and interests which were ultimately recognised by the learned primary judge are set out at [79] and [80] above.
87 In this appeal, the Ngarluma and Yindjibarndi peoples appeal from the reasons and orders of the primary judge on four grounds. Certain issues regarding those grounds of appeal have been raised by Notice of Contention of the State and by the Commonwealth on its cross-appeal.
88 The issues to be determined on the Ngarluma/Yindjibarndi appeal and the State’s Notice of Contention are:
A. Extinguishment by grant of pastoral leases: Whether the primary judge erred in holding that native title was totally extinguished by the Mt Welcome, Coolawanyah, Hooley and Mallina pastoral leases and pastoral lease 398/824 as discussed at [55] and [56] above. The Commonwealth by its cross appeal has also appealed against the orders in respect of those pastoral leases, also on the grounds that his Honour erred in failing to find that the grant of the pastoral leases had no additional extinguishing effect on any of the native title rights and interests which had not been extinguished prior to the date of grant or re-grant. All parties to the appeal are agreed that his Honour was in error in determining that the grant of each of the pastoral leases was a previous exclusive possession act and have accepted that they only partially extinguished the native title rights and interests over those areas. They sought orders by consent generally extending the non exclusive native title rights and interests to the areas of those pastoral leases;
B. Section 47A: Whether the extinguishing effect of the grant of the Mt Welcome pastoral lease and the freehold titles referred to at [57]-[59] above, and the creation of any other prior interest in relation to those areas should be disregarded pursuant to s 47A(2) of the NTA;
C. Section 47B: Whether certain specified areas which were, at the time the native title application was made, subject to temporary reserves made under s 276 of the Mining Act 1904 (WA) were areas to which s 47B of the NTA applied so that any extinguishment over those areas should be disregarded. The State, by its Notice of Contention raises the further issue of whether s 47B is inapplicable to some of these areas in any event either because there is no extinguishment to be disregarded, because they are covered by exploration licenses, or because they are not in fact occupied by the Ngarluma and Yindjibarndi peoples as required by s 47B(1)(c) of the NTA;
D. Internal geographical limitations: Whether his Honour erred in imposing internal geographical limitations on the exercise of the native title rights and interests held by the Ngarluma and Yindjibarndi peoples, so that the rights were said to exist only in relation to areas in which they are currently exercised. The parties are also agreed that this ground should be upheld and have sought appropriate orders in relation to it by consent, to the effect that the native title rights and interests as found may be exercised over the whole of the lands and waters to which the Ngarluma and Yindjibarndi peoples have a traditional connection.
89 The State has cross-appealed on this appeal and in proceedings WAD 120/2005 on identical grounds. It contends that the primary judge fell into error in:
E. Existence of native title in the Karratha Area: Finding that non-exclusive native title rights and interests exist in an area in the north-western portion of the Ngarluma Native Title Area described as the "Karratha Area". That area is located around the town of Karratha and extends to the western boundary of the claim area. Its northern boundary coincides with the commencement of the Burrup. The map produced by the State identifying the Karratha Area is attached to these reasons as Annexure C. The State’s submission is that the primary judge erroneously approached the issue of connection to the Karratha Area by focussing on occupation and use of the area, and "spiritual connection" to the area, and failed to focus on connection by traditional law and custom. The State claims that connection to the Karratha Area by traditional law and custom involves patrilineal estate groups. It is said that because the Ngarluma and Yindjibarndi peoples adduced no evidence of a contemporary patrilineal estate group system or some adaptation thereof, the primary judge should have found that there was no native title in the Karratha Area.
F. Description of native title holders: Determining that the holders of the non-exclusive native title rights and interests were the "Ngarluma People" and the "Yindjibarndi People" without further defining those expressions.
90 In addition to its appeal against the finding of total extinguishment by the Mt Welcome, Hooley, Coolawanyah and Mallina pastoral leases and pastoral lease 398/824 referred to above, the following issue arises on the Commonwealth’s cross-appeal:
G. Prescribed bodies corporate: Whether his Honour erred in finding that ss 56(2) and 57(2) of the NTA allow more than one prescribed body corporate to be nominated in respect of the Determination Area, and in subsequently making orders to reflect that finding. The Commonwealth contends that the NTA permits the nomination of only one prescribed body corporate in relation to the determination area.
91 The respondents to the appeal have agreed that the appeal grounds (A) and (D) above should succeed. The Ngarluma and Yindjibarndi peoples sought to have orders made by this Court in relation to those two grounds both prior to, and at the time of, the hearing. The reasons for not adopting that course are set out below; but the consent orders provided by the parties will be given effect for reasons which appear.
The Yaburara/Mardudhunera claim (WAG 127/1997)
92 To the extent to which it overlapped with the Ngarluma/Yindjibarndi claim (including the Burrup), the Yaburara/Mardudhunera native title claim was dismissed. The balance of that claim remains to be determined.
93 No matters concerning that part of the determination are the subject of the appeal.
The Wong-Goo-TT-OO claim (WAG 6256/1998)
94 The Wong-Goo-TT-OO claim was also dismissed to the extent that it overlapped with the Ngarluma/Yindjibarndi claim (including the Burrup), although the primary judge acknowledged that the Wong-Goo-TT-OO people may have native title rights and interests in the determination area as Ngarluma people or as Yindjibarndi people. The balance of the Wong-Goo-TT-OO claim is yet to be determined.
95 The Wong-Goo-TT-OO people have appealed from the reasons and orders of the primary judge to the extent to which those orders and reasons support the dismissal of their overlap claim. The appeal grounds and submissions of the Wong-Goo-TT-OO were, to a large extent, concerned with the rejection of certain evidence regarding connection and continuity given by Tim Douglas, a Wong-Goo-TT-OO claimant, and Kenny Jerrold, a Yindjibarndi man. The grounds of appeal are extensive but can be briefly summarised as follows:
• whether his Honour erred in not accepting that the Wong-Goo-TT-OO group was a cognatic kin group of continuous existence which has maintained connection with their "core area" since sovereignty;
• whether his Honour erred in failing to find that the Wong-Goo-TT-OO people were separate and distinct from the Ngarluma and Yindjibarndi peoples;
• whether the Wong-Goo-TT-OO people hold native title rights and interests in the Burrup.
96 The issues arising on the Wong-Goo-TT-OO appeal are the subject of our reasons in Dale v Moses [2007] FCAFC 82.
97 As noted above, the State has cross-appealed in this appeal also, raising the two issues described in [89] above, that is issues (E) and (F).
The Kariyarra claim (WAD 6169/1998)
98 The assertion by the Kariyarra people of native title rights and interests over their claim area, to the extent to which it overlapped with the Ngarluma and Yindjibarndi claim area, was also unsuccessful. The areas of overlap were quite small; thus a large area of the Kariyarra claim remains to be resolved in other proceedings.
99 No issue as to that part of the decision at first instance arises on the appeal.
ISSUE A: EXTINGUISHMENT BY GRANT OF PASTORAL LEASES
100 The parties to the appeal agree that the primary judge erred in finding that the grant of pastoral leases 3114/716 (Mt Welcome), 3114/1228 (Coolawanyah), 3114/1173 (Hooley), 3114/1209 (Mallina) and 398/824 (adjacent to Mallina) (together, "the five pastoral leases") had wholly extinguished native title over the land covered by them.
101 The Ngarluma and Yindjibarndi peoples filed a proposed consent order (signed by all parties to the appeal) seeking to have the Ngarluma/Yindjibarndi appeal and the Commonwealth cross-appeal in relation to those five pastoral leases (and the appeal in relation to the internal geographical limitations on the exercise of certain native title rights – Issue D below) allowed prior to the hearing and determination of the balance of the appeal. The Ngarluma and Yindjibarndi peoples also filed submissions in support of the proposed consent orders, urging the Court to make the orders sought immediately. Those submissions were endorsed by the State, the Commonwealth, and the pastoral respondents. We declined to make the orders prior to the hearing.
102 At the commencement of the hearing an issue arose regarding the Court’s power to partially dispose of an appeal pending determination of the balance of the appeal grounds. We expressed some concern that the pronouncement of orders on some grounds of appeal, having the effect of varying the determination made by the primary judge on 2 May 2005, may render the Court functus officio with respect to the balance of the appeal. Further submissions addressing that issue and supporting the making of the consent orders before final disposition of the appeal were filed by the Ngarluma and Yindjibarndi peoples after the hearing of the appeal. The State and the Commonwealth also filed further submissions following the hearing of the appeal. In those further submissions, the State and the Commonwealth both opposed the making of the consent orders prior to the determination of the balance of the appeal.
103 It is convenient to set out here the reasons why, contrary to the submissions of the Ngarluma and Yindjibarndi peoples, we did not regard it as appropriate to make the consent orders before determining the balance of the appeal.
Reasons for not making "interim" consent orders
104 In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, Gummow J said at 211
There was ‘an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise’: Halsbury's Laws of England, (1st ed), vol 27, p 131. However, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed ‘from time to time as occasion requires’. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue.
105 Having regard to the powers conferred upon this Court in the exercise of its appellate jurisdiction by the Federal Court of Australia Act 1976 (Cth) (the FCA Act), it is far from clear that the Court has power to partially dispose of an appeal before reaching a final conclusion on all aspects of the appeal. The Ngarluma and Yindjibarndi peoples contend that such power has been conferred upon the Court by s 25(2B)(b) of the that Act. That section provides:
(2B) A single Judge or a Full Court may:
...
(b) make an order by consent disposing of an appeal to the Court (including an order for costs);
...
Reliance was also placed upon s 28 of the FCA Act. That section states that the Court may, in the exercise of its appellate jurisdiction, "affirm, reverse or vary the judgment appealed from" and may "give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order": see s 28(1)(a) and (b). Counsel were not able to identify any authority on s 25(2B)(b) applicable to the present context.
106 Additionally, the Ngarluma and Yindjibarndi peoples relied upon s 87 of the NTA, which reads:
(1) If, at any stage of proceedings after the end of the period specified in the notice given under section 66:
(a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to:
(i) the proceedings; or
(ii) a part of the proceedings; or
(iii) a matter arising out of the proceedings; and
(b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and
(c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court;
the Court may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
Subsections 2 and 3 permit the Court to give effect to the relevant order or agreement. However, as is evident from the terms of s 87(1)(c), that section does not provide an additional source of power. It is not enlivened unless the Court is satisfied that the orders are otherwise within its power. It cannot shed any light on the Court’s general power to hear and determine appeals. Nor do we think that s 68 of the NTA can provide a source of power for the Court to partially dispose of this appeal in the way the Ngarluma and Yindjibarndi peoples sought. It relevantly prevents any other determination of native title in relation to a particular area once there is an approved determination of native title over that area. There are two exceptions to that statutory direction, but the only one which might possibly apply is the case of a review or appeal of the first determination. That exception does not extend the Court’s powers on appeal, but simply recognises that on an appeal the finality of a determination of native title may be displaced.
107 The Commonwealth submitted that it is not possible to read into s 25(2B)(b) of the FCA Act a conferral of power to dispose of an appeal in stages. The State did not consider it necessary to address that question because, it said, there was no reason to partially dispose of the present appeal in any event, as the Ngarluma and Yindjibarndi peoples had not established that they would suffer any prejudice were the consent orders not made forthwith. The Ngarluma and Yindjibarndi peoples had claimed that they may be prejudiced by any delay in allowing the grounds of appeal in relation to the five pastoral leases because as the determination stood, they had no procedural rights in relation to acts which should be, but would not be, treated as a "future act" under the NTA. The State considered that the interests of the Ngarluma and Yindjibarndi peoples regarding "future acts" had been protected by a written undertaking provided by the State.
108 We were not satisfied that this Court had power to dispose of the consent grounds under ss 25(2B)(b) and 28(1) of the FCA Act prior to the final determination of the appeal. The apparent intent of s 25(2B)(b) is to facilitate the efficient resolution of appeal proceedings in circumstances where there is no dispute between the parties as to the orders which should be made. In appropriate cases it can substantially reduce the time and expense that would otherwise attend the resolution of the appeal. There is no reason to restrict the operation of the section to circumstances in which the parties seek to have the whole of the appeal allowed or dismissed by consent. The objectives of the section may equally be achieved in cases such as the present, where the agreement between the parties extends to only some of the appeal grounds. The wording of s 25(2B)(b) suggests, however, that any consent orders should be made in the course of the "disposal" of the appeal. There is nothing in either s 25(2B)(b) or s 28(1) to suggest that an appellate Court may exercise the powers conferred by those provisions on an ongoing or interim basis. Counsel did not point to any other statutory provisions which may justify taking that course. Section 25(2B)(b) provides for a consent order which disposes of an appeal. It is part of the provision dealing with how the appellate jurisdiction may be exercised, and in context it contemplates the final disposition of the appeal: subclauses (aa), (ba) and (bb) clearly contemplate that the orders made will finally determine the appeal. The other subclauses of s 25(2B) concern procedural matters leading up to the hearing and determination of an appeal.
109 The appellate jurisdiction of the Court relevant to this matter is s 24(1)(a) of the FCA Act, as it establishes the right of appeal from judgments of the Court constituted by a single judge. Section 4 defines "judgment" to mean a judgment, decree or order, whether final or interlocutory. This appeal is from the judgment which finally determined what native title rights and interests existed on the area the subject of the claims. It is therefore the appeal from that judgment which s 25(2B)(b) empowers the Court to dispose of by consent. The proposed consent orders do not dispose of the appeal from that judgment, but only of certain parts of the judgment. Moreover, s 28 of the FCA Act provides ways in which a duly constituted Full Court may dispose of an appeal. It does not contemplate that an appeal may be partially determined by the Full Court as then constituted, and that other issues on the appeal may be later determined by a differently constituted Full Court. Accordingly, it accords with the conclusion we have reached about the limit of our powers.
Whether consent orders should be made
110 A related issue arose in the post-hearing submissions regarding the extent to which the Court should consider the merits of a ground of appeal where the parties are agreed that the appeal (or part of the appeal) should be allowed on that ground.
111 The right of appeal from the judgment of the primary judge lies under s 24(1)(a) of the FCA Act. Section 28 sets out the Court’s powers in the exercise of its appellate jurisdiction, and s 25(2B)(b) empowers a single judge or a Full Court to exercise that jurisdiction to make an order by consent disposing of an appeal. Subsections 28(1)(b) and (c) refer to the Court making such orders on appeal as it thinks fit, and subs 28(1)(f) permits an order for a new trial "on any ground upon which it is appropriate" to do so. Those references may suggest that the Court should not make a consent order on an appeal without being satisfied that it is appropriate to do so. It is at least clear that the parties by consent cannot confer on the Court power to make orders which the Court lacks power to make: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 at 163. On the other hand, it is common ground that, in making orders by consent, the Court is not called upon to consider the substantive merits of the matter to the same extent that it would do so in the normal course. In VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 the Full Court (Heerey, Finkelstein and Lander JJ) said at [23] that an order allowing an appeal is "a formal statement to the world by the Court that the primary judge fell into error", but their Honours went on to say in that case at [26] that, in the making of a consent order, usually "the Court does not enquire into the merits of the order proposed".
112 In this matter, the parties have assumed the burden of satisfying the Court that it is appropriate to make the consent orders sought, so we do not have to consider whether it was necessary for them to have done so.
113 It is not apparent from the reasons below why his Honour considered that the five pastoral leases had wholly extinguished native title, whereas the other pastoral leases in the determination area had not. The proposed consent orders seek to give effect to the principle established by the High Court in Ward (HC) [2002] HCA 28; 213 CLR 1 at [192] and [422] that the grant of a pastoral lease is a previous non-exclusive possession act which has the immediate effect of extinguishing the exclusivity of any native title right to possess, occupy, use and enjoy the land the subject of the lease. The learned primary judge referred to the relevant passage in Ward (HC) at [586] of the July 2003 reasons. Other than the possible reason referred to in [56] above, it is not clear why his Honour nevertheless considered that the grant of each of the five pastoral leases was a previous exclusive possession act. As noted above, the parties are agreed that the leases did not in fact have any further extinguishing effect than any pre-existing pastoral leases, and that, contrary to his Honour’s findings, the grants of each of the leases were not past acts nor previous exclusive possession acts. In accordance with the principle established in Ward (HC), we consider that the parties’ position in that regard is appropriate. Nothing has been identified to us which might indicate that those five pastoral leases should have any greater extinguishing affect than the other pastoral leases which affected parts of the claim area.
114 We agree that the appeal in relation to pastoral leases 3114/716, 3114/1228, 3114/1173, 3114/1209 and 398/824 should be allowed. The determination should be altered in the manner indicated by the proposed consent orders.
115 The effect of the consent orders which will be made in relation to the five pastoral leases (the Mt Welcome pastoral lease (no. 3114/716) being one of them) is that non-exclusive native title rights and interests will be recognised in those areas.
116 The practical significance of the contention of the Ngarluma and Yindjibarndi peoples that s 47A of the NTA applies to the Mt Welcome pastoral lease is confined to other prior interests within the area of the lease which had an extinguishing effect. The only such prior interest is special lease 3116/4002, which is located within the area of the Mt Welcome pastoral lease. The special lease was granted to Hamersley Iron Pty Ltd in 1969 under s 116 of the Land Act 1933 (WA). It is no longer in force. It was found at first instance that special lease 3116/4002 wholly extinguished native title within the area of the lease. The Ngarluma and Yindjibarndi peoples accepted that, should their argument in relation to s 47A be unsuccessful, his Honour’s finding of total extinguishment over the area covered by special lease 3116/4002 should be upheld. That is consistent with Ward (HC) [2002] HCA 28; 213 CLR 1, where a majority of the High Court held that the grant of a special lease under s 116 of the Land Act 1933 (WA) is a previous exclusive possession act. Their Honours noted at [2002] HCA 28; 213 CLR 1, [356] that some of the purposes for which special leases could be granted under s 116 were "uses in which it might ordinarily be expected that the user would wish to control access to the land".
117 The Ngarluma and Yindjibarndi peoples contended at first instance that s 47 of the NTA was applicable to the area covered by the Mt Welcome pastoral lease and therefore that any prior extinguishment within that area should be disregarded. They argued that, at the time the native title application was made, the pastoral lease was held over the area on trust for the Ngarluma and Yindjibarndi peoples, so as to satisfy the terms of s 47(1)(b)(ii). His Honour rejected that argument. He concluded that the pastoral lease was not, at the time of the application for determination of native title, held by a trustee on trust for any of the applicants or for any of the claimant group.
118 On appeal, the Ngarluma and Yindjibarndi peoples accepted his Honour’s findings in relation to s 47 but contend that prior extinguishment over the area covered by the pastoral lease should nevertheless be disregarded pursuant to s 47A. The specific argument put to this Court was that s 47A(1)(b)(ii) was satisfied in respect of the area because "the area is held expressly for the benefit of...Aboriginal peoples".
119 The Ngarluma and Yindjibarndi peoples also submitted at first instance that s 47A(1)(b)(i) of the NTA was applicable to freehold titles 1390/952, 1390/953, 1397/995, 1462/999, 451/184A, 451/186A, 451/190A, 451/192A, 451/193A, 451/194A, 1365/847 and 1526/946 (the Mt Welcome freehold titles) because at the time of making the application, the relevant areas of freehold existed and were granted under legislation that makes provision for the granting of such areas only to Aboriginal peoples or Torres Strait Islanders. As noted at [59] above, this argument was also rejected by the learned primary judge.
120 On appeal, the Ngarluma and Yindjibarndi peoples have accepted his Honour’s finding in relation to s 47A(1)(b)(i), but submit that s 47A(1)(b)(ii) was satisfied in respect of the areas covered by each of the Mt Welcome freehold titles because "the area is held expressly for the benefit of...Aboriginal peoples". His Honour did not specifically consider the application of s 47A(1)(b)(ii) to the Mt Welcome freehold titles but did reject a similar submission by the Ngarluma and Yindjibarndi peoples in relation to another freehold title held by the Roebourne Workers Aboriginal Corporation (which was incorporated under the Aboriginal Councils and Associations Act 1976 (Cth) (ACA Act). His Honour said in relation to that freehold title that "s 47A(1)(b)(ii) requires relevantly the area is held ‘expressly’ for the benefit of Aboriginal peoples and there is no evidence of such an express provision": July 2003 reasons at [943]. There is no appeal from his Honour’s decision that s 47A(1)(b)(ii) did not apply to the freehold title held by the Roebourne Workers Aboriginal Corporation.
121 The State submitted that leave may need to be obtained to raise the new argument based on s 47A(1)(b)(ii) on appeal. However, it did not oppose the grant of such leave. Nor did it advance any submission that s 47A is inapplicable to pastoral leases on the basis that s 47 is an exhaustive statement of the circumstances in which extinguishment of native title over pastoral leases may be disregarded. In Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra) at [701]-[703], Sundberg J held that Parliament did not intend to exclude pastoral leases from the s 47A regime. No contention was made that his Honour erred in that regard. We would in the circumstances give leave to raise the argument seeking to enliven s 47A(1)(b)(ii) in relation to the Mt Welcome pastoral lease and the Mt Welcome freehold titles, if leave were necessary.
122 Section 47A of the NTA provides that:
When section applies
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made:
(i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or
(ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and
(c) when the application is made, one or more members of the native title claim group occupy the area.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:
(a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);
(b) the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).
Effect of determination
(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the grant or vesting or of the creation of the trust or reservation; or
(ii) the validity of the creation of any other prior interest in relation to the area; or
(iii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.
Exclusion of Crown ownership of natural resources
(4) ...
123 The Mt Welcome pastoral lease (3114/716) and the Mt Welcome freehold titles are, and were at the time the claim was lodged, held by the Mt Welcome Pastoral Co Pty Ltd (the Company).
124 The Company was incorporated in 1973 under the Companies Act 1961 (WA). There was evidence before the primary judge that it was incorporated as a vehicle for acquiring Mt Welcome Station and other properties in the area, using funds provided to the Aboriginal workers’ community in Roebourne by the Commonwealth government. Howard Olney, the solicitor for the Roebourne Aboriginal community at that time, gave unchallenged and uncontradicted evidence by his statement of 13 October 2000 that "[a]s Mount Welcome Station was intended to be operated as a commercial venture it was thought appropriate that it be acquired in the name of a proprietary company in which all shares would be held by or on behalf of the community." There is nothing in the Articles of Association of the Company which explicitly expresses its objects as being operated for the benefit of the Roebourne Aboriginal Community. The Mt Welcome pastoral lease was granted to the Company on 29 November 1976 and will expire on 30 June 2015.
125 The first subscribers of shares in the Company were Mr Olney and Lindsay Durham, an accountant. The Articles of Association of the Company provided that shares (other than the two subscriber shares) were only to be issued to, and any shares were only to be transferred to, Australian Aborigines or to an incorporated association or other body or organisation the membership of which was restricted to persons who were Australian Aborigines. In 1974 Mr Olney transferred his share to Jill Churnside (a member of the native title claim group) and Mr Durham transferred his share to the Ieramugadu Group Inc (the Ieramugadu Group). Further shares were subsequently issued to several of the elders in the Roebourne Aboriginal community. Although there is no express finding, the evidence suggests that by the end of 1975, there were seven issued shares in the Company of which six were held by individual Aboriginal persons and one by the Ieramugadu Group. By the time of the application there were apparently only two individual shareholders and five were held by the Ieramugadu Group. Since 30 June 1995, as his Honour found, the Ieramugadu Group held and now holds all of the shares in the Company except for one share which is held by Frank Smith, a Ngarluma man. That remaining share was said to be held on trust for the Ieramugadu Group, although there does not appear to be any evidence to support that assertion. We note that the Ngarluma/Yindjibarndi submissions of 26 April 2006 state that there are two shares not held by Ieramugadu Group but that is contrary to his Honour’s finding and in any event nothing turns on the difference.
126 The Ieramugadu Group was incorporated under the provisions of the Associations Incorporation Act 1895-1969 (WA) on 6 March 1974. Its Constitution was in evidence before the primary judge. The Constitution of the Ieramugadu Group identifies the objects of the association as follows:
(a) to promote the overall community development of the Community [i.e. the members of the Ieramugadu Group];
(b) to achieve the total self support of the Community by the development of viable economic projects and industries;
(c) to hold shares in any company or companies formed for the purposes of carrying out the objects of the Association;
(d) to provide adequate education, vocational training, health services, employment and housing for the Community;
(e) to assist and encourage the Community to develop an effective system of self government upon its own lands;
(f) to assist and encourage the individual members of the Community to preserve and renew their traditional culture;
(g) to foster mutual trust and friendly relationships between the Community and the community at large;
(h) to receive and expend grants of money from the governments of the State and/or the Commonwealth;
(i) to provide dwelling houses for the Community;
(j) to maintain and repair any buildings provided by the Association and to employ or otherwise engage persons to assist in that work;
(k) to hold any estate or interest or licence in land and to deal with the same in such manner as shall be allowed by this Constitution and the law affecting the same from time to time;
(l) to do all such other lawful things as are incidental or conducive to these objects.
The members of the Ieramugadu Group are
those aboriginals from time to time resident in and around the Roebourne district in Western Australia who are of the Jindjibandi, Ngaluma and Bandjima tribal groups together with such other aboriginals as have an established residential connection with the district or who hereafter may establish such a connection and are recognised by the Board as being members of the Community.
127 The Ngarluma and Yindjibarndi peoples submit that when the Company was granted the lease and acquired the Mt Welcome freehold titles it must have been for the purposes of enabling Aboriginal peoples to benefit from it.
128 The phrase "held expressly for the benefit of...Aboriginal peoples" in
the first limb of s 47A(1)(b)(ii) of the NTA has been
considered on several
occasions at first instance and by the Full Court of this Court. The Ngarluma
and Yindjibarndi peoples rely
on the decisions of Sundberg J in Neowarra
[2003] FCA 1402 and Merkel J in Rubibi Community v State of Western
Australia (No 7) [2006] FCA 459 (Rubibi (No 7)). In
Neowarra, Sundberg J held that several pastoral leases held by the
Indigenous Land Corporation (the ILC) satisfied the same limb of s
47A(1)(b)(ii). The ILC
was established under s 191A of the Aboriginal and
Torres Strait Islander Commission Act 1989 (Cth) (the ATSIC Act) to assist
Aboriginal persons to acquire land and manage it: see Neowarra at [676],
[709] and [712]-[713]. His Honour also found at [716] that a pastoral lease
held at the relevant time by the Aboriginal
and Torres Strait Islander
Commission (ATSIC) (which was empowered by s 14 of the ATSIC Act to grant an
interest in land to certain
bodies for the purpose of furthering the social,
economic or cultural development of Aboriginal persons) was held expressly for
the
benefit of Aboriginal people within the meaning of s 47A(1)(b)(ii). After
the making of the application the pastoral lease was transferred
to Ngallangunda
Aboriginal Corporation. Sundberg J said, in relation to that lease:
Despite the considerable interval between the acquisition of the land and the grant to the body corporate in December 2000, I think it appropriate to infer that the acquisition by ATSIC of a pastoral property in the Kimberley was for the purpose of making a grant under s 14. Pending the making of the grant it held the lease "expressly for the benefit of...Aboriginal peoples". Section 47A(1)(b)(ii) is satisfied: at [716].
129 Sundberg J also held that a pastoral lease held by the Commonwealth satisfied the first limb of s 47A(1)(b)(ii) where the evidence disclosed that the Commonwealth had acquired the lease for the purpose of providing land for Aboriginal communities and intended to transfer the lease to an appropriate incorporated Aboriginal group (although the transfer did not actually occur): at [714]. There was evidence that negotiations leading up to the purchase of the lease were conducted by the Commonwealth Department of Environment, Aborigines and Art, and the funds for the purchase were provided from the Aboriginal Advancement Trust Fund. The Commonwealth’s intention to hold the land for the benefit of Aboriginal peoples was "expressed" in a letter from the Commonwealth Department of Finance and Administration to ATSIC some 27 years after the purchase of the lease. Sundberg J observed, at [714]:
The Commonwealth’s letter shows that it holds the lease for the benefit of Aboriginal peoples. It holds ‘expressly’ for them because that is what the letter says – ‘the intention of the purchase was to secure the lease for the public purpose of "providing land for communities or groups of people of the aboriginal race"’.
130 His Honour further determined in Neowarra that a pastoral lease held by the Kupungarri Community Aboriginal Corporation, which had been incorporated under the ACA Act, was held "expressly for the benefit of...Aboriginal peoples" in circumstances where the objects of the corporation (as stated in its Rules) included the provision of education and training for it members, and helping and encouraging them to "manage their affairs upon their own lands": at [704]. Sundberg J said at [706]:
Kupungarri’s property is ‘available, at the discretion of the Committee, for the purpose of carrying out the objects of the Association’ [rule 15]. The objects in rule 6 are all directed to the benefit of a group of Aboriginal people – education, job training, housing, health services and so on. The Rules clearly and unmistakably disclose that Kupungarri’s property is held by it for the benefit of Aboriginal persons. They make that explicit. There is no need to imply that from the Rules or any other source. The case falls within s 47A(1)(b)(ii).
131 His Honour had rejected the applicants’ submission that the transfer of the lease had taken place under the Aboriginal Development Commission Act 1980 (Cth) or its successor, the ATSIC Act. He was nonetheless satisfied that s 47A(1)(b)(ii) was engaged because of the nature of the objects of the Kupungarri Community Aboriginal Corporation.
132 Similarly, in Rubibi (No 7) [2006] FCA 459 Merkel J held that certain freehold titles held by associations incorporated under the ACA Act were held expressly for the benefit of Aboriginal peoples for the purposes of s 47A. His Honour described the relevant legislative provisions and association Rules or Constitutions as follows (at [93] and [94]):
The ACA Act is stated to provide ‘for the Constitution of Aboriginal Councils and the Incorporation of Associations of Aboriginals and for matters connected therewith’. Section 3 defines an ‘Aboriginal association’ as an association, society or body whose eligibility for membership is limited to Aboriginals and spouses of Aboriginals. Section 49 provides that a person who is not an Aboriginal or a spouse of an Aboriginal is not entitled to become a member of an Incorporated Aboriginal Association.
The objects of each of the associations make it clear that the associations are to generally promote the economic and social development of their members. In fact, the objects of the Broome Aboriginal Media Association and Nirrumbuk Aboriginal Corporation state as their main object, inter alia, the provision of ‘direct relief from poverty, sickness, suffering, destitution, misfortune, distress and helplessness’ of Aboriginal persons in particular regions. The Rules or Constitutions of the associations provide for the property and funds of the association to be available at the discretion of the Committee for the purpose of carrying out the objects.
His Honour then referred to the passage in Neowarra at [706], set out above, and continued (at [97]):
I am not satisfied that his Honour was clearly wrong and, indeed, I am in agreement with his Honour’s approach (cf Risk v Northern Territory of Australia [2006] FCA 404 at [881]). The rules of the association are not relevantly distinguishable from the rules considered by Sundberg J. It must follow that the property of each of the three associations is held by them expressly for the benefit of Aboriginal peoples.
133 That aspect of Rubibi (No 7) is currently the subject of an appeal to the Full Court.
134 The State submitted that insofar as Sundberg J found that the leases held by the ILC and ATSIC fell within s 47A(1)(b)(ii), the decision is distinguishable because in the instant case the pastoral lease and freehold titles are held by a company incorporated under general companies legislation. It also submitted that his Honour’s reasoning in respect of the pastoral leases held by the Commonwealth and the Kupungari Aboriginal Corporation (followed in Rubibi (No 7)) should not be followed; and that the preferable construction of the first limb of s 47A(1)(b)(ii) is that adopted by Olney J in Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32 (Hayes) and by Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404 (Risk).
135 In Risk, Mansfield J observed at [881] that "s 47A is intended to operate only where the legislation itself underlying the grant, or the grant itself, imposes the condition referred to so as to secure the [indefinite] future use of the area for the benefit of Aboriginal people." An area held by the Gwala Dariniki Association was thus held not to satisfy the first limb of s 47A(1)(b)(ii) because neither the enabling legislation nor the lease itself indicated that the site was held expressly for the benefit of Aboriginal people. In relation to the Gwala Dariniki Association his Honour said (at [880]):
Its constitution was admitted into evidence during the final oral submissions. I doubt that the composition of the grantee of a freehold or leasehold entity can itself lead to s 47A(1)(b)(ii) being satisfied. The composition of a holding entity may change, and its purposes may change. The fact that, at the time of the grant, its objects and composition may enable a finding to be made that its purposes (even its then express purposes) were for the benefit of Aboriginal peoples does not mean that purpose will be ongoing. The Association, according to its constitution, has objects which are consistent with the object required by s 47A(1)(b)(ii) but, as the Territory pointed out, not all its membership must comprise Aboriginal persons and its actual composition is not presently proved.
136 Risk is consistent with Ward (FC), where Beaumont and von Doussa JJ held that s 47A(1)(b)(ii) was applicable to certain freehold titles which were granted (or deemed to be granted) to Aboriginal corporations under the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT): at [363]-[366]. Their Honours remarked that that Act was plainly intended "to benefit Aboriginal people": at [364]. They did not consider the objects of the relevant Aboriginal corporations.
137 Risk is also consistent with the decision of Olney J in Hayes. In Hayes, his Honour determined that a crown lease granted to a corporation incorporated under the ACA Act did not fall within the terms of either s 23B(9)(b) or s 47A(1)(b)(ii) of the NTA. Section 23B(9)(b) is framed in similar terms to s 47A(1)(b)(ii) although it refers to "the grant or vesting of anything expressly for the benefit of...Aboriginal peoples" and not the holding of the relevant area (emphasis added). The relevant crown lease in Hayes was granted in perpetuity to the Mbantarinya Aboriginal Corporation for the purpose of "traditional village, residential and ancillary": at 82. Olney J held that
The grant was not expressly for any of the purposes described in s 23B(9)(b). The fact that the lessee is a corporation incorporated under the [ACA Act] does not clothe the grant with the characteristics referred to in s 23B(9): at 83.
His Honour further held that s 47A did not apply to the land covered by the lease, noting that it was not held expressly on any of the bases referred to in s 47A(1)(b)(ii): at 83-84.
138 The point of difference between the two approaches to the first limb of s 47A(1)(b)(ii) appears to be the perspective from which one considers whether land is "held expressly for the benefit of" Aboriginal peoples. Neowarra and Rubibi (No 7) appear to permit consideration of that question from the perspective of the entity holding the beneficial interest in the land set in the legislative context in which the entity was established. In Hayes and Risk, on the other hand, consideration of the issue is restricted to the perspective of the legislative or executive structure under which the grant or transfer itself was made, or to the perspective of the instrument which grants the relevant interest. Thus, the composition of the grantee and the actions of the grantee upon acquiring the interest, matters which may be outside the control of the grantor, are generally irrelevant to the question of whether prior extinguishment of native title in the land should be disregarded. Of course, each of those cases addressed their particular facts. There may be other combinations of facts which, in the particular circumstances, may enliven s 47A.
139 The State has also pointed out that if s 47A(1)(b)(ii) was applicable in every case where the grantee or transferee is an Aboriginal person or corporation, or a person who holds the land for the benefit of Aborigines, then s 47A(1)(b)(i) (which deals with freehold estates or leases granted under "land rights type legislation") would be redundant.
140 On the other hand, the Ngarluma and Yindjibarndi peoples contended that the approach adopted in Hayes and Risk unduly narrows what is intended to be a beneficial provision of the NTA; and that, should the construction urged by the State be adopted, s 47A(1)(b)(ii) would have a very limited operation outside the circumstances which are already covered by s 47(1)(b)(i).
141 Some support for the view expressed in Risk and Hayes can be found in the Senate’s Supplementary Explanatory Memorandum to the Native Title Amendment Bill (No 2) 1997 (Cth), which stated regarding the reference to areas "held expressly for the benefit of" Aboriginal peoples in proposed s 47A(1)(b)(ii)):
This amendment replaces proposed subparagraph 47A(1)(b)(ii) in the Bill. Section 47A permits certain grants or interests which may have extinguished or impaired native title to be ignored by the Court when making a determination of native title in relation to areas which are held under land rights type legislation or other land rights type schemes. New subparagraph 47A(1)(b)(ii) ensures that areas which are held expressly for the benefit of indigenous peoples, or areas which are held on trust for or have been reserved expressly for the benefit of indigenous peoples, are covered by section 47A. The amendment recognises that not all of the beneficial grants which the Government wishes to cover use trust arrangements or reservations. Grants which were not expressly for the benefit of Aboriginal peoples, but which were made in the normal way to a specific person, who happens to be an Aboriginal person, are not covered by paragraph 47A(1)(b): at 4 (emphasis added).
142 As the State submitted, the practical effect of the provisions of s 47A may provide a further indication that Parliament did not intend that the section would apply other than according to the expressed intention of the Crown. The effect of s 47A(1) being satisfied in relation to a particular area is that the non-extinguishment principle will apply to the freehold or lease: see ss 47A(3)(b) and 238 of the NTA. If the Ngarluma and Yindjibarndi submission is accepted, a lessee of an ordinary lease from the Crown could defeat the Crown’s reversion by the lessee’s own act of, for example, subleasing the area expressly for the benefit of Aboriginal people.
143 Moreover, if that submission is accepted, in the case of a sublease of a pastoral lease the sublessee could by internal reconstruction after the sublease was granted qualify the area of the pastoral lease for the application of s 47A(1)(b)(ii) so that the extinguishing effect of the grant of the sublease, and of the pastoral lease itself and any earlier pastoral leases, would be disregarded when making any determination of native title over the area. That would be so even if the sublease were for a relatively short period, and even if the sublessee revised its internal construction again after the date of the application for determination of native title. The pastoral lessee’s interests would be protected by the non-extinguishment principle under s 238 of the NTA but upon the expiry of that pastoral lease, the Crown’s reversionary interest would be affected by a determination of native title. And, notwithstanding the effect of any earlier pastoral lease or the pastoral lease itself, there would be no reason in principle why the native title rights and interests should not extend to an exclusive right to use and enjoy the area. That is a step which the Ngarluma and Yindjibarndi submissions did not take, but it is the logical conclusion to their submissions. The Crown could not, in that example, extend the pastoral lease or grant a fresh pastoral lease without confronting the "future act" regime under the NTA.
144 There is also merit in the State’s contention that, if native title continued to exist in the Mt Welcome freehold titles (subject to the non-extinguishment principle), and the Company chose to transfer those freehold titles to a member of the public, the transferee will also hold them subject to the non-extinguishment principle. This, it is said, would result in the unintended consequence that any attempt by the transferee to, say, sub-divide the land, would also be subject to the "future act" provisions of the NTA. On the approach urged by the Ngarluma and Yindjibarndi peoples, even a change in the shareholding of the Company so as to permit non-Indigenous persons to acquire shares, may constitute a "future act".
145 In our view, those considerations lend support to the approach to the construction of s 47A(1)(b)(ii) adopted in Risk and Hayes. However, each set of circumstances must be addressed separately, including in the particular legislative context in which those circumstances emerge.
146 Section 47A(2)(a) states that it is the "doing of the thing which resulted in the holding or reservation" referred to in s 47A(1)(b)(ii) and which has an extinguishing effect which is to be disregarded. The relevant things identified by the Ngarluma and Yindjibarndi submission were:
(1) the grant of the Mt Welcome pastoral lease to the Company, and
(2) the grant of the Mt Welcome freehold titles and the subsequent transfers of those titles, ultimately including the transfers to the Company.
They are the things which otherwise would have had an extinguishing effect upon native title.
147 It is desirable to address the grant of the Mt Welcome pastoral lease and the grant of the Mt Welcome freehold titles and the subsequent transfers of those titles separately.
148 The grant of the Mt Welcome pastoral lease was made under the Land Act 1933 (WA) on 29 November 1976. It is accepted that that enactment does not attract the application of s 47A(1)(b)(i). To attract the application of s 47A(1)(b)(ii), under the Mt Welcome pastoral lease, the leased area must be held expressly for the benefit of Aboriginal peoples.
149 As appears from Neowarra [2003] FCA 1402, even if the legislation under which a pastoral lease is granted does not have the character to attract the application of s 47A(1)(b)(i), the legislation under which the lessee is established may result in the application of s 47A(1)(b)(ii). That is a matter of construction of the relevant legislation. It is not necessary to reconsider that decision in that respect. It clearly addresses different facts to those presently before the Court. There are no relevant statutory provisions which might have a similar operation in relation to the Mt Welcome pastoral lease. The Company was incorporated under the Companies Act 1961 (WA), and it was not suggested that incorporation under that Act so constrained the activities of the Company as to enliven s 47A(1)(b)(ii).
150 It is unclear when the Mt Welcome freehold titles were first issued. They were transferred to the Company on 16 May 1974 (seven titles) 11 October 1974 (two titles) 7 January 1975 (one title) 13 April 1977 (one title) and 1 March 1979 (one title).
151 At the time of the grant of the Mt Welcome pastoral lease, there were apparently several individual shareholders in the Company including one share held by the Ieramugadu Group, and by the time of the application, there were apparently still only seven issued shares of which six were held by the Ieramugadu Group and one by an individual. When the Mt Welcome freehold titles were variously transferred to the Company there was at least one and in some instances several individual shareholders, in addition to the Ieramugadu Group.
152 The absence of any legislative or executive indication that the Company was to hold the area of the Mt Welcome pastoral lease or of the Mt Welcome freehold titles for the benefit of Aboriginal peoples is sufficient to conclude that s 47A(1)(b)(ii) has not been enlivened for the reasons already given. The absence from the Articles of Association of the Company of any provision requiring its business and activities to be carried out expressly for the benefit of Aboriginal peoples fortifies that conclusion. Although the articles require that any issued shares (beyond the two subscriber shares) be to Aboriginal persons and any transfer of shares be to Aboriginal persons, there was no requirement for the issue of any shares beyond the subscriber shares or any requirement that they be transferred. Even in the event of any shares in fact being held by Aboriginal persons, there is no obligation upon the individual shareholders to hold those shares or to exercise the voting rights with respect to those shares "for the benefit of Aboriginal peoples" as distinct from their personal interests. The expression "Aboriginal peoples" in s 47A(1)(b)(ii) contemplates some communal or collective benefit rather than individual personal benefit.
153 In the case of the individual personal shareholders, there is no finding made that those individuals held their shares in the Company for the benefit of Aboriginal peoples, as distinct from their individual personal interests.
154 The remaining, and majority, shareholder at the time of the application was the Ieramugadu Group. Had it procured the Company to change its memorandum and articles of association by that time to require its business and activities to be conducted for the benefit of Aboriginal peoples, there may then have been some similarity to the circumstances Sundberg J addressed in Neowarra concerning the Kupungarri Community Aboriginal Corporation, and adopted by Merkel J in Rubibi (No 7). But it had not done so. As we have said, we prefer the view expressed in Risk and Hayes as to the reach of s 47A(1)(b)(ii). But the position is not free from doubt. Even if their Honours’ approach in Neowarra and Rubibi (No 7) were adopted as discussed in [149] above, so that evidence of the express holding for the benefit of Aboriginal peoples may include that concerning the composition of the grantee of the interest, it would not result in the Company holding the area expressly for the benefit of Aboriginal peoples. At best, the facts might support the proposition that the majority shareholder (or even the shareholders) of the Company at the time of the application wished the Company to conduct its business and activities for the benefit of Aboriginal peoples. Any benefit to Aboriginal peoples would flow not from the basis on which the areas are held but rather from the capacity of the shareholders of the Company to instruct it to deal with the land in a particular way. The connection between the potential provision of the benefit to Aboriginal peoples and the holding is too remote. We do not consider that such a state of affairs is sufficient to enliven the application of s 47A(1)(b)(ii) in any event.
155 For those reasons, the extinguishing effect of the Mt Welcome pastoral lease, and of the grant and transfers of the Mt Welcome freehold titles, should not be disregarded by reason of s 47A of the NTA.
156 In those circumstances it is not necessary to address the State’s contention in respect of special lease 3116/4002.
157 This ground of appeal concerns whether s 47B of the NTA is applicable to the areas which were, at the time the native title determination application was made, subject to temporary reserves 5461H, 5975H, 5976H and 8117H (the temporary reserves), made under s 276 of the Mining Act 1904 (WA) (the Mining Act). They continued in force following the report of the Mining Act by the enactment of the Mining Act 1978 (WA): see cl 1 of the Second Schedule to the Mining Act 1978 (WA), which also provided that a mining tenement over a temporary reserve may not be granted without the consent in writing of the Minister of Mines.
158 Section 47B of the NTA provides for extinguishment of native title in vacant Crown land to be disregarded in certain circumstances. It reads:
When section applies
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not:
(i) covered by a freehold estate or a lease; or
(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii) subject to a resumption process (see paragraph (5)(b)); and
(c) when the application is made, one or more members of the native title claim group occupy the area.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.
Effect of determination
(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the creation of any prior interest in relation to the area; or
(ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the creation of any prior interest in relation to the area...
159 The primary judge found that temporary reserve 5461H was a "reservation" for the purposes of s 47B(1)(b)(ii), and therefore that s 47B of the NTA was not applicable to the area it covered. His Honour did not specifically consider temporary reserves 5975H, 5976H or 8117H in the July 2003 reasons, but recorded in the appendix to the July 2004 reasons (138 FCR 254 at 273) that those temporary reserves were also areas to which s 47B did not apply.
160 Section 47B(1)(b)(ii) is relevantly concerned with reservations which are "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."
161 The temporary reserves were made under s 276 of the Mining Act. That section provided for the temporary reservation of any Crown land, as follows:
The Minister and, pending a recommendation to the Minister, a warden, may temporarily reserve any Crown land from occupation, and the Minister may at any time cancel such reservation: Provided that if such reservation is not confirmed by the Governor within twelve months, the land shall cease to be reserved.
The Minister may, with the approval of the Governor, authorise any person to temporarily occupy any such reserve on such terms as he may think fit, but subject to the provisions of section two hundred and seventy-seven.
162 Section 277 of the Mining Act placed certain limitations upon the length of time, and the extent of the area, for which a right of occupancy may be granted under s 276. Generally, a temporary reserve made under s 276 prevented the holder of a miner’s right from exercising the privileges conferred by s 26 of that Act, including "to take possession of, mine, and occupy Crown land for mining purposes".
163 At first instance the State submitted that the effect of temporary reserve 5461H was to reserve the land for public purposes, namely future development. The Ngarluma and Yindjibarndi peoples contended that a temporary reserve under s 276 of the Mining Act is not a "reservation" at all. They argued that the "temporary reserve" classification is simply a management tool, enabling the Minister to exercise general management control in the area affected. Such general managerial control was said not to extinguish native title. The primary judge said (at [967]-[968] of the July 2003 reasons):
What is significant is the context in which the word ‘reservation’ appears in s 47B(1)(b)(ii). That provision makes apparent that even a dedication, condition, permission or authority for a public or particular purpose falls within the provision. The evident legislative intent is to apply the excluding provision as widely as possible.
In my view, in that context, the word ‘reservation’ in this provision is to be understood as including a temporary reserve having one of the requisite purposes. Alternatively I cannot see why a temporary reserve would not also fall within the understanding in the context of a condition, permission or authority either in its making or upon the grant of rights of occupancy under it.
164 On appeal, it was not disputed that the temporary reserves are "reservations" under s 276 of the Mining Act. The Ngarluma and Yindjibarndi peoples contended instead that s 47B does not apply to the temporary reserves because s 276 of the Mining Act did not authorise a reservation being made "for public purposes or for a particular purpose". They accepted that the government may in fact have intended that the land so reserved be used for economic development or other public purposes but maintained that the reservations themselves were not for a public purpose or a particular purpose because the facilitating provision did not permit such a reservation to be made. The State did not object to the new argument being raised on appeal.
165 Since the primary judge published his reasons at first instance, s 47B has been the subject of consideration by the Full Court of this Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442 (Alyawarr (FC)). The issue in Alyawarr (FC) was whether the proclamation of a townsite fell within the terms of s 47B(1)(b)(ii). Contrary to the observation of the primary judge set out at [163] above, the Court in Alyawarr (FC) (Wilcox, French and Weinberg JJ) clearly did not consider that the exclusionary provision in s 47B(1)(b)(ii) should be applied "as widely as possible". Two aspects of the criteria in s 47B(1)(b)(ii) were discussed in Alyawarr (FC), both of which are relevant to the present issue. Their Honours said at [2005] FCAFC 135; 145 FCR 442, [185]:
The operation of s 47B(1)(b)(ii) falls to be considered at the time the application for a native title determination is made. The collocation ‘reservation, proclamation, dedication etc’ is of wide import. There is no doubt that the proclamation made on 22 July 1953 was a ‘proclamation’ within the meaning of s 47B(1)(b)(ii). To satisfy the exclusionary condition in that subparagraph however the proclamation had to be one of which it could be said that, at the date of the application, it was a proclamation ‘under which the whole or a part of the land...in the area is to be used for public purposes or a particular purpose’. The terms of the condition raises two issues. The first is as to the nature of the purposes for which the land is to be used. The second is whether an intention to use the land for those purposes must be shown, as a matter of fact, to exist at the time the native title determination application is made or whether it is to be ascertained by reference to the terms of the proclamation and the legislation under which it is made. (emphasis added)
166 As to the first issue, the nature of the purposes for which the land is to be used, their Honours said (at [186-187]):
The definition of a townsite and the setting aside of land within the townsite as ‘town lands’ under the Crown Lands Ordinance embraced a variety of potential subsequent uses none of which was defined at the point of proclamation. The proclamation enlivened powers to grant leases for a variety of purposes.
The purpose of s 47B is beneficial. The qualification on its application in s 47B(1)(b)(ii) is no doubt intended to minimise the impact of native title determination applications on areas set aside by proclamation or otherwise under statutory authority for public or particular purposes. That limitation should not be construed more widely than is necessary to achieve its purpose. A proclamation for a broadly expressed purpose which encompasses a variety of potential but unascertained uses is not a proclamation for a particular purpose. The term ‘public purposes’ may arguably encompass a land use planning purpose which is met by establishing a framework or condition for the allocation of private rights such as the grant of residential or commercial leases in a township. Alternatively, it may be construed as referring to purposes of a public nature such as the creation of reserves for public works or recreation or environmental protection. A narrower construction accords with a comprehensible policy that, in the public interest, prior extinguishment which might obviate public exposure to compensation claims or a future act process should be continued in force. It is not necessary in aid of the narrower construction to define its outer limits here. It is sufficient to say that the mere proclamation of a townsite, which might comprise largely private property holdings by lease or otherwise, does not define public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii).
And on the second issue, that is, the ascertainment of the relevant intention to use the land for public purposes or a particular purpose, the Court said (at [188]):
The second constructional question turns on the requirement that to attract the exemption from the operation of s 47B the proclamation must be one under which the land or waters which it covers ‘is to be used’ for the specified purposes. The words ‘is to be used’ import the need to identify some intention to use the subject land for the requisite purpose or purposes. The question that arises is whether that intention is to be gleaned by reference to the terms of the proclamation and its constating legislation as an intention fixed for the duration of the proclamation or whether it is to be ascertained as a matter of fact at the time of the application for a native title determination...[A]lthough the first interpretation can yield artificial results, it does provide an objective basis for determining the question of the imputed intention associated with the proclamation. The alternative approach would require factual inquiry into whether there has been, at the time of the application, an effective abandonment, attributable to the Crown, of any intention to implement the proposed purposes of the proclamation. The latter construction is not to be preferred.
167 It is convenient to consider first the "second constructional question" identified in Alyawarr (FC). The passage set out above suggests that the relevant intention regarding future use of the subject land "is to be gleaned by reference to the terms of the proclamation and its constating legislation". In the present case, therefore, the issue would be determined with reference solely to the provisions of the Mining Act referred to above and the instruments creating the temporary reserves.
168 In relation to the Mining Act, the State submitted that the Minister’s power to temporarily reserve land under s 276 was clearly one that was to be exercised for the purposes of, or for purposes associated with, mining. It did not take the Court to the actual instruments creating the temporary reserves, and indeed the written submissions do not identify in the evidence any such instruments. However, the State did seek to rely on what it described as the "Departmental register" concerning the reservations to show the original public purposes or particular purpose of the temporary reserves as well as some apparently contemporaneous evidence of the original purpose of the temporary reserves. That evidence is said to establish that they are reserves under which the land is to be used for the "public purposes" of economic development associated with the Pilbara iron ore and salt industries (including the construction of railway and port facilities and water and power infrastructure) (5461H), facilitation of the Dampier Salt State Agreement (5975H and 5976H), and construction of an airport site (8117H). In the alternative, the State says that each of those purposes is a "particular purpose". It was said that Alyawarr (FC) only decided that evidence of a variation to the original purpose of the proclamation is inadmissible. Senior counsel for the State also pointed out that the evidence of the original purpose of the temporary reserves (in particular, the statement of Noel Ashcroft dated 20 June 2000) was adduced at first instance without objection from the Ngarluma and Yindjibarndi peoples and Mr Ashcroft was not cross-examined. We understand, however, that argument at first instance was solely concerned with whether the temporary reserves were "reservations" at all. That may explain why the Ngarluma and Yindjibarndi peoples did not object to Mr Ashcroft’s statement.
169 It is correct that there was no issue in Alyawarr (FC) regarding the admissibility of extraneous evidence establishing the Crown’s original purpose in proclaiming the relevant townsite. However, the construction propounded by the State is inconsistent with the Full Court’s emphasis on the terms of the particular instrument (in this case, a reservation) and its constating legislation, and draws attention away from the "objective basis" of determination approved by their Honours. As a considered Full Court decision on the topic, we should depart from that view only if we think that it is clearly erroneous: Transurban City Link Ltd v Allan [1999] FCA 1723; (1999) 95 FCR 553 at 560, [29]. The contentions of the State do not lead to the conclusion that the decision was clearly erroneous.
170 We respectfully agree with the approach to the construction of s 47B adopted by the Full Court in Alywarr (FC) at [187] (set out above), namely that having regard to its beneficial purpose the limitation upon its operation "should not be construed more widely than is necessary to achieve its purpose". Indeed, in our view, the wording of s 47B(1)(ii) supports the conclusion there reached. The relevant use, whether for public purposes or for a particular purpose, must emerge from the reservation itself. It is "under" the reservation that the area is to be used for public purposes or for a particular purpose, as the word "which" is the relative pronoun for the reservation or other instrument made or conferred by the Crown. If the use of the word "under" was not intended to convey that the public purposes or the particular purpose could emerge in respect of the reserved area independently of the reservation itself, the words "under which" would not have been used and instead a simple conjunctive "and" would have been used. Consequently, although particular land may ultimately be used for a public purpose such as an airport site or a salt mine, such use cannot be regarded as occurring "under" a reservation authorised by s 276 of the Mining Act unless that section or the reservation made pursuant to that section and in its legislative context provide the necessary purposive character to the reservation.
171 It is then necessary to consider the nature of the purposes for which the area of the temporary reservations is to be used. That is the same question as the first issue identified in Alyawarr (FC) at [2005] FCAFC 135; 145 FCR 442, [185].
172 The provisions of the Mining Act do not readily point to "public purposes" or a "particular purpose" for which a reservation is to be made under s 276. They merely provide for a restriction on the activities which may otherwise be carried out upon the land. Counsel for the State contended that a reservation made under s 276 is clearly made for mining purposes, which are public purposes. In Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97 at 101 Brinsden J (with whom Wickham and Wallace JJ agreed) said that its effect is to temporarily reserve Crown land from occupation for the purposes of the Mining Act. The Mining Act, by its long title, was to consolidate and amend the law relating to mining for gold and other minerals. As might be expected, apart from establishing the administrative structures for that purpose, it provides for the establishment of goldfields and mineral fields and the creation of several bases for the exercise of mining rights and for the terms upon which those rights may be exercised. Section 276 is in the Part called "General Provisions".
173 By the time the reservations in issue were made, s 276 appears to have been one of several sections (ss 275-278) dealing with reserves. Section 275 empowered the Governor, by notice in the Gazette, to declare any reserve (defined in s 3 to include any reserve under any Act) to be open for mining, so that it became Crown land. Section 276A provided that two particular reservations under s 276 were reservations under the section and clarified the effect of the two reservations. It also expressly empowered the Minister by notice in the Gazette to bring the reservations under s 276A to an end. Section 277 limited the terms upon which a right of occupancy may be granted by the Minister under s 276, and provided that any right of occupancy for more than 12 months was to be tabled in the Parliament. Section 277A concerned the termination by 31 October 1971 in certain circumstances of certain rights of occupancy granted under s 276 for prospecting for iron ore. And s 278 prohibited mining under railway reserves except in certain circumstsances.
174 In that context, the words in s 276 clearly show that the reservation itself prevents occupation of the reserved area. That which may or may not be done on reserved areas has been addressed. The Minister’s reasons for making a reservation may well involve long term public planning, using the expression "public" in the wider sense discussed in Alyawarr (FC) at [187], that is to encompass future public or private development as well as future works for public use and enjoyment. But a reservation under s 276 does not require that the Minister have any purpose specifically in mind, and indeed (as Mr Ashcroft’s statement says) the purpose may be no more than to preserve for a different Minister the opportunity at some time in the future to manage the future development of the area. The Minister’s power may be exercised if the plan for the future use of the area is inchoate or even entirely unformed. The capacity of the Minister to cancel the reservation at any time is consistent with that position. So too is the Minister’s power to authorise temporary occupation of the reserved area on terms. So too is the need for the reservation itself to be confirmed by the Executive through the Governor within twelve months, and for any temporary occupancy for a period in excess of twelve months to be exposed to the Parliament; in each instance the Government itself becomes aware of the reservation and the extent of temporary use so that any future plans may be given effect to and not impeded. Hence, we accept the contention of the Ngarluma and Yindjibarndi peoples that the reservation "from occupation" provided for in s 276 is no more than that.
175 Accordingly, in our view, a reservation under s 276 may lawfully be made without the area of the reservation being required for public purposes or for a particular purpose, and there is no requirement in s 276 of the Mining Act that under a reservation the area is to be used for public purposes or for a particular purpose. Such a reservation may, but need not even, contemplate a "variety of potential but unascertained uses" of the land (Alyawarr (FC) at [2005] FCAFC 135; 145 FCR 442 [187]). In our judgment, the reservations under s 276 of the Mining Act do not fall within the exclusionary provision in s 47B(1)(b)(ii).
176 If, contrary to our approach to the proper application of s 47B(1)(b)(ii), it is permissible to consider evidence of the purpose for the creation of the temporary reserves, that evidence is contained in the statement of Mr Ashcroft, and the Departmental register. There was no contention on behalf of the Ngarluma and Yindjibarndi peoples that that evidence, if relevant to the issue, was not reliable. Paragraph [168] refers to that evidence and the findings which it supports. For the reasons already given, the primary judge did not address that evidence in detail.
177 Temporary reserve 5461H was agreed to be created by a decision of Cabinet of the State on 28 July 1970, following a recommendation of the Chairman of the Northwest Planning Committee and Co-ordinating Authority, to enable the State to retain the ability to construct public works and grant leases over the area without the need for resumptions or to pay compensation to mining tenement holders. Mr Ashcroft asserts that it was established by the Minister of Mines on 7 August 1970 "to provide for orderly development in and around Karratha and Roebourne". There is no instrument under the hand of the Minister in evidence. The quoted expression comes from the Departmental register. An Executive Council Minute of 4 November 1970 confirms the temporary reservation but does not state its purpose.
178 The Departmental register also records, under the column "Encumbrances, etc." occupancy rights granted to Westfield Minerals (WA) NL between 21 February 1972 and 28 February 1974. It also shows that between 1978 and 1991 the Minister cancelled portions of the reservation on 18 separate occasions, 11 of which coincided with and covered the areas granted by specified exploration licences, mineral leases, mining leases and general purpose leases, and the other seven of which cancelled areas as shown on certain specified files or maps apparently held by the Department.
179 Mr Ashcroft says that temporary reserve 5461H covered an area of 3956.5 km2 , and he says that the reserve is still in place. In the light of the Departmental record, clearly its extent is now confined. No doubt the parties, if necessary, can resolve that factual issue. In any event, on that material, the temporary reservation from use was not in its terms a reservation for public purposes, as it did not necessarily limit its use to purposes of a public nature. "Orderly development" could encompass the allocation of land for private uses, as indeed appears to have occurred at least through the grant of the leases referred to in the Departmental register. Nor does the reservation identify the use of the area for a particular purpose; the concept of a particular purpose in s 47B(1)(b)(ii) contemplates a purpose with much greater specificity than for "orderly development" of an area. See e.g. Erubam Le (Darnley Islanders) No 1 v State of Queensland [2003] FCAFC 227; (2003) 134 FCR 155 at [53]- [59], [77]. Consequently, in our view, temporary reserve 5461H on the evidence (assuming it to be relevant to the purpose) is not within the exception to the application of s 47B provided by s 47B(1)(b)(ii) .
180 According to Mr Ashcroft, each of temporary reserves 5975H, 5976H and 8117H are established within the area of temporary reserve 5461H. He says that temporary reserves 5975H and 5976H were initially for "solar salt production and certain other industries", but are now for "Ministerial Purposes at the proposed Maitland Estate Industrial area near the Maitland River" and temporary reserve 8117H was for a possible airport site. The Departmental register concerning temporary reserve 5975H contains the words "Ministerial for Dampier Salt" and the notation "Approved by Hon. Minister on 31.1.75" as a "Temporary Reserve". Under the "Encumbrances, etc." column is the entry: "Ministerial Reserve for the purposes of the Dampier Solar Salt Industry Agreement Act 1967-1974 – Clause 3(2) Option area edged in ‘blue’". It then has the entry: "Dampiers right under Clause 3(2) and 3(3) of the [Agreement] Act expired 30.6.1980 ... Reserve to continue as Ministerial".
181 The Departmental register concerning temporary reserve 5976H has identical entries to that concerning temporary reserve 5975H, except that it refers to Clause 3(3) of the Agreement Act and the area is edged in "green".
182 The evidence therefore reveals that each of temporary reserves 5975H and 5976H, assuming as Mr Ashcroft’s statement implies that they were still in force, were at the time of the application for determination of native title covered by a reservation under s 276 of the Mining Act. However, the reservation in each case is not shown to have been for public purposes or for a particular purpose. The register identifying that the reservations since 1981 have been "Ministerial" says no more than that the Minister wished to maintain the reservations under s 276 of the Mining Act after their original purpose had apparently lapsed. The fact that the initial purpose of these reservations lapsed, and yet they continued as reservations under s 276 tends to confirm that the reservations prevented occupation except in certain circumstances rather than reserved the areas for public purposes or for a particular purpose.
183 Consequently, those two temporary reserves on the evidence are not shown to come within the exception provided by s 47B(1)(b)(ii).
184 The Departmental register concerning temporary reserve 8117H indicates that it was "Approved by Hon. Minister 15.12.80" and that occupancy rights were given to CSR Limited between 13 February 1981 and 1 May 1982. On five occasions between 1986 and 1997 a portion of the reserved area was cancelled, in three instances over areas coinciding with other instruments.
185 The Departmental register does not expressly indicate the purpose of temporary reserve 8117H. It contains the word "Ministerial", and separately a note that the reserve must not be cancelled or reduced without reference to certain files regarding "possible inclusion of a ‘possible airport site’". In our view, that evidence does not show that the reservation was for public purposes or for a particular purpose, even assuming use of the area for an airport would be for public purposes or for a particular purpose. That is because the evidence goes no further than suggesting that, at some future time, the area might be used for an airport. At the time of the reservation the area at best was reserved in case it was later required for an airport site, and the evidence as to its purpose at the time of the application for determination of native title defines the picture no more specifically.
186 Accordingly, in our judgment, even on the evidence of the State (if relevant), temporary reserve 8117H at the time of the application did not attract the exemption from the application of s 47B provided by s 47B(1)(b)(ii).
187 Even if the scope of relevant evidence were extended to the general evidence of Mr Ashcroft as to the State’s planning processes in respect of the Burrup area generally, including the four temporary reserves, those conclusions do not alter.
188 Mr Ashcroft explains the temporary reserves cover unallocated Crown land on the Burrup Peninsula that has continued to be available for industrial development. Since 1970, the State has been investigating and planning the use of the unallocated Crown land on the Burrup Peninsula, so most of the land has "remained ... subject to the temporary reserves". There have been a series of studies into, and working groups and committees considering, its use from 1974. Those processes had not resulted in the State adopting any final plan for its use by the time the application for determination of native title was made. Indeed, the process was still ongoing to the time of the hearing. That evidence does not induce any different conclusion to those we have expressed above.
189 We are therefore of the view that the primary judge erred in concluding that s 47B did not apply in respect of the areas the subject of the temporary reserves made under s 276 of the Mining Act. We consider that the determination of native title made on 2 May 2005 should be extended to encompass those areas.
190 However, as noted in the course of our consideration of this issue, there are two further matters to be taken into account before formulating the precise terms of the appropriate determination. The first is to identify to the extent it is necessary the current area of temporary reserves 5461H and 8117H, as the evidence shows the areas of those two reservations have progressively been reduced over time (only one cancellation of part of temporary reserve 8117H appears to have taken place after the application for determination of native title was made). The second, as the State pointed out, is to consider the extinguishing effect of the various leases which have been granted over parts of the areas of temporary leases 5461H and 8117H as disclosed in the Departmental register. The primary judge did not need to consider those matters because he considered that the temporary reserves themselves had an extinguishing effect which was not to be disregarded under s 47B. It may also be that the State contends that the temporary occupancy rights granted over part or all of the areas of those reserves itself had a relevant extinguishing effect. They are matters upon which, in the first instance, the parties should confer to see if some form of appropriately varied determination to give effect to our reasons can be agreed upon.
191 Those conclusions are, of course, subject to the outcome of the State’s alternative contention, to which we now turn.
The State’s alternative contention: s 47B - Occupation
192 In the event that the Ngarluma and Yindjibarndi peoples succeeded in their appeal regarding the application of s 47B to the temporary reserves, the State, by its Notice of Contention, sought to have the conclusions of the primary judge in relation to the applicability of s 47B to the areas covered by the temporary reserves upheld on other grounds.
The areas where the issue of whether s 47B applies arises
193 For the purposes of the trial, the claim area was divided into approximately 600 "areas", each of which was given a separate "area number". On their appeal in relation to the temporary reserves, the Ngarluma and Yindjibarndi peoples sought to have the fifth schedule to the 2 May 2005 determination amended so that, in addition to the areas listed by the primary judge in respect of which extinguishment of native title is to be disregarded pursuant s 47B, extinguishment of native title would also be disregarded in respect of the following areas: part of 14A, part of 18A, 129, 132, 133, 138, 139, 141, 148, 160, 161, 162, part of 173, part of 193, part of 196, part of 241B, 241C, part of 250, 257, 264, 321, 322, 323, 342, part of 365, part of 368, part of 381, 391, 417, 482, 483, 484, 485, 486, 488, 489, 490, 491, 492, 493, 494, 496, 497, 502, 505, 506, 512, 513, 514, 515, 516, 517, 518, 519, 532, 533, 535, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546, 547, part of 563A, part of 563B, 567, and 568. Each of these areas is covered (or partially covered) by one of the temporary reserves.
194 The "area" to which s 47B refers is "the particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished": Neowarra [2003] FCA 1402 at [721] per Sundberg J; see also Risk [2006] FCA 404 at [886] per Mansfield J. In its written submissions on the notice of contention, the State said that there could be no issue regarding the application of s 47B to some of the areas identified by the Ngarluma and Yindjibarndi peoples because there was no extinguishment to be disregarded in any event. Specifically, the State submitted that there was no s 47B issue to be determined in relation to areas 14A, 18A, 138, 139, 173, 193, 196, 321, 368, 381, 391, 417, 493, 494, 539, 540, 541, 543, 544, 545, 546, 563A, 563B and 567 because the primary judge did not find that native title had been extinguished over those areas.
195 The Ngarluma and Yindjibarndi peoples did not contest that summation of his Honour’s findings. However, they say that the extinguishment which they seek to have disregarded over those areas is the partial extinguishment which may arise from past pastoral leases or mining tenements. They submitted that "[t]here is no harm in a declaration that s 47B would apply if there is such extinguishment, if, in fact, it eventuates that no instances of such extinguishment are ever identified".
196 In our view, the State’s submission on this issue should be preferred. It is unclear from the wording of s 47B whether the Court has power to declare that the section applies to a particular area in circumstances where there has been no finding of native title over that area. However, the State has challenged the primary judge’s findings regarding occupation in relation to all but five of those areas (see below). It seems quite unnecessary to engage in the factual issue of occupation in relation to areas where the outcome of that factual inquiry will have no practical result. The Ngarluma and Yindjibarndi peoples made no submissions on the fact of occupation in the areas referred to in [194] above.
197 The State also said that s 47B would not apply to areas 139, 160, 257, 264, 323, 482- 486, 488-492, 496, 497, 505, 506 and 519 in any event because they are covered by exploration licenses; and would not apply to areas 514, 516, 517 and 518 because they are not unallocated Crown land. And it said that s 47B could not apply to disregard extinguishment in area 160 because native title was extinguished in that area by an act done after the claim was lodged (the creation of Reserve 44292): see Risk [2006] FCA 404 at [905], where Mansfield J expressed the view that a "prior interest" for the purpose of ss 47A and 47B must be one created before the making of the application.
198 Finally, the State submitted that s 47B would not apply to parts of the following areas in any event: 129 (partially covered by Point Samson townsite), 138, 148, 161, 162, 241C, 512, 547, 568 (all partially subject to exploration licences) and 250 (partially subject to a miscellaneous licence and mining lease).
199 The Ngarluma and Yindjibarndi peoples conceded in their reply submissions that s 47B could not apply to those areas referred to at [197] and [198] above.
200 The result is that the only areas in respect of which the application of s 47B is in issue are: part of 129, 132, 133, 141, part of 148, part of 161, part of 162, part of 241B, part of 241C, part of 250, 322, 342, part of 365, 502, part of 512, 513, 515, 532, 533, 535, 537, 538, 542, part of 547, and part of 568.
201 It is therefore necessary to consider the State’s Notice of Contention only in relation to those areas. The State said in its written submissions that there is also an issue in relation to part of 193, part of 196 and the whole (not part) of 241B. However, it said elsewhere in those submissions that there was no extinguishment to be disregarded over areas 193 and 196, and that it accepted that those areas were "occupied" anyway; and the Ngarluma and Yindjibarndi peoples are only seeking to have extinguishment disregarded over area 241B to the extent that it is not covered by ML253SA. Consequently, it is not necessary to consider the question of occupation of those areas.
202 In its Notice of Contention, the State claimed that even if the Ngarluma and Yindjibarndi peoples were to succeed on their appeal in relation to the temporary reserves, s 47B is inapplicable to certain areas within the temporary reserves in any event, because:
(a) contrary to the finding of the primary judge, none of the areas covered by temporary reserves (the areas listed in [193] above) were occupied by members of the native title claim group when the application was made as required by s 47B(1)(c), except for areas 160, 161, 173, 193, 196, 257, 264, 322, 323, 342, 391, 514, 516, 517 and 518 and 563B;
(b) in relation to area 161, it was the subject of a public work, namely the Cape Lambert Supply Main Extension and by reason of taking orders published in the Government Gazette of 9 August 1974 p 2966 and Government Gazette of 21 February 1995 p 577;
(c) in relation to areas 162, 257 and 323, they were the subject of a public work, namely the Cape Lambert Supply Main Extension. (We note that areas 257 and 323 are, according to the State, covered by exploration licences in any event. They were not identified as areas "in issue" in the State’s submissions); and
(d) in relation to area 568, because of the construction of the Cossack to Roebourne Tramway under the Cossack-Roebourne Tramway Act 1886 (WA).
203 In view of our conclusion in [196] above, the areas in issue and over which occupation is disputed are part of 129, 132, 133, 141, part of 148, part of 162, part of 241B, part of 241C, part of 250, part of 365, 502, part of 512, 513, 515, 532, 533, 535, 537, 538, 542, part of 547, and part of 568. Also, the relevant effect of the public works referred to is only in respect of areas 161 (which the State accepts was occupied at the time of the application), part of 162, and part of 568. However, in the case of the public works it is more convenient to deal with each of the matters referred to in the preceding paragraph simply because the State’s contentions in relation to the public works and resumptions over areas 161, 162, 257, 323 and 568 rely upon findings of the primary judge that were not challenged by the Ngarluma and Yindjibarndi peoples on appeal. The Ngarluma and Yindjibarndi peoples agree that the areas of any public works should be excluded from any additional s 47B areas identified by this Court.
204 The State said in its submissions that if this Court upholds the Ngarluma and Yindjibarndi appeal in relation to the temporary reserves (as we propose to do), it should enable the parties to address the issue of the extent of extinguishment in any additional s 47B areas by the public works and resumptions. The Ngarluma and Yindjibarndi submission in reply was that the appropriate order should be to vary the application of s 47B to the area of temporary reserve 5461H by excluding the areas of any public works within the area of that temporary reserve, and dealing with the public works in the same way as other public works have been dealt with in the determination. We propose to allow the parties to address the appropriate form of the determination in the light of our reasons on this issue.
205 However, as things presently stand and as the Ngarluma/Yindjibarndi appeal in relation to the temporary reserves is successful, the outcome of the position taken by the State regarding the application of s 47B is therefore as follows:
(a) Extinguishment of native title in areas 322 and 342 should be disregarded, because the State accepts that those areas were occupied for the purpose of s 47(1)(c);
(b) Extinguishment of native title in the following areas will be disregarded only if the Court is satisfied that the areas were "occupied" in accordance with s 47B(1)(c): part of 129, 132, 133, 141, part of 148, part of 241B, part of 241C, part of 250, part of 365, 502, part of 512, 513, 515, 532, 533, 535, 537, 538, 542, part of 547;
(c) Section 47B will not apply to that part of area 568 that is in issue to the extent to which is it covered by the Cossack to Roebourne tramway; but extinguishment of native title over other parts of area 568 may be disregarded if the Court is satisfied that the area was "occupied" (occupation of that area is not accepted by the State);
(d) Section 47B will not apply to that part of area 161 that is in issue to the extent to which is it affected by the Cape Lambert Supply Main Extension and the taking orders referred to above; but extinguishment of native title over other parts of area 161 may be disregarded (occupation of this area is accepted by the State);
(e) Section 47B will not apply to that part of area 162 that is in issue to the extent to which is it affected by the Cape Lambert Supply Main Extension; but extinguishment of native title over other parts of area 162 may be disregarded if the Court is satisfied that the area was "occupied" (occupation of this area is not accepted by the State);
Were the disputed areas "occupied" by the Ngarluma and Yindjibarndi peoples?
206 Section 47B(1)(c) of the NTA requires that, in order for s 47B to apply to a particular area, one or more members of the native title claim group must occupy the area at the time the application is made. The same requirement is found in s 47A(1)(c). The extent to which an area must be inhabited or used by one or more claimants in order to satisfy that requirement is not easily described and cannot be reduced to a simple formula; it is a matter of fact and degree.
207 In Hayes [1999] FCA 1248; 97 FCR 32, Olney J observed at 144, [162] that occupancy of land for the purposes of ss 47A and 47B "should be understood in the sense that the indigenous people have traditionally occupied land." His Honour expressed the view that the use of particular land by members of the relevant claimant group which is not random nor co-incidental, but in accordance with the traditional way of life, habits, customs and usages of the community is sufficient to indicate occupation of the land. His Honour’s views have been approved in several subsequent decisions of this Court: see, e.g. Griffiths v Northern Territory [2006] FCA 903 at [662] and [703]; Risk [2006] FCA 404 at [888]; Rubibi (No 7) [2006] FCA 459 at [81].
208 The majority in Ward (FC) [2000] FCA 191; 99 FCR 316 (Beaumont and von Doussa JJ) said that a broad view should be taken of the word "occupy" in s 47A(1)(c). That view was adopted and expanded upon by the Full Court in Alyawarr (FC) [2005] FCAFC 135; 145 FCR 442 in relation to s 47B(1)(c). In the latter case, the Court said (at [193]-[195]):
The requirement of occupation in s 47A of the NT Act, which is the same as that in s 47B, was considered by Beaumont and von Doussa JJ in Ward FC 1. Their Honours considered that a broad view should be taken of the word (at [449]):
We think this requirement is met where a claimant member is one of many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the lands so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so.
In Rubibi Community v Western Australia [2001] FCA 607; (2001) 112 FCR 409, Merkel J found the following activities to evidence occupation of an area of land for the purposes of s 47A(1)(c) of the NT Act:
• continuing supervisory and protective activities of the senior Yawuru men in relation to the claim area;
• the holding of traditional ceremonies on the claim area as and when the senior lawmen authorised those activities;
• continued storage of sacred objects on the claim area;
• occupancy of the Leregon structures constructed on the claim area by members of the Lee family who are acknowledged to be members of the Rubibi claim group
In Passi v Queensland [2001] FCA 697 Black CJ, on a consent determination, said that although the islands the subject of that determination were not permanently inhabited the evidence showed that the Meriam people used the land as and when they wished. Its use was consistent with its reserved purpose. His Honour was satisfied that the people occupied the relevant islands. In Daniel at [973] Nicholson J also applied what Beaumont and von Doussa JJ had said in Ward FC 1. He equated ‘connection’ and ‘occupation’.
As Toohey J said in Mabo (No 2) at 188 presence on land does not have to be possession at law to amount to occupancy. He referred to United States and Canadian cases which established occupancy by reference to the demands of the land and society in question ‘in accordance with the way of life, habits, customs and usages of the [indigenous people] who are its users and occupiers’: Sac and Fox Tribe of Indians of Oklahoma v United States of America 383 F (2d) 991 (1967) at 998. His Honour observed in particular that ‘a nomadic lifestyle is not inconsistent with occupancy’: (at 189).
209 In considering the requirement of occupation for the purposes of ss 47A and 47B at first instance in the present case, the primary judge referred to the distinction between the "fact of occupation", and a "right of occupation" (see Ward (HC) [2002] HCA 28; 213 CLR 1 at [93]), and apparently accepted that the condition in ss 47A(1)(c) and 47B(1)(c) is a reference to the "fact of occupation" (a matter which was subsequently confirmed by the Full Court in Alyawarr (FC) [2005] FCAFC 135; 145 FCR 442 at [193]- [196]). The primary judge referred to the passage in Ward (FC) cited at [208] above, and then observed that the concept of "occupation" equated with "connection", so that he found that the occupation requirement of ss 47A and 47B was satisfied wherever native title rights and interests had been found to exist (subject to extinguishment). He said (at [938] of the July 2003 reasons):
I accept and follow the view of the Full Court [in Ward (FC) [2000] FCA 191; 99 FCR 316]. It is also consistent with the view of connection I have taken earlier in these reasons. The submissions of the [Ngarluma and Yindjibarndi peoples] are replete with evidence of occupation in the wider sense. I therefore find occupation is established for the purposes of s 47A(1)(c) to the extent I have found connection. That is, where connection is not found, there is no finding of occupation for the purposes of that paragraph.
The same reasoning was applied in relation to s 47B(1)(c): July 2003 reasons at [973].
210 Whether an area is "occupied" by one or more members of a claim group is a factual inquiry which must be considered in the context of each individual case. It cannot be simply equated with connection: see Risk [2006] FCA 404 at [890] per Mansfield J; Rubibi (No 7) [2006] FCA 459 at [83] per Merkel J. The Ngarluma and Yindjibarndi peoples and the State are agreed that the learned primary judge erred insofar as he held otherwise. The State submitted that by equating occupation with connection, his Honour failed to determine the fact of occupation in relation to the disputed areas, so that s 47B cannot be satisfied in respect of them regardless of whether his Honour also erred in relation to the effect of the temporary reserves. The error of law was said to be one which precluded the primary judge from making the relevant factual findings.
211 While accepting that occupation of the relevant areas for the purpose of s 47B cannot be established merely by reference to evidence of connection to the particular land, the Ngarluma and Yindjibarndi peoples contend that in the present case there is evidence of contemporary use of the disputed areas sufficient to satisfy the factual inquiry required by s 47B(1)(c).
212 The areas in issue are in the vicinity of Point Samson (areas 129, 132, 133, part of 568); in the vicinity of Cossack (area 141, part of 148, part of 162, 502, part of 512, 513, 515, 532, 533, 535, 537, 538, 542, part of 547; in the vicinity of Karratha Station (area 241B and part of 241C); in the vicinity of Karratha (part of area 365); and in the vicinity of the Burrup causeway (part of area 250).
213 The Ngarluma and Yindjibarndi peoples rely upon factual findings made by the primary judge, and certain oral evidence led before his Honour which is said to establish that the disputed areas were all occupied by members of the claim group at the time the application was made. The State took issue with two aspects of that evidence. In the first place, the State claimed that the evidence relied upon was concerned with activities undertaken on or adjacent to the relevant areas well before the time of the application and thus lacked the temporal connection required by s 47B(1)(c). Secondly, insofar as that evidence could be regarded as contemporary, the State claimed that it established occupation only of areas adjacent to the areas in dispute and was thus insufficient to establish that the actual "area" referred to in s 47B(1)(c) was occupied by the Ngarluma and Yindjibarndi peoples.
214 It was accepted by the parties that the "area" of which s 47B(1)(c) speaks is the "particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished": Neowarra [2003] FCA 1402 at [721]; Rubibi (No 7) [2006] FCA 459 at [71]. Merkel J also said in Rubibi (No 7) that "the occupation that must be established for the purposes of s 47B(1)(c) must also be an occupation in respect of the whole, rather than merely a part, of the particular area in respect of which, but for s 47B, native title rights would be extinguished": at [72].
215 In considering the respective contentions, and in the light of the authorities which have been discussed, we propose to apply the following general approach. It is largely a matter of common sense, but is founded upon the words of s 47A and s 47B in their context and as considered in the authorities:
(1) to "occupy" an area for the purposes of ss 47A and 47B of the NTA involves the exercise of some physical activity or activities in relation to the area;
(2) to "occupy" an area does not require the performance of an activity or activities on every part of the land;
(3) to "occupy" an area does not necessarily involve consistently or repeatedly performing the activity or activities over part of the area;
(4) to "occupy" an area does not require constant performance of the activity or activities over parts of the area; it is possible to conclude that an area is occupied where there are spasmodic or occasional physical activities carried on over the area;
(5) to occupy an area at a particular time does not necessarily require contemporaneous activity on that area at the particular time; it is possible to conclude that an area of land is occupied in circumstances where at the time the application is made there is no immediately contemporaneous activity being carried on in the area;
(6) the fact of occupation does not necessarily entail a frequent physical presence in the area; for example, the storage of sacred objects on the area or the holding, from time to time, of traditional ceremonies on the area may constitute occupation for the purposes of the NTA: see, e.g. Rubibi Community v Western Australia [2001] FCA 607; (2001) 112 FCR 409 at [182];
(7) evidence to establish occupation need not necessarily be confined to evidence of activities occurring on the particular area; it may be possible to establish that a particular area is occupied by reference to occupation of a wider area which includes the particular area: Risk [2006] FCA 404 at 890;
(8) occupation need not be "traditional": Rubibi (No 7) [2006] FCA 459 at [84];
(9) whether occupation has been made out in a particular case is always a question of fact and degree.
216 The word "occupy" is not defined in the NTA. It has a common meaning of being established in a place. In contemporary society, a person may occupy all of a house even though that person does not regularly enter every room and may never have entered a particular room or a particular part of a room; a pastoralist may occupy all of the area of a pastoral lease even though that person does not regularly visit every part of the area of the pastoral lease and may never have visited parts of it or have used parts of it for pastoral purposes: see eg per Lord Denning in Newcastle City Council v Royal Newcastle Hospital [1957] HCA 15; [1959] AC 248 at 255. In ss 47A and 47B, as the authorities point out, the context requires that the word "occupy" denotes some physical presence or activity by one or more members of the claim group from time to time, not necessarily continuously, and a presence or activity in the area so that as a matter of practicality that presence or activity involves the assertion of being established over the area itself. The occupation must be contemporaneous rather than historical. If the native title rights and interests over the area were exclusive, so there was a right to control access to the area, the exercise of the right to exclude strangers from the area would indicate its occupation. To occupy an area under the NTA, given its purposes and context, involves the exercise of possessory rights over the area, but the exercise of those rights does not require their continuous exercise, or their exercise at the precise time of the application because the occupation of which ss 47A and 47B speak is a state of affairs which must exist rather than the precise activity which illustrates the existence of the state of affairs.
217 We expressly reserve the question of whether occupation may be shown to exist where traditional laws and customs dictate that the area must not be entered. In Sampi v Western Australia [2005] FCA 777 at [1111]- [1113] French J held that there was no native title in such an area at all, because the claimed "primary" right to exclude others from the area was not recognised by the common law. That question does not arise on this appeal.
218 The learned primary judge did not make any findings regarding occupation of the particular areas which are in dispute in this appeal, for the purpose of disregarding extinguishment under s 47B of the NTA. However, s 27 of the FCA Act directs the Court on appeal to have regard to the evidence given in the proceedings below, and confers power upon it to draw inferences of fact from that evidence. We propose to consider the evidence to determine whether the contested areas were or were not occupied by the Ngarluma and Yindjibarndi peoples at the time of the application. Of course, it may be that no conclusion on that question can be reached on the material before us, and we may need to address with the parties whether in that event the Court should simply conclude that the eligibility criterion for the application of s 47B in s 47B(1)(c) is not made out or whether it should proceed in some other way.
EVIDENCE OF OCCUPATION IN THE VICINITY OF POINT SAMSON
219 The Ngarluma and Yindjibarndi peoples gave evidence that they had undertaken various activities in the vicinity of Point Samson, particularly fishing. Keith Churnside, Rex Churnside and Jack Wedge said they had fished at Point Samson in the past, and Violet Samson said that she goes fishing with her aunty at Sam’s Creek near Point Samson. Keith Churnside also said that he currently fishes at Point Samson "out to sea", by hiring a boat. Trevor Solomon gave evidence that "old people" and his brother gathered crab, turtle and oyster and caught mullet and shark with a spear at Point Samson. Cane Hicks (a member of the Wong-Goo-TT-OO claim group) said that his father had told him the "old people" had mined ochre at Muthuka on Point Samson. Trevor Solomon gave evidence of getting oysters at Point Samson.
220 The State submitted that the evidence of Jack Wedge, Trevor Solomon and Cane Hicks referred to above was concerned with activities that had taken place in the past, before the time that the native title application was made. The State also submitted that evidence of fishing from a boat off Point Samson cannot constitute occupation of onshore areas for the purposes of s 47B(1)(c). It further relied upon the absence of any finding by the primary judge that any member of the claim group lived in the town of Point Samson.
221 In many cases the extracts from the transcript relied upon by the Ngarluma and Yindjibarndi peoples do not clearly indicate whether the activities described took place only in the past or continued to be undertaken at the time of the hearing. Certainly none of the lay witnesses appear to have been asked whether they visited any particular areas at the particular time when the native title claim was initially made. Contrary to the State’s submission, in our view it is unclear whether Trevor Solomon’s evidence of getting oysters at Samson was a reference to his childhood or to the present. It is possible to interpret that evidence either way. However, some of the evidence of fishing in the vicinity of Point Samson clearly described activities which were being undertaken by the witnesses at the time of the hearing. In particular, Violet Samson and Keith Churnside both said that they "go fishing" in the area. It may be possible to infer from that evidence that these activities were also undertaken around 5 years earlier, at the time of the application.
222 In relation to Keith Churnside’s evidence of fishing by boat "out to sea", that evidence may be capable of supporting an inference of travel over, and use of, the adjacent land. That occupation of an area can be inferred from evidence of activity in its vicinity was confirmed by the Full Court in Alyawarr (FC) [2005] FCAFC 135; 145 FCR 442 at [196] (cf Neowarra [2003] FCA 1402 at [744]). We note, however, that in Rubibi (No 7) [2006] FCA 459 Merkel J said that occupation of an area requires something more than mere use of or visitation to the area: at [78].
223 In our view, that evidence establishes that one or more members of the native title claim group did occupy the Point Samson area at the time of the application. They have been found to have the declared native title rights and interests in that area (and the wider area of the determination) and the evidence shows that in the Port Samson area they engaged in the activities to a not insignificant degree in the period up to the time of the application. There is nothing to suggest those activities were constrained within any particular parts of the Point Samson area, even though no doubt they were not routinely exercised over each and every part of that area. They demonstrate the existence of a state of affairs at the time of the application, namely the ongoing physical exercise of activities indicative of the assertion of being established in the area, even though it is not shown that any members of the native title claim group lived in the town of Point Samson.
EVIDENCE OF OCCUPATION IN THE VICINITY OF COSSACK
224 Dora Solomon, Keith Churnside, Rex Churnside, Pansy Hicks, Jack Wedge and Violet Samson all gave evidence that they have fished off the beach or "in the creeks" at Cossack. The learned primary judge also observed that Josie Samson and Pansy Hicks fish at Dawsons near Cossack and that David Walker fishes off Cossack in a boat. While these witnesses were not specifically asked to recall whether they had been fishing around Cossack at the particular time when the native title application was made, it should be inferred from the way the questions were asked and answered that in many cases they were referring to activities that were current at the time of the hearing. The evidence of Rex Churnside and Violet Samson in particular appears to recount fishing activities undertaken around Cossack at the time of the hearing, and Josie Samson also described fishing "near Cossack" when asked about some of the places that she’d fished "over the last few years".
225 The State said in relation to this evidence that it was unclear where the fishing took place at Cossack and whether it occurred within or near the areas in question. Neither party referred to any further evidence which might clarify that issue. The State also noted that none of the members of the claim group lived in the town of Cossack.
226 Once it is accepted that certain of those activities took place up to the time of the hearing, it is easy to infer from the oral evidence that those activities were undertaken from time to time around the time the native title application was made. We also think that evidence of fishing "near Cossack", "in the creeks" at Cossack, "off Cossack" in a boat, and at Dawsons near Cossack is sufficient to establish that the activities took place "in the vicinity" of Cossack, which is how the location of the relevant disputed areas was described by the State. It would place an unreasonable burden on the native title claimants if they were required to prove that they had physically occupied each particular "area number" designated by the State for the purposes of the proceedings. It is also appropriate to infer from the evidence that the act of fishing in the vicinity of Cossack involves spending time generally around that area, so that occupation should be found to have been established for the purpose of s 47B(1)(c). The activities indicate the existence of a state of affairs at the time of the application involving one or more members of the native title claim group asserting being established in the area, even though again none of the claim group members are shown to have lived in the town of Cossack at around the time of the application.
EVIDENCE OF OCCUPATION IN THE VICINITY OF KARRATHA STATION
227 Areas 241B and 241C are located on Karratha Station, near the Burrup causeway. The learned primary judge noted that a now deceased person DD hunted on Karratha Station and fished on Karratha Station on the sea side. It is clear from the relevant transcript extract that these activities were undertaken at the time of the hearing. It should be inferred that they were also undertaken at the time of the application, although the State objected to the drawing of any such inference. The State also said that it was unclear where the activities took place on Karratha Station and whether they occurred within or near the areas in question. No further evidence was referred to in relation to the exact location of the hunting/fishing in relation to areas 241B and 241C.
228 In our view, as that deceased person was a member of the native title claim group and engaged in the activities referred to on or near the sea side of Karratha Station at the time of the application, there is sufficient material to conclude that the area of those activities involved the occupation of that part of Karratha station within the meaning of s 47B(1)(c). There is on the other hand nothing to indicate that areas 241B and 241C were in any way physically separate from, or comprised a geographically different part of, Karratha station from those areas occupied by DD and, in particular, nothing to suggest that his hunting activities involved an assertion of being established only on a part of Karratha Station remote from areas 241B and 241C. Although the evidence is somewhat unsatisfactory, on the material before us we conclude that for the purposes of s 47B of the NTA, the part of area 241B which is in issue and area 241C were at the time of the application occupied by a member of the native title claim group.
EVIDENCE OF OCCUPATION IN THE VICINITY OF KARRATHA
229 The learned primary judge noted that Karratha was one of the "major population centres" located in the northwest coastal portion of the claim area. There are no references in his reasons for decision which might directly establish occupation of area 365 in the vicinity of Karratha town. The Ngarluma and Yindjibarndi peoples submitted that as Karratha is a major town in the claim area, judicial notice could be taken that it was visited regularly by Ngarluma people at the time of the application and at trial. They also said that some of the Ngarluma people lived in Karratha, for example, Jeannie Churnside’s daughter. Area 365 was said to be "close to the town area", inviting the inference that those members of the Ngarluma people who lived in or travelled to the town may also have visited or travelled through area 365.
230 The State submitted that the fact that some members of a claim group live in a particular town is not sufficient to establish that those persons or other members of the claim group "occupy" an area near the town for the purpose of s 47B(1)(c).
231 In our judgment, the evidence does not establish that area 365 was occupied by any member of the native title claim group at the time of the application. Whilst it is readily inferred, in the case of open country, that use of one part of that country involves the assertion of being established over a wider general geographical area, the same inference is not readily drawn in the case of a township. To live in a town does not itself suggest that the surrounding areas, or some of them, are also "occupied" by the residents of the town or some of them. Mere proximity of area 365 to the township of Karratha does not take the Ngarluma and Yindjibarndi position any further. There is no evidence directly, or by inference, supporting the conclusion that area 365 was used in any way by them. Their claim to occupation of that area is, in our view, merely speculative. Consequently, we conclude that s 47B does not apply to area 365 because it has not been shown that the qualifying criterion in s 47B(1)(c) has been satisfied.
EVIDENCE OF OCCUPATION IN THE VICINITY OF THE BURRUP CAUSEWAY
232 Area 250 is in the vicinity of the Burrup causeway. The State in its written submissions described the relevant area as "a narrow strip of unallocated Crown land on a man-made causeway traversing what was historically mudflats and is now Dampier Salt’s salt mining operation". The area is apparently between a railway line, a road and a power line. To establish occupation of that area, the Ngarluma and Yindjibarndi peoples relied on evidence led at trial about the Ngarluma people travelling to the Burrup Peninsula, which, it is said, would have involved them driving along the Burrup causeway alongside area 250. The now deceased person DD, in particular, spoke of driving across the causeway. They invited the Court to infer that the area is therefore regularly used and occupied.
233 The State, relying on Neowarra [2003] FCA 1402 at [750], [752], [758] and [760], contended that travel along a road cannot constitute occupation of areas adjacent to or traversed by the road within the meaning of s 47B(1)(c).
234 In our view, that evidence is not sufficient to show that any member of the native title claim group occupied area 250 at the time of the application. There is no evidence which takes the picture of activities on or in the vicinity of area 250 beyond the traversal of the Burrup causeway alongside that area. We adopt the view of Sundberg J in Neowarra that mere travel along a road available to the public is not sufficient to establish occupation of an area adjacent to that road for the purposes of s 47B(1)(c).
235 By reference to the questions identified at [205] above, we now conclude in respect of the areas covered by the temporary reserves, that s 47B:
(a) does apply to areas 322 and 342 because, as the State accepted, they were occupied at the time of the application by one or more members of the native title claim group;
(b) does apply to that part of area 161 which is not the subject of public works because, as the State accepted, they were occupied at the time of the application by one or more members of the native title claim group;
(c) does apply to that part of area 162 which is not the subject of public works, because it was occupied at the time of the application by one or more members of the native title claim group;
(d) does apply to areas 129, 132, 133, 141, part of 148, part of 241B, part of 241C, 502, part of 512, 513, 515, 532, 533, 535, 537, 538, 542 and part of 547 because they were occupied at the time of the application by one or more members of the native title claim group;
(e) does apply to that part of area 568 which is not the subject of public works, because it was occupied at the time of the application by one or more members of the native title claim group;
(f) does not apply to areas part of 250 and part of 365 because they were not occupied at the time of the application by one or more members of the native title claim group.
236 We have addressed at [205] above the other matters which the parties will need to consider before presenting the terms of the proposed amended determination to give effect to our reasons on the issues arising under s 47B of the Act.
ISSUE D: INTERNAL GEOGRAPHICAL LIMITATIONS
237 As noted in [38] and [65] above, the primary judge made a determination which limits the geographical area in which certain native title rights and interests may be exercised: see para 6(c), (d), (f) and (j) and para 7(c), (d), (e), (f), (g), (h) and (j) of the 2 May 2005 determination. For example, the right of the Ngarluma people to camp and build shelters was limited to the proximity of river courses within the Ngarluma Native Title Area; and the right of the Yindjibarndi people to collect and forage for bush medicine was limited to the Millstream Fortescue Area and the upper reaches of the Sherlock River. His Honour apparently limited the location of those rights based on the evidence as to where various activities were carried out at the time of hearing: see the July 2003 reasons at [249]-[303].
238 The parties’ consent orders in respect of this issue reflect their agreed position that, in the circumstances of this matter, recognition of native title rights should not be limited only to those places where the evidence showed they are currently exercised. The parties submitted that use of every part of the land or waters in the claim area is not required to be proved to establish the geographical extent of native title rights and interests for the purpose of s 223 of the NTA: Ward (HC) [2002] HCA 28; 213 CLR 1 at [64]; De Rose v State of South Australia [2003] FCAFC 286; (2003) 133 FCR 325 (De Rose (No 1) (FC)) at [303], [313] and [316]. There was no evidence, it was said, which suggested that there were any geographical limits to the exercise of rights under the traditional laws and customs of the Ngarluma people and Yindjibarndi people.
239 In this matter, his Honour having been satisfied that the particular native title rights and interests should be determined to exist, was not asked by the parties to restrict the area in which they could be exercised. The evidence as to the existence of those rights, at settlement and subsequently up to the present time, naturally focused on those places within the claim area where they were more frequently exercised. That was no doubt a reflection of the more physically amenable places for those rights to be exercised. The parties, however, apparently proceeded on that basis, so that the evidence was merely illustrative of the existence and nature of those rights rather than being definitive of the places within the claim area where they have been, or may be, exercised. Nor was there apparently anything in the evidence or inherent in the nature of the right or interest or the circumstances of the case to suggest to the contrary. There may be cases where there is a real issue as to whether the determination of the particular native title right or interest should confine the area in which it may still be exercised. We do not think that this case was in that category, so it is not necessary to further discuss that possibility.
240 Accordingly, we are satisfied that the proposed consent orders in respect of this issue should be given effect. For the reasons given above (see Issue A) we were not prepared to make those orders prior to the disposal of the entire appeal.
ISSUE E: THE EXISTENCE OF NATIVE TITLE IN THE KARRATHA AREA
241 In order to understand the arguments of the State and the Commonwealth, it is necessary to trace the reasoning of the primary judge on this issue.
The Reasons of the Primary Judge
242 In Part I of the July 2003 reasons for judgment, his Honour outlined the claims made and explained the basis upon which the Ngarluma people and Yindjibarndi people ultimately put their case as follows:
60 Following the decision in Ward HC the case for the first applicants [the Ngarluma and Yindjibarndi people] no longer maintained it was necessary for the Court to find that there is a single ‘composite community’ known as the ‘Ngarluma and Yindjibarndi peoples’. It is now said it is not necessary for the Court to find that there is a single native title comprising the right to the possession, occupation, use and enjoyment of the claim area as a whole.
61 The submission is that the true inquiry is as to the rights and interests which may comprise native title rights and interests, based upon the traditional laws acknowledged and traditional customs adhered to by the Aboriginal peoples who have a connection to the land and waters the subject of the application in accordance with those laws and customs: Ward HC at 16-17, at [17]-[18]. It is said the Court, on the evidence in this case, should hold, in accordance with the NTA s 225(a), that, in relation to the particular area the subject of this application, there are two groups, the Ngarluma peoples and the Yindjibarndi peoples who hold rights comprising native title rights.
62 In support it is said for the first applicants that ‘A traditional law or custom is one which has been passed from generation to generation of a society ...’: Yorta Yorta at [46]. ‘Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observations of a body of law and customs: Yorta Yorta at [49].
63 The Ngarluma and the Yindjibarndi peoples each form, or are part of, a society with a body of traditional laws and customs on a range of matters, including ownership and management of land and waters.
243 In Part II of the July 2003 reasons, his Honour described the claim areas and made findings concerning the boundaries of those areas. The area claimed by the Ngarluma people was described as the lowlands between the Chichester Ranges and the sea found between Poverty Creek to the east of Whim Creek on the eastern side of the claim areas, to the vicinity of the Maitland River on the western side of the claim areas, as well as the adjacent portion of the sea. His Honour found that the boundaries as claimed were established on the evidence. The technique used by his Honour in this section, and followed in later sections, was to record the claims and findings in the body of his reasons for judgment and then to refer to the evidence on which the findings were based in appendices to the reasons for judgment. The evidence concerning boundaries is collated in Appendix A. It is a comprehensive review of the primary evidence of Aboriginal witnesses, as well as a review of the evidence of experts in history, linguistics and anthropology.
244 His Honour also pointed out that the major population centres of west Pilbara, namely Dampier, Karratha, Wickham, Point Sampson, Roebourne and Cossack are located in the north-west coastal portion of the claim area, and that the remainder of the region is sparsely settled.
245 In Part III of the July 2003 reasons, his Honour set out the law to be applied to the issues before him. His Honour said that, as the High Court had recently explained the law in a number of decisions, namely, Yarmirr [2001] HCA 56; 208 CLR 1, Ward (HC) [2002] HCA 28; 213 CLR 1, Wilson v Anderson [2002] HCA 29; (2002) 190 ALR 313, and Yorta Yorta [2002] HCA 58; 214 CLR 422, his reasons for judgment should state the core principles established by those cases as the basis upon which his Honour should proceed to determine the proceedings before him. His Honour set out the provisions of s 223(1) and (2) of the NTA, as follows:
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
...’ (emphasis in original)
246 So far as is relevant to the present issue, his Honour explained the applicable law. Although the passage is lengthy, it is fundamental to the approach which his Honour took to the case and should be set out in full as follows:
136 The relevant starting point is the question of fact posed by the NTA, namely what are the rights and interests of the required type observed by the relevant peoples: Yarmirr at 39. The ‘rights and interests’ so described are ones that find their origin in pre-sovereignty law and custom rather than the NTA: Yorta Yorta at 552. They must have owed their origin to a normative system other that the legal system of the power acquiring sovereignty; that is, they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned: Yorta Yorta at 550. Such rights and interests do not and often will not correspond with rights and interests familiar to the Anglo-Australian property lawyer: Yorta Yorta at 551 citing Yarmirr at 121 (ALR reference, at 37 – 38 of CLR). It will be preferable to express the rights by reference to the activities that may be conducted, as of right, on or in relation to the land or waters: Ward HC at 30, at [52]. It is necessary that the relevant rights and interests be separately identified: Ward HC at 23, at [35]; 24, [39]; and 25, [40]. This should not commence from the common law expression of rights and interests nor from the common lawyer’s view of property as control over access: Ward HC at 40, at [94]. It is useful for the relevant rights and interests to be described as a ‘bundle of rights’ for that draws attention to the fact that there may be more than one right and interest and that there may be several kinds of rights and interests: Ward HC at 40, at [95]. There can be no a priori assumption that the only kinds of rights and interests are those supported by some communally organised and enforced system of sanctions: Yarmirr at 39.
137 The reference to ‘communal, group or individual rights and interests’: a group will be a ‘society’ where the group is a body of persons united in and by its acknowledgment and observance of a body of law and customs: Yorta Yorta at 553. If the society ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist: Yorta Yorta at 554. If the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality: Yorta Yorta at 554. It must therefore be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period, substantially uninterrupted, as a body united by its acknowledgment and observance of the laws and customs: Yorta Yorta at 563
138 The reference to ‘land or waters’ requires that the rights and interests must be ‘in relation to’ either of those subjects: Yorta Yorta at 549.
139 The reference to the ‘traditional laws acknowledged, and the traditional customs observed’ is to be understood as follows.
(a) Firstly, it is not necessary to distinguish between what is a matter of traditional law or traditional custom: Yorta Yorta at 551.
(b) Secondly, the rules which together constitute the traditional laws acknowledged and traditional customs observed and under which the rights or interests are said to be possessed, must be rules having normative content and not just observable patterns of behaviour: Yorta Yorta at 551.
(c) Thirdly, subject to what follows on rights and interests being rooted in pre-sovereignty traditional laws and customs, a traditional law or custom is one that has been passed from generation to generation of a society, usually by word of mouth and common practice: Yorta Yorta at 553 and 561.
(d) Fourthly, the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal societies that existed before the assertion of sovereignty; it is only these that are ‘traditional’: Yorta Yorta at 553.
(e) Fifthly, the normative system under which the rights and interests are possessed (the traditional laws and customs) must be a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests will have ceased to exist and any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs: Yorta Yorta at 553.
(f) It will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs: Yorta Yorta at 555.
(g) Sixthly, demonstrating the content of traditional law and custom may well present difficult problems of proof and much will turn on the evidence led: Yorta Yorta at 561.
(h) Seventhly, the demonstration of some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law and custom is whether the law and custom can still be seen to be traditional law and traditional custom. Interruption will present more difficult problems because acknowledgment and observance of the laws and customs must have continued substantially uninterrupted since sovereignty: Yorta Yorta at 562.
140 With respect to the reference to ‘connection,’ this may well depend upon the same evidence as is used to establish rights and interests in relation to land or waters which are possessed under traditional laws and customs although the two inquiries are required by the NTA: Ward HC at 17, at [18]. A right or interest possessed under traditional laws and customs but unrelated to land or waters cannot assist a claimant for native title: Ward HC at 17 – 18, at [17] – [18]. To some degree, for example, respecting access to sites where artworks on rock are located, or ceremonies are performed, the traditional laws and customs which are manifested at these sites answer the requirement of connection: Ward HC at 31, at [59]. The absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection: Ward HC at 32, at [64]. In some cases the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned: Ward HC at 32, at [64]. It is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it: Ward HC at 39, at [91].
247 Having laid out the applicable legal principles, his Honour then considered the evidence in each of the disciplines of history, archaeology, linguistics and anthropology.
248 In Part IV of the July 2003 reasons, his Honour considered the expert evidence concerning the history of the claim area. He started by referring to the limitations of such evidence at [149] as follows:
It must be always borne in mind that the historical record is incomplete. There are ‘silences’. The nature of these ‘silences’ and the manner in which they should be addressed is the subject not merely of academic interest, but one that bears directly upon the approach the Court must take in order to interpret the expert and witness evidence, and to derive the inferences that of necessity must be made, in order to decide upon the issues in contention. This is particularly so in relation to the Pilbara and hence the claim area because the records of police and pastoralists are ethnocentric; there is a lack of continuity of anthropological observation of the customs, practices and lifestyles of Aboriginal people, and Europeans generally, including police, pastoralists and Native Welfare officers, did not identify people by tribe or language.
249 Next, his Honour made a general assessment of Dr Choo, the Ngarluma and Yindjibarndi peoples’ historical expert, and Dr Green, the State’s historical expert. He was prepared to rely on the documentary evidence provided by Dr Choo, but found her oral evidence to be marked by a commitment to the cause of Aboriginal people. The historical picture which his Honour then described, flowed from this assessment of the reliability and quality of the expert witnesses. What follows in this judgment highlights the major findings made by his Honour about the history of the area and its inhabitants.
250 The historical picture commenced with reference to the sightings of inhabitants in the claim area in 1628 by the Dutch navigator de Witt. The first documented contact with Aboriginal people in the area was in 1818 by a survey party led by Captain King.
251 Sovereignty was asserted by the British Crown in 1829. Land regulations were soon made which were designed to encourage settlement in the area. With settlement came a reduction in the land and resources available to the Aboriginal people, and the scourge of smallpox epidemics. There were clashes between the settlers and local Aboriginal people which resulted in some of the Aboriginal people being taken from their country to be locked up far away.
252 Roebourne was established in 1866.
253 In 1868, a number of local people were massacred in the vicinity of the Flying Foam Passage by a group of settlers who were investigating the death of a policeman and several other persons. On some accounts, the massacre resulted in a significant depletion of the local Aboriginal population.
254 Around this time there was a gold mining boom in the west Pilbara. Some Aboriginal people were employed in the industry despite legislation which restricted their employment.
255 Significant disruption to traditional life flowed from the pearling boom which commenced in the late 1860s. Aboriginal people were used in the industry until the late 1880s. Initially, coastal people were used in the industry, but with the expansion of pearling and consequent shortage of labour, Aboriginal people living inland were recruited or even kidnapped in a radius of 600 miles of Roebourne. The impact of pearling on the Aboriginal people of the area continued into the 20th century as Aboriginal woman were traded to pearlers as prostitutes.
256 The pastoral industry had the most substantial and lasting effect on Aboriginal tribal organisation. The industry relied on Aboriginal labour in the early years. Aboriginal people living on the areas which became pastoral leases were signed up as workers. They were "paid" by rations. Relatives too old or weak to work stayed on the stations and were given rations by the managers. In due course, the government established centralised ration depots. Employment in the pastoral industry resulted in most Aboriginal people giving up full time traditional lifestyles. However, during the seasonal close down of the stations, Aboriginal people still continued to meet at particular places for ceremony and for hunting.
257 Opportunities for employment in the pastoral industry for Aboriginal people in the area declined in the first half of the 20th century as a result of the introduction of fencing and windmills, mechanical shearing, unionisation of the white workforce and enforcement of a closed shop, the introduction of vehicles replacing horses, and the prolonged drought between 1936 and 1946.
258 As a result of the reduction in employment in the pastoral industry, especially after 1950, there was a drift to urban areas, particularly to Roebourne. The State government provided housing in response to this drift of population. It also promoted a policy of assimilation, although until the 1960s Aboriginal children were taught at separate schools in Roebourne. In 1979, the teaching of an Aboriginal cultural program began.
259 An iron ore boom from 1961 created immense changes in the west Pilbara. New towns and infrastructure were built. Between 1965 and 1972, the towns of Dampier, Karratha and Wickham were created. The estimated population grew from 3243 in 1961 to 47,284 in 1981. In 1971, the Commissioner of Native Welfare reported that the effects of alcohol and the presence of an inflated transient population had created havoc among "an unsophisticated Aboriginal population". He reported gross overcrowding in established homes.
260 In 1983, the local Aboriginal community opposed the construction of the Harding River dam, approximately 25 km south of Roebourne, on the grounds that it was to be built on a site of significance to the people. They sought an injunction to prevent the completion of the dam. Whilst the application was refused, the State government negotiated a settlement which included support for establishment of a cultural facility on Yindjibarndi lands.
261 Roebourne developed as a major centre of the claim area’s Aboriginal population. The community formed organisations addressing social and cultural concerns such as alcohol rehabilitation, land acquisition and preservation of sites of significance.
262 At [198] his Honour summarised the situation as follows:
The historical record also shows that, with the advent of station life and of enclosures, stocking and a different land use, there were consequent impacts on plant and animal life which significantly reduced the opportunity for Aboriginal people to live on their land. The establishment of government ration stations, issuing food and blankets, in the early 20th Century both nurtured indigent Aborigines and contributed to their isolation from the country. Police action up to the 1940s in returning Aborigines to stations where they had work had the same effect.
263 Finally, his Honour referred to the impact of the law on Aborigines in Western Australia, at [200] as follows:
By mid-century legislation had been introduced to protect Aborigines in relation to matters such as pearl fishing and their access to land upon the grant of a pastoral lease (34 Vic. No 14 of 1871 and Land Act Regulations 1887 respectively). The Aborigines Protection Act 1886 (WA) established the Aborigines Protection Board. On the Constitution Act 1890 coming into force it withheld control of Aborigines from the self-governing legislature, although seven years later it was vested in the Western Australian Government (61 Vic, No 5 of 1898). That control was strongly asserted by the Aborigines Act 1905 (WA) and the Aborigines Act Amendment Act 1936 (WA) authorising removal of children and providing for other controls over Aboriginal people. Writing in 1941, Hasluck described the 1936 Act as having given the Aboriginal ‘a legal status that was more in common with that of a born idiot than any other class of British subject’. In 1974 the Royal Commission found of the same Act (at 23) that it:
‘... did more than any other to emphasise the second-class citizenship status accorded to Aborigines and it imposed restrictions and controls upon them which would not have been tolerated by any other section of the community, even though many of these provisions were intended to be protective in nature. The effect of them was to make the Aborigines ... resentful of authority, particularly the police and the Department itself, and either belligerently anti-social or dejectedly apathetic.’
[Reference omitted]
The historical records show such removals continuing until as late as 1946. Marriages of non-Aboriginals to female Aborigines required permission. The Natives (Citizenship Rights) Act 1944 (WA) allowed Aborigines to claim citizenship but on the basis they gave up tribal associations. The State legal regime had therefore moved from a form of benevolent protection to one which had discouragements to maintenance of Aboriginal connection with the land through traditional laws acknowledged and customs observed. (See E Russell, ‘A History of the Law in Western Australia’, University of Western Australia Press, p 313 – 325).
Archaeological, linguistic and anthropological evidence
264 In Part V of the July 2003 reasons, his Honour addressed expert evidence in the area of archaeology, linguistics and anthropology.
265 The archaeological evidence from Dr Veth related to eighteen Aboriginal camp sites throughout the claim area on and adjacent to pastoral stations. The evidence established continued residence and use of the land after colonisation on these sites. It further established that, despite enormous disruption to traditional cultural practices, Aborigines throughout the region found means to express their cultural identity.
266 The linguistic evidence relevant to the present argument came from Mr Thieberger for the Ngarluma and Yindjibarndi peoples, and Dr Sommer for the State. A written record of the language of the claim area dated back to 1861. One area of debate was whether the Ngarluma language was dead. His Honour found that while there were persons who spoke Ngarluma, there was not a functioning Ngarluma speech community, and the language was not well known. Yindjibarndi is the everyday language of the claim area. It is spoken throughout Ngarluma country without disapproval by Ngarluma people. For as long as human memory allows, the Yindjibarndi language has been associated with that part of the claim area identified as Yindjibarndi country.
267 His Honour accepted Mr Thieberger’s view, which was not contested, that by reason of the similarity of the Ngarluma and Yindjibarndi languages, and the development of certain features of Yindjibarndi language which were dated from a period before European sovereignty, it was established that both Ngarluma and Yindjibarndi languages had been in the same location and the languages had been spoken for some time before European sovereignty.
268 The experts agreed that Yindjibarndi and Ngarluma languages were losing to the English language. As a result, over the last 15 years there had been an increase in language maintenance activities in Roebourne.
269 His Honour concluded at [228]:
While the linguistic evidence relevant to connection is therefore of little weight in relation to the first applicants specifically, nevertheless it is evidence of connection by Aboriginal peoples generally to the claim areas. Subject to the issue of weight, it is evidence from which it can be inferred that such peoples had the general connection described in the evidence. It may be inferred those peoples include all the applicants, respondents 19D and other non-claimant Aboriginal peoples in the claim area.
270 In relation to the anthropological evidence, his Honour explained that the evidence was relevant to the issues of community or group and of connection.
271 His Honour examined the qualifications of each of the expert anthropologists. Relevantly, he observed that the expert for the Ngarluma and Yindjibarndi peoples, Mr Robinson, based his evidence very substantially on field work which he had undertaken, and that his evidence was less influenced by reference to anthropological theory than that of Professor Maddock, the State’s expert anthropologist. His Honour referred to the challenge by the State to the evidence of Mr Robinson based on the alleged lack of its dispassionate quality, and to the challenge by the Ngarluma and Yindjibarndi peoples to the evidence of Professor Maddock based on the fact that he had only appeared on behalf of government parties in native title applications.
272 His Honour referred to the first anthropological work which dealt with the people of the area, namely, the work in 1911 of A R Brown (later Professor Radcliffe-Brown). Professor Radcliffe-Brown reported that tribes were essentially a collection of local groups each with its own defined territory. He considered the norm in the region was ownership of specific tracts of country by groups of patrikin. The case of the State rested on these concepts. The way in which his Honour dealt with the concepts is central to the issues raised in this part of the appeal, and the passage at [240]–[244], although lengthy, should be set out in full as follows:
240 The applicant’s anthropological expert, Mr Robinson expressed the view that, at the broadest level, a person obtains rights in land through membership of ‘a language group’, it being the ultimate group in relation to land in which membership is determined by descent from (relevantly) Ngarluma or Yindjibarndi parents. By a language group Mr Robinson meant ‘a group of people who identify themselves with Ngarluma, and that is the group and the language of the same name’. However, he also accepted there is not a single simple model of land tenure but a multiplicity of ways in which Aboriginal people relate to land, and so he held a much broader view of Aboriginal land tenure than that advanced by Radcliffe-Brown. He regarded Ngarluma and Yindjibarndi interests in land as a mosaic of types ranging from regional level interests in language group country at the broadest to individually defined interests in locations like places of conception and birth at the narrowest, the totality of these bases of interest constituting the claimant’s contemporary system of land tenure.
241 The first respondent’s anthropological expert, Professor Maddock testified the appropriate basis for consideration as ‘the relevant starting point’ is the estate group. However, possibilities such as the tribal or language group required consideration. He was sceptical a language group had been regarded as having owned land although there would be some correlation with the area within which a language is spoken or mythologically identified. However, Professor Maddock was not prepared to start from a priori position of estate groups.
242 Dr P Sutton, ‘The Robustness of Aboriginal Land Tenure Systems: Underlying and Proximate Customary Titles’, Oceania vol 67, no 7, 1996 stated:
‘In regions heavily impacted by colonial and post-colonial developments, it is sometimes the case that some people maintain proximate entitlements to small areas such as classical estates as well as an identification with more widely-cast landed entities such as language groups, but at the same time others from the same region may maintain only the wider form of identification with land.’
Professor Maddock expressed probable agreement with this statement and its application to the case. At the same time he did not see the starting point of examination as being regional entities of the strength assigned by Dr Sutton; rather the starting point is properly the local group level. There could be multiple estate groups within a claim area. He did not consider that for a communal title to exist there had to be a regional structure in the sense described by Dr Sutton or a language group structure as Mr Robinson proposed. He acknowledged regionality and language base as empirical factors to be taken into account.
243 I do not consider either that Professor Maddock equated Dr Sutton’s regional polity with the first applicants’ composite community or that he opposed the latter concept. Properly read, his evidence commands a good look at the evidence to find in which group (or community) native title resides in a given claim area.
244 For reasons which appear in Part X (under ‘Communities or Groups’) and Part XII (under ‘Degree of Connection issue’), I do not consider it is necessary to explore further these aspects of the anthropological evidence. Following the decisions in Ward HC and in Yorta Yorta it became apparent that the concentration on notions of composite community and estate groups, which had featured so heavily in the anthropological evidence given earlier in the trial, were not to be the central focus of the inquiry. This accords with the submission by senior counsel for the first applicants that it is not necessary for connection to be established estate by estate and that, in dealing with a territorial area, it is appropriate to have regard to the evidence as a whole.
273 At this point in the reasons, his Honour moved from a general consideration of some of the evidence to address specific issues necessary for resolution in accordance with the applicable principles of law which his Honour had previously set out.
Observable behaviour in relation to rights and interests
274 In Part VI of the July 2003 reasons, his Honour made findings on whether the rights and interests claimed by the Ngarluma and Yindjibarndi peoples were, at the time of the hearing, the subject of activities, and if so, to what degree. His Honour relied on the evidence of 20 Ngarluma people, 38 Yindjibarndi people, and 3 people who identified with both Ngarluma and Yindjibarndi. That evidence was set out in Appendix B. The conclusions reached based on that evidence were set out in the body of the reasons for judgment by reference to each claimed right and interest, and in each case, also, by reference to the Yindjibarndi claim area and the Ngarluma claim area. In this part, his Honour was not concerned to make findings as to whether the activities owed their origin to traditional laws and customs.
275 The findings are generally brief and tend to follow a pattern. A useful example of the technique adopted by his Honour is seen in the treatment of the claimed right of hunting and foraging. His Honour said at [265]–[269]:
265 I do not accept the characterisation of the evidence urged for the first respondents [the State], namely that overall the picture is of a few individuals shooting, mostly from cars along the road, not on pastoral leases or National Parks, not for sustenance, not with any particular connection to country. That harsh characterisation takes no account of the impact on the exercise of the right of the passage of time. The important feature is that such developments have not brought about an abandonment of the activity. Nor is it the case that the activity is unrelated to places with which those engaging in it profess a connection.
Yindjibarndi claim area
266 Yindjibarndi first applicants hunt and forage in the Yindjibarndi claim area.
267 This activity occurs principally in the Millstream-Fortescue area and the upper reaches and tributaries of the Sherlock River but not elsewhere.
Ngarluma claim area
268 Ngarluma first applicants hunt and forage in the Ngarluma claim area. Some Yindjibarndi first applicants also hunt and forage on Ngarluma land. (The reference to Yindjibarndi people include people such as the sisters Dora Solomon and Nita Fishook, daughters of a Ngarluma father. Dora Solomon was also married to a Ngarluma).
269 This activity occurs generally along river courses but also in a number of other places.
276 While the findings are on their face formulaic as contended by the State, that characterisation ignores the detailed analysis of evidence contained in Appendix B.
NORMATIVE CONTENT OF FOUND PRESENT ACTIVITY
277 At the end of Part VI under the heading "Normative Content of Found Present Activity" his Honour said at [304]:
The evidence establishes and I find that the above observable behaviours are more than social habits and [there is] about them the quality of being a social rule in that some at least (and indeed a considerable number) of the first applicants group look upon the behaviour in question as a general standard to be followed by the group as a whole.
278 Part X of the July 2003 reaons is entitled "Applicants as groups". His Honour drew attention to the provision in s 223(1) of the NTA that the expression native title or native title rights and interests means "the communal, group or individual rights and interests" in relation to land and waters, and also to the requirement in s 225(a) that a determination must specify "who the persons, or each group of persons, holding the common or group rights comprising the native title are". It was necessary to identify whether the Ngarluma and Yindjibarndi peoples claimed communal, group or individual rights and interests and, consequently, whether they were, at the time of decision, able to be characterised as a group in the event their claim to rights and interests was made out. His Honour put aside for later consideration the question whether the group was a society in the sense explained in Yorta Yorta [2002] HCA 58; 214 CLR 422, namely, "a body of persons united in and by its acknowledgment and observance of a body of law and customs which has had a continuous existence and vitality since sovereignty". He said at [334]:
Sections 223 and 225 do not require the Court to search for an anthropologically identified form of community or group. The NTA makes clear the Court is to examine the evidence to see who holds native title, if anyone, and so whether there are communal, group or individual rights and interests. Anthropological theory and research may inform that examination but cannot determine it.
279 His Honour then referred to the contention of the State that, in reliance on an anthropological opinion that land was held by estate groups, there was no basis to find a composite Ngarluma Yindjibarndi community. There was only a disparate divergent population of Aboriginal people in Roebourne from many tribal backgrounds with no evidence of a coalition apart from the native title claim. His Honour referred to the Ngarluma and Yindjibarndi peoples’ answer to the State’s argument at [337] as follows:
The applicants sought, as their primary position, to counter the submissions for the first respondents in this respect by relying upon evidence which it was said supported a finding that the Ngarluma/Yindjibarndi formed a composite community. That evidence related to ceremonial and marriage ties, dreaming tracks, initiation, mixing at The Ngurin, the serpent contest, change in initiation rights, co-residence, speaking with one voice and personal identification. Evidence in relation to these and other matters was given by the anthropologists, Ms Turner and Mr Robinson.
280 His Honour concluded that the issue whether the Ngarluma and Yindjibarndi were a composite community was no longer significant. A determination under s 225 must specify the persons or each group of persons holding the common or group rights. A group is a number of people regarded as forming a unity or whole on the grounds of some mutual or common relation or purpose. If the Ngarluma and Yindjibarndi were groups, it was not necessary to find whether they were a composite community. At [339] his Honour explained:
In view of what I consider is required by the Act considered in the light of Yorta Yorta at 553 – 554, it is not necessary to traverse that evidence in detail because it is not necessary to find whether the claimants are a coalition or not. It is sufficient that they qualify either as persons or groups in whom native title resides, if it does. It will be the evidence concerning the locus of the rights and interests claimed, if made out, that will establish the nature of the group holding the rights. At that later point it will be necessary to decide on that evidence whether any such rights and interests are held by the first applicants as a group or in some way which reflects the Ngarluma and Yindjibarndi components of the group. Neither the Act nor the reasoning of the High Court in Yorta Yorta is shaped in relation to anthropological considerations concerning estate groups or other similar entities.
Continuity of applicant groups
281 In Part XI of the July 2003 reasons, his Honour addressed the question of the continuity of the applicant groups. He explained the significance of continuity at [360]:
In Yorta Yorta at 554 it was stated that if the society out of which the body of laws and customs arises ceases to exist ‘as a group which acknowledges and observes those laws and customs’ those laws and customs cease to have continued existence and vitality. The point made in the reasoning at the same point was that unless there is a society which acknowledges and observes the laws and customs, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed. It was made apparent in the same passage of the reasoning that when the society whose laws or customs exist and its sovereignty ‘ceases to exist’ the rights and interests in land to which these laws and customs gave rise, cease to exist.
282 The approach his Honour took to the continuity of the groups was to assess whether the applicant groups had ceased to exist or lacked continuity in existence. In this part, his Honour was not looking to determine whether the groups had a connection to the country they claim as ngurarra, in accordance with traditional laws and customs. The evidence which it was contended established that traditional laws and customs had the requisite connection and observance was considered later in his reasons for judgment.
283 His Honour referred to genealogical evidence used to determine whether the applicant groups had ceased to exist or lacked continuity in its existence. The extensive references to lay and expert evidence were set out in Appendix F.
284 In relation to the Ngarluma and Yindjibarndi peoples, his Honour concluded at [370]–[371]:
370 At sovereignty the first applicants claim area was occupied by the Ngarluma group and the Yindjibarndi group. At the present time the first applicants comprise Ngarluma and Yindjibarndi peoples. It has not been contended that the Ngarluma group or the Yindjibarndi group ceased to exist as a group. Even if the first applicants are to be viewed as a composite community (a step already said not to be relevant) it was not submitted that the effect of the establishment of a composite community was that either that the Ngarluma or the Yindjibarndi group ceased to exist. There is not therefore in relation to the first applicants an issue of whether the society existing at sovereignty ceased to exist so that the rights and interests to which that society’s laws and customs gave rise ceased to exist.
371 In any event the genealogical evidence in Appendix F concerning the first applicants supports a finding that the Ngarluma and Yindjibarndi groups consist of Aboriginal people who can generally trace their ancestry back to Aboriginal peoples living prior to European settlement.
Traditionality of laws and customs
285 Part XII of the July 2003 reasons is entitled "Traditionality of law and custom: connection through rights and interests". The first issue addressed in this part was whether there was an identifiable Aboriginal society or community in occupation of the claim area at the acquisition of European sovereignty.
286 The Ngarluma and Yindjibarndi peoples called Dr Veth, a professor of archaeology with particular experience with the Pilbara region. On the basis of his evidence they contended that the Court should infer that:
• At sovereignty Aboriginal persons possessed, occupied, used and enjoyed the claim area.
• The Aboriginal persons who so possessed, occupied, used and enjoyed the claim area did so as members of an ‘original society’ or ‘organised societies’.
• Aboriginal people continued occupation, use and enjoyment of the pre-contact sites within the claim area after contact.
• There is no archaeological evidence to suggest that the relevant possession, occupation, use or enjoyment of the claim area has been otherwise than by Aboriginal persons of the same ‘cultural group’.
287 This evidence was accepted by the State subject to three reservations. The first was that the reference to "cultural group" was non-specific and non-technical embracing all tribes in the claim area. The second was that "organised" included only that organisation which is implied in archaeological findings and not a system of particular governance or land tenure. Thirdly, continuing occupation and use post-contact was to some only parts of the claim area.
288 His Honour clearly regarded the evidence of Dr Veth as compelling. Dr Veth gave evidence of Aboriginal occupation going back probably 40,000 years. His Honour said at [396]:
The matters addressed in Dr Veth’s detailed evidence of Aboriginal occupation of the claim areas at the time of European colonisation referred to residence on land; maintenance of a nomadic way of life on the land; derivation of substances from the land, including fishing; hunting and gathering food from the land; building and using shelters on the land; holding ceremonies on the land; digging for and using stone, ochre and minerals from the land; sharing, exchanging and/or trading resources derived on or from the land; and visiting or camping at special or particular places on the land. He concluded that discussions under each particular provided detailed, copious and unequivocal archaeological evidence that the claim areas were occupied and used by Aboriginal people before, during and after the time of colonisation.
289 Dr Veth emphasised in his evidence that, while he was not able to identify the particular cultural group, the same group had been continuously in occupation of the claim area. His Honour remarked that Dr Veth adhered to this view through extensive cross examination by the State.
290 On the issue of connection prior to the acquisition of European sovereignty, his Honour also relied on the historical evidence of early sightings referred to earlier in his reasons, and the genealogical evidence also considered earlier in his reasons.
291 His Honour concluded at [405]:
In the light of this evidence the concession made on behalf of the first respondents is seen to be properly made. I therefore find that the claim areas were inhabited by organised communities of Aboriginal peoples at the time of sovereignty. They did so as members an ‘organised society’ or ‘organised societies’; that is they functioned under extensive traditions, procedures, laws and customs which connected them to the land. The Aboriginal peoples who occupied the claim area at sovereignty therefore possessed native title in respect of that land.
ABORIGINAL CONNECTION WITH THE CLAIM AREA FROM THE ACQUISITION OF EUROPEAN SOVEREIGNTY
292 His Honour then turned to the question of Aboriginal connection with the claim areas from the acquisition of European sovereignty and stated the issue thus at [406]:
The issue is whether the communities in occupation of the claim areas or part of them at sovereignty have maintained a connection with the land or waters by observing, as far as practicable, traditional laws and acknowledging traditional customs of their predecessors. This will be examined by taking the rights and interests earlier found to be presently exercised and considering in the case of each one whether such right or interest was exercised by that community at sovereignty.
293 Before dealing with each right and interest separately, his Honour addressed the degree of connection issue, which is of some importance in this appeal, and which he defined as whether or not evidence must be led in native title cases showing that all areas of the claim area have been used in accordance with traditional laws and customs.
294 The issue arose because the State contended that the Ngarluma and Yindjibarndi peoples had not led any, or any sufficient, evidence of connection in respect of certain particular areas, including Karratha station. His Honour concluded from dicta in Ward (HC) [2002] HCA 28; 213 CLR 1 and from the majority in Ward (FC) [2000] FCA 191; 99 FCR 316 that physical occupation of the land is not a necessary requirement for continued connection, and that it is not necessary to have a presence on every part of the land or active use of every part of the land at all times. His Honour relied on a passage from Ward (FC) [2000] FCA 191; 99 FCR 316 at [262] as follows:
... in determining whether connection (has) been substantially maintained with that area, [the Court] (is) entitled to have regard to Aboriginal activities in the surrounding areas which could support a finding that the community continues to acknowledge and observe traditionally based laws and customs which maintain their connection with the land.
295 The Full Court held that it was sufficient that conduct of ceremonies, gathering bush tucker, observing customary bush medicine and other practices were conducted "in the general area". His Honour then applied this approach to the present case and said at [420]-[424]:
420 In approaching issues of connection in accordance with those dicta I have not accepted the submissions for the first respondents that connection is to be found through the existence [of] what the anthropological evidence describes as estate groups or local estate groups. Following the reasoning in Ward HC and in Yorta Yorta it appears that what is required of a primary judge is to look to the evidence and particularly the lay evidence relevant to connection without the intervention of other constructs. The findings of connection are to follow from the evidence rather than such constructs.
421 In bringing attention to that evidence it will be important to have in mind where claimants are not resident on the claim area or portions of it. It will be equally important to have in mind the other lessons of that evidence, such as the reasons for that fact, whether attempts have been made to overcome it and whether it has in fact led to loss of connection with the claim area. This is particularly important in relation to the Yindjibarndi claimants, in relation to whom the evidence establishes that they now all live out of the claim area. From an examination of the evidence they have given I am satisfied that this historical circumstance has not broken the Yindjibarndi connection with their land and waters. Equally I am satisfied that the move of the Yindjibarndi people north to the country of the Ngarluma has not meant a loss of connection by the Ngarluma peoples with Ngarluma country. The reality and the sense of the connection appears from the evidence as enduring despite the influences which European settlement has brought to both peoples. In the case of each of them, it would appear to be that these impacts have brought them towards the cusp of the moment when their connection to each of their lands through their traditional law and custom could be washed away by the tide of history. From the evidence I do not consider that time has yet arrived. The evidence given on behalf of each of the peoples stands in very significant contrast to that given in respect of the Yorta Yorta peoples.
422 A further impression which I have from the evidence of connection is that despite the substantial impact of European settlement on both peoples, they have remarkably maintained a strong sense of connection to their lands. This is particularly so in the case of the Yindjibarndi people whose movement out of their lands has not broken their attachment to it. In Ward HC at 32, at [64] the majority in the High Court expressed no view on when a ‘spiritual connection’ with the land (an expression used there as intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice. Here there is evidence of continuing use and, in the case of the Ngarluma, of physical presence accompanied in each case by an enduring sense of connection which I take to fall within the description of spiritual connection. I take spiritual connection into account along with the evidence of continuing use and physical presence.
423 In the case of the Ngarluma there are particular difficulties arising from the linguistic evidence that the Ngarluma language is not a functioning as a community language and is not well known. There is also the evidence that by their participation in the Bidara law at Woodbrook, the Ngarluma people have accepted the Bidara law of the Yindjibarndi. For the first respondents it is contended this evidences the loss of connection for them through their traditional law and custom. For the first applicants it is submitted that the evidence of this change is not some important break with the past but is the maintenance of a very important ritual and customary practice amongst the Ngarluma people. This is supported by reference to evidence of the present of some sort of arm tying in the law as practiced Woodbrook today and the fact that some people are put through a so-called free law, not involving the practices of the Bidara. Having considered the evidence I accept the submission for the first applicants on this issue. The evidence more importantly demonstrates the continuity by the Ngarluma peoples of their desire to observe traditional law and custom in a form of initiation than a major disjunctive break in their observance of traditionality.
424 With these issues in mind, I have had regard to the evidence relating to connection of the Ngarluma peoples to their land and adhere to the judgement to which it leads me that their connection to their land and waters has not yet been washed away in the particular circumstances found below in relation to the rights and interests claimed. I do not consider that the evidence shows a society in such disintegration that the time has arrived when it can be found to have lost any connection with its land and waters, as submissions for the first respondents would suggest.
PROOF OF NORMATIVE QUALITY OF RIGHTS AND INTERESTS
296 His Honour then dealt with each of the rights claimed and examined whether they were exercised back to the time of the acquisition of European sovereignty. This exercise, his Honour said, involved interrelated considerations of continuity and degree. It also required consideration of whether the rights and interests were exercised as part of a normative society and resulted in connection to the land and waters. His Honour said at [430]:
It is necessary to consider whether the claimed rights and interests presently observable in their exercise (and found above to be normative) have not only been exercised continuously from sovereignty by the claimant group but have been exercised as norms of that group. This requires reference to the distinction previously drawn in consideration of observable behaviours between social habits and social rules. In reliance in particular on the historical and anthropological evidence I reach findings on that issue in respect of each claimed right and interest to the extent its continuity from sovereignty is made out.
297 In making findings in relation to each of the claimed rights and interests his Honour said that he relied on all the historical, anthropological, genealogical and lay evidence referred to earlier in his reasons, and particularly the evidence which was collected in Appendix I. The evidence referred to in Appendix I relevant to each right and interest is voluminous and detailed. Based on this evidence his Honour made findings in the body of his reasons for judgment in relation to each right and interest claimed.
298 An example relevant to this appeal is the finding concerning the claimed right of access to Ngarluma land. His Honour said at [437]–[439]:
437 It was submitted for the first respondents that in respect of Pyramid, Coolawanyah, Mt Florance, Mallina and Karratha stations and the towns Karratha (not claimed), Wickham, Cossack, Point Samson and Dampier (on the Burrup) and certain vacant Crown land, namely parcels 82, 114, 110C, 56, 99, 147 the tests of connection are not met. This submission was based on the contentions for the first respondent of what is involved in ‘occupancy’ and is founded on the concepts of estate groups, residence, hunting and gathering as well as spiritual significance. However, taking into account the matters set out above under the sub-heading ‘degree of connection’ I accept that these areas are part of the claim areas to which the right in the terms previously found have been exercised.
438 The ancestors of the Ngarluma first applicants exercised this right back to European settlement and by inference to sovereignty. They did so continuously even though in more recent times past it only happened during ‘pinkeye time’.
439 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Ngarluma people and has been normative, being fundamental to their existence as a society.
299 Another example relevant to this appeal concerns the findings relating to the claimed right to hunt and forage in the Ngarluma claim area. His Honour said at [459]–[461]:
459 The right has been exercised along the river courses and in a number of other places. Therefore the exercise back in time accords with the finding of present activity. Given particularly the spread of the rivers in the Ngarluma claim area, I infer on the above stated principles relating to the degree of connection that the right has been exercised in relation to the whole of the Ngarluma claim area (excluding the Burrup from consideration.)
460 The ancestors of the Ngarluma first applicants exercised this right back to European settlement and by inference to sovereignty.
461 The exercise of the right both at sovereignty and through to the present has involved acknowledgement and observance by the Ngarluma people and has been normative.
300 Finally, his Honour considered the provision in s 223(1)(c) of the NTA requiring that the rights and interests are recognised by the common law, and found that no case had been made that the rights and interests as found were antithetical to fundamental tenets of the common law.
Consideration of the submissions of the State
301 The State abandoned ground 1.1 of its cross appeal and pursued grounds 1.2 and 1.3 which asserted relevantly that his Honour erred in law and in fact in finding that members of the Ngarluma and Yindjibarndi peoples:
• are the descendants of the persons who held rights in the Karratha area at the time of the acquisition of British sovereignty (ground 1.2).
• have maintained a connection to the Karratha area from the time of acquisition of British sovereignty to the present by the continued acknowledgment and observance of traditional laws and customs in respect of the Karratha area (ground 1.3).
302 The generality of expression of these grounds do not give a proper indication of the arguments ultimately relied upon by the State. The State filed extensive written submissions which addressed these grounds. However, at the hearing of the appeal, counsel for the State took a different approach and asked the Court to give precedence to the oral submissions made by him. Consequently, these reasons address the oral arguments advanced by the State. It must be said that the approach of the State to its obligations concerning the contents of the notice of appeal and the written submissions on this part of the cross-appeal was less than satisfactory. The change of approach at the hearing left the Ngarluma and Yindjibarndi peoples embarrassed and necessitated the filing of further written submissions after the conclusion of the hearing of the appeals. It also limited the value of the engagement between the Court and counsel for the State on these arguments because the Court did not have the benefit of submissions in a form upon which the State ultimately relied.
303 There was also some lack of clarity in the way the oral arguments were presented by the State. The arguments merged into each other and they need to be untangled in order for the Court to deal with them. As best we are able to discern, the following major propositions emerged from the oral submissions:
• There was no continuity of connection of the Ngarluma people with the Karratha area because there was no evidence that the Ngarluma people occupied or were present in the area continuously from the acquisition of European sovereignty. His Honour erred by failing to so find (the first proposition).
• The connection required by s 223(1) of the NTA is a connection by traditional laws and customs. The laws or customs relating to land at the acquisition of European sovereignty specified that rights and interests in land were held by estate groups. His Honour should have examined whether rights and interests were continuously held in accordance with that law and custom or some modification of it. His Honour did not follow this course and hence failed to approach the question of connection correctly (the second proposition).
Each of these major themes will be addressed now. Certain subsidiary arguments will be dealt with in the course of that consideration.
The First Proposition – Occupation of the Karratha area by Ngarluma people
304 As to the first proposition, counsel for the State spent much of the submission by seeking to establish that there was a very limited presence of the Ngarluma people in the Karratha area over the period since the acquisition of European sovereignty. Whilst the State accepted that Ngarluma people were in the claim area at the acquisition of European sovereignty, it contended that, thereafter, the only Ngarluma presence in the Karratha area before the 1970s was by Wilfred, Cane and Dallas Hicks who lived on Karratha Station for no more than 15 years, leaving in the 1940s. It is not necessary to set out the extensive references relied upon by the State to establish these facts. It may be accepted for the purposes of argument that the presence of Ngarluma people in this part of the claim area was limited as contended for by the State. It is quite another thing to conclude, as the State urges, that there was no evidence of the necessary connection of the Ngarluma people with the Karratha area.
305 Much evidence was given as to the boundaries of Ngarluma country. His Honour made findings that this evidence established that the Ngarluma country included the Karratha area. Such evidence supported an inference that the Ngarluma people have retained a continuous connection with the Karratha area.
306 His Honour accepted that not all parts of the claim area were used in accordance with traditional laws and customs and he held that it was not necessary for such use to be shown. In passing we note that subsequent Full Court authority has confirmed that physical presence is not a necessary requirement for continuing connection: De Rose (No 1) (FC) [2003] FCAFC 286; 133 FCR 325, De Rose v State of South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 110 (De Rose (No 2) (FC)) and Alyawarr (FC) [2005] FCAFC 135; 145 FCR 442. His Honour’s reasoning on the degree of connection required is set out in [293]–[295] of these reasons.
307 Counsel for the State did not contend that his Honour erred in stating the applicable principles of law. The error lay in the application of the principles of law to the facts.
308 The difficulty faced by a party alleging an error in the fact finding process in a proceeding such as the present is formidable. The question whether the applicants for a native title determination have established the necessary degree of connection to land by traditional laws and customs is a matter of judgment involving an assessment of a wide array of evidence. Where the trial has involved 81 hearing days, including 35 days ‘on country’ at 76 sites, hearing from 76 indigenous witnesses, 6 pastoralists and 11 expert witnesses on matters of archaeology, history, linguistics and anthropology, the assessment is a complex process of assimilation of a large and diverse body of material. The conclusions will often necessarily be expressed in a highly summarised form, and in some instances will involve matters of impression. In the present case these factors are evident throughout his Honour’s reasons concerning the degree of connection. The purpose in setting out in such detail earlier in these reasons the approach taken by his Honour is to illustrate the scope of the exercise and the interlocking nature of many of the issues so that findings on the evidence relating to one issue are often applied to other issues as well.
309 Nevertheless, these circumstances, however challenging, do not alter the role of an appellate court, which was explained by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, at [25] thus:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’ (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287).
In CSR v Della Maddalena (2006) 224 ALR 1, [2006] HCA 1, Kirby J (with whom Gleeson CJ agreed) explained some of the limitations on the appellate role inherent in the nature of the function at [17] as follows:
The ‘limitations’ introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from the evidence, viewed as a whole.
[Footnotes omitted]
The last two limitations referred to are of special importance in an appeal such as the present.
310 Against that background it is necessary to return to the State’s submission. Counsel for the State, having accepted that his Honour did not err in the articulation of the applicable law said:
It's not necessary, obviously, to prove an active occupation on every square inch of the determination area. And some measure of generosity has been accorded in that regard, and significant tracts of land have been found to be the subject of native title notwithstanding no acts of occupation or any other act has been shown to be upon it. But one cannot apply that principle on such a broad scale as this. This is the entire north-western sector of the claim area. It’s an area, as I said earlier, which at its longest dimensions are something like 60 kilometres east west and 40 kilometres north south.
It’s a huge area, and nor could it be said to be an area more or less central to the claim so that activity on all sides of it might be taken by inference to involve activity on it. This is at the periphery.
311 Earlier, in his submission he had estimated the Karratha area to be 40 kilometres wide and 20–30 kilometres from north to south, and to illustrate the point he referred to a map of the Karratha area appended to the notice of appeal, which is Annexure C to these reasons. This map did not show the relationship of the Karratha area to the entire claim area. As the State’s submission made an issue of the dimension of the Karratha area relative to the total claim area, after the hearing had concluded the Court requested the State to provide a map showing the whole of the claim area and the place of the Karratha area within it. Attached to these reasons as Annexure D is a copy of the map provided by the State showing the Karratha area relative to the determination area. It speaks for itself. To describe the Karratha area as huge in the context is extravagant. However its relative size is described, that relativity does not demonstrate error on the part of his Honour. It is an insubstantial basis for asserting that the whole process of assimilation of the evidence on the subject has miscarried.
312 The other factor relied upon by the State was an assertion that the Karratha area was on the periphery of the claim area. However, there was no attempt to demonstrate that the geographical position of the Karratha area was significant to the connection issue. To make good the point the State would need to have demonstrated that the peripheral geographical position reflected a lack of linkage of the Karratha area to other parts of the claim area in which connection was established. The failure to so do is sufficient answer to dispose of the submission. Whilst it is undesirable for this Court on appeal without the guidance of counsel to venture into consideration of the large body of evidence which was before his Honour, we must say that it seems rather obvious that there was a reasonable inference from the evidence as a whole that there was a linkage between the Karratha area by reason of activity in the surrounding areas. Many places figure in the historical, archaeological, and anthropological evidence which are fairly close to the Karratha area, and which were the sites of activities of the Ngarluma people. Roebourne which was founded in 1866 has become the cultural centre of the local Aboriginal people and was the destination of many local people when employment in the pastoral industry reduced. It is only about 20 kilometres from the nearest point on the boundary of the Karratha area. There was evidence of Ngarluma people living along and using rivers in the claim area. Apart from rivers within the Karratha area itself, the Nickol River forms part of the eastern boundary of the Karratha area and travels south east to the Harding Dam. Both areas were the subject of significant evidence of connection and were close enough to the Karratha area to allow a reasonable inference that there was related activity in that area. Further, Nickol Bay forms part of the northern boundary of the Karratha area. There was evidence that both before 1861, and also in modern times, Ngarluma people engaged in fishing on Nickol Bay both within the Karratha area, but also to the east of it. The picture gained from his Honour’s reasons is that most of the population and more active use of the claim area occurred in the north west part even if not within the Karratha area itself.
313 Finally, the State contended that his Honour erred by failing to make findings specific to the Karratha area. His Honour dealt with the Ngarluma area as a whole because he formed the view on the evidence that it was all part of the Ngarluma lands. This was a finding based on an assessment of the historical, archaeological, anthropological, linguistic and lay evidence. The references of the State to the limited factors of the geographical relativity and position and the history of the Hicks family do not establish that his Honour erred in treating the area as a whole. He was entitled to reach that view on the evidence and was not obliged to make specific findings of connection in relation to the Karratha area separately from the rest of the Ngarluma land.
The Second Proposition – Connection by the traditional laws and customs concerning estate groups
314 The second proposition asserts error on the part of his Honour in his approach to the issue of continuity of connection in relation to the Karratha area by the acknowledgment and observance of laws and customs by the Ngarluma people. Again, it is necessary to disentangle a number of separate arguments.
315 The main argument advanced by the State was that his Honour wrongly reasoned backwards from the present exercise of native title rights and interests and, in effect, assumed from that present exercise that there had been continuity in the acknowledgment and observance of laws or customs since the acquisition of European sovereignty (reasoning backwards).
316 Then it was said that his Honour should have made findings as to the laws and customs which were acknowledged and observed at the acquisition of European sovereignty. The State contended that his Honour had failed to do so.
317 The State also argued that his Honour should have made a finding that under the laws or customs applicable at the acquisition of European sovereignty, land was held by estate groups of patrikin. Had he done so, he would have been compelled to find, so it was submitted, that there was no native title in the Karratha area because that law or custom was no longer acknowledged and observed (estate groups).
318 Finally, the State submitted that his Honour failed to make findings, or correct findings, as to the society which was said to have acknowledged and observed the laws or customs continuously (society).
319 There was also some overlap with the arguments raised in relation to the first proposition. For instance, the State again argued that his Honour erred in applying his conclusions concerning connection through laws and customs to an area which was too extensive (too extensive an area). The interrelationship of the arguments can be seen in a number of passages in which counsel for the State was pressed by the Court to clarify the contentions upon which he relied. He said:
[T]he connection is drawn by inference by his Honour from the anterior finding that hunting somewhere in the claim area has the air of traditionality therefore there is the required connection [over the whole area]. By inference they probably always hunted, therefore it went back to Sovereignty. Legal error is in taking that approach coupled with the legal error of using what ought to be a principle applicable to smaller areas to completely ignore connection to a very large area.
[Explanation added]
320 And again:
The way to look at what his Honour has done is to focus firstly upon the process which, as I say, was to firstly find that one didn’t need to look at every part of the claim area, which we accept. Then to look at what exercises were being conducted anywhere in the claim area and to say of them that they had the appearance of traditionality, then without further ado jump to – because they had that air of traditionality they had the necessary connection under section 223 ipso facto there is native title.
‘traditionality of law and customs’ aptly describes, with respect, what his Honour did, that is, find what was being done, and then determine by looking at it, almost, by intuition whether it had an air of traditionality about it.
321 As in the case of the first proposition, the State contended that his Honour was required, but failed, to make findings of connection through acknowledgement and observance of laws and customs specifically in relation to the Karratha area (no findings in relation to the Karratha area). We will deal with each of these arguments in turn.
322 It is convenient to deal with the reasoning backwards argument together with the argument alleging that his Honour made no findings as to the laws and customs acknowledged and observed at the acquisition of European sovereignty.
323 The State contended that the process of reasoning undertaken by his Honour to reach the conclusion that the Ngarluma people had continuously acknowledged and observed laws and customs relating to land in the Karratha area was flawed, and as a result, the conclusion could not be sustained. As described by counsel for the State, the process involved his Honour determining that the Ngarluma people presently exercise native title rights and interests in relation to land, and by his Honour then assuming that traditional laws or customs had been acknowledged and observed since the acquisition of European sovereignty.
324 This argument mistakes the process undertaken by his Honour. His Honour set out the requirements of continuity derived from Yorta Yorta [2002] HCA 58; 214 CLR 422 at [137]–[139] which are reproduced at [246] in these reasons for judgment.
325 First, his Honour held that the native title rights and interests presently observed were exercised within an existing normative system. He said at [304].
The evidence establishes and I find that the above observable behaviours are more than social habits and [there is] about them the quality of being a social rule in that some at least (and indeed a considerable number) of the first applicants group look upon the behaviour in question as a general standard to be followed by the group as a whole.
326 Then when considering the question of the traditionality of laws and customs in Part XII of his reasons for judgment, his Honour said at [406]:
The issue is whether the communities in occupation of the claim areas or part of them at sovereignty have maintained a connection with the land or waters by observing, as far as practicable, traditional laws and acknowledging traditional customs of their predecessors. This will be examined by taking the rights and interests earlier found to be presently exercised and considering in the case of each one whether such right or interest was exercised by that community at sovereignty.
327 His Honour further identified the necessity of considering whether current rights and interests have been exercised continuously from the acquisition of European sovereignty and whether they were derived from a normative system at [430]:
It is necessary to consider whether the claimed rights and interests presently observable in their exercise (and found above to be normative) have not only been exercised continuously from sovereignty by the claimant group but have been exercised as norms of that group. This requires reference to the distinction previously drawn in consideration of observable behaviours between social habits and social rules. In reliance in particular on the historical and anthropological evidence I reach findings on that issue in respect of each claimed right and interest to the extent its continuity from sovereignty is made out.
328 At this point he reviewed the findings from the historical, anthropological, genealogical and lay evidence (see [407]–[411] of his Honour’s reasons for judgment). Commencing at [431] he stated his conclusions by reference to each claimed right. His Honour found that the native title rights and interests were exercised as part of a normative system.
329 Although the conclusions stated by his Honour in the body of the reasons for judgment have a certain formulaic quality, they reflect the outcome of the fact finding process recorded in Appendix I. There his Honour brought together his assessment of the whole of the evidence for the purpose of undertaking the task mandated by Yorta Yorta [2002] HCA 58; 214 CLR 422. To argue that his Honour slipped from findings of observable behaviour to findings of connection almost by assumption is to focus on the summary of findings in the body of the reasons for judgment and to ignore the extensive fact finding exercise undertaken in Appendix I, and by reference therein to the numerous findings made throughout the whole of the reasons for judgment.
330 The problem of proof for the Ngarluma people was substantial: Yorta Yorta [2002] HCA 58; 214 CLR 422 at [80]. Their tradition is oral, and they needed to establish a continuous acknowledgment and observance of laws or customs for a period over 175 years. Further, as his Honour remarked at [149], the historical record is ethnocentric and at times incomplete. To contend that his Honour assumed continuous acknowledgement and observance of laws or customs is to confuse findings made by his Honour by drawing inferences from established facts with findings which might be made on assumptions not grounded in the evidence. Given the issues to be proved by the Ngarluma people, it was inevitable that his Honour would be asked to draw inferences from the proved facts in relation to much of this issue. His Honour did so. The error contended for has not been made out.
331 One curiosity about this argument is that, whilst the State raised it in relation to the Karratha area, if it is a good argument, it would apply to the whole of the claim area because his Honour adopted the same process of reasoning in relation to the entire claim area.
332 At trial, the State contended that land ownership in the claim area resided in local patrikin estate groups. This was the traditional law and custom relating to land. The work of the anthropologist Professor Radcliffe-Brown, it was submitted, established as much. The State submitted that his Honour was required to determine what were the laws and customs relating to land acknowledged and observed by the Ngarluma people at the acquisition of European sovereignty, and then to determine whether those laws and customs or a modification or variation of them were continuously acknowledged and observed to the date of hearing. His Honour should have found that land was held at the acquisition of European sovereignty by estate groups of patrikin. Had he done so he would have been compelled to the result that neither the laws nor customs governing at the time of the acquisition of European sovereignty nor any variation or modification of them applied in the Karratha area at the time of the hearing. Consequently, so it was submitted, his Honour should have concluded that the Ngarluma people had not established continuity in the acknowledgement and observance of the laws and customs relating to land.
333 His Honour rejected the estate group thesis as determinative of issues of group, of continuity, and of connection in the passages which are reproduced at [272] in these reasons for judgment.
334 When considering the anthropological evidence generally in the above passages his Honour set out the view of Professor Radcliffe-Brown that specific tracts of land were owned by local groups of patrikin. This was the basis of the State’s case at trial. His Honour then set out the broader view of Mr Robinson, the expert anthropologist called by the Ngarluma and Yindjibarndi peoples, who considered that the Aboriginal people of the area related to land in a multiplicity of ways. There was no single simple model of land tenure. Then, his Honour outlined the view of Professor Maddock, the expert anthropologist called by the State, who regarded estate groups as a starting point for the enquiry. However, his Honour concluded at [243] from Professor Maddock’s evidence that he did not oppose other models of land ownership but rather:
his evidence commands a good look at the evidence to find in which group (or community) native title resides in a given claim area.
335 Thus, his Honour took two steps in the reasoning at this stage. He first identified the views of the expert anthropologists, Mr Robinson and Professor Maddock, in relation to the Radcliffe-Brown thesis. He found that the Robinson view differed from the Radcliffe-Brown view, and that the Maddock view left open a full consideration of all the evidence. Consequently, as a matter of expert anthropological approach there was a controversy about whether the estate group construct was a full reflection of the laws or customs relevant to the enquiry into the issue of connection required by the NTA. The second step taken by his Honour was to conclude that the controversy did not need to be resolved because an anthropological opinion could not determine the matter. Rather, it was necessary for the Court to have regard to the evidence as a whole. The argument of the State on appeal contested these two steps.
336 No substantial or detailed attack was made on the next step taken by his Honour by which he analysed all the evidence at various places in his reasons for judgment which led him to the conclusion that the Ngarluma and Yindjibarndi peoples were the groups in which native title resided. For instance, the State did not challenge his Honour’s reliance on the evidence of Ms Turner and Mr Robinson relating to "ceremonial and marriage ties, dreaming tracks, initiation, mixing at The Ngurin, the serpent contest, change in initiation rites, co-residence, speaking with one voice and personal identification" as the basis for finding that the Ngarluma and Yindjibarndi peoples were linked together by their acknowledgment and observance of laws or customs.
337 When his Honour’s reasoning is properly understood in this way it is clear that there was no error in his approach. Indeed, one may think it surprising that the State considered it fruitful to argue, in effect, that the anthropological construct should govern the outcome when their own expert, Professor Maddock, grappled with the "translation" from anthropological concerns to legal concerns (Supplementary anthropological report prepared by Professor Kenneth Maddock and filed on behalf of the first respondents at page 8). His reports were written before Yorta Yorta [2002] HCA 58; 214 CLR 422 was decided by the High Court. Referring to the requirement of connection enunciated by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Mabo (No 2)), Professor Maddock wrote "the guidance an anthropologist can find in such judicial pronouncements is uncertain" (Anthropological report prepared by Professor Kenneth Maddock and filed on behalf of the first respondents at [19]). In other words, the concept of connection to land by laws and customs is not a conceptual framework ordinarily addressed by anthropologists. Professor Maddock’s reservation underscores the validity of the approach of his Honour, namely, the need to assess all the evidence.
338 In several recent cases the Court has found that a number of estate groups or sub groups have together formed the native title holding community or group. These cases have rejected the argument now relied upon by the State that the land holding community or group was at the estate group or sub group level. Whilst this question is one of fact to be determined in each case on the evidence, the authorities are a useful guide to the relevant issues to be considered.
339 In Ward (FC) [2000] FCA 191; 99 FCR 316 Beaumont and von Doussa JJ upheld Lee J’s conclusion that native title rights and interests were held at a community not estate group level, and said at [160]–[161]:
[The primary judge] addressed the question of whether a communal title was held by the Miriuwung and Gajerrong community, or vested in persons who ‘speak for’ the ‘estate groups’ of the Miriuwung and Gajerrong community as asserted by the Territory applicants.
His Honour observed that the clear thrust of the evidence from both the applicants and the Territory applicants was to the effect that there is an organised community of Aboriginal people, described as Miriuwung and Gajerrong, which possess the languages and the Ngarranggarni that are part of, or run through, the claim area being a community which observes traditional laws and customs. Without exception the ‘primary’ witnesses identified themselves as Miriuwung or Gajerrong, and were regarded by others as Miriuwung and Gajerrong. His Honour said (at 542):
"Being satisfied that there is a Miriuwung and Gajerrong community that has an ancestral connection with the Aboriginal community, or communities, which occupied the claim at the time of the assertion of sovereignty in the State or Territory, it follows that the communal title in respect of the claim area is the title of the Miriuwung and Gajerrong people. In observing, or acknowledging, customary rules or practices, the community may be so organised that responsibility for, and, indeed, control of parts of the area occupied by the community may be exercised by subgroups whether described as ‘estate groups’, families or ‘clans’ but the traditional laws and customs which order the affairs of the subgroups are the laws and customs of the community, not laws and customs of the subgroup."
340 In Neowarra [2003] FCA 1402, Sundberg J applied this approach and said at [386]–[387]:
The body of evidence in pars [162]-[322] shows that the claimants regard themselves as part of a community inhabiting the Ngarinyin, Worrorra and Wunambal region. Throughout the evidence there is an emphasis on shared customs and traditions that transcend any particular dambun or language area. Central to this sharing is the belief in Wanjina; that Wanjina impressed themselves on the landscape, principally in painting sites. Wanalirri, though in Ngarinyin country, is regarded throughout the claim area as the source of the laws and customs laid down by Wanjina. This belief extends beyond the borders of the claim area into the claim region. The Wunggurr tradition also extends across the claim area and beyond, as do other practices and customs: moieties, the marriage rules, wurnan, wudu, rambarr, traditional burial, dambun and kinship rules. The evidence collected earlier is inconsistent with any description of the group or groups that hold the native title rights other than those who are members of the Wanjina-Wunggurr community.
It will be recalled that, assuming native title is found to exist; the respondents submit that it should be recognised at a dambun, or perhaps a language, level. Professor Sansom’s evidence was directed to these alternatives. A dambun based determination would not reflect the evidence that individual members of a dambun have kinship links with dambun other their own. It would not reflect the succession laws, namely that on the death of the last member of a dambun, a neighbouring clan will take over the country, including rights and interest in it. A dambun formulation of native title would see the title expire on the death of the last member, which is not what happens. A dambun formulation would not accommodate the evidence that close relatives of dambun members have rights and interests in the land. There was much evidence that close family could come onto their relatives’ dambun without asking permission; and indeed were entitled to do so. There was evidence of dambun grouping and that members of some neighbouring clans regards their neighbours as really the same as them. The evidence was clear that a person whose Wunggurr place was in dambun other than his or her own had rights and interests in the Wunggurr dambun. A dambun based formulation of native title would not reflect that entitlement, and must be rejected.
341 In Alyawarr (FC), the Full Court upheld the trial judge’s findings in relation to an application for a native title determination by seven estate groups in relation to land south east of Tennant Creek. The trial judge found, in a passage reproduced in [2005] FCAFC 135; 145 FCR 442 at [108] in the judgment of the Full Court as follows:
In this instance I am satisfied that the claim group as asserted by the applicants does constitute an identifiable community, that its members identify and recognise those persons within the description as members of the broader community notwithstanding their different estate groups, and that the community as described lives under a common set of laws and customs. Within the claim group, there are different subgroups or persons who have a particular responsibility for the particular parts of the claim or particular sites. The evidence shows nevertheless that there is a significant crossing or sharing of such responsibilities across particular persons from different estate subgroups which arises under the broader communal laws and customs. Not all community members enjoy the same rights in respect of all parts of the claim areas. For example, there are areas where women and children may not go, but the fact that there may be different individual rights in respect of different parts of the claim area does not mean that the claim group does not enjoy communal rights and interests over the claim area.
342 The Court referred to the argument of the Northern Territory at [110] as follows:
The Northern Territory contended at the hearing of the appeal, by what appeared to be a distinct line of argument that the ‘connection’ to the land required by s 223(1) (b) was not made out at the level of the native title claim group in this case. The requisite connection could only be identified at the estate group level as a reflection of the identified native title rights and interests. Counsel submitted that ‘each of these groups have a particular relationship with a part of the claim area but not with the whole of the claim area’. The word ‘connection’ referred to ‘relationship with country’ which would depend on the traditional laws and customs and what they say about relationship of the people with the land. Counsel posed the rhetorical question:
‘What is the nature of the general relationship with the entire claim area?’
She contended that the requisite relationship with the entire claim area had not been identified other than through membership of some community the boundaries of which were not at all certain.
and concluded at [111]–[112]:
The argument of the Northern Territory on this point took a restrictive view of ‘connection’ as it appears in s 223(1) (b). The concept has been discussed earlier in these reasons in the general consideration of the law relating to native title. It involves the relationship of the relevant community to its country defined by laws and customs which it acknowledges and observes. The relationship may be expressed in various ways including, but not limited to, physical presence on the land. It does not depend on the precise locus, within a community, of native title rights and interests intramurally allocated, provided that they can be regarded as held by a community as a whole.
The reasoning and findings in the judgment under appeal reflected a mode of analysis of the evidence consistent with that explained in Yorta Yorta. The findings of fact on which the trial judge based his characterisation of the relevant community were not attacked on the appeal. The evidence of extensive connections across the seven groups supports his characterisation of them as one native title holding community. On the basis of his findings the necessary connection with the land in the claim area is shown to exist at a communal or claim group level. There was no error in the reasoning leading to the determination of communal rights. His Honour was correct to treat the relevant title as communal over the whole area rather than as severally held by the estate groups in respect of their particular estates.
Special leave to appeal to the High Court from this judgment was refused on 19 May 2006.
343 In De Rose (No 2) (FC) [2005] FCAFC 110; 145 FCR 290, the Court explained at [39] that:
... group rights and interests may be those held by a subset of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas. The members of the subset may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community. The members of the subset might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites. Ordinarily, it might be expected that the ‘group’ holding native title rights and interests would have a fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed.
344 In the present case his Honour analysed the entirety of the evidence relating to the groups which held the native title rights and interests and rejected that they were held at the estate group level. The approach was consistent with the authorities referred to and there was no error in his approach.
345 At the end of the submissions concerning the alleged errors in consideration of the issue of connection to the Karratha area, counsel for the State argued that his Honour had erred in failing to make a finding or a correct finding as to the society whose laws and customs were in issue. He outlined the argument as follows:
So not only does his Honour fail to accord recognition under traditional law of the estates, his Honour has now, in our respectful submission, changed the practice from one in which at sovereignty particular peoples have general rights in particular areas to one in which every Ngarluma has undifferentiated rights throughout the territory. That, we say, is an impermissible use of concept of society which in any event his Honour didn’t find.
All of that is relevant only to point up our submission that one of the ways by which his Honour was led to the error of finding connection with the Karratha area was that his Honour did not go down the route I’ve just described at all. His Honour did not identify a society, did not identify its rules of tenure from Radcliffe-Brown and from all the experts, therefore did not look at any point in those areas which might have corresponded to the original estate groups or to some emanation of them or to some evolution of them. All of that, we say – that’s not an error we now rely on. We don’t appeal the error that his Honour failed to find the right society or any society, but we do call that error in aid of our submission about connection.
346 It may be that the State sought to link this argument with the general complaint about how his Honour dealt with connection in order to overcome the deficiency in articulation of the argument in the notice of appeal or in the written submissions.
347 Although the contention on its face challenged his Honour’s approach to the society question, upon careful analysis, the argument was another attempt to reagitate the estate groups argument. We have rejected that submission at [332]–[337] and incorporate those reasons again at this point.
348 However, as the submission purported to challenge the way in which his Honour approached the question of society, we should deal with the contention directly in those terms.
349 It was explained in Yorta Yorta [2002] HCA 58; 214 CLR 422 that the group rights referred to in s 223(1) are creatures of the laws and customs of a particular society, that is to say, a group united in and by its acknowledgement and observance of a body of laws and customs. Applicants must demonstrate that the society has continued to exist from the acquisition of European sovereignty to the time of hearing, and between those dates, has continuously acknowledged and observed the laws and customs of that particular society. His Honour referred to these requirements in the passages set out at [246] of these reasons for judgment. The society originally proposed by the Ngarluma and Yindjibarndi peoples was a composite society. But after the Yorta Yorta judgment they sought group rights and interests for the Ngarluma people and Yindjibarndi people separately. His Honour explained in Part X of his reasons for judgment, which is referred to in [278]–[280] of these reasons for judgment, that following Yorta Yorta the applicants were not obliged to show the Ngarluma and Yindjibarndi peoples were a composite group. Then, in Part XI of his reasons for judgment, which is referred to in [281]–[284] of these reasons for judgment, his Honour made findings on the evidence that the Ngarluma people and Yindjibarndi people were each groups of people which existed at the acquisition of European sovereignty and at the date of hearing. Finally, in Part XII of his reasons for judgment, which is referred to in [285]–[300] of these reasons for judgment, his Honour found, after an analysis of all the evidence, that the laws and customs relating to land were acknowledged and observed by the Ngarluma people and Yindjibarndi people continuously since the acquisition of European sovereignty. Thus, his Honour identified the Ngarluma people and Yindjibarndi people as groups which were united in their acknowledgement and observance of laws and customs, and he found that the acknowledgement and observance had been continuous since the acquisition of European sovereignty. There was no error in his Honour’s approach to the identification of society as defined in Yorta Yorta [2002] HCA 58; 214 CLR 422.
350 This argument has been dealt with in [310]–[312] of these reasons for judgment in relation to the first proposition and the same reasoning applies here.
NO FINDINGS IN RELATION TO THE KARRATHA AREA SEPARATELY
351 This argument has been dealt with in [313] of these reasons for judgment in relation to the first proposition and the same reasoning applies here.
Consideration of submissions of the Commonwealth
352 The Commonwealth adopted the arguments put by the State in relation to the Karratha area. It also relied on a further argument. Senior counsel for the Commonwealth contended that Gaudron and Kirby JJ had taken a different approach than that taken in the joint judgment of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta [2002] HCA 58; 214 CLR 422, and that his Honour erroneously adopted the former approach in this case rather than the approach required by the joint judgment.
353 It was argued that the difference in approach could best be seen by comparing [82] in the joint judgment with [114] in the judgment of Gaudron and Kirby JJ. The joint judgment at [82] reads:
It is, however, important to notice that demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant. Indeed, so far as the second of those issues is concerned, it would be wrong to attempt to reformulate the statutory language when it is the words of the definition to which effect must be given.
354 Gaudron and Kirby JJ said at [114]:
What is necessary for laws and customs to be identified as traditional is that they should have their origins in the past and, to the extent that they differ from past practices, the differences should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people who acknowledge and observe those laws and customs.
355 Counsel for the Commonwealth described the suggested difference as follows:
... nor in the approach of Gaudron and Kirby JJ is it necessary to demonstrate the content of pre-sovereignty laws and customs in order to ascertain whether the present law is traditional. Rather, the inquiry is whether the present law or custom has its origins in the past, with evolution or adaptation to be assumed if there are differences with past practices. Now, this approach contrasts with the approach of the joint judgment in Yorta Yorta High Court. That approach does require that the content of pre-sovereignty laws and customs be established on the evidence...
356 A comparison of the two paragraphs in the two judgments does not establish the suggested difference in approach. Both judgments define the concept of traditionality in section 223 of the NTA as meaning that the laws or customs must have been continuously acknowledged and observed. Thus Gaudron and Kirby JJ said at [111]:
Continuity, including continuity of community, is a matter that bears directly on the question whether present day belief and practices can be said to constitute acknowledgment of traditional laws and observance of traditional customs.
and at [116]:
Continuity of community is also a matter that bears directly on the question whether laws and customs are properly described as traditional.
357 In both cases this continuity must be established. There is no suggestion in the judgment of Gaudron and Kirby JJ that this factor is to be assumed.
358 The difference between the two judgments does not lie in the statements of principle, but in the application of the principle to the facts of the case. Thus, Gaudron and Kirby JJ would have allowed the appeal because the primary judge had not considered a number of factors relevant to the establishment of continuity such as whether there were Yorta Yorta people who had identified themselves as a group bound together by laws and custom continuously over the period. If Gaudron and Kirby JJ had held that the primary judge was entitled to assume continuity from present observance of laws and customs they would not have remitted the case to the primary judge, but would have determined that native title existed.
359 Thus, even though the Commonwealth argument does not reflect the effect of the judgment of Gaudron and Kirby JJ, nevertheless by reference to both judgments, his Honour was not entitled to assume continuity of acknowledgment and observance of laws and customs, but was required to determine if the Ngarluma and Yindjibarndi peoples had established that continuity on the evidence.
360 The Commonwealth contended that his Honour made findings about the present acknowledgment and observance of laws and customs but erred by assuming that the acknowledgment and observance had been continuous and did not investigate or determine on the evidence whether the acknowledgment and observance had been continuous. If he had done so, it was submitted in reliance on the contention of the State, he could only have concluded that land was held by estate groups of patrikin at the time of the acquisition of European sovereignty. As there was no evidence of acknowledgment and observance of such laws or customs in the Karratha area at the time of the hearing, the application for a determination of native title in the Karratha area must have failed.
361 In other words, the argument attempted to raise, in another way, the State’s case based on patrikin estate groups. However, as has been explained earlier in these reasons, his Honour rejected that case after a full examination of all the evidence including anthropological, archaeological, historical, linguistic and lay evidence. Contrary to the submissions of the Commonwealth, his Honour did not assume that the acknowledgement and observance of laws and customs had been continuous. The conclusion was arrived at by an assessment of all the evidence. This challenge must also fail.
ISSUE F: DESCRIPTION OF NATIVE TITLE HOLDERS
362 In the third schedule of the determination of native title the native title holders are described thus:
‘Ngarluma People’ are Aboriginal persons who recognise themselves as, and are recognised by other Ngarluma People as, members of the Ngarluma language group.
‘Yindjibarndi People’ are Aboriginal persons who recognised themselves as, and are recognised by other Yindjibarndi People as, members of the Yindjibarndi language group.
363 His Honour arrived at these descriptions after considering a proposed formulation of the description of the native title holders proffered by the State in the following terms in relation to the Ngarluma People.
"Ngarluma People" means the living Aboriginal persons who regard themselves as, and who are generally recognised by other Ngarluma People as, Ngarluma, and who from time to time come within the following description:
(1) David Daniel, James Solomon, Tim Kerr, Daisy Moses, Jill Churnside, Les Hicks, David Walker, Roger Barker, Trevor Solomon, Pansy Hicks, Dora Solomon, Alma Tumbler, Eric Churnside, Keith Churnside, Sally Walker, Betty Dale, Doris Norman, Time Douglas, Ernie Ramirez.
(2) The male ancestors in the male line of the persons in (1) above and the siblings of those male ancestors.
(3) The descendants in the male line of the male persons in (1) and (2) above.
(4) A person whose mother was Ngarluma in accordance with paragraphs (1), (2) or (3) above, and who was born or grew up in the Ngarluma Determination Area.
(5) A person who is a descendent of a person in paragraph (4) above and who was born or grew up in the Ngarluma Determination Area.
BUT in each case excluding:
(i) Valerie Holborow, Kevin Cosmos, Colin Cosmos, Janice Cosmos, Audrey Cosmos, Susan Mowarin, Mary Cosmos, Linda Delower, Dorene Wescombe, Barbara Sinclair, Gail Sinclair, Robert Boona, Margaret Boona, Dorrie Wally, Patricia Cooper or Danny Cooper; and
(ii) any of their descendents who identifies himself or herself as a Yaburara or Mardudhunera person.
A generally similar formulation defined the Yindjibarndi People. It is not necessary to set out this formulation for the purpose of the discussion.
364 His Honour referred to the description of native title holders which had been adopted in a number of cases in the July 2004 reasons as follows at [49]:
• Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 – the Meriam people.
• The Full Court in Western Australia v Ward [2000] FCA 611 had proposed at [14] – [15] a determination that ‘native title existing in the determination area is held by the Miriuwong and Gajerrong People and in respect of that part of the determination area known as Booroongoong (Lacrosse Island), native title is also held by the Balangarra Peoples’.
• Mabuiag People v Queensland [2000] FCA 1065 at Order 2 – ‘The persons holding the communal and group rights comprising the native title ("the common law holders") are the Gumulgal (the Mabuiag people)’.
• Poruma People v Queensland [2000] FCA 1066 at Order 2 – ‘The persons holding the communal and group rights comprising the native title ("the common law holders") are the Warraberalgal (the Warraber people)’.
• Masig People v Queensland [2000] FCA 1067 at Order 2 - ‘The persons holding the communal and groups rights comprising the native title ("the common law holders") are the Masigalgal (the Masig people)’.
• Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494 at Order 2.2 – ‘Native title existing in the determination area is held by the community of Nharnuwangga, Wajarri and Ngarlawangga people ...’.
• Wik Peoples v Queensland [2000] FCA 1443 at Order 2 – ‘The native title is held by the Wik and Wik Way peoples for their respective communal, group and individual rights and interests in the determination are in accordance with the traditional laws acknowledged and traditional customs observed by them ...’.
• Kaurareg People v Queensland [2001] FCA 657 at Order 3 – ‘The native title is held by the Kaurareg People who are the descendents of the Kaurareg People who were the traditional owners of the Determination Area prior to the assertion of British sovereignty as common law holders’.
• Ngalpil v State of Western Australia [2001] FCA 1140 – In the third schedule it is said:
‘the common law holders known as the "Tjurabalan People" are those people who hold in common the body of traditional law and culture governing the Determination Area and who:
(a) are members of the Walmajarri, Jaru or Nyininy language groups; and
(b) have common and inclusive cultural and geographic association with the determination area which includes: ... .’
• James on behalf of the Martu People v Western Australia [2002] FCA 1208 – In the third schedule, it is said:
‘the common law holders are those people known as the Martu people. The Martu people are those Aboriginal people who hold in common the body of traditional law and culture governing the determination area and who identify as Martu and who, in accordance with their traditional laws and customs, identify themselves as being members of one, some or all of the following language groups: ...’
• In Nangkiriny v Western Australia [2002] FCA 660; (2002) 117 FCR 6, the Karajarri people were described in the fourth schedule as:
‘those people who refer to themselves as Karajarri, being persons who:
(a) are of Karrijarri descent;
(b) identify as Karajarri and are accepted as such by Karajarri;
(c) adhere to Karajarri customs and traditions; and
(d) are by Karajarri laws and customs entitled to the use or occupation of the Karajarri lands irrespective of whether or not the traditional entitlement is qualified as to place, time, circumstances, purpose or permission and includes those persons having native title thereto under common law.’
365 His Honour then considered the argument of the State that the description should provide a basis for deciding who is in the Ngarluma or Yindjibarndi group, and he determined to follow the practice exemplified in the cases referred to.
366 On appeal the State argued, and the Commonwealth adopted the arguments, that s 225(a) of the NTA requires a more precise description of the native title holding group than the description adopted by his Honour. They contended that s 225(a) must be read with s 61(4) of the NTA which requires a native title determination application to name the members of the native title claim group or otherwise describe them sufficiently clearly so that it can be ascertained whether any particular person is a member of the group.
367 In Ward (1997) 159 ALR 453 the determination made by the trial judge was in favour of the Miriuwong and Gajerrong people. In the Full Court, Beaumont and von Doussa JJ said at [212]–[213]:
212 The State also contended that the determination fails to comply with s 225, as it does not provide a means of determining from time to time who are the people who constitute the community or group comprising the common law holders of native title. In our opinion the NTA imposes no such obligation on the Court. Section 225(a) requires the Court to determine "who the persons or each group of persons, holding the common or group rights comprising the native title are". That is a requirement that the persons or group of persons (which includes a community) holding the title, at the time of the determination, be identified. That is necessary for the purposes of enabling an appropriate prescribed body corporate to be nominated and appointed in compliance with ss 56 and 57 of the NTA and the Regulations.
213 However, once the determination is made, and a registered native title body corporate has been appointed to hold the native title in trust, or as representative of the common law holders, the ascertainment of who is a common law holder is a matter to be determined, if necessary, in a Court of competent jurisdiction, by reference to the traditionally based laws and customs of the common law holders named in the determination, as those laws and customs are at the time currently acknowledged and observed (see Mabo (No 2) at 59). The occasion for a dispute requiring curial determination should be rare. The need should not arise in dealings between third parties and the registered native title body corporate as that body has the capacity and standing to represent the common law holders from time to time. Such a dispute is more likely to arise between the registered native title body corporate and people claiming to be entitled to be recognised as common law holders. That would be a dispute between people with a close knowledge of the relevant traditional laws and customs.
368 The State submitted that Ward (FC) [2000] FCA 191; 99 FCR 316 was wrong and should not be followed insofar as it decided that a determination does not have to describe native title holders sufficiently clearly so that it can be ascertained whether any particular person is a native title holder. The State also argued that the cases relied on by his Honour, apart from Mabo (No 2) and Ward, were consent determinations in which the adequacy of the description of the native title holders was not argued. The State then referred to some cases in which the Court had held that the description of applicants failed to comply with s 61(3) of the NTA (Bodney v Bropho [2004] FCAFC 226 and Colbung v Western Australia [2003] FCA 774) and to other cases in which more detailed descriptions of the native title holders had been included in the determinations, namely, Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539; [2004] FCA 472 (Alyawarr): order 2; Sampi v State of Western Australia (No 3) [2005] FCA 1716 (Sampi (No 3)): Order B, clause 3 and Schedule 6; De Rose (No 2) (FC) [2003] FCAFC 286; 133 FCR 325: order 2; Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 (Gumana (No 2)): clause 3.
369 The State argued that the Court should remit this matter to the trial judge for further consideration of the formulation of the description of the native title holders.
370 Section 225(a) requires that persons who hold individual rights and interests be specified in the determination and groups of persons holding group rights be specified in the determination. In the case of group claims, s 225(a) will ordinarily be satisfied if the name of the group is provided. There is no automatic requirement that the determination set out in detail how the group membership is constituted or the criteria by which membership is attained. That is all Ward (FC) [2000] FCA 191; 99 FCR 316 meant on the subject. Whether the group of persons is sufficiently described will depend on the facts of the particular case. Often a statement of the group name will identify the group of persons sufficiently for the purposes of s 225(a). This explains the many determinations which have adopted that formulation. In other cases, for instance, where the constitution of the membership of the group is unclear, the determination will need to clarify by supplying some definition of the way membership of the group is attained so that s 225(a) can be satisfied.
371 Section 61(4) of the NTA deals with the requirements for authorisation for the bringing of an application. It provides:
A native title determination application, or a compensation application, that persons in a native title group or a compensation claim group authorised the applicant to make must:
(a) name the persons; or
(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.
372 The wording of s 61(4) is different from s 225(a), and the subject matter is also different. Nevertheless, it is likely that the considerations to which we have just referred apply in much the same way to this section.
373 In the present case, the argument on appeal was essentially confined to establishing that s 225(a) is not satisfied by the naming of the native title holding group but must go further and stipulate a method by which individual group members can be ascertained. This proposition cannot be accepted as a general statement. It is only where the group description leaves in doubt who are members of the group that such a description would need to be supplemented by further detail. The State attempted to distinguish the cases that his Honour referred to on the basis that they were consent determinations and therefore the issue of the legal requirements for the description of the native title holders was not argued. However, ss 87 and 94A of the NTA, require that the Court must be satisfied that each of the elements of s 225 is fulfilled before making a consent determination. To the extent that the State’s argument has force, it applies equally to the cases on which it relied because there was no argument in those cases as to the description of the native title holders in the determination.
374 Further, the descriptions of native title holders in the cases referred to by the State, do not provide the level of specificity contended for by the State. In Alyawarr [2004] FCA 472; 207 ALR 539, the native title holders are described as members of landholding groups; or recognised as members of landholding groups through adoption or birthplace affiliation; or spouses who are recognised as members of the landholding groups. In De Rose (No 2) (FC) [2005] FCAFC 110; 145 FCR 290, the native title holders are described as people who are nguraritja according to the relevant traditional laws and customs of the Western Desert Bloc people through country of birth, long term physical association, ancestral connection or by geographical and religious knowledge. The native title holders in Gumana (No 2) [2005] FCA 1425 are described as members of the relevant clans by virtue of descent; or who are guardians or successors to the rights of a clan in relation to its estate; or who have kinship connections; are spouses or have non-descent based connections. It is only in Sampi (No 3) [2005] FCA 1716 that the native title holders are described as descendants of apical ancestors. In each case except Sampi (No 3), membership of the native title group is a matter to be determined by the holders of native title according to their traditional laws and customs.
375 The State has not demonstrated that the group descriptions in the present case fail to identify the group of persons who hold native title as is required by s 225(a). Indeed, the descriptions used go beyond mere nomination of the group and define membership by reference to two criteria, namely, self recognition and recognition by others in the group. The State did not seek to show that this formulation differed in result from the proposed formulation proffered by it. There is nothing on the face of the description of the native title holders chosen by his Honour which suggests a failure to comply with s 225(a), and there is no argument on the facts which persuades us that the description fails to comply with that section.
ISSUE G: PRESCRIBED BODIES CORPORATE
376 His Honour made one determination of native title which set out the separate rights and interests of each of the Ngarluma and Yindjibarndi groups of native title holders. Save for a small area of overlap in the vicinity of the Chichester Ranges, the rights and interests related to separate Ngarluma and Yindjibarndi areas.
377 His Honour was then required by s 55 to make determinations under s 56 and s 57 that the rights and interests were held and particular functions were to be performed by a prescribed body corporate (PBC). Section 56 relevantly provided:
(1) One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom.
(2) The Federal Court is to take the following steps in making the determination:
(a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by:
(i) nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and
(ii) including with the nomination the written consent of the body corporate; and
(b) secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and
(c) thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders.
(3) On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders.
(4) ...
(5) ...
(6) ...’
Section 57 provided:
(1) If the determination under section 56 is that the native title rights and interests are to be held in trust by a prescribed body corporate, the prescribed body corporate, after becoming a registered native title body corporate (see the definition of that expression in section 253), must also perform:
(a) any other functions given to it as a registered native title body corporate under particular provisions of this Act; and
(b) any functions given to it as a registered native title body corporate under the regulations (see section 58).
(2) If the determination under section 56 is not as mentioned in subsection (1) of this section, the Federal Court must take the following steps in determining which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions mentioned in subsection (3):
(a) first, it must request a representative of the common law holders to nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose;
(b) secondly, if a prescribed body corporate is nominated in accordance with the request, the Federal Court must determine that the body is to perform the functions;
(c) thirdly, if no prescribed body corporate is nominated in accordance with the request, the Federal Court must, in accordance with the regulations, determine which prescribed body is to perform the functions.
(3) After becoming a registered native title body corporate, the body must perform:
(a) any functions given to it as a registered native title body corporate under particular provisions of this Act; and
(b) any functions given to it under the regulations (see section 58).
378 The Commonwealth argued before his Honour that the determination could only nominate one PBC for the one determination area notwithstanding that the rights and interests were held by two separate groups over two largely separate areas within the determination area. It contended that the reference to "the common law holders" in s 56(2)(a) and s 57(2)(a) was a reference to all the native title holders referred to in the determination and not to the members of each group of native title holders.
379 His Honour rejected this argument at [21]–[22] of the July 2004 reasons:
21 Turning first to the provisions of s 56(2), the reference to ‘common law holder’ which appears there is prima facie a reference to all the common law holders under a principal determination. However, those words must be understood in relation to an ‘intention’ relating to the native title held by the common law holders. Where the common law holders do not all hold the same native title, it is possible for the intention of each group of common law holders to be different from each other. The possibility of different groups holding native title under the one principal determination flows from the provisions of s 225(a).
22 I agree with the submission for the Commonwealth that the reference in s 56(2)(a) and s 57(2)(a) to the representative there described is a reference to the representative from the persons referred to in s 225(a). Attention to that paragraph discloses that the common law holders may be a plurality – that is, ‘each group of persons’ holding the common law or group rights. The presence of s 225(a) negates the possibility of any contrary intention appearing to prevent the application of the rule that words in the singular number include the plural: s 23(b) of the Acts Interpretation Act 1901 (Cth). The consequence is that the proper application of s 56(2)(a) and s 57(2)(a) read in the context of s 225(a) necessitates the Court extending an invitation to nominate a PBC to a representative of each of the persons comprising the groups it proposes to include in the determination. That being the case, it becomes possible that two PBCs could be nominated, one for each group of common law holders.
380 In accordance with this approach his Honour made orders which had the effect that one PBC would hold the native title rights and interests of the Yindjibarndi people in trust for the Yindjibarndi people, and a separate PBC would hold the rights and interests of the Ngarluma people in trust for the Ngarluma people.
381
On the appeal, the Commonwealth argued that the words of s 56(2)(a) and (b) and s 57(2)(a) and (b) are clear. The Commonwealth contended that, whether there is one group of native title holders or more than one group of native title holders, under s 56(2)(a) a single representative of the native of the native title holders is invited to nominate one PBC to hold the rights and interests on trust and the Court must then determine that only that PBC hold the rights and interests (s 56(2)(b)). The position was similar where a representative is invited under s 57(2)(a) to nominate a PBC for the purpose of performing non-trust functions after it becomes registered and the Court determines under s 57(2)(b) that the PBC is to perform the functions. His Honour erred in determining that two PBCs would hold the rights and interests in the one determination area.
382 On the appeal, both the State and the Ngarluma and Yindjibarndi peoples contended that his Honour’s interpretation of ss 56(2)(a) and 57(2)(a) was correct. We agree with his Honour’s approach and his reliance on the significance of the reference to the intention of the native title holders in s 56(2) and with his further reliance with the linkage between the concept of native title holders in s 225(a) and the sections under consideration.
383 The Commonwealth contended that the scheme of the NTA demonstrated that Parliament intended that there would be only one PBC for each determination area. Whilst other provisions demonstrate that there may be only one native title claim group for each area (s 61(1) and (2)), and one determination for each area (s 68), the construction of the provisions which govern the determination of PBCs is not assisted by s 61 and s 68 which deal with a separate subject matter.
384 The Commonwealth also referred to reg 5 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (the PBC Regulations) which provides:
A prescribed body corporate may be a trustee for, or act as an agent or representative of, more than 1 group of common law holders in relation to a native title determination if the determination applies to each group.
385 We agree with his Honour that this regulation is permissive only and does not require that there be one PBC only for each determination.
386 Then, the Commonwealth contended that the rationale for having one PBC per determination area was to facilitate communication with third parties. Finally, whilst there was no mechanism for resolving disputes between two or more PBCs in an area, regs 8 and 9 of the PBC Regulations and s 58A of the ACA Act provide for procedures to resolve disputes within one PBC. In our view, these considerations do not suggest that the plain meaning of the sections in the context in which they appear should not apply. His Honour made no error in making a determination which provided for two PBCs in the one determination area in the circumstances of this application.
387 For the above reasons, the appeal of the Ngarluma and Yindjibarndi peoples has been successful to the extent that it has been consented to by the respondents and in relation to the primary judge’s conclusion that s 47B did not apply to the areas of temporary reserves established under the Mining Act.
388 We will therefore make orders in the terms proposed by the parties on what we have called the "Extinguishment by Grant of Pastoral Leases" and "Internal Geographical Limitations" issues.
389 The terms of the determination of native title, as set out in Sch 5 to the 2 May 2005 determination will also need to be further altered to give effect to our conclusion concerning the application of s 47B to the areas of temporary reserves established under the Mining Act. We have however, on the State’s Notice of Contention, found at [237] that certain parts of those areas do not attract the application of s 47B because they were not occupied by one or more members of the native title claim group at the time of the application. As we have also discussed in [189]-[191] above, it will also be necessary to identify those parts of the determination area which are relevantly affected by the application of s 47B having regard to changes in the area of temporary reserves 5461H and 8117H, and having regard to the extinguishing effect of the grant of leases or occupation rights over certain parts of those areas and of the public works identified by the State over certain parts of those areas. We have expressed our general conclusions on those matters also at [200] and [235] above.
390 As those matters will require further consideration by the parties, so that they may be expressed in a form appropriate to be included in the final orders of the Court on this appeal, we will give the parties 28 days (or such further time as may be agreed and then approved by the Court) to submit the final form of orders which give effect to our reasons. If the parties cannot agree on those matters, we will give directions as to how they may be addressed.
391 As appears above, for the reasons we have given, the cross appeals of the State and of the Commonwealth will also be dismissed when final orders are made.
392 In the light of s 85A of the Act, and as no party in submissions contended that there should be any departure from the direction it provides, there will be no order as to the costs of the appeal or of the cross appeals.
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I certify that the preceding three hundred and ninety-two (392) numbered
paragraphs are a true copy of the Reasons for Judgment herein
of the Honourable
Justices Moore, North & Mansfield.
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Solicitor for the Appellants:
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Counsel for the First Respondent First/Cross Appellant:
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Solicitor for the First Respondent/First Cross-Appellant:
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Counsel for the Second Respondents:
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Mr T Houweling with Mr J Steenhof
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Solicitor for the Second Respondents:
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Cornerstone Legal
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Counsel for the Third Respondent/Second Cross-Appellant:
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Ms R Webb QC
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Solicitor for the Third Respondent/Second Cross-Appellant:
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Australian Government Solicitor
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Date of last submissions:
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7 June 2006
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Date of Hearing:
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Date of Judgment:
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ANNEXURE A
ANNEXURE B
ANNEXURE C
ANNEXURE D
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/78.html