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Behrendt, Jason --- "Lardil Peoples v State of Queensland" [2004] IndigLawB 37; (2004) 6(2) Indigenous Law Bulletin 14

Lardil Peoples v State of Queensland [2004] FCA 298

by Jason Behrendt

Introduction

On 23 March 2004 Justice Cooper of the Federal Court delivered his judgment in Lardil Peoples v State of Queensland[1] (the ‘Wellesley Sea Claim’). That judgment recognised that the Lardil, Yangkaal, Gangalidda and Kaiadilt peoples held native title to the land and waters below high water mark in their respective sea country around the Wellesley Islands and the mainland coast in the southern Gulf of Carpentaria.

The rights recognised by the Court were limited to rights of access for the purposes allowed by and under their traditional laws and customs; rights to fish, hunt and gather living and plant resources, and the right to access the land and waters below high water mark ‘for the purposes allowed under traditional laws and customs for religious and spiritual purposes’.

The Judgment

In his judgment Justice Cooper made a number of important findings about the content of the applicants’ laws and customs. To Aboriginal people such findings are more than a basis upon which a judicial determination is made. To the extent that such findings are consistent with their own view of the content of their laws and customs, they constitute an important recognition of their interests and lay a basis upon which those interests can be accommodated by decision-makers and governments, regardless of whether native title rights and interests are recognised as a result.

Ownership

Justice Cooper recognised that under their own laws and customs the Lardil, Yangkaal, Gangalidda and Kaiadilt people owned their traditional country and that they made no distinction between land and sea in this regard:

I am satisfied from what I have heard from the indigenous witnesses that their concept of ‘ownership’ of the seas, the sea bed, the subsoil and the sea resources is not one based on common law concepts of property; it is a concept born out of the connection of the peoples to each of the elements through their spirituality. The seas, seabeds, the subsoil beneath the seabed are important because they are the elements in which the creatures and spirits to which they are bound live. They are the elements necessary to support the resources of the sea upon which the peoples rely for their sustenance and in respect of which they owe obligations to husband and protect because of the kinship ties between them. There is no evidence that the peoples used the seabeds or the subsoil or used the seawater itself for any worldly purpose. However, the sea grasses are critical for the dugong and the spawning of prawns and the clean waters are necessary for the fishery. Further, the spirits of deceased ancestors reside in the waters of the seas, the spirits and creatures of the Dreaming traverse the Dreaming paths in the seas and mystical creatures, including the Rainbow Serpent, live beneath the sea bed in the world below.[2]

Justice Cooper however held that because of the High Court’s decision in Commonwealth of Australia v Yarmirr[3] (‘Yarmirr’), this ownership could not be recognised because it was inconsistent with the public rights of fishing and navigation.

A System of Land and Sea Tenure

Justice Cooper found that the legal systems that operate within each of the applicant Aboriginal communities are complex.[4] He accepted that each of them had systems by which members were affiliated to particular estates. In relation to the Lardil people he noted that rights and interests in those estates ‘were distributed in a way determined by a normative set of rules and customs’.[5] Similar conclusions were made in relation to the other applicant Aboriginal communities.[6]

Permission, Control and an Entitlement to a Share of Resources

Justice Cooper accepted that the laws and customs of each of the applicant Aboriginal communities included systems of permission and rights to control access to, and use of, land, sea and the resources contained therein. He noted:

The right to be asked is the touchstone of the applicants’ concept of ‘ownership’ and underlines that the identifiable right with respect to the land and waters in the area claimed under the traditional laws acknowledged and customs observed was the right to control access and conduct.[7]

His Honour also accepted the applicants’ evidence that under their own laws and customs the owners of estates were entitled to a share of the resources taken from their country.[8] Again, because of the reasoning of the High Court in Yarmirr, Justice Cooper held such a right could not be recognised under the Native Title Act 1993 (Cth) (‘NTA’).

The Area in which Native Title was Recognised

Justice Cooper accepted the evidence of each of the applicant Aboriginal communities that their sea country extended ‘as far as the eye can see’.[9] The practicalities of such a boundary to the applicant Aboriginal communities is obvious. However, in terms of a native title determination where the area the subject of the determination needs to be fixed, a boundary described in this way causes considerable difficulties. How far a person can see to the horizon depends on a range of factors including how tall the person is, how good their eyesight is, how clear the atmosphere is, how calm the water is and the height of the land upon which they are looking out to sea.

Justice Cooper[10] considered that the extent of sea country was determined by people standing on the frontal sand dunes and some headlands. Justice Cooper nominated a height of 4 metres to represent this. On this basis he determined that native title would be recognised to a distance of 5 nautical miles (‘nm’) for most of the claim area.[11] The distance ranges from 2.7nm to 5nm on parts of the mainland coast. There were also a number of small islands that were not inhabited by the applicants but were visited from time to time. In relation to these areas, Justice Cooper indicated that native title existed for half a nautical mile around those islands.

Justice Cooper conceded that this approach was to some extent arbitrary.[12] Not surprisingly, there are some anomalies which arise as a result. By limiting the areas around the outlying islands, and by assuming that the highest part of land a person would look out to sea was 4 metres, there are areas in between the main inhabited areas and the outer islands which while within visual range are nonetheless the subject of orders that native title does not exist. Areas which had to be traversed in order to get to those islands are not even the subject of a native title right of access. These gaps in country do not exist in the applicants’ own perception of the extent of their sea country.

Hunting, Fishing and Gathering

Justice Cooper determined that each of the applicant Aboriginal communities held native title that included the right of access for the purpose of hunting, fishing and gathering living and natural resources in accordance with their traditional laws and customs.

Throughout the judgment there is reference to the applicants limiting their traditional hunting and fishing to the ‘adjacent waters’ to the coast. The ‘adjacent waters’ are not defined in the judgment and must be understood in light of the Orders that were ultimately made, as including all the area where native title is said to exist. Additionally, Justice Cooper makes reference to ‘deep waters’ in discussing areas where the applicant Aboriginal communities did not habitually hunt and fish. The rights to hunt, fish and gather are recognised throughout the area where native title was found to exist.

From the applicant’s perspective, the Orders recognising rights to hunt, fish and gather throughout the area where native title was held to exist, including in areas that were not used for hunting, fishing and gathering as frequently as other parts of that area, are appropriate. Firstly, they maintain that they did in fact hunt and fish in deeper waters as well as shallow waters. Secondly, Justice Cooper accepted that deep waters were part of the traditional country of the applicant Aboriginal communities.[13] Despite making reference to where Aboriginal people ‘habitually’ hunted, fished and gathered, that such activities be ‘habitual’ should not be a precondition to the recognition of native title. The important issue is whether the applicant Aboriginal communities have a right under their own laws and customs to hunt and fish in those areas if they want to. This approach is consistent with that in Lord Advocate v Lord Lovatt[14] where, in relation to an individual’s claim to a customary right to fish in part of a river, Lord O’Hagan stated that ‘I would be slow to hold that if he fished certain parts regularly and others only occasionally, or not at all, he had failed to establish a right to fish in the whole.’[15]

Furthermore, the Courts have frequently indicated that native title is not frozen in time. Not allowing people to exercise traditional rights in the more inaccessible parts of their country when forced to do so under the pressures of increased non-Aboriginal use of their sea country would have precisely that effect. This is not least because, as Justice Cooper noted, with the ‘availability of powered boats, particularly aluminium dinghies with outboard motors, access to sea Country for fishing and hunting is now more readily available than in times past.’[16]

The Right of Access

Justice Cooper also recognised a general right of access ‘in accordance with and for the purposes allowed by and under traditional laws and customs of the applicant communities’. Worded in this way, the Orders appear to recognise more general rights and activities not specifically identified in the other orders. They may include, for example, traversing sea country to check on different areas as part of the process of looking after country.

Succession

Justice Cooper held that one section of the mainland coast in the vicinity of Burketown was the subject of a succession of land by the Gangalidda people from the Mingginda People. It was argued by the Commonwealth that such succession could not exist as a matter of law. That argument was rejected by Justice Cooper who held:

The new legal order at the time of sovereignty recognised both existing rights and interests in relation to lands and also ‘the efficiency of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty.’: Yorta Yorta at [44]. If the rights and interests in respect of the Mingginda peoples’ countries was acquired under traditional laws and customs which provided for such a succession and those laws and customs existed at sovereignty, then the interests of the Gangalidda peoples in respect of those lands and waters will be recognised and protected under the NTA.[17]

The anthropological evidence presented in the case supported the view that both the Gangalidda people and Mingginda People had laws and customs in relation to succession and that ‘a process of merger and adoption’ occurred over time. Because of this evidence Justice Cooper was willing to accept that the Gangalidda peoples’ interests in those lands could be recognised by the NTA. That succession of traditional rights and interests will be recognised under the NTA now appears to be well established.[18]

Continuity of Acknowledgment and Observance of Laws and Customs

Justice Cooper noted that each of the applicant Aboriginal communities had been affected by European colonisation in various ways:

European contact with each of the constitute [sic] groups has to a greater or lesser extent, brought about the physical dislocation of the applicant group from their traditional territories in that the majority of people who constitute the applicant group do not live on the country to which they belong, and do not live a traditional lifestyle anywhere approaching that which existed at the time of sovereignty.[19]

In relation to the Gangalidda people he noted that with the relocation of the community to Doomadgee on the Nicholson River and the passing of coastal lands into private ownership, the Gangalidda people were ‘physically isolated’[20] from their country for different periods and only had contact with the coastal areas ‘in an erratic way’[21]. He noted:

The dormitory system trained up young men for the pastoral industry and young women for domestic service away from their traditional territories. Despite this relocation of trained men and women, some of that generation, upon retirement, returned to their traditional territories. During their time as stockmen on Escott and the neighbouring pastoral properties, a number of the witnesses had the opportunity to visit the Country to which they belonged and in fact did so.[22]

Notwithstanding that each of the applicant communities had been variously affected by the disruptions associated with European colonisation, Justice Cooper held that the laws and customs of each of the applicant Aboriginal communities had never ceased to be acknowledged and observed.

Concluding comments

The Wellesley Sea Claim is of considerable regional significance to the Aboriginal people of the southern Gulf of Carpentaria. Through the one set of proceedings the Carpentaria Land Council Aboriginal Corporation has achieved a positive determination for four separate Aboriginal communities.

The fact that core parts of their traditional laws and customs have not received legal protection will be a source of ongoing grievance for the Lardil, Yangkaal, Gangalidda and Kaiadilt peoples. Regardless of the non-recognition of those interests, they will remain a fundamental part of the daily lives of those communities. Those laws and customs have after all continued to be acknowledged and observed notwithstanding their non-recognition by the Australian legal system over the last 200 years. To the extent that non-Indigenous people choose to ignore the laws and customs of the people who reside in the region, their actions will be regarded as discourteous and antagonistic.

It is of course open for Governments to add to the protection of the cultures of the applicant Aboriginal communities through other means. Acknowledging and respecting Aboriginal interests in the sea, including requirements to seek permission before accessing and using resources in sea country, should not be considered as problematic as governments and industry interests like to represent. In the Wellesley Sea Claim a number of non-Aboriginal people gave evidence in support of the local Aboriginal communities. They had resided in those communities and were aware of the laws and customs of the applicant communities, including the requirements to ask permission to access different countries. They gave evidence of understanding those laws and customs and following them. The experience of many non-Aboriginal people who have visited the islands has shown that there is nothing to fear from providing that recognition and protection – on the contrary, it has invariably been reciprocated through friendship and generosity.

Jason Behrendt is a solicitor employed by Chalk & Fitzgerald, Solicitors who were retained by the Carpentaria Land Council Aboriginal Corporation to act on behalf of the applicants in the Wellesley Sea Claim.


[1] [2004] FCA 298 (‘Lardil’).

[2] Ibid [147].

[3] (2001) 208 CLR 1.

[4] Lardil above n1 [75].

[5] Ibid [105].

[6] Ibid [116], [124]-[125] and [138].

[7] Ibid [152].

[8] Ibid [113].

[9] Ibid [112]-[113] and [125].

[10] Ibid [128].

[11] Ibid [231].

[12] Ibid [232].

[13] Ibid [115.]

[14] (1880) 5 App Cas 273.

[15] Ibid 289.

[16] Lardil above n1 [203].

[17] Ibid [131].

[18] See Neowarra v State of Western Australia [2003] FCA 1402, [313]-[314] (Sundberg J); De Rose v South Australia [2002] FCA 1342, [345]-[346] and [376] (O’Loughlin J); Re Waanyi Peoples Application (1995) 129 ALR 118, 133-134 (French J) and Yarmirr v Northern Territory [1998] FCA 771; (1998) 82 FCR 533, 564-565 (Olney J).

[19] Lardil above n1 [199].

[20] Ibid.

[21] Ibid [208].

[22] Ibid [200].

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