Ben Ward & Ors v Western Australia & Ors [1998] FCA 1478 (24 November 1998)

Last Updated: 14 October 2005

CORRIGENDUM

Amendment to the Reasons for Judgment delivered 24 November 1998:

Replace item 5 of the Minute of Order with the following:

"The relationship between the ‘native title rights and interests’ described in par 3 and the ‘other interests’ described in par 4 is as follows:

The ‘native title rights and interests’ described in par 3 hereof and the ‘other interests’ described in par 4 hereof are concurrent rights and interests in relation to that part of the ‘determination area’ to which the ‘other interests’ relate, but by operation of legislation or by reason of the nature and extent of the ‘other interests’ created by the Crown, the exercise of some of those concurrent rights, including ‘native title rights and interests’, may be regulated, controlled, curtailed, restricted, suspended or postponed."

Jessica Stephens

Associate to Justice Lee



Date:

FEDERAL COURT OF AUSTRALIA

NATIVE TITLE – determination of native title under the Native Title Act 1993 (Cth) - meaning of "native title" – meaning of "identifiable community" – existence of sub-groups ("estate groups") within an identifiable community – meaning of "traditional laws and customs" – capacity of traditional laws and customs to evolve – boundaries of an identifiable community – interaction and overlapping of communities.





EVIDENCE – proof of native title – rules of evidence - proof of aboriginal connection with claim area at sovereignty – proof of maintenance of connection – historical evidence – oral histories - linguistic evidence – "primary" evidence of witnesses – anthropological evidence – genealogical evidence – need for proof of biological descent - observance of traditional laws and customs – dreaming evidence.





NATIVE TITLE – extinguishment – meaning of extinguishment – distinction between regulation and extinguishment of native title - onus of proof – extinguishment by grant of freehold – Crown grants - permit to occupy Crown land prior to issue of Crown grant – extinguishment by the grant of leases - pastoral leases – conditional purchase leases – "special leases" – leases of reserves – extinguishment by the grant of licences - extinguishment by the creation of reserves – meaning of "vesting" – extinguishment by use of reserves – extinguishment by the grant of mining tenements - mining leases – general purpose leases – exploration licences – extinguishment by resumption and acquisition of Crown lands from pastoral leases – extinguishment by legislation – national parks legislation– wildlife conservation legislation – extinguishment by dedication of land for purpose of roads – extinguishment by the vesting of a national park and leases to "Conservation Land Corporation" - extinguishment by application of limitation periods – extinguishment by the proclamation of an "Irrigation District" – extinguishment by declaration of a townsite – extinguishment by the creation of a lake.





NATIVE TITLE – Native Title Act 1993 (Cth) – effect of Act on concept of native title at common law – meaning of "affects" native title – jurisdictional limits of a determination under the Native Title Act 1933 (Cth) - "past acts" - effect of the Native Title Amendment Act 1998 (Cth) – "previous exclusive possession acts" – "previous non-exclusive possession acts" – effect of the Titles Validation Act 1995 (WA).







Sale of Waste Lands Act 1842 (Imp)

Public Health Act 1875 (UK)



Native Title Act 1993 (Cth) Pt 2 Div 2A; Pt 2 Div 2B (23B, 23C, 23F, 23G); ss 3, 10, 11(1),13, 14, 15(2), 16, 19, 47, 47A, 47B, 56, 57, 61, 68, 81, 82, 211, 213(2), 223(1) (3), 225, 226, 227, 228(3), 229(3) (4), 239(c), 242, 248, 249C, 251D, 253; Sch 1

Native Title Amendment Act 1998 (Cth) Sch 5, Pt 5, Item 24

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Lands Acquisition Act 1955 (Cth) ss 6, 8

Aboriginal Affairs Planning Authority Act 1972 (Cth) Pt III; ss 20(3)(c), 23(b) (c) (e), 24, 27, 30(c)

Telecommunications Act 1975 (Cth) s 16(2)

Acts Interpretation Act 1901 (Cth) ss 8, 8A

Racial Discrimination Act 1975 (Cth) s 9

Western Australia Agreement (Ord River Irrigation) Act 1968 (Cth)







Mining Act 1978 (WA) ss 8, 82(1)(b), 85, 86, 87, 88

Petroleum Act 1967 (WA) s 5

Territory Parks and Wildlife Conservation Act (NT) ss 12(1) (7), 13(3) (4), 18, 122

Parks and Wildlife Commission Act (NT) ss 19, 20, 21, 22, 27, 29, 39(1), (6)

Land Acquisition Act 1978 (NT)

Crown Lands Act 1992 (NT) Pt IV

Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978 (NT)

Jetties Act 1926 (WA)

Land Act 1933 (WA) Pt III (29(g), 29(1)(g), 31, 32, 33, 34B, 37, 37B); Pt VI (102, 105, 106(1) (2), 109); Pt VII (116, 116(14), 117, 118CA); ss 3, 7, 10, 13, 23, 46, 47, 56, 140, 141, 163, 164, 229; Schs 4, 19, 21

Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA) Pt 4; ss 7, 8, 9, 10

Natives (Citizenship Rights) Act 1944 (WA)

Aboriginal Land Rights (Northern Territory) Act 1976 (NT)

State Trading Concerns Act 1916 (WA) s 6

Agriculture and Related Resources Protection Act 1976 (WA) s 105(ia)

Land Act 1898 (WA) ss 3, 4, 9, 12, 13, 16, 39, 41, 41a, 42, 55(4) (6), 62, 75, 92, 107, 135, 145, 152; Schs 3, 9, 24, 29

Land Act Amendment Act 1934 (WA)

Mining Act 1904 (WA) s 3

Petroleum Act 1936 (WA) s 4

Land Drainage Act 1925 (WA) s 6

Wildlife Conservation Act 1950 (WA) ss 6, 23, 32C

Conservation and Land Management Act 1984 (WA) s 11

Land Act Amendment Act 1917 (WA) s 33(3)

Land Act Amendment Act 1963 (WA) s 24

Northern Territory Crown Lands Act 1890 (NT)

Crown Lands Ordinance 1927 (NT) s 21

Crown Lands Ordinance 1931 (NT)





Crown Lands Ordinance 1978 (No 3) (NT) s 24(2)

Special Purposes Leases Act 1953 (NT)

Crown Lands Act 1978 (NT)

Associations Incorporation Act (NT)

Validation of Titles and Actions Act 1994 (NT) s 7

Transfer of Land Act 1893 (WA) ss 18, 52, 68

Titles Validation Act 1995 (WA) ss 4, 5, 6, 7, 10, 19

Wyndham Freezing, Canning and Meat Export Works Act 1918 (WA)

Public Works Act 1902 (WA) ss 10, 17, 18

Local Government Act 1960 (WA) ss 266, 267, 288, 294A

Aboriginal Heritage Act 1972 (WA)

Limitation Act 1935 (WA)

Rights in Water and Irrigation Act 1914 (WA) Pt III; ss 3, 28, 29, 62(1) (3)(a)

National Parks Authority Act 1976 (WA) ss 18, 22, 41

Jetties Act 1926 (WA)

Fauna Protection Act 1950 (WA) ss 6, 14, 15, 16, 22, 23

Native Administration Act 1905 (WA)

Fauna Conservation Act 1974 (Qld)

Fisheries Act 1905 (WA)

Aborigines Act 1905 (WA) s 39

Soil Conservation Act 1945 (WA)

Land Acquisition and Public Works Act 1902 (WA) s 32

Interpretation Act 1984 (WA) s 16(3)

Fish Resources Management Act 1994 (WA)

Transport Co-ordination Act 1966 (WA)







Constitution Act 1982 (Can) s 35(1)



Fisheries Act, RSC 1970



Wildlife Act 1982 (BC)







Land Regulations for the Kimberley District 1880 (WA)

Agriculture and Related Resources (Property Quarantine) Regulations 1981 (WA) reg 10

Land Regulations 1851 (WA)

Land Regulations 1882 (WA) regs 3, 29, 33, 78, 82, 85; Sch 11

Land Regulations 1887 (WA) regs 2, 3, 59, 61, 101, 105; Sch 9

Regulations Under "The Northern Territory Crown Lands Act 1890" (NT) reg 39



Federal Court Rules O 29 r 2(a)



The Constitution ss 51(xxvi), 127



R M Berndt, "Traditional Aboriginal Life in Western Australia: as it was and is", (Ch 1), Aborigines of the West. Their Past and Their Present, Editors: R M and C H Berndt, (Nedlands: University of Western Australia Press, 1979)



R M Berndt, "Traditional Concepts of Aboriginal Land", Aboriginal Sites, Rights and Resource Development, Editor: R M Berndt, (Academy of Social Sciences in Australia, Proceedings, 5^th Academic Symposium, 1981)



R M and C H Berndt, "The World of the First Australians. Aboriginal Traditional Life: Past and Present" (5^th Ed), (Canberra: Aboriginal Studies Press, 1992)



P Biskup, "Not Slaves, Not Citizens", (Brisbane: University of Queensland Press, 1973)



G Buchanan, "Packhorse and Water Hole – With the First Overlanders to the Kimberley", (Sydney: Angus and Robertson, 1934)



M Durack, "Kings in Grass Castles", (Great Britain: Corgi Books, 1973 (1^st published 1959))



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A P Elkin, "Social Organisation in the Kimberley Division", Oceania 2, 3, (1932) 296



A P Elkin, "The Australian Aborigines – How to Understand Them" (2^nd Ed), (Sydney – London: Angus and Robertson, 1943)



B Fitzpatrick, "The Australian Commonwealth: A Picture of the Community 1901 - 1955", (Melbourne: Cheshire, 1956)



Hon Justice R S French, "Courts under the Constitution, (1998) 8 JJA 7



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N Green, "Forrest River Massacre", (Fremantle: Fremantle Art Centre Press, 1995)



P Hasluck, "Black Australians" (2^nd Ed), (Melbourne: Melbourne University Press, 1970)



P M Kaberry, "The Forrest River and Lyne River Tribes of North-Western Australia. A Report on Fieldwork", Oceania 5, 4, (1935) 408



P M Kaberry, "Totemism in East and South Kimberley, North-West Australia", Oceania 8, 3, (1938) 265



K Maddock, "Owners, Managers and the Choice of Statutory Traditional Owners by Anthropologists and Lawyers", (Ch 13), Aborigines, land and land rights, Editors: N Peterson and M Langton, (Canberra: Australian Institute of Aboriginal Studies, 1983)



K Maddock, "The Australian Aborigines – A Portrait of their Society" (2^nd Ed), (Ringwood: Penguin, 1982)



K McNeil, "The Meaning of Aboriginal Title", (Ch 5), Aboriginal and Treaty Rights in Canada, Editor: M Asch, (Vancouver: UBC Press, 1997)



R E Megarry & H W R Wade, "The Law of Real Property" (5^th Ed), (London: Stevens & Sons Limited, 1984)



K Palmer & N M Williams, "Aboriginal Relationships to Land in the Southern Blatchford Escarpment Area of the East Kimberley", (Ch 2), Aborigines and Diamond Mining, Editors: R Dixon and M Dillon, (Nedlands: University of Western Australia Press, 1990)



A E W Park, "The Cession of Territory and Private Land Rights: A Reconsideration of the Tijani Case", Nigerian Law Journal 1 (1964-65) 38



W Pentney, "The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982 Part II – Section 35: The Substantive Guarantee", (1988) 22 UBC Law Rev 207



N Peterson, "The Natural and Cultural areas of Aboriginal Australia", Tribes and Boundaries in Australia, Editor: N Peterson, (Canberra: Australian Institute of Aboriginal Studies, 1976)



T Rowse, "Were You Ever Savages?: Aboriginal Insiders and Pastoralists’ Patronage", Oceania 58, 1, (1987) 81



A Rumsey, "Language and Territoriality in Aboriginal Australia", (Ch 14), Language and Culture in Aboriginal Australia, Editors: M Walsh and E Yallop, (Canberra: Aboriginal Studies Press, 1993)



B Shaw, "On the Historical Emergence of Race Relations in the Eastern Kimberleys: Change?", (Ch 22), Aborigines of the West. Their Past and Their Present, Editors: R M and C H Berndt, (Nedlands: University of Western Australia Press, 1979)



A W B Simpson, " A History of The Land Law" (2^nd Ed), (Oxford: Oxford University Press, 1986)



B Slattery, "Understanding Aboriginal Rights", Can Bar Rev 64 (1987) 727



L M Strelein, "Indigenous People and protected Landscapes in Western Australia", Environmental and Planning Law Journal, 10 (1993) 380



P Sutton, "Atomism versus collectivism: The problem of group definition in native title cases", Anthropology in the Native Title Era, Editors: J Fingleton & J Finlayson, (Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies, 1995)



P Sutton, "Language in Aboriginal Australia: social dialects in a geographic idiom", Language in Australia, Editor: S Romaine (Cambridge: Cambridge University Press, 1991)



P Sutton, "Native Title and the Descent of Rights", (Perth: National Native Title Tribunal, 1998)



T Swain, "A Place for Strangers – Towards a History of Australian Aboriginal Being", (Cambridge: Cambridge University Press, 1993)



M Tehan, "Co-existence of Interests on land: a dominant feature of the common land", Land Rights, Laws: Issues of Native Title, (Canberra: Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Issue Paper No 12, January 1997)



N B Tindale, "Aboriginal Tribes of Australia", (Canberra: Australian National University Press, 1974)







"Aboriginal Customary Law", Australian Law Reform Commission, Final Report, 1978



Blackstone, Commentaries, BK II, 177



Legislative Assembly Second Reading Speech of the Minister for Resources Development (Legislative Assembly Second Reading, Hansard 18 November 1981, 5811)







Northern Territory v Lane (1996) 138 ALR 544, referred to

Ward v State of Western Australia (1995) 40 ALD 250, referred to

State of Western Australia v Ward [1997] FCA 585; (1997) 145 ALR 512, referred to

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, referred to

Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193, applied

Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker [1949] AC 196,

referred to

Reid et al v Lincoln [1892] AC 644, referred to

Calder v Attorney-General (British Columbia) [1973] SCR 313, applied

R v Van der Peet [1996] 2 SCR 507, applied

Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, applied

Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373, applied

Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399, applied

Guerin v The Queen [1984] 2 SCR 335, applied

R v Symonds [1847] NZPCC 387, applied

Wik Peoples v Queensland (1996) 187 CLR 1, applied

Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 156 ALR 721, applied

St Catherine’s Milling and Lumber Company v R (1888) 14 App Cas 46, applied

United States v Santa Fe Pacific Railroad Co [1942] USSC 12; 314 US 339 (1941), applied

Johnson v McIntosh (1823) 21 US 240, applied

Geita Sebea v The Territory of Papua [1941] HCA 37; (1941) 67 CLR 544, applied

R v Sparrow [1990] 1 SCR 1075, applied

Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513, applied

Delgamuukw v British Columbia (1991) 79 DLR (4^th) 185, applied

Delgamuukw v British Columbia (1993) 104 DLR (4^th) 470, referred to

Fourmile v Selpan Pty Ltd; Fourmile v State of Queensland [1998] FCA 67; (1998) 152 ALR 294, applied

Yarmirr v Northern Territory of Australia (1998) 156 ALR 370, referred to

R v Adams [1996] 3 SCR 101, applied

Coe v Commonwealth of Australia [1993] HCA 42; (1993) 118 ALR 193, considered

Wik Peoples v State of Queensland (1996) 63 FCR 450, referred to

Moore and Scroope v State of Western Australia (1907) 3 CLR 334, referred to

Wade v New South Wales Rutile Mining Company Pty Ltd [1969] HCA 28; (1969) 121 CLR 177, referred to

The Yandama Pastoral Company v The Mundi Pastoral Company Limited [1925] HCA 38; (1925) 36 CLR 340, referred to

Mayor of New Windsor v Taylor [1899] AC 41, distinguished

Rye v Rye [1962] AC 496, referred to

The Queen v Kearney; Ex parte Japananga [1984] HCA 13; (1984) 158 CLR 395, referred to

Attorney-General for the Province of Quebec v Attorney-General for the Dominion of

Canada [1921] 1 AC 401, applied

Sydney Harbour Trust Commissioners v Wailes [1908] HCA 19; (1908) 5 CLR 879, referred to

Pareroultja v Tickner [1993] FCA 465; (1993) 117 ALR 206, applied

Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54, referred to

Tunbridge Wells Corporation v Baird [1896] AC 434, applied

The City of Perth v Crystal Park Limited [1940] HCA 35; (1940) 64 CLR 153, referred to

Port of London Authority v Canvey Island Commissioners [1932] 1 Ch 446, referred to

Sheffield City Council v Yorkshire Water Services Ltd [1991] 1 WLR 58, considered

Thorpes Ltd v Grant Pastoral Co Pty Ltd [1955] HCA 10; (1995) 92 CLR 317, applied

Rapoff v Velios [1974] WAR 27, referred to

Mason v Tritton (1994) 34 NSWLR 572, applied

Williams v The Attorney-General of New South Wales [1913] HCA 33; (1913) 16 CLR 404, referred to

Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 157 ALR 414, referred to

R v Sioui [1990] 1 SCR 1025, applied

R v NTC Smokehouse Ltd [1996] 2 SCR 672, applied

R v Gladstone [1996] 2 SCR 723, applied

R v Alphonse [1993] 4 CNLR 19, applied

Eaton v Yanner; ex parte Eaton (Queensland Court of Appeal, 27 February 1998, unreported), distinguished

Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, considered



Derschaw v Sutton (Full Court, Supreme Court of Western Australia, 16 August 1996, unreported, Lib No 960449S), referred to

Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680, cited

Davies v Littlejohn [1923] HCA 64; (1923) 34 CLR 174, referred to

In re Brady [1947] VicLawRp 50; [1947] VLR 347, cited

Attorney General (Victoria) v Ettershank [1875] LR 6 PC 354, referred to

North Ganalanja Aboriginal Corporation v State of Queensland (1995) 61 FCR 1,

referred to

R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327, referred to

Bowen v Stratigraphic Explorations Pty Ltd [1971] WAR 119, referred to

Mineralogy v National Native Title Tribunal [1997] FCA 1404; (1997) 150 ALR 467, referred to

Wingadee Shire Council v Mary Willis [1910] HCA 35; (1910) 11 CLR 123, referred to

Esber v The Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430, referred to





Lansman et al v Finland, Communication of Human Rights Committee No 511/ 1992, UN DOC CCPR/C/52/D/511/1992 (1994)



Report by Toohey J, Aboriginal Land Commissioner, Daly River (Malak Malak) Land Claim, 12 March 1982











BEN WARD AND ORS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLE and CECIL NINGARMARA AND ORS and DELORES CHEINMORA AND ORS ON BEHALF OF THE BALANGARRA PEOPLES v STATE OF WESTERN AUSTRALIA AND ORS and CHIEF MINISTER OF THE NORTHERN TERRITORY and CONSERVATION LAND CORPORATION and KIMBERLEY LAND COUNCIL AND ANOR and ALLIGATOR AIRWAYS PTY LTD AND ORS and CARLTON HILL PTY LTD AND ORS and AMITY OIL NL AND ORS and CALYTRIX INVESTMENTS PTY LTD AND ORS and KIMBERLEY SPORTFISHING CLUB AND ORS and SHIRE OF WYNDHAM-EAST KIMBERLEY and PACIFIC HYDRO GROUP TWO PTY LTD and INNES HOLDINGS PTY LTD and MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS



WAG 6001 OF 1995





LEE J

PERTH

24 NOVEMBER 1998

MINUTE OF ORDER

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1. Native title exists in the "determination area" as defined below except those areas of land or waters as are described in the 2^nd Schedule. The "determination area" is that part of the land or waters within the areas outlined in red on the map in the 1^st Schedule as does not include land or waters in respect of which no application for determination of native title was made by the first applicants in the application lodged by them with the National Native Title Tribunal ("the Tribunal") referred to the Court by the Tribunal for decision.

2. Native title in the "determination area" is held by the Miriuwung and Gajerrong people, and in respect of that part of the "determination area" known as Boorroonoong (Lacrosse Island), native title is also held by the Balangarra Peoples, both parties being described hereafter as the common law holders of native title.

3. Subject to par 5 hereof, the nature and extent of the "native title rights and interests" in relation to the "determination area" are the rights and interests of the common law holders of native title derived from and exercisable by reason of the existence of native title, in particular:

a)	a right to possess, occupy, use and enjoy the "determination area";

b)	a right to make decisions about the use and enjoyment of the "determination area";

c)	a right of access to the "determination area";

d)	a right to control the access of others to the "determination area";

e)	a right to use and enjoy resources of the "determination area";

f)	a right to control the use and enjoyment of others of resources of the "determination area";

g)	a right to trade in resources of the "determination area";

h)	a right to receive a portion of any resources taken by others from the "determination area";

i)	a right to maintain and protect places of importance under traditional laws, customs and practices in the "determination area"; and

j)	a right to maintain, protect and prevent the misuse of cultural knowledge of the common law holders associated with the "determination area".

4. The nature and extent of any other interests in relation to the "determination area" are the interests created by the Crown as set out in the 3^rd Schedule.

5. The relationship between the "native title rights and interests" described in par 3 and the "other interests" described in par 4 is as follows:

"The native title rights and interests" described in par 3 hereof and the "other interests" described in par 4 hereof are concurrent rights and interests in relation to that part of the "determination area" to which the other interests relate, but by operation of legislation or by the nature and extent of the other interests created by the Crown, regulation, control, curtailment, restriction, suspension or postponement may operate upon the exercise of some of those concurrent rights.

6. Within twenty-eight days the common law holders of native title are to file any minute of proposed determination under ss 56 and 57 of the Native Title Act 1993 (Cth) and if no such minute is filed it is determined that native title is held by common law holders.

7. There be liberty to apply as to costs and to refer to the National Native Title Tribunal for mediation issues arising out of the relationship between native title rights and interests and other interests in relation to the "determination area".

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

TABLE OF CONTENTS

Introduction

This is an application for determination of native title in respect of land and waters in the north of Western Australia ("the State") and adjacent land in the Northern Territory ("the Territory"). Three separate applicants seek the determination of native title. The first applicants made an application to the National Native Title Tribunal ("the Tribunal") under ss 13 and 61 of the Native Title Act 1993 (Cth) ("the Act"). After the application was lodged with the Federal Court by the Registrar of the Tribunal, pursuant to s 74 of the Act, the second and third applicants, who sought determination of native title in respect of parts of the area for which the first applicants claimed native title ("the claim area"), were joined as applicants.



The main part of the claim area is in the north-east of the State. The remainder is a contiguous part in the Territory ("the Territory area"). The whole of the claim area may be said to be generally within the region known as the East Kimberley, the climatological and topographical detail of which has been described as follows:

"...the East Kimberley (represents)...a considerable variety of ecological niches, ranging from mangrove coastal flats and the drowned mouths of river valleys at the northernmost physical boundaries to...grassy alluvial plains supporting savannah forests and woodlands, deep gorges cut between sandstone divides and massive limestone outcrops associated with underlying basalt, and semi-desert savannah to the south and south-eastern edges of the Kimberley Division (Jutson, 1950:52-55)...



Climatically, the East Kimberley lies within the tropical and subtropical zones of the southern hemisphere but most of its land surface experiences arid to semi-arid conditions...predominantly ‘tropical and sub-tropical steppe characterized by high temperatures and winter drought’. Using rainfall as the basis, the year is divisible into the Wet and the Dry seasons. The average rainfall ranges from 350 mm to 1000 mm or more annually, declining sharply as one proceeds southwards towards the beginning of the Great Sandy Desert near Halls Creek. The Dry season may be subdivided into a ‘cool dry season’ and a ‘warm dusty season’ (Maze, 1945:10-13). The former extends from around mid-April to early August and is characterised by warm days with maximum temperatures around 30deg.C accompanied by low humidity and virtually no rain. The air is dry, the sky usually cloudless, the nights cool. It is the most pleasant season. Economic life begins slowly following the Wet season, to build to a peak of activity by September/October. The warm dusty season starts around mid-August and continues to late October/early November when rain may begin. Outdoor temperatures in this period could reach the order of 42deg.C and frequent localised dust storms accompanied by a rise in humidity cause general discomfort for Aborigines and Europeans alike. The culmination of this period is the Wet season which lasts approximately from December to April of the following year, although it could vary from anything between three to six months."

(Dr B Shaw, "My Country of the Pelican Dreaming" (Canberra: Australian Institute of Aboriginal Studies, 1981.))

(Ex A16 p 12)

In total the claim area is approximately 7,900 square kilometres. The land in the claim area is vacant Crown land; reserved Crown land; Crown land in a pastoral lease granted to the Aboriginal Lands Trust ("Glen Hill"); and several small areas of freehold land. Waters in the claim area include waters situated within the inter-tidal zone on the east side of Cambridge Gulf ("the Gulf").



To understand how the claim area is distinguished from other land in the region it is necessary to consider how European settlers came to the region and made use of the land.



Land in the East Kimberley was not made available to settlers by the Crown until late in the 19^th century when a report on an expedition to the region, prepared by explorer and Crown surveyor Alexander Forrest and published in 1879, indicated that the area would be suitable for pastoral activities. Forrest stated that the Aboriginal people were friendly and in his view they were unlikely to be hostile to settlers, although he noted that they would "have to learn" that the cattle that would come with settlers would not be available for hunting. As Sir Paul Hasluck commented in his work "Black Australians", Aboriginal people in the north of Western Australia were left to "learn" of the effects of European settlement in their region without guidance or protection from the Crown:

"No attempt was made in entering into this vast new region to prepare the natives for contact, to instruct them, to give them special protection or to ensure either their legal equality or their livelihood.



As settlement spread to remote corners of the colony the difficulty of doing anything became an excuse for forgetting that it was ever hoped to do something. Official intentions shrank. The local government ignored situations that were awkward or beyond its capacity to handle and the Colonial Office also overlooked or was unaware of any need for a positive policy."

(P Hasluck, "Black Australians", (2^nd Ed) (Melbourne: Melbourne University Press, 1970) at 63.)

The first grants of rights to depasture stock in the region were for land undefined by survey. Pastoral rights were applied for by marking on maps the approximate positions of the areas sought. In 1881 two speculators acquired pastoral rights to approximately 800,000 hectares by "marking off" an area that was assumed to follow the Ord River, on the "understanding" that when the course of the Ord River was eventually mapped the pastoral areas would be "transferred" to match the course of the river. Shortly thereafter, a group of pastoralists from the eastern colonies, among them Durack, Emanuel and Kilfoyle, "reserved" approximately 1 million hectares, including land on the Ord River, wherever the course of that river may be shown to be by subsequent survey and mapping. (M Durack "Kings in Grass Castles", (Great Britain: Corgi Books, 1973 (first published 1959) at 209-210.) To discourage speculators the Land Regulations for the Kimberley District 1880 (WA) had provided that lands unstocked or understocked after the first two years of a pastoral lease be forfeited. By the end of 1883 approximately 20 million hectares of the Kimberley had been included in pastoral leases. Within six months of that date pastoral leases covering almost one quarter of that area had been surrendered or forfeited. Further leases were abandoned over the next two years and by the end of 1885 the core of the Kimberley pastoral industry remained. That was further reduced in the 1920s when a downturn in the industry caused approximately four million hectares of pastoral lease land to be abandoned or forfeited for non payment of rent or non compliance with conditions. The only town in the region was the port of Wyndham founded in 1886. For many years settlers depended upon sea transport for travel to and from the East Kimberley and for delivery of supplies and export of cattle and frozen meat. An abattoir and meat freezing works operated at Wyndham from 1919 until 1985. The East Kimberley pastoral industry was based on small areas of land of high quality surrounded by large areas of land of very low potential. After one hundred years of pastoral activity, it would be reported that over 60 per cent of the pastoral area of the East Kimberley had very low cattle carrying capacity, in excess of 125 hectares being required to support each head of cattle. Further, much of the Crown land used for pastoral leases was grossly degraded by the impact of cattle on the soil and pasture and by the high rates of soil erosion which followed in each wet season. (S Graham-Taylor, "The Ord River Scheme" (Ex 23 pp 6-7)).



Soon after the pastoral industry was established in the East Kimberley it was realized that profitability and sustainability of pastoral activities in the area were subject to a number of limitations:

"At all times pastoralists had to contend with extreme isolation, a severe climate, communication and transport difficulties, access problems in the wet season, shortage of stock feed in the long dry season and the low carrying capacity of much of the area. Consequently, settlement of the Kimberley region was sparse and the early hopes for the development of the region were not realised."



(W J Wilkin, "The Ord Irrigation Project".) (Ex 21(a) p 2)

Development of irrigated land for tropical agriculture was given early consideration. By 1926 surveys of the Ord River environs had identified approximately 60,000 hectares of land as suitable for irrigated agriculture. That land began at the Packsaddle and Ivanhoe Plains on the Ord River and extended to the north-west to Carlton Plains and Mantinea Flats on the Ord River and to the north-east to the Weaber, Knox Creek and Keep River Plains, part of which was in the Territory. In 1941 potential dam sites on the Ord River were identified. In the same year the Department of Agriculture began trial plots of irrigated pastures on approximately five hectares of land on the Ivanhoe pastoral lease situated near the Ord River, now an area of vacant Crown land by Lake Kununurra. In 1945 an agricultural experiment and research station ("the Kimberley Research Station") was established on the east bank of the Ord River on land excised from the Ivanhoe pastoral lease. Engineering studies for construction of a diversion dam, main storage dam, and an irrigation system for an area of irrigated land of 60,000 hectares began in the same year. Eventually, an Ord River Irrigation Project ("the Project") comprising "three stages" was proposed. The "first stage" involved construction of the diversion dam near the Packsaddle and Ivanhoe Plains, irrigation of approximately 10,000 hectares of land on those plains, and creation of a new town to serve the area. The "second stage" was the construction of the main dam and irrigation works to irrigate the remaining 50,000-60,000 hectares. The "third stage" was the construction of a hydro-electric power station on the main dam and reticulation of electrical power.



Between 1959 and 1962 land was resumed by the State from the Ivanhoe pastoral lease for the "first stage" of the Project. In 1961 a town plan was prepared and the townsite of Kununurra declared at which time the sale of freehold lots for businesses and residences within the townsite began. The diversion dam was completed in 1962. The water impounded behind the dam, Lake Kununurra, covered an area of approximately twenty square kilometres. By the end of 1965 almost the whole of the 10,000 hectares of irrigated land had been divided into lots and "leased" by the State on terms which included a right to purchase the freehold interest in the lots upon performance of certain conditions.



In 1963 and 1967 more land was resumed from the Ivanhoe pastoral lease to expand the area of the Agricultural Research Station and to provide for limited enlargement of the irrigated land on the Ivanhoe Plains.



In 1969 the State began to implement the "second stage" of the scheme, by constructing the main dam at a site approximately fifty kilometres up-stream from the diversion dam on the Argyle Downs pastoral lease and by making a small expansion of irrigated land on the Packsaddle and Ivanhoe Plains. Included in the modified "second stage" were steps to protect the catchment area of the main dam from silt and pollution and to commence re-generation of areas badly eroded by pastoral activities surrounding the main dam. The main dam was completed in 1971 and in the same year the State acquired the whole of the Argyle Downs pastoral lease (a lease of approximately 4,000 square kilometres), and a small area of freehold land on which the Argyle Downs homestead had been established. In 1972 the State resumed parts of the Lissadell and Texas Downs pastoral leases in the catchment area. The reservoir behind the main dam, Lake Argyle, covers an area of 700 square kilometres and at times of maximum flood may spread over 2,000 square kilometres.



The area of land now under irrigation is approximately 14,500 hectares. The hydro-electric power station was constructed on the main dam in 1996 and power is reticulated across the claim area to Kununurra and Wyndham and to the Argyle Diamond Mine south of Lake Argyle.



The Project was conceived as a major production area for cotton and rice but neither crop succeeded. Production of rice ceased in 1966 and cotton in 1974. Growers turned to seed crops, nuts, sugar and horticultural ventures such as melons and other fruits, and vegetables with success. In recent years trial crops of cotton have been reintroduced. The creation of Lake Argyle and the development of the Argyle Diamond Mine has increased public awareness of the East Kimberley region, its striking landscapes and connection with Aboriginal pre-history. Tourism is now an important part of the region’s economy. It was estimated in 1991 that the contribution of tourism was approximately $30m per annum, a sum equivalent to the value of the agricultural products produced under the Project. (Ex 23 p 51)

The claim area

In broad terms the claim area in the State applies to Crown land on the Ord River near the Gulf and on the coast from the east side of the Gulf to the State/Territory border and to the balance of Crown land resumed or taken from pastoral leases for the Project and not alienated by the Crown thereafter.



More particularly, the land and waters within the State in respect of which native title is claimed are as follows:

•	Crown land in or about the town of Kununurra, the Ord River irrigation area, and Lake Argyle and several freehold lots;

•	Crown land in the Glen Hill pastoral lease south-west of Lake Argyle;

•	Crown land and waters in the inter-tidal zones and mud flats on the eastern side of the Gulf and on the north coast of the State between the Gulf and the State/Territory border;

•	Crown land in three small islands "Booroongoong" (Lacrosse), "Kanggurryu" (Rocky) and "Ngarrmorr" (Pelican) near the mouth of the Gulf; and

•	Crown land, in an area loosely described as "Goose Hill", east of Wyndham and south of the Ord River.

The only part of the claim area in the State that includes land in which a freehold interest was granted prior to 31 December 1993 is:

•	a small area near Lake Argyle on which a telephone exchange is operated by Telstra Corporation Limited ("Telstra"); and

•	the area of the former Argyle Downs homestead.

Other freehold land included in the claim area is land that was alienated by the Crown after 31 December 1993 but, it is said, not in compliance with the "future act" provisions of the Act and, therefore, without affecting native title.



Crown land in the claim area in the vicinity of Kununurra, Lake Argyle and the Ord River irrigation area, is vacant and reserved Crown land formerly used for pastoral leases. Most of that land is the land covered by Lake Argyle and the land which surrounds it, formerly part of the Argyle Downs, Lissadell and Texas Downs pastoral leases, and the balance consists of small areas of land in and around Kununurra, or bordering the irrigated land north of the town and formerly part of the Ivanhoe pastoral lease. A small area of vacant Crown land near Kununurra is subject to a special lease for cultivation and grazing purposes. The reserved Crown land, in the main, is vested in the Shire of Wyndham East-Kimberely ("the Shire"), or in statutory authorities, for purposes which include conservation, recreation, parkland, agricultural research, gravel, quarry, drainage, preservation of Aboriginal paintings, the use and benefit of "Aborigines" and purposes connected with the Project. Some of the reserved Crown land has been leased to Aboriginal corporations and some to community organizations. Crown land to the south-east of Lake Argyle is reserved for "government requirements". Part of that land is leased for grazing purposes. Some parts of that Crown land are subject to tenements granted under the Mining Act 1978 (WA) and the Petroleum Act 1967 (WA) and gravel and stone is quarried on Crown land at several sites in and around Kununurra. A small part of the area on which diamond mining operations are carried out on Crown land south-west of Lake Argyle by the Argyle Diamond Mine Joint Venture is included in the claim area.



The land in the inter-tidal zones and mud flats on the north coast of the State, described as vacant Crown land, is land between the low and high watermarks and a forty metre strip of land between the high watermark and the boundary of the Carlton Hill pastoral lease. Whether the land included in any earlier pastoral lease extended to the high watermark or into parts of the inter-tidal zone is disputed. The mud flats and inter-tidal zones on the eastern side of the Gulf are Crown lands reserved for conservation purposes. The Goose Hill area is reserved Crown land part of which is used for grazing purposes under a special purpose lease. "Booroongoong" (Lacrosse) which expression excludes an area described as King Location 230, and "Kanggurryu" (Rocky) Islands are vacant Crown lands and "Ngarrmorr" (Pelican) Island is Crown land reserved for the purpose of a nature reserve.



With respect to the Territory area part of that land is the Keep River National Park, declared a park in 1981 under the Territory Parks and Wildlife Conservation Act (NT). The land contained in the Park was excised from the Newry pastoral leases in 1979 and leased to the Conservation Land Corporation ("the Corporation") for the purpose of "carrying out the functions of the Conservation Commission" ("the Commission"). Under the Parks and Wildlife Commission Act (NT) the Commission (now known as the Parks and Wildlife Commission) has the care, control and management of all land "acquired" by the Corporation. Also within the Territory area is land adjacent to the Park excised from the Newry pastoral leases in 1987 and leased to the Corporation for the purpose of "carrying out the functions of the Conservation Commission".



Other land in the Territory area is freehold land, contiguous with, or formerly within, the Keep River National Park, being three areas granted as freehold land to Aboriginal corporations under the Land Acquisition Act 1978 (NT) and Pt IV of the Crown Lands Act 1992 (NT) and the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978 (NT). The grants were made in 1990 and 1993.

The application

The application was presented to the Tribunal in April 1994 by "Miriuwunga Gajerronga Ningguwung Yawurrung Inc (Miriuwung and Gajerrong Families and Heritage Land Council)". After the application had been accepted by the Tribunal, the description of the claim area was amended, and the name of the first applicants changed by substituting for the corporate applicant natural persons who bring the claim on behalf of the Miriuwung and Gajerrong people.



After notice of the claim was published, the Tribunal received notices from 127 persons with interests in the claim area said to be likely to be affected by a determination of native title. Pursuant to s 68 of the Act those persons became parties to the application.

Two of those parties, the State and the Territory, commenced a proceeding in this Court seeking a declaration that the Registrar had erred in accepting the application. It was contended that the application did not comply with the requirements of the Act in that the application had been made by a body corporate. Further, it was submitted that replacement of the body corporate by the named applicants did not cure lack of competency in the application. In August 1995 those issues were determined by a Judge of this Court who held, inter alia, that the Registrar had neither erred in accepting the application nor in accepting an amendment to the description of the applicant. (See: Northern Territory v Lane (1996) 138 ALR 544.)



The Court was informed that two other applications for the determination of native title in respect of land adjacent to the claim area had been lodged with the Tribunal by the first applicants. No application was made to the Court for a direction that the claim area in this matter be expanded to include the land referred to in those applications.



The first directions hearing in the matter was held in March 1995 at Kununurra. To provide for efficient management of the litigation orders were made that parties who had given notice to the Tribunal of their interest in the application be grouped as respondents according to common interests. The orders were were designed to encourage the grouped parties to adopt a common address for service and, if possible, give common instructions to obviate multiple representation and unnecessary expense.

The respondents

The respondents to the application are as follows:



The State as first respondent represents State departments, Ministers and statutory authorities named as interested parties when the application was before the Tribunal. The State opposes the application in respect of the whole of the claim area in Western Australian.



The Territory is the second respondent. The Territory opposes the application in respect of the Territory area with the exception of the three freehold areas granted to Aboriginal corporations and associations.



The third respondent is the Corporation as lessee of the land contained in the Keep River National Park and of the adjacent land.



Cecil Ningarmara and other named Aboriginal people were the fourth respondents as persons who claimed an interest in the Territory area separate from that of the first applicants. In due course, the fourth respondents sought leave to be joined as claimants seeking a determination of native title in their favour in respect of that land. They were given leave to be removed as fourth respondents and joined as second applicants.



The fifth respondents are the Kimberley Land Council and the Kununurra Waringarri Aboriginal Corporation. The Kimberley Land Council is a representative body under the Act. In this proceeding it represents Aboriginal people other than the applicants who have interests in the claim area. In February 1997 leave was given to some of the fifth respondents, known as the Balanggarra Peoples, to become the third applicants, that group having lodged with the Tribunal an application for a determination of native title for an area of land and waters which included part of the land in the claim area, namely, Lacrosse Island.



The sixth respondents are persons and corporations who carry on business on, and have interests in, land in the claim area. Principal among them are the horticultural or agricultural businesses which take water from the Ord River irrigation scheme. The claim area does not include the land on which the businesses operate but does include Crown land over which that water is pumped. Also included as sixth respondents are tourist-oriented businesses which use facilities on reserved or vacant Crown land within the claim area. For example, Ultimate Adventures operates a tourist and travel-stop facility under a lease of reserved land near Goose Hill. Alligator Airways Pty Ltd is the holder of a permit to operate float aircraft from Lake Kununurra, and install and maintain float landings and moorings, and is the holder of a jetty licence under the Jetties Act 1926 (WA). Triple J Tours holds a permit to construct and use landing steps on the shore of Lake Kununurra and a licence to use a tour boat on the lake. Other respondents hold fishing boat licences or tour boat licences for use on Lake Argyle. Lake Argyle Fisheries holds a fish farm or acquaculture licence for breeding and harvesting fish in Lake Argyle. Also included as sixth respondents are persons who hold licences permitting them to collect, for commercial use, seeds of native flora on reserved or vacant Crown land, and persons who acquired, after 31 December 1993, freehold interests in residential lots in Kununurra.



Included in the group of sixth respondents, but separately represented, is Telstra which operates telephone facilities involving an exchange, repeater stations, underground cables and solar power sites, on reserved or vacant Crown land, and in one case freehold land, in the claim area.



The seventh respondents are pastoral enterprises. Crosswalk Pty Ltd is entitled to graze cattle on reserved land in the claim area as lessee under a lease granted to it under the Land Act 1933 (WA). Similarly, Baines River Cattle Co Pty Ltd as lessee under a lease from the Minister for Works is permitted to graze cattle on an area of reserved land vested in the Waters and Rivers Commission.



The eighth respondents are parties engaged in mining in, or near, the claim area. Included are Argyle Diamond Mines Pty Ltd and other Joint Venturers, together referred to as "Argyle", who operate the Argyle Diamond Mine as lessees under a mining lease ("the Argyle mining lease") granted pursuant to a Joint Venture Agreement made with the State ("the Agreement"), ratified by the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA) (formerly Diamond (Ashton Joint Venture) Agreement Act 1981) (WA) ("the ratifying Act"). Argyle hold other mining leases and miscellaneous licences granted under the Mining Act 1978 (WA) within the claim area. Normandy Bow River Diamond Mine Limited ("Normandy") holds exploration licences, a miscellaneous licence and mining leases within the claim area to the south of Lake Argyle and to the east of the Argyle Diamond Mine.



The ninth respondents are other parties who hold mining tenements under the Mining Act 1978 (WA), for example, exploration licences or the rights to quarry gravel or metal on Crown land within the claim area.



The tenth respondents are incorporated associations which occupy reserved Crown land within the claim area under leases granted by the Shire, the reserved land being vested in the Shire under the Land Act 1933 (WA). They include a sport-fishing club which represents persons interested in recreational fishing in waters in the claim area and a water-ski club and a sailing club which represent recreational users of Lake Kununurra.



The eleventh respondent is the Shire, the primary interest of which is in the reserves vested in it in the claim area.



The twelfth respondent, Pacific Hydro Group Two Pty Ltd, produces hydro-electric power at the main dam. It did not take any part in the proceedings.



The thirteenth respondent, Innes Holdings Pty Ltd, carries on the business of irrigated agriculture. Part of the land on which that business is conducted is freehold land in the claim area granted by the Crown after 31 December 1993.



The Attorney General for the Commonwealth, later replaced by the Minister for Aboriginal and Torres Strait Islander Affairs, was given leave to intervene in the proceedings. No submissions were made pursuant to that leave.

Pre-trial directions and conduct of trial

Preparation of the matter for trial between 1995 and 1997 was controlled by detailed directions made at case management hearings held at Kununurra and Perth. The directions had regard to the novel nature of the litigation. The directions provided, inter alia, for documents to be filed which -

•	set out the tenure history of the land;

•	outlined the facts to be relied upon by the applicants to show the historical connection of the applicants with the land and water claimed;

•	outlined the facts to be relied upon by the applicants to show contemporary connection of the applicants with the land and water claimed;

•	outlined the facts to be relied upon to show the applicants were members of an identifiable group which observed or acknowledged traditional laws and customs;

•	provided the reports of expert witnesses and any documents referred to in those reports not available to experts instructed by other parties; and

•	set out particulars of dealings with the land and waters on which respondents would rely to argue there had been extinguishment of native title and any documents relevant thereto.

In lieu of pleadings the parties were directed to file statements which set out the relevant issues, facts and contentions as perceived by the parties. In addition directions were made dividing the trial process by requiring counsel for the applicants to open their cases in detail after which the trial would be adjourned to allow the respondents to analyse the cases to be presented by the applicants and prepare their cases in response. Further directions were made for the appropriate manner of conducting the hearing having regard to the requirements indicated by the opening statements.



In the course of preparation of the matter for hearing the State and the Territory sought an order from the Court that the issue whether, and, if so, to what extent, native title had been extinguished in the claim area by grants of pastoral leases be answered as a preliminary question of law pursuant to O 29 r 2(a) of the Federal Court Rules. That order was refused and the reasons for that decision are reported as Ward v The State of Western Australia (1995) 40 ALD 250.



The trial commenced at Perth on 17 February 1997 with the opening statements of counsel for the first and second applicants and consequent directions, and adjourned on 20 February 1997.



After the cases of the first and second applicants had been opened the Balangarra Peoples sought leave to be joined as third applicants. Leave was granted as noted earlier in these reasons. The third applicants were directed to file a written opening prior to the resumption of the hearing and to comply with similar orders to those that had applied to the first and second applicants in respect of filing of documents relevant to their case.



Whilst the proceedings stood adjourned further directions were made setting out a protocol to be followed in respect of any evidence to be adduced that may require an order restricting the persons present at the time the evidence was given or access to the evidence after it had been received, having regard to cultural and customary concerns of Aboriginal people and to the requirement that the trial proceeding be fair and just. The State appealed from those directions. The terms of the directions were clarified by an order of the Full Court, reported as State of Western Australia v Ward [1997] FCA 585; (1997) 145 ALR 512.



The trial resumed at Kununurra on 21 July 1997. The hearing occupied eighty-three days. Evidence taken in the claim area (the "primary" evidence) was heard at various sites in, or proximate to, that area, the substance of evidence to be adduced from witnesses at each site being provided to parties beforehand. A number of witnesses were called on more than one occasion to give evidence at different sites. On each occasion those witnesses were subject to cross-examination.



In addition to receiving evidence at those sites, views were taken, or inspections made, of places that had significance as landmarks, or for connection with ancestors, events referred to in the evidence, or spiritual beliefs. The Court also viewed demonstrations of traditional activities, ceremonies, dances and songs, and inspected rock art, and artefacts in the claim area.



As far as was possible the hearings of the Court in the claim area were conducted in an informal manner. On several occasions evidence was heard when those present were restricted to males and restrictions were placed on distribution of the record of that evidence. On one occasion evidence was given to the Court by female witnesses after an order was made that, with the exception of myself, other persons present be restricted to persons of the same gender as the witnesses. Like restrictions were made in respect of distribution of, and access to, that evidence.



Evidence was usually given in English, but most often it was in broken form, using words of the Miriuwung or Gajerrong languages for names of people, places, objects, animals and for description of cultural matters. The language amalgam has been described as "Kimberley Kriol" by linguists and anthropologists. Appropriate spellings of Aboriginal words used in evidence were compiled in an agreed orthography for use in the transcript of proceedings.



The difficulties Courts face in receiving and dealing with evidence of Aboriginal witnesses is well known, particularly when English is at best a second, or lesser, language and the grasp of it is limited. A transcript cannot convey nuances of gesture, movement or expression that bear upon an understanding of the evidence received in such circumstances. Similarly, a transcript which presents as a seamless continuum of questions and answers may suggest more comprehension of the process by a witness than the Court observes.



It was apparent that for a number of witnesses the adversarial system of trial, and a limited ability to express themselves fluently in English, hindered articulation of their evidence. On some occasions it appeared that restricting oral evidence to responses to questions put by counsel left part of the story untold and where the questions of counsel relied on unstated or latent assumptions the full import of the questions was not understood by some witnesses and the responses were not directed to issues raised indirectly. The remarks of Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 179 were equally pertinent to this case.



The approach of counsel to the conduct of the proceeding and, in particular, to the application of the rules of evidence, observed, in effect, the requirement expressed by Lamer CJ in Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193 at 229-230 that evidence presented by, or on behalf of, Aboriginal claimants not be undervalued. Objections on points of evidence were limited.



After the "primary" evidence of the applicants had been completed the trial was adjourned with a direction that the respondents administer notices to admit such facts as were considered appropriate for admission in an endeavour to reduce the Court time required for the taking of evidence. Counsel for the parties and their instructing solicitors attended to those directions with diligence and vast areas of fact were reduced to agreed facts and admissions. As a result the respondents were able to present almost the whole of their "primary" evidence in admissions, documents, and uncontested affidavits. Substantial hearing time that would have been required to receive oral evidence on those issues was avoided and the "primary" evidence of the respondents occupied only several days.



With regard to expert evidence, a direction was made that the testimony of experts be heard after all "primary" evidence had been adduced by the parties and notices to admit facts completed. It was also directed that where possible anthropologists be present to hear evidence given by their colleagues. The Court returned to Perth to hear the expert evidence of linguists, historians, archeologists and anthropologists.



The cases of the applicants and the respondents involved the presentation of numerous historical documents, texts and records and chains of enactments. In addition to taking judicial notice of the facts of history, whether past or contemporaneous, the Court, of course, was entitled to rely on its own historical knowledge and research. (See: Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker [1949] AC 196 at 234; Reid et al v Lincoln [1892] AC 644 per Lord Halsbury at 652-654; Calder v Attorney-General (British Columbia) [1973] SCR 313 per Hall J at 346.)





The meaning of "native title"



Before dealing with the evidence and the issues to be resolved it is necessary to set out what is understood by the term "native title".



Native, or aboriginal, title is a concept of the common law. It is the means by which the common law recognizes rights enjoyed by indigenous inhabitants of land by reason of their occupation of that land and reconciles the rights of those inhabitants with rights obtained by the Crown upon claiming sovereignty over the land. (See: R v Van der Peet (1996) 2 SCR 507 per Lamer CJ at 547-548.) Upon the Crown asserting sovereignty indigenous inhabitants became subjects of the Crown and their interests, including interests in the land so acquired by the Crown, protected by operation of the common law. (See: Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 per Toohey J at 182.)



As explained in Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 485-486), a previous erroneous perception and declaration of the common law was corrected by the High Court in Mabo (No 2) by the judicial pronouncement that the common law principle of native title has been part of, and enforceable under, the common law of Australia since formation of the Australian colonies. Such a principle was part of the law of other colonies of the United Kingdom which received the common law upon formation, in particular, the United States of America, Canada and New Zealand. The jurisprudence of those countries, referred to by the High Court in Mabo (No 2), accepted that whether a colony was formed by settlement, acquisition or conquest, the common law recognized prior interests of indigenous inhabitants in the colonized land. Pre-existing interests in land were presumed at law to survive the assertion of sovereignty unless expressly confiscated at that time, or extinguished or expropriated by legislation thereafter. (See: Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 per Viscount Haldane at 407; Guerin v The Queen (1984) 2 SCR 335 at 378-379; R v Symonds [1847] NZPCC 387 at 390-391; Mabo (No 2), per Brennan J at 58; per Deane, Gaudron JJ at 99-100; per Toohey J at 183; Western Australia v The Commonwealth at 433.) In short, indigenous inhabitants who had rights in land as the occupiers thereof did not become trespassers on that land by the establishment of a colony and assertion of sovereignty by the Crown. (See: Calder per Hall J at 414.)



Such indigenous interests are not defined by reference to, nor moulded to equate with, the estates, rights or interests in land which form the law of real property at common law. Native title does not conform to traditional common law concepts and is to be regarded as unique, or "sui generis". (See: Mabo (No 2) per Deane, Gaudron JJ at 89.) In particular the right or interest of indigenous people in land may be the right of a community to use the land and not an individual proprietary right. (See: Amodu Tijani per Viscount Haldane at 403.)



Indeed, native title recognized by common law, will be ordinarily a communal interest in land and the rights exercised under it will be communal rights. (See: Mabo (No 2) per Brennan J at 59-62; per Deane, Gaudron JJ at 85, 100; per Toohey J at 179.)

"A communal native title enures for the benefit of the community as a whole and for the sub-groups and individuals within it who have particular rights and interests in the community’s lands."



(Mabo (No 2), Brennan J at 62)

"A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions

with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests. [emphasis in original]

(Delgamuukw per Lamer CJ at 242)



As Gummow J pointed out in Wik Peoples v Queensland (1996) 187 CLR 1 at 177, a communal interest in land, based on custom, was not an unknown concept for the common law. Incorporeal customary rights held communally, not severally, such as rights of pasturage over commons or wasteland, had been included in the law of property since the formation of the common law. (See also: Fejo v Northern Terrritory of Australia, [1998] HCA 58; (1998) 156 ALR 721 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 739.)



In particular, customary rights not involving a profit , exercisable in respect of land by a local community but not the public at large, analogous to the character of some of the rights that arise under native title, were recognised at common law if they were ancient, certain, reasonable and continuous. They did not depend upon origin in grant, presumed grant or prescription and could not be lost by disuse or waiver. (A W B Simpson, "A History of The Land Law" (2^nd Ed), (Oxford: Oxford University Press, 1986) at 107-108; R E Megarry & H W R Wade, "The Law of Real Property" (5^th Ed), (London: Stevens & Sons Limited, 1984) at 849-850.)



From the time sovereignty was asserted the radical title in the land of a colony thereby obtained by the Crown was burdened by any native title that existed prior to sovereignty. (See: Mabo (No 2) per Brennan J at 57-58; per Deane, Gaudron JJ at 87; per Toohey J at 182; Amodu Tijani at 403-404, 407; St Catherine’s Milling and Lumber Company v R (1888) 14 App Cas 46 at 58.) Formal recognition or affirmative acceptance of native title by the Crown was not required. (See: Mabo (No 2) per Brennan J at 57; Western Australia v The Commonwealth per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 433; Calder per Hall J at 393.)



Native title may be extinguished by the Crown but continues until the Crown takes such action by legislature or executive as reveals a clear and plain intention to extinguish it. (See: Mabo (No 2) per Brennan J at 64; per Deane, Gaudron JJ at 111; per Toohey J at 195; Calder per Hall J at 404; United States v Santa Fe Pacific Railroad Co [1942] USSC 12; 314 US 339 (1941) at 353, 354.) Such extinguishment of native title must be plain and unambiguous in the public record. (See: Calder per Hall J at 393.) Until extinguished native title provides a right of occupation that prevails against all but the Crown. (See: Mabo (No 2) per Mason CJ, McHugh J at 15-16; per Brennan J at 51, 75; per Dawson J at 131-138; Calder per Hall J at 352-353; Johnson v McIntosh (1823) 21 US 240 per Marshall CJ at 253-254; Admodu Tijani per Viscount Haldane at 409-410; A E W Park,"The Cession of Territory and Private Land Rights: A Reconsideration of the Tijani Case", Nigerian Law Journal 1 (1964-65) 38 at 45-49; Geita Sebea v The Territory of Papua [1941] HCA 37; (1941) 67 CLR 544 per Williams J at 557; Guerin v the Queen [1984] 2 SCR 335 per Dickson J at 379-382; Delgamuukw per Lamer CJ at 245-246; J Gagne, "The Content of Aboriginal Title at Common Law: A Look at the Nishga Claim" (1982-83) 47 Sask Law Rev 309 at 337-339; B Slattery, "Understanding Aboriginal Rights" Can Bar Rev 64 (1987) 727 at 746-749; W Pentney, "The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982 Part II – Section 35: The Substantive Guarantee" (1988) 22 UBC Law Rev 207 at 221; K McNeil, "The Meaning of Aboriginal Title", (Ch 5), Aboriginal and Treaty Rights in Canada, Editor: M Asch (Vancouver: UBC Press, 1997) 135 at 150-154.) Of course, ancillary to a power to extinguish native title is a power to regulate the exercise of rights that flow from native title and regulation may involve curtailment or suspension of those rights but not extinguishment. (See: Mabo (No 2) per Brennan J at 64; R v Sparrow (1990) 1 SCR 1075 at 1097.)



Except for formal surrender to the Crown, which has the effect of extinguishing the title, native title is inalienable. Because the rights and interests in respect of land able to be used and enjoyed by members of a community by virtue of native title are based on the traditional laws, customs and practices of the community, rights arising under native title cannot exist beyond the community which observes those traditions, customs and practices. (See: Mabo (No 2) per Brennan J at 60; per Deane, Gaudron JJ at 110.)



At common law, native title in land will exist at the date of sovereignty if an indigenous community had an entitlement to use or occupy the land at that time, that entitlement arising from local recognition that the presence of the community on the land reflected a particular relationship, or connection, between that community and the land. (See: Mabo (No 2) per Deane, Gaudron JJ at 86.) In determining whether the presence of a community on the land involved use or occupation of the land sufficient to ground a claim to native title, it is necessary to look at that question from the standpoint of the indigenous community. That is to say, is the degree of presence on the land consistent with the demands of the land and the needs of a community pursuing traditional practices, habits, customs and usages that form the way of life of that community?



As explained by Professor K Maddock in "The Australian Aborigines - A Portrait of their Society" (2nd Ed), (Ringwood: Penguin, 1982) at 33-34:

"Of course, Aborigines were nearly everywhere nomads, even after becoming closely associated with defined areas, but this did not mean random wandering. They may have been kept on the move by their need for food and water, but other factors too circumscribed their journeying. For example, there were rules or customs to govern the use of resources and access to places.



...



In addition to the controls on movement and activity which these avoidances imposed, there were outer limits to people’s journeying. But the extent and direction of their movements were largely affected by the nature of the activity in which they were engaged at the time. Obviously the area over which people moved in the course of a seasonal cycle had to be extensive enough to supply them with the food and water they needed, there being no trade worth speaking of in such items. But this basic requirement does not fully explain Aboriginal perspectives on territory, for on the occasion of major ceremonies people came from far and wide to take part. For the rest of the year they would be hunting and gathering in different areas. And, as all men and women married, their social universe had to be large enough for them to obtain spouses without too much trouble. Thus outer boundaries can be thought of as set by a number of factors - economic, religious and marital, for example - and as varying with the factor in question, so that the area from which men and women drew their spouses and the area from which they normally drew their sustenance would have been different but overlapping.



...



The areas over which people moved in carrying out their various activities could not expand indefinitely, however, even when their haziness of outline is allowed for. On the one hand a limit was set by the practical advantages of staying in country with whose food and water resources and human population familiarity could be acquired. Here it is important to appreciate that Aborigines had to walk everywhere and to carry their possessions themselves. On the other hand each hazily defined territory shaded off into others having the same general character, the occupants of which would have been an obstacle to expansion by their neighbours."

The survival of such a society may depend upon occupation that is sparse and wide-ranging. The ever-changing locale of a nomadic community will not be inconsistent with occupancy for the purpose of that element of native title. (See: Mabo (No 2) per Toohey J at 189; Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3rd) 513, 544-545.) Of course, a truly random presence on land, unconnected with the economic, cultural or religious life of the community will not amount to occupation. (See: Mabo (No 2) per Toohey J at 188) Occupancy for the purpose of native title is not possession at common law but an acknowledged connection with the land arising out of traditional rights to be present on, and to use, the land. Such occupancy need not be exclusive to one community and may be shared between several communities in some circumstances. (See: Mabo (No 2) per Toohey J at 190; Delgamuukw per Lamer CJ at 259-260.)

It is not necessary that the indigenous community in occupation of the land at sovereignty be a community of a particular degree of organization, only that it be community or society sufficiently organized to be able to create and sustain rights. (See: Mabo (No 2) per Toohey J at 187.) It is not a requirement of native title that it be shown that the indigenous community had rules for defining and transmitting the rights of community members in respect of land. Native title follows from the occupation and use of land by an organized society which has a particular relationship with the land. It does not depend on proof of the existence of specific rules which govern the relationships of community members with that land. (See: Mabo (No 2) per Brennan J at 62-63; per Toohey J at 188-191.) The existence of laws or customs which determined how the land was controlled or utilized may be assumed from proof that a functioning society occupied the land. (See: Mabo (No 2) per Toohey J at 187.)



Native title that has not been extinguished by action of the Crown, or by extinction of the society that possessed it, will continue where connection with the land is substantially maintained by a community which acknowledges and observes, as far as practicable, laws and customs based on the traditional practices of its predecessors. (See: Mabo (No 2) per Brennan J at 59-60) The reasons of Brennan J were approved by Lamer CJ in Delgamuukw (at 257-258) who set out the requirement as follows:

"Needless to say, there is no need to establish "an unbroken chain of continuity" (Van der Peet, at para. 65) between present and prior occupation. The occupation and use of lands may have been disrupted for a time, perhaps as a result of the unwillingness of European colonizers to recognize aboriginal title. To impose the requirement of continuity too strictly would risk "undermining the very purposes of s. 35(1) by perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers who failed to respect" aboriginal rights to land (C té, supra at para.53). In Mabo, supra, the High Court of Australia set down the requirement that there must be "substantial maintenance of the connection" between the people and the land. In my view, this test should be equally applicable to proof of title in Canada.

I should also note that there is a strong possibility that the precise nature of occupation will have changed between the time of sovereignty and the present. I would like to make it clear that the fact that the nature of occupation has changed would not ordinarily preclude a claim for aboriginal title, as long as a substantial connection between the people and the land is maintained. The only limitation on this principle might be the internal limits on uses which land that is subject to aboriginal title may be put, i.e., uses which are inconsistent with continued use by future generations of aboriginals."

The activities or practices may be a modern form of exercise of those laws and customs. (See: Mabo (No 2) per Deane, Gaudron JJ at 110; per Toohey J at 192; R v Van der Peet per Lamer CJ at 553.) There is universal acknowledgement of this fact where traditional rights and culture of minority indigenous and tribal people are recognized and respected by a supervening community. (Lansman et al v Finland, Communication of Human Rights Committee No 511/1992, UN DOC CCPR/C/52/D/511/1992 (1994) at par 9.3.) It will be immaterial that those laws and customs have undergone change since sovereignty, provided that the general nature of the connection between the indigenous people and the land remains. (See: Mabo (No 2) per Brennan J at 70.) The communal rights exercisable under native title, and the rules governing the exercise of those rights, may be varied from time to time according to the practices or customs now observed by the community based on traditional laws or customs. (See: Mabo (No 2) per Deane, Gaudron JJ at 110.) If native title has continued since the assertion of sovereignty the rights available under that title, and the persons who may exercise those rights, will be ascertained by reference to practices that are based on traditional laws and customs, not by enquiring whether the traditional practices observed today are in the same form as before as if frozen in time. Aboriginal, or native title, as recognized by the common law shares the capacity of the common law to evolve and mould as circumstances require. An indigenous society does not surrender native title by modifying its way of life. (See: Mabo (No 2) per Toohey J at 192.) The Aboriginal laws, customs and traditional practices on which native title is based have always been dynamic, not static.

"Non-Aboriginal Australians have consistently tended to understate the continuity and flexibility of Aboriginal traditions and patterns of living, including their capacity to adapt to changing circumstances. The point was made by Professor Berndt in a submission to the Commission:

Today, I would still say that while change is proceeding at a rate greater than ever before, what passes for a traditional Aboriginal life-style continues and is still significant in a number of areas. However, while Aboriginal identification, among other things, has sustained the continuing importance of this life-style, it is substantially different from what it was in most areas, say, two decades ago. (Submission 86 (11 July 1978))."

("Aboriginal Customary Law", Australian Law Reform Commission, Final Report, 1978 at 28-29.)

"...Aboriginal tradition is grounded in, but not bound by, the conditions and practices of the pre-colonial past, a point I would now regard as beyond dispute, not only among anthropologists but in Australian legal practice as well."

(P Sutton, "Atomism versus collectivism: The problem of group definition in native title cases", Anthropology in the Native Title Era, Editors: J Fingleton & J Finlayson, (Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies, 1995), 1 at 9.)

Such tradition-based practices as developed by the Aboriginal community now claiming native title will be relevant to whether connection with the land has been maintained by that community, as far as is practicable, and to defining the community as an Aboriginal community that has a "common outlook" that is rooted in practices developed from the traditional laws and customs observed by an anterior Aboriginal society or societies. (K Maddock, "The Australian Aborigines – A Portrait of their Society" at 178-181.)



In Mabo (No 2) per Deane, Gaudron JJ (at 86) refer to a requirement of common law that there be, at the time of colonization an "identified community" (rarely an individual) with an established entitlement to the use or occupation of land under the local law or custom. It is implicit in the reasons of Deane, Gaudron JJ that the claimant for native title be capable of being identified as "a tribe or other group" (at 110) and, similarly, in the reasons of Toohey J, which refer to communal native title being vested in an Aboriginal group (at 178-179). Brennan J (at 61) states that communal native title survives so long as indigenous people remain as an "identifiable community" living under traditionally based laws and customs. Brennan J (at 70) adds that membership of that community depends on "biological descent" from the indigenous people entitled to native title at colonization and on mutual recognition of a person’s membership by that person and by persons enjoying traditional authority among those people. Neither Deane, Gaudon JJ nor Toohey J refer to a requirement of "biological descent".



Defining a community of indigenous people connected to land by traditional laws and customs by reference to "biological descent" involves a broad understanding of descent, not the application of a narrow, and exclusive test. If there were no evidence that the community claiming native title had some ancestral connection with the indigenous community in occupation of the land at the time of sovereignty the task of showing substantial maintenance of connection with the land would be difficult to satisfy. Some evidence of ancestry will be necessary not only to identify and define the group entitled to native title but also to show acknowledgement and observance of the traditional laws and customs of the community which possessed native title at sovereignty thereby showing that connection with the land has been substantially maintained.



As McEachern CJ BC stated in Delgamuukw v British Columbia (1991) 79 DLR (4th) 185 at 282 (referred to with with apparent approval by Macfarlane JA in Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 at 506):

In a communal claim of this kind I do not consider it necessary for the plaintiffs to prove the connection of each member of the group to distant ancestors who used the lands in question before the assertion of sovereignty. It is enough for this phase of the case...for the plaintiffs to prove, as they have, that a reasonable number of their ancestors were probably present in and near the villages of the territory for a long, long time."

Of course, as made clear by the Supreme Court of Canada in Delgamuukw per Lamer CJ (at 253-254) "a long long time" is not a requirement that occupation be shown since time immemorial; it need be no earlier than the assertion of sovereignty by the Crown.



From the foregoing it may be said that in other than exceptional cases native title will be a communal entitlement to use or enjoy land and that rights which depend upon, and are enjoyed under, communal native title are communal rights governed by the traditional laws and customs of the community.



The expression "traditional laws and customs" used in Mabo (No 2) should be taken to be an inclusive statement consistent with the expression "practices, traditions and customs" referred to in Canadian authorities. (See: Wik per Toohey J at 126; R v Van der Peet per Lamer CJ at 548.) The expression necessarily implies that the words are to be understood from an Aboriginal perspective, not constrained by jurisprudential concepts. Law in Aboriginal terms is an aggregation of traditional values, rules, beliefs and practices derived from Aboriginal past. It might correspond to an anthropologist’s description of "aboriginal culture" or "aboriginal lore". (K Maddock, "The Australian Aborigines – A Portrait of their Society" at 24.) As Brennan J stated in Mabo (No 2) (at 18), the evidence in that case showed the Meriam people to be regulated more by custom than by law and (at 61) that the customs observed were "traditionally based".



Difficulty in proving the boundaries of the area in respect of which native title is claimed, or of membership of the community that has occupied the area, will not in itself be sufficient to deny the existence of a communal title recognized by the common law nor the recognition of non-proprietary rights that depend upon that communal title and are derived from traditional laws and customs as observed by the community. (See: Mabo (No 2) per Brennan J at 51.) As discussed earlier, exigencies of the Aboriginal way of life neither required, nor facilitated, establishment of precise boundaries for territories occupied by Aboriginal societies.



In a proceeding in which native title is in issue any rules of evidence applied to the proceeding must be cognisant of the evidentiary difficulties faced by Aboriginal people in presenting such claims for adjudication and the evidence adduced must be interpreted in the same spirit, consistent with the due exercise of the judicial power vested in the Court under the Constitution. (See: Delgamuukw per Lamer CJ at 230.) Section 82 of the Act affirms those principles in respect of applications for determination of native title made under the Act. (See: WA v Ward per Hill, Sundberg JJ at 516-517.)



Of particular importance in that regard is the disadvantage faced by Aboriginal people as participants in a trial system structured for, and by, a literate society when they have no written records and depend upon oral histories and accounts, often localized in nature. In such circumstances application of a rule of evidence to exclude such material unless it is evidence of general reputation may work substantial injustice. (See: Delgamuukw per Lamer CJ at 238-239) In this proceeding the principal opponent to the claims of the applicants is the Crown in the right of the State and in the right of the Territory. If it is accepted that the Crown is presumed to have had knowledge of relevant circumstances and events concerning the burden of native title on its land at material times and to have had access to all relevant resources, there can be no suggestion of unfairness in a trial process in which Aboriginal applicants are permitted to present their case through use of oral histories and by reference to received knowledge.

The Native Title Act 1993 (Cth)

Next it is necessary to consider the effect of the Act on the concept of native title at common law. The preamble to the Act states that when the Act was enacted consideration was given to, "inter alia", the following:

"It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented."

Also considered was the need to provide a special procedure for the "just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character".



The Act provides for the recognition and effect of, and restricts the extinguishment of, native title at common law. It does not replace common law native title with a statutory right enforceable under the Act. People determined under the Act to hold native title are the "common law holders" thereof (s 56). As set out in s 3 of the Act the main objects of the Act are:

"(a) to provide for the recognition and protection of native title; and



(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and



(c) to establish a mechanism for determining claims to native title; and



(d) to provide for, or permit, the validation of past acts invalidated because of the existence of native title."

Section 10 of the Act states that native title is recognized, and protected, in accordance with the Act. The principal protection provided by the Act is in s 11(1) which states that native title is not able to be extinguished contrary to the Act. As the High Court held in Western Australia v The Commonwealth per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 459, s 11(1) of the Act removes "the common law defeasibility". That is, it is the common law recognition of native title that is protected, not an indefeasible statutory right that is created.



The definition of "native title" in s 223(1) reflects the elements of native title at common law and, by s 223(3), extends that concept for the purposes of the Act by including any statutory rights that, in the past, have replaced native title. The definition is a compendious provision in that it includes particular rights or interests that at common law are treated as the rights or interests that arise out of, and are dependent upon, native title. As Lamer CJ said in Delgamuukw (at 240-241):

"Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies. Those activities do not constitute the right per se; rather, they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group’s aboriginal title. This inherent limit,..., flows from the definition of aboriginal title as a sui generis interest in land, and is one way in which aboriginal title is distinct from a fee simple."

At the time the hearing of this matter was completed and the decision reserved, s 225 of the Act required a determination that native title exists in relation to a particular area of land or waters to determine the native title rights and interests considered to be of importance. On 30 September 1998 s 225 of the Act was repealed and replaced by the Native Title Amendment Act 1998 (Cth) ("the amending Act") to provide that a determination of native title is a determination of the nature and extent of native title rights and interests in relation to "the determination area". By the transitional provisions implemented by the amending Act (Sch 5, Pt 5, Item 24) s 225, as substituted by the amending Act, applies to all determinations of native title made after the commencement of the amending Act. The terms of the transitional provisions (Sch 5, Pt 5, Item 21) suggest that the terms of s 61 as it stood before the amending Act, are to be regarded as continuing for the purposes of a determination under s 225. In its terms s 225 remains a provision introduced by the legislature to assist the operation of the common law by adding a mechanism for better delineating the effect of a determination of native title.



The Act provides assistance for the application of the common law in respect of native title by, inter alia, moulding a form of litigation for the determination of the existence of native title at common law and by providing that such litigation is to be an exercise of federal jurisdiction.



If the Act is taken to be a special law in respect of Aboriginal people, and within the legislative power provided by s 51(xxvi) of the Constitution, the Commonwealth may enact how litigation for the determination of an Aboriginal right of native title is to be conducted and the effect to be given to such a determination. Where the Act attempted to add certainty to that purpose by purporting, in s 12, to provide that the common law had force as a law of the Commonwealth it was beyond the legislative power of the Commonwealth. The invalidity of that provision, however, did not remove the foundation supplied by other provisions of the Act for investing, or conferring, federal jurisdiction to hear and determine claims with respect to the determination of native title. (See: Western Australia v The Commonwealth per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 488.)



In so far as the provisions of the Act (ss 13, 61, 74, 81, 225 before the amending Act, now ss 13, 61, 81, 225) apply to a "determination of native title" such an application is a claim made under a law of the Commonwealth and involves federal jurisdiction. (See: Western Australia v The Commonwealth per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 488; Fourmile v Selpam Pty Ltd; Fourmile v State of Queensland [1998] FCA 67; (1998) 152 ALR 294.)



The Act does not provide jurisdiction in respect of the enforcement, or protection, of native title rights. In Fejo (at 731), Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said as follows:

"However, the Act otherwise does not deal with the ascertainment or enforcement of native title rights by curial process. It provides for the establishment of native title and recognises and protects it in the manner we have outlined. ... If actual or claimed native title rights are sought to be enforced or protected by court order, the party seeking that protection must take proceedings in a court of competent jurisdiction."

Fejo was decided before the amending Act came into effect but, as indicated above, the substance of s 225 as substituted by the amending Act, remains, as before, a determination whether native title exists and, if so, the nature of the rights that may be asserted under that native title. The Act is concerned with the facilitation of curial proceedings in which it is determined whether native title exists and, as Fejo makes clear, neither ascertainment of the enforceability of, nor the enforcement or protection of, native title rights is within the jurisdiction of this Court. The nature of any additional jurisdiction conferred on the Court by s 213(2) of the Act, or by s 39B(1A)(c) of the Judiciary Act 1903, in respect of matters arising under the Act is unnecessary to determine. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 730-731.)



Further, the Act is not concerned with whether there may be a broader-based conception of aboriginal rights than rights dependent upon aboriginal title to land. (cf Yarmirr v Northern Territory of Australia (1998) 156 ALR 370 per Olney J at 405-406.) In R v Van der Peet and R v Adams [1996] 3 SCR 101 it was held that aboriginal title to land was but one manifestation of a broader concept of aboriginal rights and that an aboriginal right may exist independently of aboriginal title. Proof of the existence of that right would not require proof of the elements required to establish aboriginal title. That development of Canadian jurisprudence owes much to s 35(1) of the Constitution Act 1982 (Can) by which "existing aboriginal rights" of the Aboriginal peoples of Canada are "recognised and affirmed". (See: Wik per Gummow J at 182; Fejo per Kirby J at 754-755.)



In Delgamuukw, Lamer CJ set out further explanation of how aboriginal title differs from other aboriginal rights:

"The acknowledgement that s. 35(1) has accorded constitutional status to common law aboriginal title raises a further question – the relationship of aboriginal title to the ‘aboriginal rights’ protected by s. 35(1). I addressed that question in Adams,...where the Court had been presented with two radically different conceptions of this relationship. The first conceived of aboriginal rights as being ‘inherently based in aboriginal title to the land’..., or as fragments of a broader claim to aboriginal title. By implication, aboriginal rights must rest either in a claim to title or the unextinguished remnants of title. Taken to its logical extreme, this suggests that aboriginal title is merely the sum of a set of individual aboriginal rights, and that it therefore has no independent content. However, I rejected this position for another -- that aboriginal title is ‘simply one manifestation of a broader-based conception of aboriginal rights’...Thus, although aboriginal title is a species of aboriginal right recognized and affirmed by s. 35(1), it is distinct from other aboriginal rights because it arises where the connection of a group with a piece of land ‘was of a central significance to their distinctive culture’...



The picture which emerges from Adams is that the aboriginal rights which are recognized and affirmed by s. 35(1) fall along a spectrum with respect to their degree of connection with the land.



...



At the other end of the spectrum, there is aboriginal title itself. As Adams makes clear, aboriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site-specific rights can be made out even if title cannot. What aboriginal title confers is the right to the land itself



...



(at 250-252)

In addition to differing in the degree of connection with the land, aboriginal title differs from other aboriginal rights in another way. To date, the Court has defined aboriginal rights in terms of activities. As I said in Van der Peet...:

...in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.

Aboriginal title, however, is a right to the land itself. Subject to the limits I have laid down above, that land may be used for a variety of activities, none of which need be individually protected as aboriginal rights under s. 35(1). Those activities are parasitic on the underlying title."



[Emphasis in original]



(at 252)

A determination that native title exists may depend upon a finding whether native title has been extinguished. That question will raise for determination whether the Crown has displayed a clear and plain intention to extinguish native title. If so, no native title right dependent upon that underlying title will remain.



Native title at common law is a communal "right to land" arising from the significant connection of an indigenous society with land under its customs and culture. It is not a mere "bundle of rights". (See: Delgamuukw per Lamer CJ at 240-241.) The right of occupation that is native title is an interest in land. (See: Mabo (No 2) per Brennan J at 51.) There is no concept at common law of "partial extinguishment" of native title by the several "extinguishment" of one or more components of a bundle of rights. It follows that there cannot be a determination under the Act that native title exists but that some, or all, "native title rights" have been "extinguished".



Strict regulation of the rights parasitic upon native title by suspension, suppression, curtailment or control of those rights by legislation or by acts of the Crown which may thereby involve a grant of rights of use of Crown land to third parties may impair native title but strict regulation of the exercise of such rights of itself, will not mean that native title has been extinguished.



As stated in Western Australia v The Commonwealth by Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 422):

"After sovereignty is acquired, native title can be extinguished by a positive act which is expressed to achieve that purpose generally ... provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act. Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel – for example, a grant by the Crown of a parcel of land in fee simple – provided the act is valid and its effect is not qualifed by a law which prevails over it or over the law which authorises the act."

Furthermore, extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title, and by the exercise of those rights. Such circumstances have been described as extinguishment by "adverse dominion". (See: United States v Santa Fe Pacific Railroad Co at 347.)



In Delgamuukw v British Columbia per Lambert JA at 670-672 it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; second, that there be an act authorized by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof. (See also: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 739.)



A similar principle was set out in Mabo (No 2) by Brennan J (at 68, 70) in respect of the appropriation of Crown land, by reservation for a public purpose, and subsequent use of the land for a permanent public work.



The following remarks by Gaudron and Gummow JJ in Wik (cf Kirby J at 238) may be read as consistent with the principles of "adverse dominion" described above:

"And to the extent that there is any inconsistency between the satisfaction of conditions and the exercise of native title rights, it may be that satisfaction of the conditions would, as a matter of fact, but not as a matter of legal necessity, impair or prevent the exercise of native title rights and, to that extent, result in their extinguishment."



(Gaudron J at 166)

"It may be that the enjoyment of some or all native title rights with respect to particular portions of the ... (pastoral lease) would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title."

(Gummow J at 203)



Of course, for the exercise of rights granted by the Crown to third parties to be seen to be inconsistent with the continuation of native title, it would be necessary to show that the rights granted reflected an intention by the Crown that exercise of the rights remove all connection of an Aboriginal community with land under native title.



It is the concept of extinguishment at common law which s 227 of the Act attempts to reflect when it states that an act "affects" native title if it "extinguishes" the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The drafting of s 227 appears to be based on the following statement of Brennan J in Mabo (No 2) (at 69-70):

"Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency...



Where the Crown had validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency."

(It was made clear by his Honour in the remainder of that paragraph that extinguishment was not effected until the land was used for the purpose for which it was appropriated.)



In those remarks his Honour, by way of summary, was re-stating a proposition set out earlier in his reasons, namely, that to extinguish native title there must be a clear and plain intention of the Crown to do so whether expressly stated in legislation or necessarily implied in the consequences of an act of the Crown.



At all times his Honour was speaking of extinguishment of native title and the nature of acts of the Crown from which an intent to extinguish native title may be inferred and the words "extinguish to the extent of the inconsistency" refer to the extinguishment of native title to the extent that there is land in respect of which inconsistent rights have been granted by the Crown with the intent of extinguishing native title. It is not a statement by his Honour that if the degree of inconsistency is not sufficient to show a clear and plain intention by the Crown to extinguish native title, native title continues in respect of that land but a specific aboriginal right which depends upon the existence of native title for its exercise nonetheless may be "extinguished".



It is not impairment or regulation of the aboriginal rights that are derived from native title that is the touchstone of extinguishment but the express statement by the Crown that native title is extinguished or an act of the Crown, the nature of which makes it clear that it is intended by the Crown that native title is to be extinguished, the intention being demonstrated by the fact that continuation of native title, and, therefore, continued existence, enjoyment and exercise of rights dependent upon that title, is incompatible with the extent, or the exercise, of the rights created by the Crown.



In Wik the questions put to the High Court for answer did not include the effect of the grant of a pastoral lease upon native title rights where native title had not been extinguished. Comments were made by Toohey J (at 108) and with the concurrence of Gaudron, Gummow and Kirby JJ (at 133) to the effect that if native title, and, therefore, the rights and interests available thereunder, had not been extinguished, the possibility arose of the existence of concurrent rights between a pastoral lessee and the holders of native title. It was noted that the form of the case put before the High Court precluded consideration of the question of the suspension of any native title rights during the currency of the grant of a pastoral lease.



The degree of inconsistency between the rights granted to third parties, and the rights exercisable by the common law holders of native title, is relevant, first, to the question whether the Crown has evinced a clear and plain intention to extinguish native title and second, to the question of the degree to which native title rights have been regulated by control or suspension in the event that native title has not been extinguished and the enforceability or protection of native title rights is in issue.



Where native title is extinguished, rights that are parasitic or dependent upon that title fall with the extinguishment. No question of the "revival" of extinguished native title can arise. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 740.) If native title to land is not extinguished, the extent to which native title rights are regulated, curtailed, subordinated or suspended by rights or interests in land granted by the Crown to third parties may be required to be considered as a separate issue, but not as a question relevant to the determination of the existence of native title. That question may be determined in a proceeding to enforce actual, or claimed, native title rights undertaken in a court of competent jurisdiction. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 731.)



Fundamental inconsistency between the exercise of rights granted to third parties by act of the Crown and the exercise of any right that attaches to native title may show an intention by the Crown to extinguish native title, but inconsistency with the exercise of some only of those rights will not. Native title will remain a right to the land under which other native title rights may be enjoyed.



Coexistence of competing interests in land, whether recognized at common law or derived from statute, is accommodated under common law and in Australia land law. (M Tehan, "Co-existence of Interests in land: a dominant feature of the common law", Land Rights, Laws: Issues of Native Title (Canberra: Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Issues Paper No 12, January 1997) at 4.) It is not contrary to legal principle for two interests in land to coexist in respect of the one area of land and it is not a requirement of law in such circumstance that a concept of "extinguishment" or "partial extinguishment" be applied to defeat one of those interests despite the fact that there may be some inconsistency between incidents of the respective rights as exercised.

Outline of cases of applicants

Having considered the elements of native title and the nature of an application for a determination of native title under the Act an outline may be provided of the matters to be established in the cases of the respective applicants.



The first applicants seek a declaration of native title in respect of the claim area, the native title claimed being the communal native title of the Miriuwung and Gajerrong people. That case will require the first applicants to show that at the time of formation of the colony of Western Australia, and at the time of inclusion of the Territory area in the colony of New South Wales, an indigenous community held native title by reason of presence on, and connection with, the land of the claim area. In addition it will require the first applicants to show that they are a group of Aboriginal people with ancestral connections to the community in occupation of the claim area at the time of sovereignty and that they acknowledge and observe traditional laws and customs by activities, practices, customs and traditions that, as far as is practicable in present circumstances, are rooted in, or based on, the traditional laws and customs of the ancestral community, so that it may be said that, as far as is practicable, the first applicants have maintained connection with the claim area.



The second applicants seek a determination that they hold native title rights equivalent to ownership as to parts of the claim area as members of sub-groups of the Miriuwung and Gajerrong people. The case of the second applicants is considerably narrower than that of the first applicants. The second applicants claim that at the time sovereignty was asserted over the land the Aboriginal people present on those parts of the claim area who had particular connection with that land were sub-groups from which the sub-groups represented by the second applicants have descended. It is asserted that the sub-groups represented by the second applicants acknowledge and observe the traditional laws and customs of the Miriuwung people in the same manner as the first applicants.



The evidence adduced by the first and second applicants was directed to proof of the traditional laws and customs observed by the Miriuwung and Gajerrong community; community identification; membership and structure of the community; spiritual beliefs of the community; connection of the community with those who occupied the land before sovereignty; and maintenance of connection of that community with the land of the claim area.



The evidence of the first applicants as to the maintenance of a connection with the land made reference to, but was not restricted to, the connection particular witnesses had with parts of the claim area whether described as the "country" of the witness or as an area connected with a sub-group with which the witness had ties. The "primary" evidence of the first applicants attested to the general connection of the Miriuwung and Gajerrong community with the claim area. The northern and north-eastern part of the claim area was said to be "Gajerrong", the remainder "Miriuwung". In respect of the latter part there were areas areas known as Yirralalem, Ngamoowalem, Wiram, Yardanggarlm, Nganalam and Mandangala with which witnesses had particular affiliation through sub-groups, in some cases reflected by the establishment of community settlements thereon.



The evidence of the second applicants as to connection with the Territory area of the claim area involved three sub-groups described as "estate groups", namely, Binjen, Dumbral and Nyawanyawam. Community settlements have been established by the estate groups on the three freehold sites referred to above.



The third applicants seek a declaration that communal native title is held by the Balangarra Peoples in respect of Lacrosse Island. The case of the third applicants is that they have ties with Lacrosse Island which maintain the connection of their forebears with the island. The third applicants do not regard themselves, and are not regarded by others, as part of the community of the first applicants.



The evidence adduced by the third applicants sought to show the connection those witnesses had with Lacrosse Island and to distinguish those persons from members of the community represented by the first applicants. The third applicants did not make their claim as the claim of an "estate" group.





Aboriginal connection with the claim area at sovereignty



The first issue to be resolved is whether there was an identifiable Aboriginal society or community in occupation of the claim area at the time of formation of the colony of Western Australia and at the time inclusion of the Territory area in the colony of New South Wales. In respect of the colony of Western Australia, sovereignty was asserted by the Crown in 1829. The Territory area was included in the colony of New South Wales in 1825 when, by letters patent, the meridian of 129deg. east longitude was substituted for the meridian of 135deg. east longitude as the western boundary of that colony.



In Mabo (No 2) Deane and Gaudron JJ (at 99-101) observed that it was obvious that at the time of formation of the first Australian colony in 1788 the proportion of the continent affected by common law native title was significant and conceivably was the whole. There was substantial ethnographical and anthropological material to support their Honours’ conclusion that it was "beyond real doubt or intelligent dispute" that Aboriginal inhabitants were distributed throughout significant areas in organized communities with elaborate and obligatory laws and customs, each having a defined area of land recognised by other groups as the homeland of the respective communities used by them for social, ritual and economic purposes.

"Aborigines occupied without challenge virtually every part of the Australian continent and its adjacent islands for a still not finally estimated period, but one that is well in excess of 40,000 years... the fact of Aboriginal occupation of their land is not a main issue: that is too well documented to need further discussion here. Rather, what concerns us is how Aborigines occupied their land, the relationship they constructed vis-à-vis specific stretches of land, and the organization they developed to cope with it and with getting a living from it." [Emphasis in original]

(R M Berndt, "Traditional Concepts of Aboriginal Land", Aboriginal Sites, Rights and Resource Development, Editor: R M Berndt, (Academy of Social Sciences in Australia, Proceedings, 5^th Academic Symposium, 1981) 1-11 at 1.)

As Blackburn J stated (at 266-267) in Milirrpum:

"...having heard the evidence in this case, I am, to say the least, suspicious about the truth of the assertions of the early settlers of New South Wales that the aboriginals had no ordered manner of community life.



...



The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not of men’, it is that shown in the evidence before me."

(See also: Professor N Tindale, "Aboriginal Tribes of Australia" (Canberra: ANU Press, 1974); N Peterson, "The Natural and Cultural areas of Aboriginal Australia", Tribes and Boundaries in Australia, Editor: N Peterson (Canberra: Australian Institute of Aboriginal Studies, 1976) at 60; Ex A59 pp 78-79, 106-107; Ex A59 p 107.)



Was it otherwise in the north-west of Australia when sovereignty was asserted in 1825 and 1829 in respect of land which included the claim area?



Reports prepared by archeologists, Dr R Fullagar for the first applicants (Ex A11), and Dr R Gregory for the Territory (Ex NT2), accept that occupation of the continent by indigenous people included the north-west of Australia. The experience and expertise represented in the reports of those witnesses was not in issue. Dr Fullagar stated that few archeologists would disagree that Aboriginal people have lived in the north-west of Australia for at least 40,000 years. The scientific testing of archeological material at one site in the claim area, Miriwun Rock Shelter at Lake Argyle, had shown the site to have been used by Aboriginal people for at least 18,000 years. Having regard to the archeological evidence it was Dr Fullagar’s opinion that it was beyond doubt that the claim area had been occupied by Aboriginal people for thousands of generations.



Few extensive archeological surveys have been undertaken in the region. Both archeologists agree that the number of archeological sites recorded to date should be regarded as a minimum. Work that has been done in the region, which does include some intensive surveys in limited areas such as the Miriwun Rock Shelter before the filling of Lake Argyle, demonstrates a pattern of use and occupation of the land by Aboriginal people over thousands of years. The numerous archeological sites identified and recorded, in and adjacent to the claim area, are but a small fraction of sites in the area but are sufficient to provide a reliable guide to the activities undertaken by Aboriginal people over millennia. Such sites attest to regular, and not random, use of the land by organized groups of people and provide evidence of activities consistent with the occupation of a homeland. For example, rock art in the form of paintings and engravings; quarrying and flaking of stone in the production of tools, in particular, spear points; quarrying of ochre for ceremonial purposes; stone structures and tools; grinding hollows; burial sites and so on. In addition it shows a pattern of usufructuary activities for which the Ord River and surrounding plains were important. It also demonstrates that the lifestyle of the Aboriginal inhabitants made use of the ranges and escarpments by sheltering in rocky outcrops and by extracting material for artefacts as well as obtaining sustenance from the fauna and flora to be found in those locations. Access to water sources, however, governed the lifestyle and the use of sites.



Information obtained from the excavation of sites identifies the activities of Aboriginal people over time and reveals whether there has been continuity or change in their use of land. Excavation of the Miriwun Rock Shelter had shown that site to be used from time to time by small groups that had subsisted by hunting and gathering the same type of food in that vicinity for over 18,000 years, for example, wallabies, possums, bandicoots, lizards, rodents, molluscs, reptiles, catfish and eggs. Other information from excavation conducted at that site, when used in conjunction with ethnographic research available to archeologists, suggested a continuing system of trade in artefacts had existed between Aboriginal inhabitants in the claim area and Aboriginal groups from more distant places.



In respect of evidence of Aboriginal occupation of the claim area at or about the time of sovereignty, the reports of historians received in evidence refer to the records of maritime explorers and cartographers who observed Aboriginal people carrying on subsistence activities at Lacrosse Island and in the Gulf before 1820 and groups of Aboriginal people were observed by overland explorers who traversed the region after sovereignty and before European settlers. It was acknowledged by Dr N Green, an historian, whose evidence was adduced by the State, that it was beyond question that Aboriginal people occupied the claim area before sovereignty and when settlers first arrived in the mid 1880s.



It may be concluded from the foregoing that the claim area, and surrounding lands, were inhabited by organized communites of Aboriginal inhabitants at the time of sovereignty and that, as had already been observed in respect of Aboriginal communities elsewhere in Australia, the Aboriginal people who occupied the claim area at sovereignty functioned under elaborate traditions, procedures, laws and customs which connected them to the land. It follows that the Aboriginal communities which occupied the claim area at sovereignty possessed native title in respect of that land.

Aboriginal connection with the claim area after sovereignty

The next questions that arise are whether the applicants represent a community identifiable with the Aboriginal people in occupation of the claim area at sovereignty, and whether that community has maintained connection with the land by observing, as far as is practicable, traditional customs, laws and practices of its predecessors.



Unless there is evidence to the contrary, it may be inferred that when European settlement of the claim area began some sixty years after sovereignty was asserted, the Aboriginal inhabitants then in occupation of that area were connected to the land of the claim area and with the Aboriginal people who occupied the claim area at sovereignty.



The question whether native title has continued thereafter involves an assessment of the nature of the changes European settlement wrought upon the Aboriginal people who occupied the claim area at the time of settlement.





(a) Historical evidence



Excavation of archeological sites has shown continuity of use of particular areas of land prior to, and after, European colonization, the latter being demonstrated by artefacts such as tools or trade items fashioned from materials introduced by Europeans. For example, metal and glass and have been found in the upper levels of the excavated soil. The archeological evidence so gathered, when coupled with ethnographic material, is able to identify sites as places of continuing ceremonial or mythological significance. For example, rock paintings at some sites have spiritual and mythological meanings that have been handed down through the generations. The knowledge of Aboriginal people of the significance of such sites, together with the archeological material, points to the observance or acknowledgement of traditional laws and customs by a community subsequent to settlement and of the maintenance of some form of connection with the land thereafter. Dr Gregory also noted that artefacts made from European materials and depictions of rock art demonstrated that the sites continued to be used during the "contact period". A matter of importance in such rock art records is that according to ethnographic material such art is only carried out in the "country" of the artist. Whether there was an identifiable society which observed traditional laws and customs in respect of the land of the society in occupation at the time of sovereignty will be a matter of inference from that and other material. Dr Gregory concluded that taking into account the ethnographic evidence provided by members of the Miriuwung and Gajerrong people who spoke of and identified the rock art in the Territory area, and taking into account the short time that has elapsed since 1880 when European settlement commenced in the region, it was "reasonably likely" that the archeological material found in the Territory area could be "largely attributed to the Miriuwung Gajerrong people". (Ex NT2 p 42)



Changes in the use of land after colonization were also noted by the archeological studies. For example, it can be shown that the quarrying and flaking of stone for spear points all but disappeared and that increased use of rock shelters and more intensive production of rock art indicated a change of pattern of use that occurred when the pastoral industry absorbed the Aboriginal inhabitants with the result that the former lifestyle of congregating in the "dry" season and dispersing in the "wet" was reversed by a pattern of employment and residence on pastoral properties in the "dry" and movement and congregation in the "wet". (P M Kaberry, "Aboriginal Woman: Sacred and Profane" (London: George Rutledge, 1939) (Ex 44 pp 8, 11, 30)). Formerly, the common pattern of land use in the region was that Aboriginal people split into small family groups for hunting, collecting and foraging for much of the year and that during the "dry" season large gatherings would occur for ceremonial ritual, social and trading purposes. There was seasonal movement between the coast, lowlands and plains in the "dry" season and the uplands were used for places of shelter in the "wet".



There was evidence that the trading and exchange of artefacts being carried on between groups from within and outside the claim area continued at the time of European settlement and thereafter. (P M Kaberry, "The Forrest River and Lyne River Tribes of North-Western Australia. A Report on Fieldwork", Oceania 5, 4, (1935) at 408 (Ex 53 pp 412-413); Dr B Shaw, "Countrymen" (Canberra: Australian Institute of Aboriginal Studies, 1986) (Ex A18 pp 37, 83-84)).



As noted earlier, settlement of the East Kimberley region and the claim area did not commence until the latter part of the nineteenth century, 100 years after the founding of the first Australian colony. As Dr Gregory stated "traditional Aboriginal societies in (the)...region were militant and mounted resistance against European intrusions in the form of raids on stations, cattle spearing and the physical retreat to less accessible locales such as the rugged sandstone country". (Ex NT2 p 17) It took fifty years between 1880 and 1930 before "pacification", or conquest, of Aboriginal people in the region was effected by the use of force by settlers and law enforcement officers of the colonies.



Many Aboriginal people of the East Kimberley were killed by settlers and by others, including miners attracted to the Kimberley gold field at Halls Creek after 1885. Witnesses for the applicants referred to this period as the "shooting time". As late as 1926 a punitive raid which killed Aboriginal people in large numbers occurred in the East Kimberley. (Ex A16 pp 19-20, 107-110, 157-163; Dr N Green, "Forrest River Massacre", (Fremantle: Fremantle Art Centre Press, 1995); Dr B Shaw, "Bush Time Station Time" (Underdale: University of South Australia, Aboriginal Studies Key Centre, 1991) Ex A20 pp 89-92.) Deaths of Aboriginal people were caused also by the diseases and malnutrition that followed European settlement. (Ex NT2 p 17) In some areas Aboriginal groups were virtually annihilated by reason of these events. It may be assumed that these factors had a great impact on the ability of Aboriginal people to maintain organized communities.



Furthermore, other consequences of settlement impacted adversely on Aboriginal communities, for example, the removal of large numbers of Aboriginal males to remote prisons after conviction on charges relating to the killing of cattle; the removal of large numbers of young Aboriginal males from the Kimberley region for use as divers in the pearling industry; the aggregation and relocation of Aboriginal people from the region at ration stations established some distance away at Moola Bulla and Violet Valley (Dr B Shaw, "On the Historical Emergence of Race Relations in the Eastern Kimberleys: Change?", (Ch 22), Aborigines of the West. Their Past and Their Present, Editors: R M and C H Berndt (Nedlands: University of Western Australia Press, 1979), 261 at 266; Ex A59 p 313.) and the gathering of Aboriginal people and control of their traditional practices at settlements established by church missions in the region. (R M and C H Berndt, "The World of the First Australians. Aboriginal Traditional Life: Past and Present" (5th Ed), (Canberra: Aboriginal Studies Press, 1992) at 498-499; A P Elkin, "Aboriginal-European Relations in Western Australia: An Historical and Personal Record", (Ch 24), Aborigines of the West. Their Past and Their Present, Editors: R M and C H Berndt, 285 at 300-302.)



The introduction of cattle by pastoral enterprises deprived Aboriginal people of their usual sources of sustenance. The cattle ate out indigenous food, drove away native fauna, took over water holes, degraded the land and made it difficult for Aboriginal people to follow their nomadic way of life. The demand for labour by pastoral enterprises saw Aboriginal inhabitants of the region taken to pastoral homesteads where males were used as stockmen, or in similar duties, and females used in domestic service. The homestead became the source of food for both employed and unemployed Aboriginal people in the area.



The following extract from a report submitted in 1909 by James Isdell, an Inspector of the Aborigines Department, referred to by Dr Green in his report "Historical Issues in the NE Kimberley 1882-1972" (Ex 18 p 59), stated the problem in clear terms:

"In the early days before stocking, all the best pastoral country was full of game of all descriptions, numerous varieties of ground game, rats and bandicoots, opossums everywhere in the timber, emus in large mobs of 50 to 100, native companions in flocks, duck and flock pigeon in hundreds of thousands. In those days both Kimberleys were a paradise for natives all varieties of meat could be caught with little labour. I have personally seen all this, over 25 years ago, when there were only a few stations near the Derby coast, at that time I explored a good deal of the Kimberley, and crossed the Warburton Desert from Christmas Creek to head of Oakover in the Northwest. All this is now changed, stocking up the country has completely destroyed and hunted all the ground game. You can travel for weeks without seeing a sign of emus, native companions, or plain pigeons, opossums have totally disappeared. Only a few ducks and kangaroos can occasionally be seen. Natives have no meat, so is it any wonder that they have taken to cattle killing to feed their women and children. Years ago, during the wet season you could get hundreds of different varieties of herbs and vegetables, which were the yearly medicine for the aborigines that kept their bodily system in good health. Stock have eaten out and killed all the native vegetables."

In more remote areas, for example, the coastal area between Wyndham and Keep River the effect of settlement occurred up to twenty years after the establishment of pastoral properties around the Ord River valleys. Up to the 1930s small groups of Aboriginal people maintained a nomadic lifestyle taking sustenance from the land and avoiding the "white man". Although in this period the majority of Aboriginal people in the region went to live and work at cattle stations, others "stayed away in the ranges and were visited by family and friends during the wet or holiday season". (Ex NT2 p 18) As late as 1935 spearing of cattle in the claim area was reported as continuing and by one account went on until at least the early 1970s. (T Rowse, "Were You Ever Savages?: Aboriginal Insiders and Pastoralists’ Patronage", Oceania 58, 1, (1987) at 81.) One of the witnesses for the first applicants, Mignonette Djarmin, born in the early 1930s, said that as a young child she had lived in the Ningbingi area, "Gajerrong country", with her mother and her father and others in a group "in the bush". Another witness, Gypsy Nyirrmoi, believed to have been born around the turn of the century, said that she had been a small child in the bush with her mother and father near Bucket Springs (Binjen) when her father had been shot and killed by "gardia" (white men).



As Dr Gregory noted the period between the commencement of the settlement of the region and the present day is relatively short. For a person now sixty years of age the period in which settlement took place was a time through which great grandparents and grandparents would have lived. It may be anticipated that connections of witnesses with people and events of that time could be spoken about with some confidence.



Oral histories obtained by historian Dr Shaw, referred to by Dr Gregory, were taken from a number of Aboriginal men who lived in or about Kununurra in the early 1970s. In the main, but not exclusively, they were people who identified themselves as Miriuwung or Gajerrong. With one exception, they were all elderly and have since passed away. The principal oral histories recorded, relevant to these proceedings, were those of Mandi Moore, Bulla Bilinggiin, Jeff Janama, Waddi Boyoi, all of whom identified themselves as Miriuwung, and Grant Ngabidj, who stated to Dr Shaw that he was Gajerrong. Dr Shaw cross-checked the information he obtained with the informants and, with the exception of Waddi Boyoi, was able to confirm before publication the accuracy of the material he had prepared. The work recorded by Dr Shaw was published in narrative form under the titles "My Country of the Pelican Dreaming" (Ex A16); "When the Dust Come In Between" (Canberra: Aboriginal Studies Press, 1992) (Ex A17); "Countrymen" (Canberra: Australian Institute of Aboriginal Studies, 1986) (Ex A18); "Banggaiyerri" (Canberra: Australian Institute of Aboriginal Studies, 1983) (Ex A19); "Bush Time Station Time" (Ex A20). Contemporary historical records tendered in evidence were consistent in relevant respects with the accounts given to Dr Shaw. Apart from Jeff Janama the informants were born around the turn of the century and a number of them lived part of their early lives in the "bush" before being taken into the stations. Their stories provide substantial links between Aboriginal society before and after European contact.



In many respects the oral histories were interconnected. For instance, Mandi Moore and Bulla Bilinggiin were married to sisters, Marie Wunmi and Daisy Burrwi, who gave evidence on behalf of the the first applicants. Waddi Boyoi and Grant Ngabidj were said to be classificatory brothers and part of their respective stories involved participation in a tribal spearing in the 1920s and their life in the bush for a period of almost two years whilst they evaded capture by police. (Ex A16 pp 85-98; Ex A20 pp 100-103)



Grant Ngabidj, born in about 1904, gave an account of early contact with settlers which was narrated by Dr Shaw as follows:

"Soon after Grant was able to walk and run about, William Weaber a German station manager together with his brother and a number of white and Aboriginal station people from Queensland took up Ningbing Station, in 1907-08. Grant witnessed these persons round up many of his local group, most of whom were shot subsequently after he, his sister and their mother were removed from the scene."

(Ex A16 p 16)

Mandi Moore, also born in about 1904 gave an account to Dr Shaw of the "shooting time" as follows:

"White men were wanting to shoot the blackfeller in our time, and all the old people were shot. Then the old blackfellers were always maybe terrified of the white man. If they met up coming down the road, the white man would shoot all the blackfellers in the bush."

(Ex A18 p 36)

Bulla Bilinggiin, born in about 1899, told Dr Shaw:

"You just think about when the people were wild. You couldn’t get them together. You had to shoot them to stop them. That’s what the white men did before. See, they chased them round with horses. They’d follow them up and camp on their tracks and the next morning they’d follow till they found a fire. The policemen liked to shoot them down with guns."

(Ex A18 p 83)

Banggaldun Balmirr, born in 1900, affinal kin to Mandi Moore and Bulla Bilinggiin and a stockman on the Ivanhoe pastoral lease in the claim area, gave the following description to Dr Shaw:

"He came along and rushed the camp now. No one could break out, they’d get a bullet. Girls or piccaninnies, mothers, were finished. Right, he heaped them up. He took two or three boys and told them, ‘You gotta go an getim wood’. They heaped up the wood,... heaped it up. He came along and shot them and took them up to the fire place and chucked in all the mob, girls and boys, and burned them. He got kerosene and chucked matches, finish. The white man came along and shot all the blackfellers, and some of them broke out, and ran away frightened."

(Ex A18 p 64)

Dr Shaw obtained the following account from Jack Sullivan, a stockman on Argyle Downs pastoral lease, born in 1901:

"It was pretty good in my days, peaceful, but in the earlier days when they came in to get Australia the white feller had to fight his way. When they did get a bit of land to stand on they had to fight the blackfellers to keep it. And then they took the blackfellers afterwards and made them kings or something, to lift up their head and all that. They got a bit of ground, quietened the blackfellers, tamed them down and worked them. When they had been made to understand the white man’s way they were helping him then and fighting the wild ones. They would go up and talk to the wild one in their lingo. ‘You wanta come up an me feller workin now. You can’t killim bout bullock anything well they shoot you.’ But a lot of blackfellers would not come in; they wanted to fight them. Well, then they put a bullet in them. But the good blackfellers who came in, well they were all right. If the white man saw that that blackfeller was all right he put him in. If he ran away he would follow him and bring him back. If he ran away again well he followed him and shot him. That was what it was all about in those days. You see, they tamed one another, agreeing with one another. It was mostly before my time, but I saw a lot of it also when I was only a little boy, a few like that, not many. I know that in my time there were a few at Lissadell and one or two at Argyle. I saw them tied up at the post and then taken away the next morning and done in, the bush blacks. They would get a bush black and bring him in."

(Ex A19 p 65)



No doubt the settlers believed that they and their property were under threat. In the early years several drovers and pastoralists had been attacked and killed. Such killings led to savage reprisals. The threat became justification for pre-emptive action.

"The settlers felt particularly unsafe, especially in East Kimberley where they were vastly outnumbered by the aborigines. In these circumstances it was hardly surprising that the administration should have abandoned all pretences of impartiality. The number of aborigines shot by the settlers, miners (there was a shortlived gold-rush in 1886, centred on Hall’s Creek), and the police can be only guessed. ‘Hundreds of men, women and even children were shot down in this period’, wrote a pioneer; another old-timer, portrayed by Mary Durack in the novel Keep Him My Country, boasted of the notches on a gun which ‘tally up the blacks it shot after Mick Condon was speared.’"

(P Biskup, "Not Slaves, Not Citizens" (Brisbane: University of Queensland Press, 1973) at 20-21.)

The son of an East Kimberley pastoralist described the situation as follows:

"In those days there were no police within three hundred miles. Every man was his own policeman; and the letter of the law was often ignored in favour of summary justice.



...



In priority of occupation these dark people are possibly the rightful owners of the soil. But the white man has his duty to do, as he sees it, and though might is not always right it should be tempered with mercy."

(G Buchanan, "Packhorse and Water Hole - With the First Overlanders to the Kimberley" (Sydney: Angus and Robertson, 1934) at 117.)

As Dr Gregory stated (Ex NT2 pp 18-19), the pattern of lifestyle of Aboriginal people had undergone significant change by the time "pacification" was completed after fifty years of settlement.



Evidence adduced by the State from Dr Green in two reports (Exs 18, 20) concentrated on the issue of change.



In the first report (Ex 18) Dr Green describes the killing of Aboriginal people that occurred as a result of the Kimberley gold-rush (at 19-20) and records that no less than twenty multiple killings or massacres of Aboriginal people occurred between 1884 and 1926 in the East Kimberley, excluding killings by Europeans between 1886 and 1892 related to the Kimberley goldfields, and massacres in respect of which no official records were made (at 29). Of course, only some of those incidents occurred in or near the claim area with possible impact upon people known as Miriuwung or Gajerrong. But as Grant Ngabidj told Dr Shaw:

"There were all Gadjerong people along the coast until the white men shot them. Half of them died and some of the young boys were brought in to the stations to quieten them and to learn the horses, like me. All the Gadjerong people were taken out of their country and put on the stations or were killed. There are no people left there now."

(Ex A16 p 35)



Indeed, a group, described as Doolboong and a neighbouring community to the Miriuwung and Gajerrong, is said to no longer exist as such. Bulla Bilinggiin told Dr Shaw in 1974:

"Dulbung is finished. Everybody died...and there was all that Dulbung lot from the coast down from Ningbing, down from Wyndham back this way."



(Ex A18 p 84)

Grant Ngabidj told Dr Shaw that Doolboong country was below "Goose Hill" and that a number of Doolboong people lost their lives in the Forrest River massacre in 1926. (Ex A16 p 161)



At the Royal Commission appointed in 1927 to inquire into the events at Forrest River, Dr Adams, a medical officer who had been stationed at Wyndham for ten years gave evidence as follows:

"I calculated that in the north during the last 50 years something like 10,000 natives had disappeared by devious means, not necessarily old age. Their natural game has been either exterminated or frightened away. Wherever a white man sets foot or uses firearms he frightened away the game. The native game being in diminished numbers their place taken by the flocks and herds of their white oppressors."

(Ex 18 p 54)



Dr Green suggested that the extent of upheaval inflicted on Aboriginal inhabitants in the latter part of the nineteenth and early twentieth century may have resulted in the replacement of those inhabitants by other Aboriginal communities, and that perhaps the Miriuwung or Gajerrong communities had come to the claim area at that time. As indicated earlier in these reasons, the degree of dislocation and decimation caused by the arrival of settlers and miners in the East Kimberley in the 1880s and 1890s, and thereafter, cannot be underestimated. It had the effect of dispossessing Aboriginal inhabitants and fracturing their communities. However, if there is evidence of the connection of the present Aboriginal community with forebears present on the land at the time of settlement, and of maintenance of connection with the land thereafter, speculation that, as a consequence of European settlement of the region, Aboriginal inhabitants of the claim area were wholly annihilated or replaced by others, can be dismissed.



In a cross-examination in which Dr Green conceded that a number of propositions set out in his reports were to be read with qualification, he made it clear that he raised the possibility as one to be borne in mind, not to suggest that there was evidence to support it.



Dr Green agreed that there was no question that whenever Aboriginal people went, or were taken into pastoral station homesteads they continued, and have continued to the present, to practise their "law", and that traditional usufructuary activities were pursued as circumstances permitted.



The account given by Grant Ngabidj to Dr Shaw (Ex A16 p 35) that the Gajerrong people were taken out of their country and put on the stations and that there were no people left (in their country) is to be understood in that light. There is abundant evidence that although separated from their homeland country, most Aboriginal people were on stations in proximity to their country and continued to be bound, or connected to the country, by their customs and beliefs and renewed contact with it by returning to the place in the "holiday time" of the stations.



In a report prepared by historian Dr Clement ("Historical Synopsis of European & Aboriginal Use and Occupation of Land in the Keep River National Park" (Exs A30(a), (b)), various documentary materials and oral histories were reviewed. It was concluded that Aboriginal people, some of whom were Miriuwung and Gajerrong, occupied the Keep River National Park area prior to 1894 and coexisted on the pastoral leases from which the national park was excised, with a number of them living a "bush" life until at least 1944. (ExA30(a) p 91)



In 1940 Mr Bray, Assistant Commissioner for Native Affairs for the State, informed a Royal Commission of Inquiry into the Pastoral Industry as follows:

"Natives have continued to live and rear families on established pastoral holdings, because these areas embrace their own original country, and love of their country is deeply ingrained in the native. It would be well-nigh impossible to arrange to have these natives live elsewhere, quite apart from the employment question."

(C Choo, "Miriuwong and Gajerrong History Report No 3, Social Impacts of Pastoralism 1935-1995".) (Ex A27(a) p 27)

In the above report prepared by historian Dr Choo reasons were set out for concluding that although the introduction of the "Pastoral Award" in 1968 saw Aboriginal people leave pastoral properties, thereafter the connection with land for Miriuwung and Gajerrong people remained. (Ex 27(a) p 54)



In the East Kimberley Aboriginal people had accepted the changed order and wanted to live their lives "side-by-side" with Europeans on their own terms, namely, by retaining their identity (Dr Shaw, "On the Historical Emergence of Race Relations In the Eastern Kimberleys: Change?" at 268) The system of government that came with settlement was unable to meet those hopes and Aboriginal people, and their claims, were disregarded by settlers and legislators.



The absence of formal recognition of Aboriginal connection with the land of the claim area was but one aspect of the attitude of the European society to the interests of Aboriginal communities. In many respects acts of the Crown entrenched disadvantages suffered by Aboriginal people. For example, when the colonies federated as the Commonwealth of Australia in 1901 s 127 of the Constitution, which excluded "aboriginal natives" from the count of the Commonwealth’s population, treated Aboriginal people, in effect, as non-persons. (B Fitzpatrick, "The Australian Commonwealth: A Picture of the Community 1901-1955" (Melbourne: Cheshire, 1956) at 2.) That discrimination continued until 1967 when a referendum authorized removal of the provision from the Constitution. Under the Natives (Citizenship Rights) Act 1944 (WA) numerous barriers were erected to deny Aboriginal people "acquisition of full rights of citizenship". (Ex A27(a) pp 39-40) For most of the period after settlement Aboriginal people employed on pastoral stations received little more than rations for their labour. They had no financial resources to use to assert their rights. Governments of the Crown declined to provide that wages be paid to Aboriginal employees on pastoral stations and used police resources to enforce the employment permits and indentures held by pastoralists, apprehending and returning Aborigines to the pastoral stations they had left. (Ex 18 p 75; Ex A59 pp 288-290, 294) Not until after 1942 were Aboriginal persons who had more than one-half of Aboriginal blood, entitled to receive pensions or allowances under Commonwealth legislation. Suffrage in federal elections was denied to Aboriginal people until 1962, and in State elections until 1971. Education of Aboriginal people was restricted. Until the 1950s Aboriginal children were regularly denied access to the State education system (Biskup, at 148-150, 191-192, 202-203, 241-242) and for Aboriginal children on Kimberley pastoral stations it was a matter of policy that they not be educated. (Ex A27(a) pp 69-70)



These influences, added to matters already described, marginalized Aboriginal communities. However, by causing Aboriginal people to "retreat" and internalize their beliefs and opinions it also heightened their sense of Aboriginal identity and their desire to retain it. (Dr Shaw, "On the Historical Emergence of Race Relations In the Eastern Kimberleys: Change?", at 264.) In particular the isolation and sparse settlement of the East Kimberley region gave Aboriginal inhabitants the opportunity to retain their identity and their contact with the land with which they claimed connection, wherever they might be situated. Such claims to land had not been abandoned. After their rights as citizens were recognized in the late 1960s, claims for "living areas" in homelands were taken under notice and, eventually, acknowledged. In the words of Professor Berndt:

"Many have, however, moved into various centres - which has meant expanding their socio-cultural horizons and/or has involved them in socio-cultural intermixing with members of groups previously different from themselves. Nevertheless, even though they have come into such settlements...they have not relinquished their emotional and hereditary ties with, or claims to their home lands."

(R M Berndt, "Traditional Aboriginal Life in Western Australia: as it was and is", (Ch 1), Aborigines of the West. Their Past and Their Present, 3 at 5.)

Aboriginal people formed as organized societies based on traditional customs and laws had a special relationship with land which Professor Berndt explained as follows:

"In comparison with many others, and certainly in comparison with Europeans, the Aborigines were a deeply religious people. Religious feeling was manifested through ritual observance and through mythic expression - and, essentially, taken for granted. And an intrinsic part of it was a deep emotional attachment to the land, their own land. The whole countryside was full of signs and clues that were directly and indirectly relevant to their lives. It was made familiar and intimate to them through mythic beings who were believed to be manifested at specific sites, always present, and approachable through the medium of ritual. These were eternal or enduring elements, underlining continuity sustained through religious practice. At one conceptual level, everything was brought together into one expanded socio-cultural environment. The deities were manifested predominantly through man, and other living things and other features were selected as intermediaries or symbolic representations: all drew on the same life force. This particular relationship to the land and all within it was phrased as a total dependence upon it - or, rather, a total inter-dependence: and the way this was wrapped up in social-cultural [sic] terms provided an emotional assurance that helped people to cope with such natural crises as drought or floods, and the human crisis of physical death."

(R M and C H Berndt, "The World of the First Australians" at 515-516)

"The genius of traditionally-oriented Aborigines rested primarily on their ability to organize, providing an assured though reasonably flexible programme for co-operation in everyday affairs, and a religious belief system which substantiated a life within surroundings that were familiar but full of interest and meaning."

(supra, at 516-517)

"We are reminded of what Strehlow...has pointed out, and others too: that anyone conversing with fully-initiated Aboriginal men ‘trained in speech by means of the sacred myths and songs’ cannot fail to be aware that he is in the presence of men of education and culture."



(supra, at 517)

The same point was made by Professor Maddock in "The Australian Aborigines – A Portrait of their Society":

"Perhaps the crucial point is that Aborigines idealized the country and their relations to it through their religion. Rite and myth - and the information stored in them - can stay alive long after the hunter-gatherer economy has collapsed...Thus it has often been possible to study the religious aspects of relations to land at first hand when the economic aspects could only be reconstructed".



(at 29)



...



The usual Aboriginal view... (holds) that human ties to land date from The Dreaming, which is also the time when the world attained the shape it has today. World-creative powers (often called totemic spirits or ancestors) descended from the sky, rose from under the ground, or came across the sea to form the earth and establish human institutions. Then, their work complete, they sank into the ground or water, rose into the sky, or journeyed into far-off country.



Most of these powers are depicted as having had animal or plant as well as human qualities, and under the former aspect they are prototypes of the various natural species. Because of this, human ties to land are bound up with ties to other forms of life (this web of relationships is often called totemism). But of course the acts of the powers, having created the world order, show their superiority to man and animal alike. The comprehensive body of lore that describes these acts varies considerably in detail from one part of Australia to another. it is conveyed in song, myth and ceremony, and it lends an almost personal significance to the countryside, for all its noticeable features (crags, waterholes and caves, for example) are places where powers

acted creatively in The Dreaming. The result is that the world around him is full of meaning for a traditionally instructed Aboriginal, albeit meaning that has had to be communicated to him by an older generation, for it would never be obvious to the untutored eye."

(at 34-35)

All of the foregoing is important in understanding the concept of the "right to land" that underlies native title discussed earlier in these reasons.





(b) Linguistic evidence



The first applicants tendered a report prepared by a consultant linguist, Ms F Kofod. (Ex A36) Ms Kofod also gave viva voce evidence.



The evidence adduced from Ms Kofod was to the effect that the existence of the Miriuwung and Gajerrong languages, and the use thereof by Aboriginal people, indicated the continuing existence of an indentifiable Aboriginal community and of the maintenance of connection with land with which that group had been associated by repute.



The evidence dealt with the history and use of a language and indicated that before colonization an identifiable group had relied upon use of the language as an element of identification of the group. The languages studied by Ms Kofod have taken centuries to evolve. It follows that the languages in use today would have been in use at the time of sovereignty and likely to have been given a similar role in defining the identity of a group at the time the Crown claimed sovereignty over land occupied by Aboriginal people.

Ms Kofod’s report and evidence was instructive. She had observed and studied speakers of Miriuwung and Gajerrong languages for periods of three to four months in each year between 1971 and 1974 and again in 1986 and on numerous periods in 1987 and 1988. In 1994-95 Ms Kofod worked with fluent speakers of Miriuwung to assist in translating a "plain English" version of the Act into Miriuwung. Ms Kofod was involved in establishing the Mirima Dawang Woorlab-gerring Language and Cultural Centre ("Language and Cultural Centre") at Kununurra which has brought awareness of the Miriuwung and Gajerrong languages to younger generations and provided a focus for matters of tradition and custom for people who are regarded as, and regarded themselves as, Miriuwung or Gajerrong. Steps taken to preserve the use of the languages by the establishment of the Language and Cultural Centre is evidence of a desire to preserve an element of culture regarded by a community as giving it distinctiveness or identity.



Ms Kofod was an impressive witness whose evidence could be relied upon. It was obvious that diligence in her work had given Ms Kofod a sound knowledge of Aboriginal languages, in particular Miriuwung, Gajerrong and Gija and that in addition she gained substantial knowledge of the lifestyle of people who described themselves to her as Miriuwung or Gajerrong. Ms Kofod’s evidence, including responses in cross-examination, was delivered in clear terms and her answers to any contrary propositions put in cross-examination were considered and persuasive.



The work undertaken by Ms Kofod necessarily involved gathering much ethnographic material and obtaining an understanding thereof. For example, Ms Kofod regarded her work at Kununurra in the earlier years as strongly influenced by information she received from consultations with Mandi Moore before he passed away. (See also: Ex A18 p 16.)



Ms Kofod stated that the Miriuwung and Gajerrong languages are related languages being part of a group of languages known as Jerrag. There are differences between the languages and each may be treated as a distinct and separate language. According to Ms Kofod’s observations, elder Miriuwung and Gajerrong people used their language amongst themselves and observed traditional laws relating to language such as switching to the correct language when travelling in the "country" to which the language "belongs". She also stated that she had observed that Miriuwung or Gajerrong is spoken to grandchildren and great grandchildren by elders and is regarded as an important part of the observance of culture by the group. Detailed knowledge of flora and fauna was exhibited and younger community members related to elders in a manner required by their culture. I was impressed with Ms Kofod’s expertise and experience and accept her evidence and the assistance it provides.



Ms Kofod stated that Miriuwung and Gajerrong were used for separate "countries" albeit areas with overlapping boundaries. The people of each "country" related parallel Dreaming ("Ngarranggarni") stories for different areas of land in each "country". Ms Kofod observed that knowledge of and identification with a language brought connection with land on a practical, spiritual and usufructuary level. Having spent time with the Miriuwung people over twenty-five years and observing their knowledge of the land and its resources and the continued use thereof; their knowlege of the mythological connections with land handed down by ancestors; their desire to establish a language and cultural centre to preserve and promote the Miriuwung and Gajerrong languages; their desire to impart to the young their knowledge about the land they claimed as "country" and their desire to establish "out- stations" on "country", Ms Kofod expressed the opinion that Miriuwung and Gajerrong people had continued to maintain a connection with land claimed as "country" since the advent of European settlement in the region.



Having regard to her expertise in the Miriuwung and Gajerrong languages, and the deep understanding of Aboriginal people she had obtained in the course of gaining that expertise, she was qualified to express such a view although in the end it is a question for the Court as to whether the facts support that conclusion. The material Ms Kofod put before the Court distilled from her own experience and observation is part of the evidentiary material to be considered. A report prepared by linguist Dr B A Sommer, prepared in response to, and as a comment on, Ms Kofod’s report was tendered by the State. (Ex 54) Dr Sommer was not called to provide oral evidence to add to his report, which differed from the report of Ms Kofod more in emphasis than substance. Any points of difference were answered by Ms Kofod in her oral evidence.



It was submitted by Dr Sommer that words that were not of the Miriuwung or Gajerrong languages, used to describe locations and features in the claim area, suggested the possibility that the Miriuwung and Gajerrong community had taken over habitation of the area from another group or groups.



It may be thought that in the absence of any evidence that such an event had occurred subsequent to the formation of the colony, there would be little room for such speculation. It was made clear by Ms Kofod that the extent of the use of the Miriuwung language in respect of features in the claim area, coupled with ethnographic material relating to widespread Dreaming and spiritual connections with the land for Miriuwung and Gajerrong people, speak quite forcefully of lengthy occupation of the relevant area and make it most improbable that the Miriuwung and Gajerrong were first connected with the land some time after 1825 or 1829.



It is common for Aboriginal groups to be multi-lingual (A Rumsey, "Language and Territoriality in Aboriginal Australia", Language and Culture in Aboriginal Australia (Ch 14), Editors: M Walsh and E Yallop (Canberra: Aboriginal Studies Press, 1993), at 195) and the use of terms in the claim area that may be sourced to languages of neighbouring groups, with whom some parts of the claim area may be regarded as shared land, is not, in itself, in a circumstance capable of supporting an inference that a Miriuwung or Gajerrong connection with the claim area is of recent origin.



The role of the Miriuwung and Gajerrong languages in defining the community connected to the land of the claim area is twofold. First, the languages are said (by witnesses for the applicants and in historical accounts) to have been deposited in the landscape of the region by Dreamtime figures. Second, the language, like the land, becomes possessed by the Aboriginal people connected with that land.



The community is not defined by, and as, people who speak the language but by, and as, people who observe the connection of the language with the country and share possessory interests in the language:

"...in the aboriginal myths which associate language and land, no account at all is taken of people, or peoples. Languages, or even mixtures of them, are directly placed in the landscape by the founding acts of Dreamtime heroes. From that point on, the relation between language and territory is a necessary rather than a contingent one. People too, or their immortal souls, are similarly grounded in the landscape, in the form of spirit children (or ‘conception spirits’) associated with specific sites, and via links through their parents to more extensive regions. But the languages were already placed in those regions before any people came on the scene. The links between peoples and languages are secondary links, established through the grounding of both in the landscape."

(Rumsey, "Language and Territorality in Aboriginal Australia", at 204)

The community is much a "tribal" group as it is a "linguistic" group.



In the evidence presented in this case the claim area is said to be Miriuwung and Gajerrong country partly because that is where the languages belong, not because it is country inhabitated by people who speak Miriuwung or Gajerrong. The witnesses who identified themselves as Miriuwung or Gajerrong did so not because they, or their forebears, spoke the Miriuwung or Gajerrong languages but because those languages were part of their connection with forebears and with the land. The mutual possession of a language connected with the land was an incident of identification of the community as was mutual recognition of membership of that community; mutual acknowledgement and observation of traditional law, customs and practices; and the recognition by others of the existence of the community.

(c) "Primary" evidence of applicants

The principal "primary" witnesses called by the first and second applicants were numerous.

An important part of the evidence was provided by elder female witnesses. Marie Wunmi and Daisy Burrwi were the wives of two key ancestors, Bulla Bilinggiin whose "country" in the claim area was said to be Yardanggarlm and Argyle, and Mandi Moore whose country was said to be Yirralalem. According to the oral histories recorded by Dr Shaw the father of Marie and of Daisy was Paddy Jidbi whose country was said to be from Ivanhoe "right up Mistake Creek" near Yirralalem. The genealogies prepared by Ms Kaberry in the 1930s referred to below, suggest that Paddy Jidbi’s parents and grandparents can be identified and estimates made that the latter would have been born at about the time of the formation of the Western Australian colony.



Impressive evidence received from Sheba Dignari (married to Friday Biwoogeng and to Simon Jingbi), Mignonette Djarmin (married to Waddi Boyoi), and Sheba’s sister, Blanche Flying Fox, (married to Langgarruk) corroborated and added to the oral histories and provided details of the information given to them about occupation of parts of the claim area prior to, and after, European contact. In addition, they had a significant role in ceremonial matters and in women’s "law" and impressed with their authority, their breadth of knowledge and depth of recall. Together with Nancy Dilyayi and Pamela Simon they presented historical information and evidence of the organization of the Miriuwung and Gajerrong community.



Equally impressive were a number of male witnesses who spoke of the community’s laws and customs and of matters known only to them. Each of the following was knowledgeable and persuasive: Danny Wallace, Dodger Carlton, Paddy Carlton, Ronnie Carlton, David Newry, Peter Newry, Murphy Simon, Ben Ward, Jeff Djanama, Ben Barney, Toby Banmar, John Toby and George Dixon.



David Newry was an active participant in Miriuwung and Gajerrong community affairs. As Chairman of the Mirima Council Incorporated ("Mirima Council") he directed support for the Language and Cultural Centre of the Miriuwung and Gajerrong community maintained by the community to promote its identity and to provide outlets for community expression.



Some witnesses had greater knowledge than others, particularly in respect of matters of ancestry or connection with predecessors, but all spoke of a community based on the tradition of forebears.



The tenor of their evidence was that the community of which they were part, acknowledged or observed in a practical sense the laws or customs of, and had connection with, the Aboriginal people who occupied the land at the time of first contact with settlers, and, by inference, at and before the time of formation of the colony of Western Australia or incorporation of the Territory area in the colony of New South Wales.



There was no issue of credibility in respect of "primary" witnesses for the applicants. The principal issue was what had been proved, either directly or by inference, by that evidence.



Having due regard to the difficulties they faced, and interpreting the evidence with consciousness of the special nature of the Aboriginal claims, I found the "primary" witnesses for the first and second applicants to be convincing in their description of connection to land and acknowledgement of traditional practices. I was impressed by evidence of profoundly held views and beliefs given in a forthright manner without embroidery. Evidence given by senior and respected people, and by others who deferred to them, produced a very clear impression of witnesses who understood that they shared membership of a distinct social group or community identified by common beliefs, mutual recognition of membership, shared use of, or reference to, the Miriuwung or Gajerrong languages, and observance, as members of that community, of practices based on traditional laws or customs. Evidence of an organized community which observed traditional practices, laws or customs was most convincing.

(d) Anthropological evidence

No detailed ethnography dealing exclusively with the Miriuwung and Gajerrong peoples has been the subject of an anthropological study. While "pioneering research" was conducted in the north-east Kimberley in the 1920s and 1930s, primarily by Professor Elkin and Ms Kaberry, the area was subsequently "neglected anthropologically for nearly half a century". (Associate Professor Christensen, "Supplementary Report of Anthropologist".) (Ex A40 p 19)

Professor Elkin worked in the Kimberley region under the supervision of Professor Radcliffe-Brown for twelve months in 1927-28 primarily to the south and west of the claim area. Ms Kaberry conducted field work under Professor Elkin’s supervision in 1934 and in 1935-36, again primarily in the Forrest River area and with the Lungga ( Gija ) to the south of the claim area, with periods in Miriuwung country. As a result of this work she produced the seminal text "Aboriginal Woman; Sacred and Profane" (Ex 44) and wrote and published a number of shorter articles. The primary focus of her publications was on the role of women within Aboriginal society. Of greater interest to the anthropologists called to give evidence in these proceedings, were her primary field notes and the numerous genealogical charts recorded in her field diaries. A linguist Arthur Capell worked in the Kimberley between 1938 and 1939 and his field notes also provided assistance to anthropologists in these proceedings.



With the exception of Dr Shaw’s work, recent ethnography in the region can be described as heritage and site survey work conducted in the context of development projects, most notably the Argyle Diamond Mine.



The first applicants adduced expert evidence in written reports and viva voce from two anthropologists, Mr Akerman and Associate Professor Christensen. The primary focus of their reports was to draw together and crystallise within a contemporary conceptual framework diverse written and unwritten ethnographic material relating to the Miriuwung and Gajerrong people for the purpose of these proceedings.



Mr Akerman’s particular area of expertise lies in art and material culture of the Kimberley region including the "wirnan" ceremonial exchange cycle, sacred objects and tool-making. He also conducted a heritage survey in the Glen Hill area in 1979. He gave his evidence in an earnest and thoughtful manner and his responses in cross-examination were fair, rational and objective.



Associate Professor Christensen conducted site evaluations in the claim area in 1988 and conducted some limited field work for the purpose of the preparation of his report. The field work was largely for the purpose of cross-checking and building upon the secondary ethnographic material. After the "primary" evidence was taken he prepared a supplementary report providing commentary on aspects of the oral evidence for the assistance of the Court. His evidence was direct and confident and displayed a high level of professional skill.



The second applicants tendered anthropological reports prepared by Mr Barber and Dr Palmer and led further oral evidence. Mr Barber had been instructed at different times by the first and second applicants and the fifth respondents. He gathered genealogical information and data for the first applicants and was engaged by the second applicants to prepare, together with Dr Palmer, a report on the Keep River "estate groups" and genealogical charts. He carried out extensive field work in the Keep River area during 1996. Mr Barber also assisted Ms Doohan in the preparation of the genealogical charts tendered by the fifth respondents. The considerable knowledge and experience gained from working with members of the applicant groups in the claim area and with the Aboriginal community at Port Keats in the Territory to the north east of the Keep River was apparent in his evidence which was impressive and of assistance to the Court. Mr Barber’s experience of ceremony and ritual extended for almost twenty years. Mr Barber stated that he attended men’s ceremonies at Port Keats in 1983 lasting for two months which were linked to ceremonies occurring in Kununurra and involved Miriuwung and Gajerrong men. He attended similar ceremonies almost each year from 1983 to 1995. In some of those years he came down to Kununurra to attend "mandiwa" (circumcision) ceremonies in which there was broad participation by members of the Miriuwung and Gajerrong community. There were also ceremonies in Kununurra associated with "wirnan" exchanges.



Dr Palmer’s role in the preparation of the Keep River anthropological report and the genealogical chart involved limited field work and primarily was to assist and cross-check Mr Barber’s work on genealogies. I found Dr Palmer’s evidence to be clear, objective and helpful.



Ms Doohan was instructed by the third applicants to prepare an anthropological report and genealogies and by the fifth respondents to prepare genealogical charts. She has had extensive experience in the Forrest River region to the west of the claim area. She has also done work with Aboriginal people at "Warmun" (Turkey Creek) to the south of the claim area. Ms Doohan also gave detailed oral evidence.



Professor Maddock was instructed by the State. He prepared a report and was the only anthropologist called to give evidence by the respondents. He has not conducted fieldwork in the claim area and his report was a comment on the opinions of the other anthropologists expressed in their reports. Like Associate Professor Christensen, Professor Maddock prepared a supplementary report after the hearing of the "primary" evidence had been completed.

Professor Maddock’s first report was directed to the possibility of population shifts into, or out of, the claim area and to the extent of the possible change to the system of social organization that had existed in the claim area at the time of sovereignty. While Mr Akerman and Associate Professor Christensen emphasised the continuity of connection between the people who regard themselves as the Miriuwung and Gajerrong community today and the organized societies in occupation at the time of settlement, it was Professor Maddock’s view that these "genetic, cultural and linguistic continuities" had to be understood as "continuities in the midst of change". (K Maddock, "East Kimberley Anthropological Report".) (Ex 46 p 124)



Professor Maddock has had considerable experience in this field of anthropology and has participated in and observed the presentation of claims to land by "traditional owners" in the Territory under the Aboriginal Land Rights (Northern Territory) Act 1976 (NT). It is apparent in Professor Maddock’s published works, from which I have drawn in these reasons, that he anticipated some time ago that the common law concept of communal native title may involve a determination that the holders of that title are not restricted to the "local descent group" or "traditional owners" in which statutory rights in land may be vested under "land rights" legislation. As he said in "Owners, Managers and the Choice of Statutory Traditional Owners by Anthropologists and Lawyers", (Ch 13), Aborigines, land and land rights, Editors: N Peterson and M Langton, (Canberra: Australian Institute of Aboriginal Studies, 1983):

"A proper jurisprudential analysis might favour the community above the clan, but the [Aboriginal Land Rights (Northern Territory)] Act calls for interpretation of its definition of ownership and not for the kind of exercise in comparative law which occurred during the Gove Land Rights Case (Milpirrum)."



(Ex A56 p 218)

It became apparent during cross-examination that Professor Maddock agreed with significant aspects of the first applicants’ case in that regard.



There was accord between the anthropologists that in respect of parts of the claim area "local descent" or "estate groups", anchored in areas of country by a particular site or geographic feature with which they had a special bond, were part of the framework of the traditional laws or customs of the Miriuwung and Gajerrong people in respect of land.



The rights distributed to such sub-groups under traditional laws or customs included the right to use a particular area of land for benefit of the "estate group" and the right of some in that group, (the "dawawang") to "speak for" that land, in particular, as to the use thereof.



Attached to those rights were responsibilities which included a duty to "care for" the country, in particular, to care for and protect Dreaming sites, art sites and other places of significance in the "estate" area. "Estate groups", however, were not self-contained, or autonomous functioning societies in occupation of the land. They were sub-groups of the Miriuwung and Gajerrong community from which rights and duties devolved under the traditional laws and customs of that community. When the anthropologists speak of "ownership" of "estate" country, or of "dawawang" as "owners" of such country, those words do not bear their legal meaning but are the best description the anthropologist can supply to a relationship that encompasses the rights and duties acknowledged under traditional laws and customs. (K Maddock, Ex A56 pp 213-215.)



The concept of "estates" cannot be isolated from the kinship and sub-section systems and totemism of the community, the latter defined by Ms Kaberry as the process in which natural species and phenomena "have been drawn into an institution or system of beliefs or practices, and have come to assume characters or functions other than their primary ones ..." ("Totemism in East and South Kimberley, North-West Australia", Oceania 8, 3, (1938) 265 at 287.) Professor Elkin in "Social Organisation in the Kimberley Division", Oceania 2, 3, (1932) 296 at 327 wrote:

"... though these principles can be distinguished from each other, yet in any society they are all functioning together as a whole, interacting on, modifying or strengthening one another."

In "The World of the First Australians" (at 90) R M and C H Berndt wrote:

"In Aboriginal Australia kinship is the articulating force for all social interaction. The kinship system of a particular tribe or language unit is in effect a shorthand statement about the network of interpersonal relations within that unit – a blueprint to guide its members. It does not reflect, except in ideal terms, the actuality of that situation; but it does provide a code of action which those members cannot ignore if they are to live in relative harmony with one another. And kinship, in this situation, pervades all aspects of social living. We cannot understand or appreciate traditional life in Aboriginal Australia without knowing something, at least, of its social organization and structure – of which kinship is the major integrating element, or, to put it another way, the fine mesh which holds the society together."

The kinship system said to be applicable in the East Kimberley is known as Arandic, or of the Arandic type. In his report Mr Akerman described this type of kinship system as follows:

"Aranda type kinship systems distinguish four kinds of kin at the grandparent level. Parents and their same sex siblings are called by the same term while different terms are used for parents of opposite-sex siblings - that is father’s brothers are called by the same term as father while father’s sister is called by a term that can be glossed as aunt. Similarly mother and her sisters are called by the same kin term but mother’s brother is called a term equivalent to uncle."

(Ex A48 p 11)



One of the important roles of the kinship system is explained in the report by Mr Barber and Dr Palmer as follows:

"Miriuwung kinship terms (eg brother, son, father ) are a frequent mode of address, particularly in a culture where personal names are seldom used. Kin recognise that certain ties of behaviour are expected between them..."

(Ex B5(b) p 20)



The sub-section system identified by anthropologists in the East Kimberley as applicable to the first and second applicants is described by Mr Akerman as "...based on eight units known in the literature as sub-sections." He goes on to say:

"The eight named sub-sections or skins .., each with masculine and feminine equivalents. are organised on a framework of four sets of inter-marrying pairs and an individuals location within the framework is derived by reference to the mother’s skin...It is formula by which marriages are ideally organised and which determines the correct protocol and behavioural rights and responsibilities between individuals."

(Ex A48 pp 11-12)



It was accepted that the system was not inflexible and was able to accommodate a certain amount of "wrong" or incorrect marriages. Professor Maddock was in no doubt that "wrong" marriages would have occurred in pre-contact times.



According to Mr Barber and Dr Palmer one effect of the sub-section system is to extend behavioural rules based on kinship to persons who are not related consanguinially.



Both the kinship and sub-section system tend to suggest that from the Aboriginal perspective relationships between people, and their relationship with land, do not depend solely, or necessarily, on biological descent, a view confirmed by Ms Doohan in her evidence. Other factors said by both the anthropologists and the "primary" witnesses to be relevant to the existence of such a connection were adoption, place of birth or place of conception. These so-called ‘secondary’ mechanisms are not regarded as aberrations to a general rule but as demonstrative of the interconnectedness of various aspects of Aboriginal society.



The kinship system and the sub-section system provide mechanisms not only for marriage outside of sub-groups but also across language groups. This is particular true of the East Kimberley where the above model of social organization is said by anthropologists to be applicable to the various language groups in the region.



Associate Professor Christensen emphasised that all anthropological writing on the East Kimberley and the adjacent Territory since the 1930s (particularly of Professor Elkin and Ms Kaberry) has underlined the comprehensive influence of the "Dreaming" ("Ngarranggarni") and totemism. He states that:

"...the notion of Dreaming pervades all other aspects of traditionally-based Aboriginal societies and cultures."



(Ex A40 p 94)

He stated that the Dreaming simultaneously provides for local independence and authority (for example, "dawawang" rights relating to particular "estate groups") and the affirmation of mutual dependence with neighbouring sub-groups through ritual and ceremony.



Mr Akerman describes the wide scope of the Dreaming, ranging from vast Dreaming tracks where different "estate groups" along the Dreaming track "own", and have responsibility for, their segment of that track.

"From a religious perspective the acquisition of knowledge concerning the metaphysical rationale of the landscape is perhaps the primary way in which an individual can be perceived as caring for country. This acquisition takes place from an early age...As a child grows the stories are placed in a topographical perspective which validates both the mythology and the bond between the Dreaming, the child and the land."



( Ex A48 p 15)

Mr Akerman confirmed the link between Dreaming, ceremony and ritual. Ceremonies related to the Dreaming are held with adjacent groups and communities:

"Initiation and the major cult ceremonies are never held in isolation. Members of adjacent communities and groups (including other language groups) who also celebrate these ceremonies are invited to participate by sending novices for initiation. In many cases senior cult leaders may belong to another group or reside elsewhere, the holding of the ceremony without their approval and involvement would be considered a major breach of protocol."

(Ex A48 pp 16-17)



In the Territory the Miriuwung and Gajerrong participate actively on a ceremonial level with the Murrinpatha community and others resident at Port Keats, the Marithiel at Pepperminarti, Ngalliwurru and Nungalli at Timber Creek as well as their immediate neighbours, the Ngarinman and Jaminjung. In Western Australia ceremonial links are forged with the Gija and the Jaru. To a lesser degree there are ceremonial connections (mainly through the wirnan trade cycle which Mr Barber and Mr Akerman say continues to operate today) with the Wula and the Ngarinyin to the west. Mr Akerman gave evidence that during the late 1970s and 1980s he had seen "wirnan" operating in a cycle through Kununurra, Fork Creek, Turkey Creek and Timber Creek in the Territory.



Mr Barber and Dr Palmer describe the importance of rituals as providing:

"...an opportunity for the estate owners to demonstrate their rights to country through ritual performance...[and] an important opportunity for younger owners to learn the narratives, rituals and other spiritualities associated with their country."



(Ex B5(b) p 16)

The anthropological evidence provided a framework for understanding the "primary" evidence in respect of the acknowledgement and observance of traditional laws, customs and practices.

(e) Genealogical evidence

The genealogical evidence adduced at the hearing was viva voce evidence of "primary" witnesses and of anthropologists for the first, second and third applicants and the fifth respondents; charts prepared by the anthropologists; genealogical charts and field notes prepared by Ms Kaberry in the 1930s, (in particular the genealogies for "Argyle", "Ivanhoe" and "Forrest River") and oral histories recorded by Dr Shaw. (Exs A16-A20) It should be noted that Ms Kaberry’s material remained in raw, or draft, form as field notes and there was some uncertainty amongst the expert witnesses as to the extent to which symbols or notations had consistent meanings throughout the whole material.



By that evidence the applicants sought to establish that the applicants had forebears who were members of an Aboriginal community or communities that occupied the claim area well before Aboriginal people had contact with European settlers and, by inference, before sovereignty was asserted in the State or the Territory. Further, by depicting relationships between Aboriginal people, the material relied upon also spoke of the existence of an identifiable community that had a connection with the land through forebears and which observed, or acknowledged, traditional laws and customs of the forebears.



It has been said that the dependence of Aboriginal societies upon an oral culture, limits knowledge of ancestors to two generations. In some cases the genealogical charts prepared by the anthropologists in this matter extended to four or five generations by use of material provided by other sources such as the Kaberry genealogies and the oral histories. The genealogical charts depict but a small part of a possible range of genealogical connections of the applicants. The purpose of the charts is to show connection between the present claimants and ancestors who may be assumed to have been present in the claim area at the time of sovereignty. The genealogies, prepared as they are from ethnographic material, represent accepted social recognition of kinship and "biological descent" in its widest sense.



The first and second applicants adduced substantial oral evidence from witnesses on kin relationships and connections with the forebears. That evidence was largely consistent with genealogies prepared by the anthropologists.



The preparation of the genealogies involved distilling information from a broad context of ethnographic material and it involved the application of skill and expertise of anthropologists. I was satisfied as to the reliability of the methods employed by the anthropologists in preparing the charts having regard to the general consistency of the content of the charts with the tenor of the "primary" evidence of the applicants. The charts as received in evidence were not restricted to the expression of opinion by anthropologists but were also evidence as to the truth of the statements contained therein. Genealogies duly prepared by anthropologists employing their specialised skill and understanding of the structure and culture of a society represent not only an appropriate field of expert evidence but also a record of statements made to the anthropologists, the record of which is likely to be reliable, the statements made being appropriate to be admitted in a case of this nature.



The respondents did not tender any evidence to contradict the genealogical evidence presented by the applicants. In his primary report Professor Maddock stated that:

"It is likely enough – though no perhaps entirely certain – that the people who were living in the area in 1829 included predecessors and forebears of Miriuwung and Gajerrong whom Elkin and Kaberry could have met in the 1920s and 1930s, who in turn included predecessors and forebears of present-day Miriuwung and Gajerrong. But the evidence shows that among their predecessors and forebears are people from other areas and of other identities."



(Ex 46 p 124)

The Territory made it clear at the outset of the hearing that it was not part of its case to say that the Miriuwung and Gajerrong people were not the "right people in an Aboriginal way" for the Territory area.



As I have said, it is not a requirement that a "biological" connection be made between each member of the Miriuwung and Gajerrong community and an ancestor who was in occupation of the claim area at the time of sovereignty as a member of an identifiable and functioning society. What is required is that there be sufficient connection by way of actual, or implied, genealogical links to show that the community in occupation of the land at sovereignty was the predecessor of a community that now claims native title. Part of that connection is shown by demonstrating the observance, or acknowledgement, by the community in some practical form of traditional laws or customs. As far as the requirement of descent is concerned, it is sufficient to show that an inference may be drawn that known ancestors were connected with the community in occupation at the time of sovereignty and with members of the present community.



Some of the relevant ancestors in this case were identified as Bulla Bilinggiin and his father Joobool, Waddi Boyoi, Grant Ngabidj, Boolngara, Maggie Darrng, Roger Goolboog, Jacob Boondal, Mick Goobaring, Mandi Moore and his father Goonkooyi, Paddy Jidbi, Friday Biwoogeng, Banjo Birrwi, Gijirring, and Jimmy McCarthy. These ancestors were parents and grandparents of present claimants and the oral histories recorded them as living traditional "bush" lifestyles before coming, or being brought, into pastoral stations in the first half of this century.



The primary focus of the submissions of the State on the issue of "descent" was the lack of adherence to strict patrilineal "inheritance" in respect of each "family" or "estate" sub-group. However, the question whether there is an identifiable society in which communal native title is vested is not limited to consideration of sub-groups and the rules by which they operate. The evidence in this matter dictates a conclusion that the concept of communal title goes well beyond "estate groups".



The State also submitted that there had been an extraordinary mixing of persons from different tribal groups within the claim area after European settlement of the region and that the present-day claimants were the products of this fusion and, therefore, as I understood the submission, the community today could not claim connection with the community in occupation at sovereignty.



An example of the material relied upon by the State for that submission is to be found in the connection of Mandi Moore with community members. Members of the community with links with Mandi Moore included the representative claimant Jeff Janama. Jeff Janama’s mother is Daisy Burrwi, whose father was Paddy Jidbi, referred to above. The State, relying upon Jeff Janama’s statement in cross-examination that Mandi Moore’s father was "Goolawarreng", submitted that there was confusion of tribal entities and no link through Mandi Moore to the pre-sovereignty community. Putting to one side the ambiguous nature of the statement having regard to matters referred to below, the submission in turn was predicated upon a proposition that ancestral links with the prior community had to be strictly patrilineal. As set out earlier in these reasons, the evidence shows there can be no such restriction with ancestral links when looking at the connection between present and previous communities.



In any event, the oral histories recorded by Dr Shaw show that Mandi Moore’s father had a Miriuwung identity or connection. (Ex A18 pp 33-35, 206; Ex A19 p 44) Mandi Moore’s connection to Miriuwung country is supported in Ms Kaberry’s genealogies. Marie Wunmi in evidence, clearly stated that her husband, Mandi, was Miriuwung.



Furthermore, Jeff Janama’s links with ancestors also included the link through the father who "grew him up", Bulla Bilinggiin who is identified as Miriuwung and whose father was Joobool. While there was some evidence Joobool was identified as Goolawarreng, I accept the evidence of Sheba Dignari that this identity flowed from Joobool’s marriage outside Miriuwung country.



The genealogies show a broad spread of links with the ancestors referred to above among the representative claimants and others, including Danny Wallace, Carol Hapke, Toby Banmar, Ben Ward, Sheba Dignari, Daisy Burrwi, Marie Wunmi, Nancy Dilyayi and Marjorie Brown. Through ancestors Grant Ngabidj, Boolngara, Maggie Darrng and Goolalpany links are shown in the genealogies to claimants Dodger Carlton and Kim Aldus, Mark and Brexie Aldus and Julie Bilminga.



Linked to ancestors Banmelang, Garrwam, and Langgarruk, a son of Garrwam, all of whom lived in the bush at Damberalm, were Miriuwung people Ben Barney, Charlie Barney, Tommy Barney, Katherine Yarrbi, Maggie John, Peggy Griffiths and others.



Through Boolngara, Gooladooboo and Giguwin ancestral links were shown with Peter Newry, the Boombi family, Blanche Flying Fox, Sheba Dignari, David Newry, Ronnie Yundun, Dinah Dinggul and others. Toby Banmar, and his siblings, are the children of Friday Biwoogeng and Sheba Dignari.



Ancestors Tjimbarrainy, Darim and Waddi Boyoi are linked with Ronnie Carlton, Teddy Carlton, Gypsy Nyirrmoi, Button Jones and others. Waddi Boyoi, who was married to Mignonette Djarmin, told Dr Shaw he had a Gajerrong mother and was regarded as a brother of Grant Ngabidj. (Ex A20 p 13; Ex A16 p 51) He was an important ritual and ceremonial leader for Miriuwung and Gajerrong people (Ex A18 p 147) and Sheba Dignari gave evidence that he arranged her marriage to Friday Biwoogeng. For several periods Mignonette Djarmin had lived a bush life on Carlton Hill Station first as a young girl with Boolngara’s "mob" and later, when married to Waddi Boyoi, who was suffering from leprosy, she returned to the bush with Waddi Boyoi, Grant Ngabidj and others. Ronnie Carlton was born at this time and did not come into the station homestead until he was about eleven years old.



Though Jimmy McCarthy, John Toby, Joe Lissadell, George Dixon and Evelyn Hall were linked to the southern part of the claim area and to the Miriuwung community.



There was no dispute that the evidence established that, either alone or in combination, ancestors such as Grant Ngabidj, Boolngara, Maggie Darrng and Goolalpany were connected to an organized society or societies in occupation of the northern part of the claim area at the time of sovereignty. Grant Ngabidj was married to Maggie Darrng and also to Daisy Djanduin, a Gajerrong woman and daughter of Goolalpany. Maggie Darrng was also married to Boolngara and the claimants Kim, Mark and Brexie Aldus are their grandchildren. The claimant Dodger Carlton is the son of Boolngara’s daughter from another marriage.



According to Dodger Carlton, Maggie Darrng spoke three languages Wardanybeng, Gajerrong and Doolboong and her country, and her parents’ country, was an area along the north of the Ord River as it enters the Gulf above Goose Hill and Wyndham. Elsewhere in the evidence she was identified as the last of the Doolboong. There was also evidence from Ms Doohan that Paddy Carlton consistently described her as Gajerrong.



With regard to the Goose Hill area and the question whether it was Miriuwung country, the State submitted that evidence to the effect that Aboriginal people were hunted off this area and, further, that it was identified as Goolawarreng country denies the present claimants a connection with the community in occupation of this part of the claim area at sovereignty. As stated later in these reasons, I am satisfied that the area at the time of sovereignty had a Miriuwung identity. It may have been an area shared between several communities in that it was the site of congregation of several tribes including Miriuwung and Gajerrong (Ex A18 p 84) but there is no doubt it was "country" which the Miriuwung community used as of right. As I will describe later in these reasons, however, that did not extend to the whole of the Goose Hill area. From the "primary" evidence it is clear that there was continuity of occupation of this part of the claim area and that evidence is corroborated by Ms Kaberry’s field notes and pastoral station records.



Community members, Daisy Carlton and Gerry Moore had a connection with the earlier community through Banjo Birrwi. There was evidence that Goose Hill was part of Banjo Birrwi’s country and, according to Ms Kaberry’s genealogies, he and his parents were linked with Miriuwung country ("Ngamoowalem"). The State submitted that failure to call Daisy Carlton permitted the inferences contended for by the State to be drawn with more confidence. For several reasons I am not persuaded that that is appropriate. First, the relevant evidence was before the Court and there was nothing to suggest that there was material particularly within the knowledge of Daisy Carlton that the first applicants may have been expected to adduce. Second, as set out earlier in these reasons, establishment of the existence of native title does not depend upon evidence connecting each member of the claimant community with ancestors who were members of the community in occupation at the time of sovereignty. What is required is evidence which shows that the claimant community has sufficient connection with the previous community to be able to say that there has been continuity of the communal native title. Part of that evidence will be some evidence of ancestral connection.



The second applicants’ genealogical evidence showing a connection with the Binjen, Dumbral and Nyawanyawam "estate groups" with the community in occupation in the Keep River National Park area at sovereignty was unchallenged and presented further evidence of ancestral links between members of those groups and members of previous Miriuwung and Gajerrong communities



The continuing genealogical links between Miriuwung and Gajerrong people are considerable. For instance, the mother of the Aldus siblings, Topsy Aldus, is Miriuwung, and Gajerrong elder Paddy Carlton is depicted in the genealogies as married to a Miriuwung woman, Katherine Yarrbi.



The interlocking connections, vertical and lateral, with numerous members of the Miriuwung and Gajerrong community were extensive and more than sufficient to support the conclusion that members of the Miriuwung and Gajerrong community had ancestral links to the community in occupation of the claim area at the time of sovereignty.

(f) Observance of traditional laws, customs and practices to maintain connection with prior community and with the land



The evidence adduced by the applicants attests to a community conducted in parallel with European society organized by adherence to, and observance of, traditional laws and customs of a prior Aboriginal community.



For example, almost without exception members of the Miriuwung and Gajerrong community retain, and are known to each other by, Aboriginal names in addition to European names. Further, the practice of assigning "narregoo" names (the names of deceased ancestors, often grandparents) was common and ceremonial bestowal of those names upon children is still undertaken.



The sub-section, or "skin" names referred to earlier in these reasons still forms part of the organization of the community. Most witnesses were aware of the skin names which applied and although some younger witnesses had lesser knowledge they were aware of its significance to the community structure. Demonstrating connection between the sub-section system, relationship to country and Miriuwung identity, Peter Newry gave the following evidence when asked if he was able to explain where the skin names came from:

"From the mother and the land.

Counsel: Mother and the land?

Yes. That’s the rules of Miriuwung, that was laid here before everybody.

Counsel: Right.

We’re following the same thing.

Counsel: When you say that skin comes from mother --.

Yes.

Counsel: How do you mean?

Because its like me, I’m djaburda, I come from nanagu, and father tjulama.

Counsel: Yes.

Its a bit hard for gardia to understand.

Counsel: Yes. And what about when you say the skins come from the land, what do you mean by that?

That’s Miriuwung, Miriuwung land."

Ms Kofod also stated in her report that "Despite the disruption to traditional life, people remember and use skin names. They know the relationship terms and also something of the obligations and restrictions involved. It is still an important part of life for lots of people." (Ex A36, Appendix A, p 5)



Marriage rules based on the sub-section system have yielded to the influences of the surrounding European lifestyle but the avoidance rules and taboos of that system remain relevant to community behaviour and are adhered to. Avoidance of places according to the requirements of traditional laws is observed and the names of the recently deceased are not to be spoken.



Traditional ceremonial practices are still followed including, as noted earlier in these reasons, initiation ceremonies. The passing-down of ritual knowledge incrementally from elders to others continues to be followed and there is an impression of strong belief in the value of such ritual in the organization of the community. Rules on the restriction of access to such knowledge are rigidly applied.



Ngarranggarni stories are known and referred to regularly and the elder members of the community regard themselves as obliged to transfer this knowledge to younger members. Evidence of the acknowledgement of traditional laws, customs and practices was manifest in the pronouncement of spiritual beliefs and obligations in respect of Ngarranggarni sites and tracks.



Considerable evidence involving the Ngarranggarni arose in different contexts; for example, descriptions of sites and names of "country" and topographic features; descriptions of ceremony and ritual and of particular relationship to country. It was clear that the Miriuwung and Gajerrong people had extensive knowledge of the obligation to care for the land associated with the Ngarranggarni and to pass on knowledge of the Ngarranggarni and of the responsibilities to be undertaken in that regard. The Ngarranggarni formed part of the group identity of the Miriuwung and Gajerrong people, linking them to the land, to each other and to their ancestors.



An important Ngarranggarni story in relation to the claim area is that of the White Crane and Eaglehawk. It is transcribed in Miriuwung in the report of Ms Kofod. (Ex A36, Appendix B) The story was told to Dr Shaw by Grant Ngabidj, Mandi Moore and Bulla Bilinggiin. (Ex A16 pp 128-130; Ex A18 pp 134-135, 175-178) Similar versions of the story were given in evidence by Nancy Dilyayi, Carol Hapke, Dodger Carlton, Sheba Dignari, Danny Wallace and Marjorie Brown. It is primarily associated with sites in the Ord River valley. The Gajerrong version of the story as given in evidence by Dodger Carlton, started from Needle Point in Gajerrong country and travelled down, and through, the Ord region.



In Miriuwung country the Dingo Ngarranggarni, associated with Yardanggarlm (Dingo Springs), was recorded by Dr Shaw from Bulla Bilinggiin. (Ex A18 pp 173-174) In the evidence of Danny Wallace it was said that it extended north, north-east to Spring Creek and on to Mistake Creek in the Territory. Dr Shaw also recorded Grant Ngabidj’s account of the story which commences in Gajerrong country with which he was connected, in the north-west of the claim area at Boorroonoong (Lacrosse Island) and Shakespeare Hill:

"The dingo ngaranggani or dreaming of the early days tells how they helped the blackfellars by bringing down fire... The dingoes came along all the way down the Ord River from the top, starting from my country down across Shakespeare Hill and Burrunungun near Wyndham, going the bushway to where Dingo Springs is now and dying there."

(Ex A16 p 65)



Grant Ngabidj told Shaw about his personal Ngarranggarni connection as follows;

"My proper name, given by my mother is Wilmirr. I do not like to use it when dealing with white men. It comes from another dreaming that of the pelican marrimarri, that big white bird like an eaglehawk [wedge-tailed eagle] which you can hear whistling in the water. My father’s dream was the pelican too, but it all comes from the mother, for it is from her dream that you get your skin name. That is in the Law."

(Ex A16 p 32)



There was "primary" evidence that the Ngarranggarni totem for Gajerrong country was the Pelican and that the Pelican Ngarranggarni linked Ngarrmorr (Pelican Island) to the mainland. Dodger Carlton gave evidence of an associated Ngarranggarni of the Brolga making freshwater springs on the northern coast and travelling east towards the Territory.



In the south of the claim area an important Ngarranggarni is that of the Barramundi. The story is recorded in K Palmer & N M Williams, "Aboriginal Relationships to Land in the Southern Blatchford Escarpment Area of the East Kimberley", (Ch 2), Aborigines and Diamond Mining, Editors: R Dixon and M Dillon (Nedlands: University of WA Press, 1990) (Ex A43)). A similar version of the story was given in evidence by John Toby and Chocolate Thomas in which it travels south through Goowooriny, the range of hills running north-south through the Glen Hill area.



A Kangaroo Ngarranggarni was said to run through the eastern part of the claim area involving Gajerrong country to the north-east and Miriuwung country between Dumbral and the Ord River.



A good example of the manner in which the Ngarranggarni provides a connection between the present claimants, their ancestors, and particular parts of the claim area is in the Gurrgrurdjing (night owl or tawny frog mouth) story. Mandi Moore told Dr Shaw it was one of his personal Dreamings given to him by his father. (Ex A18 p 34) Jeff Janama told Dr Shaw also that, through Mandi Moore, it became his personal Dreaming and that of his siblings and children. (Ex A 18 p 110) This was confirmed in evidence by Jeff Janama, his sister Nancy Dilyayi and his adopted son Ben Ward. In evidence Jeff Janama said that the Dreaming started from Yirralalem country and Nancy Dilyayi identified a specific site for the Dreaming near Janayiwum Creek on Yirralalem Hill.



In observance of courtesies to spiritual figures, persons with responsibility for an area of spiritual significance introduce a stranger to that place by touching that person with water or with leaves, a gesture known as "mantha".



Mr Akerman in his report (Ex A48 pp 15-18) emphasised the link between ritual, ceremony, the land and the community. Mr Akerman’s and Mr Barber’s testimony as to the ritual and ceremony they have witnessed since the late 1970s was sufficient in itself to establish the contemporary vitality of ceremonial law and custom but, in addition, there was considerable oral and visual evidence of contemporary ceremony and ritual associated with the claim area to support that conclusion.



It was not the case, nor was it contended, that the content of the ceremony and ritual had remained static since settlement. Rather they were dynamic, traditionally based activities which served to reinforce and maintain the connection of the Miriuwung and Gajerrong people with the claim area. For instance, the joonba or dance known as Ngalwirriwirri, was said to have been found on Argyle by clever men Daylight and Boxer who were not from the claim area. (Ex A48 p 8; T Swain, "A Place for Strangers - Towards a History of Australian Aboriginal Being", (Cambridge: Cambridge University Press, 1993) at 233-242.)



Rules relating to control of knowledge of separate men’s and women’s law are followed and regarded as important in the organization of the community. There is a common belief that breach of an important aspect of Miriuwung Gajerrong "law" will visit consequences upon that person.



As noted earlier in these reasons, there is deep community interest in the preservation of the Miriuwung and Gajerrong languages, the significance of that having already been discussed.



There was evidence of the contemporary use of natural resources found in and around the claim area for ceremonies and tool-making, in particular, ochre for the former. Consistent with the "primary" evidence, the archealogical evidence suggested that sources of ochre within Miriuwung and Gajerrong country were limited and that all locations of ochre were associated with sacred sites. (Ex A11 p 20)



Traditional skills handed down through generations remain, for example, the making of spears still serves a purpose in fishing in riverine pools. Members of the community continue to hunt, fish and gather traditional foods in the claim area including reptiles, wallabies, yams and bush fruits.



It was apparent from Ms Kofod’s evidence, and from the "primary" evidence, that members of the Miriuwung and Gajerrong community retain substantial knowledge of the location and use of bush foods and bush medicines, and from time to time rely to varying degrees on these resources for their dietary and medicinal needs. The skill and knowledge required in the gathering and preparing of these medicines and foods is strong evidence of the maintenance of physical connection with the claim area and of the oral transmission of knowledge across generations by the Miriuwung and Gajerrong people since settlement. Similarly, the practice of hunting and fishing is not only motivated by the desire for sustenance but by the desire to maintain a connection with the land and with their ancestors. There was evidence of specialised knowledge of the methods for hunting certain animals such as the echidna and the goanna, and of the proper or customary way to prepare and cook them. There was also evidence of contemporary observance of certain food taboos and restrictions, indicative of ongoing totemic relationships.



As the ecology of the claim area, and the nature of the occupation of it by the Miriuwung and Gajerrong people, has changed since settlement their opportunity to engage in traditionally-based activities on the land has been restricted. However against the historical background discussed above, namely, the manner in which people were brought into the stations in the early years of settlement; the changes brought about by the pastoral industry and by the Ord River irrigation scheme; the drift from the pastoral stations into the town of Kununurra in the late 1960s and 1970s; the story presented by the evidence remains that of a people who have sought to maintain their connection with land in a practical sense. First, through the use of "holiday time" while working on the stations and, thereafter, by seeking to establish outstations on traditional country to give them the opportunity and authority to continue traditional links.



As noted earlier in these reasons, there is a very strong affiliation with particular areas of land by particular groups in the Miriuwung and Gajerrong community, not restricted to the groups represented by the second applicants. The Court was left with the impression that fundamental ties to the land remain. There is acceptance of obligations to care for country and to protect sites of spiritual and ancestral significance. Community members know their land by place names that have been passed on by members of Miriuwung and Gajerrong communities making connection with the land of particular significance to them.



In so far as the case for the respondents contested the foregoing, in cross-examination Professor Maddock agreed that he was not asserting that there had been a complete breakdown of knowledge, acknowledement and observance of traditional laws, customs or practices of the Miriuwung and Gajerrong community and conceded that the overall culture of the community could be said to be at least, in part, rooted in the past. The effect of his evidence was that while traditional laws and customs remain there had been a weakening of the links between the component parts of that system or organization.



The manner of exercise of activities connecting community members with the land is not of supervening importance. The question is whether the links with forebears are relied upon for the right to enjoy, or the obligation to perform, such activities. From the evidence presented I have no doubt that that requirement is satisfied.



Change or variation in the practise of traditional laws or customs will not declaim loss of native title. The question to be asked and answered is whether the community claiming native title retains a form of practice of traditional laws and customs that shows that, as far as is practicable, it has a connection with the land that may be attributed to an ancestral community.



The evidence in this case is clearly sufficient to provide an affirmative answer to that enquiry.





(g) Conclusion



The first applicants claim native title as a communal title of the Miriuwung and Gajerrong community. The second applicants claim that native title vests in them as persons who "speak for" the "estate groups" of the Miriuwung and Gajerrong community in the Territory area. Whilst the first applicants did not present their claim as the claim of "estate groups", either severally or in combination, it was accepted by the first applicants that such sub-groups were part of the Miriuwung and Gajerrong community having links to particular parts of the country, being organized on kinship and sub-section systems which were part of the traditional laws and customs of the community.



The evidence of the third applicants was not concerned with sub-group organization and the sub-section system was not part of the traditional laws of the community the third applicants represented.



According to the evidence received in this matter "estate" or "family" sub-groups continue to play a part in defining a Miriuwung and Gajerrong community. As implied in the description, an "estate" or "family" sub-group is based on descent but on the evidence received in this case its structure now is flexible, not limited to a "once and for all" delineation by birth under a system of strictly patrilineal or matrilineal descent. A person may be included in such a sub-group by adoption and may opt in, or opt out, by exercise of choice.



There were numeous examples of evidence to that effect in this case, in particular, in evidence given by Rita and Stephanie Boombi, Peter Newry, Button Jones, John Toby and George Dixon.



The evidence established that whilst there may remain a patrilineal bias or expectation in the organization of such sub-groups, young Aboriginal people may have several choices presented by lines of descent as to which sub-group they will identify themselves. Other grounds of choice may be provided by the locus of conception, birth and by adoption. According to the general tenor of the evidence in this case, any right to claim membership of a sub-group, and thus of the community as a whole, may depend upon the course of life of the child concerned. According to life experience, what degree of association the child establishes with one family group rather than another, and what degree of education the child receives in traditional or religious matters of the relevant family group will determine what election is available or has been made. (K Maddock ,"The Australian Aborigines - A Portrait of their Society" at 39-41.)



The major changes inflicted on Aboriginal societies by European settlement imposed acceptance by Aboriginal communities of flexibility in defining community membership by the exercise of choice by children as to the group with which they became identified. (P Sutton, "Native Title and the Descent of Rights", (Perth: National Native Title Tribunal, 1998 at 50, 63-64, 66.)



In pre-settlement times the definition of an Aboriginal community would have been made more plain by a number of factors. Mutual recognition of the connection of the Miriuwung and Gajerrong languages with land occupied by the community would have been reinforced by the universal use of the languages within the community. More frequent assembly of community members for ritual and ceremonial activities and for expression or dissemination of shared religious beliefs in respect of the land occupied would have provided clear and regular statements and delineation of community membership. The common acceptance, and disciplined application, within the "estate" or "family" sub-groups of the customary rules and practices of the community in respect of rights and obligations of kinship, restrictions on marriage and membership of the sub-group according to descent, would have instilled and underlined recognition of a community of which the sub-group was part and from which it received the traditional laws and customs observed.



How the occupying societies operated is not an element to be proved in a native title claim but it is likely that sub-groups (whether described as "estates", "families" or "clans") were numerous, more structured, and more engaged in the political and economic affairs of the community. (R M and C H Berndt, "The World of the First Australians", at 39-45, 97.) Responsibility for control of tracts of land according to the traditional laws and customs of the society, defined particular areas of country to which members of sub-groups had close affinity, "belonged" or "spoke for", but the community as a whole occupied the land, and rights in respect of the land, including usufructuary rights, which arose out of that occupation were exercised in the society according to its laws and customs. At common law, the native, or aboriginal, title of that community would be a communal title held by the community, not separate and discrete vestings of native title in sub-groups, notwithstanding that control of, and responsibility for, the country of the sub-group was an important part of the maintenance of community life.



With European settlement in the East Kimberley, and its impact upon Aboriginal people and their lifestyle as described, Aboriginal communities had to face and accommodate substantial change. Events such as near extinction of sub-groups and removal of people from the country in which the sub-groups were located brought greater reliance upon the identity of the Miriuwung or Gajerrong community than the identity provided by a sub-group. Such adjustment was a necessary phase in the development of this Aboriginal community in the East Kimberley.



The territory of the Gajerrong community was adjacent to Miriuwung and they shared economic and ceremonial links. Those links were reinforced when the extent of the depletion of Gajerrong people after European settlement saw Miriuwung and Gajerrong become regarded as a composite community with shared interests. The members of that community were still Miriuwung people and Gajerrong people but with a common outlook and beliefs, and common traditions and customs in respect of the land with which they were connected.



The evidence adduced in this case demonstrated substantial consistency with the concept of a "tribal group" advanced by Professor Elkin in "The Australian Aborigines – How to Understand Them" (2^nd Ed), (Sydney – London: Angus and Robertson, 1943) (at 22-25). As described by Professor Elkin, such a group is comprised of people related by actual and implied genealogy who occupy and are in a definite area of territory and hunt and gather food over it according to rules which control the behaviour of smaller groups and families within the tribe. The identity of the tribal group is reinforced by shared use and possession of language. The sub-groups make the community work by acting as the economic units which take sustenance from, and are responsible for the upkeep of, the land and for the protection of sites of religious or ritual significance for the community according to traditional laws and customs that have been handed down from Dreamtime figures. Sub-group reliance upon kinships systems and lines of descent provided order in the community (at 27). The exogamous nature of the sub-groups, (which according to the anthropological evidence was historically the case with Miriuwung and Gajerrong sub-groups), meant that there were contacts, ties and understandings between the sub-groups. The elder men and women of the community, with authority based on knowledge of laws and customs and of secret matters, were drawn from the sub-groups to organize ceremonial activities and rituals, such as initiation, for the "tribal" group (at 40).



The clear thrust of the evidence from both the first and second applicants is to the effect that there is an organized community of Aboriginal people, described as Miriuwung and Gajerrong, which possesses 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 or Gajerrong. The second applicants do not deny the connection of the Miriuwung and Gajerrong community with the land of the Territory area but assert that the common law right of native title, based on occupation and possession, is vested in the sub-groups represented by the second applicants.



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 area at the time of the assertion of sovereignty in the State or the 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 organized that responsibility for, and, indeed, control of parts of the area occupied by the community may be exercised by sub-groups whether described as "estate groups", "families" or "clans" but the traditional laws and customs which order the affairs of the sub-groups are the laws and customs of the community, not laws and customs of the sub-group.



The inter-relation, and allocation of rights, between the community and its sub-groups is governed by the traditional laws and customs of the community. As stated earlier in these reasons, how the traditional laws, customs and practices of an organized indigenous community distribute, or recognize, the exercise of rights or usages which depend upon native title is irrelevant to a determination that native title exists.



The connection with land of a Miriuwung and Gajerrong person may be reinforced by, but is not subordinate to, a particular connection with part of that land as a member of a sub-group of the community which exercises rights and duties in respect of that part of the land. The second applicants who represent several sub-groups with particular connection to part of the claim area may have been included among the first applicants as representatives of the Miriuwung and Gajerrong community. One of their number, Peter Newry, was named as one of the first applicants.



The traditional laws, customs and practices of the Miriuwung and Gajerrong community provided for the distribution of rights in respect of the use of the land for sustenance, ritual or religious purposes. For example, a member of the Miriuwung and Gajerrong community is entitled to forage over Miriuwung and Gajerrong territory, and is not confined to the "country" of a sub-group with which that person has connection. As a matter of courtesy or custom that person may be expected to inform the "dawawang" of a sub-group, as persons responsible for the "country", of the intended use of the land in the care and control of the sub-group and to confirm that Miriuwung or Gajerrong traditions and customs would be observed by that person on that land, however, the right to be on the land arises under the laws and customs of the community and not of the sub-group. (See: Report by Toohey J, Aboriginal Land Commissioner, Daly River (Malak Malak) Land Claim, 12 March 1982, pars 5, 119, 124, 126, 175). As Ben Barney, a member of the Dumbral "estate group", said, he was entitled to live on Dumbral land under Miriuwung law.



The evidence of Marjorie Brown given on Lake Argyle on a boat anchored above the site of the former Argyle homestead, being "country" with which she had connection through a conception totem and birth, exemplified the point:

"Once you're a Miriuwung country, this whole country belongs to us, for Miriuwung people, not the Gija, not Ngarinyman. This Miriuwung.

Counsel: Who told you this was Miriuwung country?

My mother, my father, my ngajang, [paternal grandmother] my gagayi, [maternal grandmother] everybody.

Counsel: How do you get a particular area? You have this particular area that you're interested in because you grew up here.

Yes and our Dreaming is here, Ngalwirriwirri Dreaming and I was born here. My birth stone is underwater, just there on the other side there. My birth stone is there.

Counsel: How do you get a country? Can you only be interested in the country that you were born in? That is to care for that particular country.

We care for the place we're born in but we also care for the rest of the Miriuwung country. That my country too.

Counsel: I thought you said that particular families, groups of families, I don't want to misquote you, but I think you said specific families have areas of some country.

I'll say it again. There's about twenty Miriuwung families or maybe more, right. Every Miriuwung elders, there's old man Bulla, old man Bungledoon, this old man... All these people have little bits, part of the Miriuwung country. Us mob, we have this part of the Miriuwung country. The Dardi Jep mob, they have the Ivanhoe side of the country. Now, every part of the country is Yirralalem. Every part of the country has this group of Miriuwung people, they're families, right. They look after that area but they also look after the rest of the area. We all put in to look after our country.



Counsel: But who says that they look after a particular area, like Yirralalem, who says that that country has to be looked after by some particular person or persons?

Our old people. We have to follow our law. It's happened in the past and it's still happening today. We still look after our country. Everybody - every Miriuwung person has certain rights to this Miriuwung country and they looked after. They just don't look after the area that they - where they come from, where they were born, because our Miriuwung country is big, we look after every part of the Miriuwung country, you know, all the Dreamings. The Dreamings are not where we live, right where we live, where we actually live. They could be up in the hills. That might be too far away from those Miriuwung people so the closest Miriuwung people look after them so this is us. We can look after this Dreaming, we can look after that Dreaming, and the rest of the Miriuwung tribe will know that the top end Miriuwung people are looking after our country."

The association of the community of Miriuwung and Gajerrong people with land in the East Kimberley region does not appear to have been in issue until this proceeding commenced. Public information signs erected by the Territory at the entrance to the Territory area inform tourists that the park falls within the "tribal lands" of the Miriuwung Aboriginal people whose long association with the area is evident in art sites, rock carvings, shell middens, bird traps, all being sites of cultural importance to the "traditional owners". The signs also state that Gajerrong people are "neighbouring" people regarded by Miriuwung as "countrymen" and that traditionally they met for ceremonies. Similarly, signs erected by the State in the Mirima National Park (Hidden Valley), near Kununurra, inform visitors that the park is a place that has been used by Aboriginal people for thousands of years as evidenced by rock paintings, engravings, grinding stones and stone tool-making sites. The signs state that Mirima is a special place for Miriuwung people containing sites of Dreaming stories which tell how the land was formed, and plants which provide them with food and medicines. The signs also acknowledge that cultural ceremonies continue to be performed there.



I am satisfied by the evidence that the Miriuwung and Gajerrong community has maintained a connection with the ancestral communities which held the native title at sovereignty and has maintained connection with the land to which that native title applied.

Boundaries of Miriuwung and Gajerrong land



As stated earlier in these reasons, precision is not to be expected in speaking of the boundaries of native title held by a community, particularly when the right to exclude others from land at the outer limits was likely to be shared with neighbouring communities.



Miriuwung and Gajerrong communities were occupants of adjacent territories which overlapped in part and, although they used separate languages, they shared knowledge of Dreaming myths, Dreaming tracks and Dreaming sites and cooperated in ritual and economic activities.



The boundaries of that territory cannot be accurately described at this time. From what is known there can be little issue that in most respects the area now described as Miriuwung "country" is within the area occupied by the original society. The boundaries of Gajerrong territory, however, were in issue and it was contended by the respondents that Gajerrong "country" was outside the claim area.





(a) Miriuwung boundaries



The connection of Miriuwung people to the claim area is consistently described in the evidence. Ethnographical maps, particularly those of Ms Kaberry, provide general support for that evidence. The location of the Miriuwung tribe, or language group, shown in broad terms in those maps, by and large, follows the description of Miriuwung "country" given by "primary" witnesses in these proceedings and the description of Miriuwung "country" given by Dr Shaw’s informants in the 1970s.



According to those witnesses Miriuwung country was the Ord River valleys and environs, being the area formerly covered by the Ivanhoe, Argyle and Newry pastoral leases and, therefore, includes the claim area in the vicinity of Kununurra and Lake Argyle and the Territory area. It was apparent from evidence such as that given by Marjorie Brown and the accounts recorded by Dr Shaw that despite the flooding of the Ord Valley and the development of Kununurra those areas were still regarded as Miriuwung country. (Ex A18 pp 11, 170-173)



In approximate terms the northern boundary of Miriuwung territory extended from the Ord River, north of Goose Hill, to Point Springs, north-east of Kununurra, and further east into the Territory beyond the Territory area. To the north of Miriuwung was Gajerrong territory.



Miriuwung country was described in the oral histories (Ex A18 pp 85, 170) and in the "primary" evidence of Danny Wallace and Ben Ward as extending south-east as far as Spring Creek and Mistake Creek Stations and to the east to Waterloo Station in the Territory. Ms Kofod’s report (Ex A36 pp 9-10) and material gathered by her in "Warmun" (Turkey Creek) as to the language in Dreaming stories puts the use of Miriuwung language extending well south of the claim area.



A recent heritage survey by Mr Barber and others identified Daisy Burrwi and Marie Wunmi as "primary owners" and Jeff Janama as "custodian" of that part of the claim area east of Lake Argyle and north of the Ord River (Ex A54 pp 49-51) and this was confirmed by John Toby in evidence and by Daisy Burrwi who, as noted earlier, said her father’s country went from Ivanhoe "right up Mistake Creek".



Professor Tindale’s mapping of Miriuwung was, in some respects, not consistent with this evidence. (Ex 40) Associate Professor Christensen stated that Professor Tindale’s depiction of tribal areas had Miriuwung country "shaved on its western and eastern flanks, much reduced in its southern extensions and bulbous northwards". (Ex A41 p 60) In Mr Akerman’s view, Professor Tindale’s map crops Miriuwung country on its southern boundary. (Ex A48 p 4)



In the part of the claim area within the State the issue between the first applicants and the respondents as to the historical boundaries of Miriuwung country was, in the main, in respect of the margins of the area, such as the Goose Hill area on the west and to the south the Glen Hill area and land to the south of Lake Argyle.



The ethnographic maps do not purport to set exact boundaries of Miriuwung country in these areas and provide only a general geographic indication.



The State contends that there was a general shift or movement of the location of Miriuwung speaking people after sovereignty. The exact nature or direction of the shift asserted was not entirely clear. In respect of the Goose Hill area it was suggested there had been a northward movement of the Miriuwung people and that the Miriuwung connection to that area was of recent origin. In respect of the southern part of the claim area it was suggested that the area was Gija territory last century and, by inference, that the Miriuwung community had expanded southward.



A degree of indeterminacy is to be expected in the alignment of boundaries of tribal or language units and at the edges of the tribal territory acknowledgement of shared interests will be reflected in descriptions of country affiliation as "mixed" or as "half-half", eg Miriuwung-Gija mix. Primacy of affiliation is often given to the language that is first mentioned. (P Sutton, "Language in Aboriginal Australia: social dialects in a geographic idiom", Language In Australia, Editor: S Romaine (Cambridge: Cambridge University Press, 1991) 49 at 53-55; Associate Professor Christensen, "Supplementary Anthropological Report" Ex A40 pp 80, 83.) The evidence in these proceedings suggests that there may have been in the past a shared Miriuwung-Goolawarreng use of the Goose Hill area and that the southern part of the claim area has had in the past, and retains, a shared identity for Miriuwung and Gija people. Such mixing indicates that Miriuwung and Gajerrong were communities within a region of communities and does not in itself suggest a population shift, nor does it deny the Miriuwung and Gajerrong people a continuity of connection to those parts of the claim area.



In earlier times the Goose Hill area had been a meeting place for a number of tribal groups including Miriuwung, Gajerrong, Doolboong and Goolawarreng. (Ex A18 pp 84, 147) In "primary" evidence the area was identified as "Miriuwung-Guluwaring mixed" and linguistic and cultural similarities between the Miriuwung and Goolawarreng were emphasised. There is no evidence that people today claim traditional connections to Goose Hill as Goolawarreng people or identify as Goolawarreng. While it might be inferred that there has been a loss of some of the linguistic and cultural diversity since contact, it cannot be said that Miriuwung identification with the country is of recent origin.



In the course of taking "primary" evidence near Goose Hill it became apparent that no claim was made by witnesses for the first applicants to country west of Goose Hill, identified as the Parry Lagoon area. That area was said to be for a cultural and linguistically distinct people the Boogayi and who had all died out. At the same time Mona Williams, one of the third applicants, was said to have an interest in the Parry Lagoon area and she in turn acknowledged a Miriuwung interest in the eastern part of the Goose Hill area.



It was said by Sheba Dignari that Doolboong country was west of the claim area and included part of the claim area to the west of Goose Hill. The demarcation of territory was a creek line described by the witness. (Ex A8 - mark "J7") As stated earlier, according to Grant Ngabidj, Doolboong country was "below Goose Hill". (Ex A16 p 161) According to the evidence presented, Doolboong is extinct as a separate Aboriginal community. Some members of the Miriuwung and Gajerrong community have Doolboong links but it was not submitted that a Doolboong community remains extant as part of the Miriuwung and Gajerrong community. The "primary" evidence for the first applicants did not contend that Miriuwung country had been expanded to include the Doolboong country. That part of the claim area west of Goose Hill, being the area west of the line drawn by Sheba Dignari between Parry Lagoon and Muggs Lagoon must be excised.



As to the southern part of the claim area, the evidence of Mr Akerman, Dr Palmer and Mr Barber based on recent heritage and site survey work suggested that the country may be identified as "Miriuwung-Gija mix" and that the persons holding rights and interests in this country included Gija-speaking people. There was "primary" evidence adduced by the fifth respondents as to rights and interests held by a family group identified as Gija-speaking people. Two of the members of that group, Joe Lissadell and Chocolate Thomas, are included in the first applicants as representatives of the Miriuwung and Gajerrong people.



In that southern part of the claim area between the Ord and Bow Rivers south of the junction, there was conflicting evidence as to whether the Aboriginal persons acknowledged to have rights and interests in that area now identified as Miriuwung people. John Toby said it was Miriuwung country because those people were Miriuwung people and he was supported in this by Ms Kofod. Chocolate Thomas said it was Gija country. The fifth respondents adduced evidence from Maggie John and another witness that at least part of this area, extending to east of Lake Argyle and to north of the Behn River was Malngin country.



Having regard to the whole of the evidence, I am satisfied that, historically, Miriuwung people were connected with the southern part of the claim area and that the connection has been maintained.



The evidence also suggests, however, that in respect of that part of the claim area the right to use the area may have been shared and native title also held by Malngin and Gija communities. No determination to that effect can be made in this proceeding under the Act as amended. If communal title is asserted by communities claiming connection with the original Malngin and Gija communities, that may require an application for declaration of a common law right in a court of competent jurisdiction.





(b) Gajerrong boundaries



The respondents contended that all, or part, of that part of the claim area, said by the first applicants to have been Gajerrong country, was occupied at sovereignty by other communities and not by people who identified themselves as Gajerrong.



It was accepted that Gajerrong was not the only language spoken in, and identified with, the northern part of the claim area at the time of sovereignty. In the "primary" evidence extinct languages Wardenybeng and Doolboong were acknowledged to have been associated with this area albeit that use of the area was said to be mixed in with Gajerrong. No vocabulary other than the language names themselves has been recorded. In these proceedings Wardenybeng was described as a language very similar to Gajerrong. The impression I gained from the evidence is that they could be regarded as mutually understood dialects. The Doolboong language differed more markedly from Gajerrong although the inference has been drawn by linguists that it would have formed part of the Djerag langauge group.



Overall, the evidence supports a conclusion that, as the fifth respondents conceded in respect of that part of the claim area identified as Ningbing, "as far back as living memory goes those who identified as Doolbung, Wardenybeng and Gajerrong mixed together socially and culturally and exploited the resources of the land together".



Persons who are now identified as Gajerrong people, namely Dodger Carlton and the Aldus siblings were said to have spiritual or religious responsibility to look after the northern part of the claim area under the laws and customs acknowledged by the Gajerrong people. It was also acknowledged that other Aboriginal people, namely, Frank Chulung and the Gerrard family had rights and responsibilities in respect of that part of the claim area. Apart from Frank Chulung, who was not called to give evidence by the fifth respondents, there is no evidence that there was any Aboriginal person identifying as Doolboong or Wardenybeng asserting an interest in this area. As stated above, it was also clear from the evidence, and not really disputed by the respondents, that these persons had ancestral connections to the organized community in occupation of the north and north-west parts of the claim area at the time of sovereignty.



It was Associate Professor Christensen’s view that, having regard to the work of Ms Kaberry and what was told to Dr Shaw by Grant Ngabidj, Gajerrong may have been an overall tribal label, or a portmanteau term, by which the society in occupation of the northern part of the claim area at the time of sovereignty was identified. (Ex A41 p 56)



The map prepared by Ms Kaberry to accompany her major work "Aboriginal Woman Sacred and Profane" (Ex 44) and which serves as a descriptive illustration to assist understanding of the text, shows Gajerrong to be to the north of Miriuwung, extending east across the Territory border from the east side of the Gulf. One of the earlier sketch maps prepared by Ms Kaberry (Ex A42) is especially interesting in that it appears to suggest that Ms Kaberry formed the view that Gajerrong was a label synonomous with "nulamo", a term used by Aboriginal people in the Forrest River area to refer to peoples to the east and covering placenames such as Jalil, recorded by Ms Kaberry as the "gra" for Maggie Darrng’s sibling, mother, and maternal grandparents and Mulali (Reedy Creek), being locations in an area that the respondents contend was Doolboong country. Significantly, unlike Gajerrong, there is no mention in Ms Kofod’s written work or field notes of Wardenybeng people or language, and sparing reference to Doolboong with no indication that either of them existed as a tribal group.



It was apparent from Ms Kaberry’s Forrest River genealogies (Ex A57), and Associate Professor Christensen’s analysis of them, that Ms Kaberry recorded the names of numerous persons whose "gra" or country was said to be a location within the area described in the "primary" evidence as Gajerrong territory, including Boorroonoong (Lacrosse Island) and Minini (Elephant Hill), on or within the claim area, and Jalil, Mulali and Ningbing, outside it.



In apparent conflict with the map prepared by Ms Kaberry is Professor Tindale’s work "The Aboriginal Tribes of Australia", in which a tribe described as "Duulngnari" is shown as occupying the entire north and north-west of the claim area from the eastern side of the Gulf to the other side of the Territory border where the tribal country of Gajerrong is depicted. (Ex 40)



In the text, Professor Tindale (at 153) states that Duulngnari is comprised of three constituent hordes "that some aborigines claim are separate tribal units. They are the Pokai on the mangrove margins of the Cambridge Gulf south of Mount Connection, the Kanjai between that eminence and Knob Peak, and the Wardaia extending east to the mouth of the Keep River."



In her evidence Ms Kofod said that the word Duulngnari may have a similar meaning to Doolboong, "-ngarri" being a pan-Kimberley suffix sometimes attaching to language names, having an equivalent meaning in other languages to the Miriuwung "-woong" or "- boong". She also gave evidence that Wardaia may equate to Wardenybeng.



Whilst Associate Professor Christensen accepted that Duulngnari could equate to Doolboong, he noted that a distinction was to be drawn between the nature of the use of the word Doolboong in evidence and the use of Duulngnari by Tindale. He said it was plausible Tindale had used the term to gloss a complex grouping.



Professor Maddock held a contrary view to that of Associate Professor Christensen and preferred Professor Tindale’s mapping to that of Ms Kaberry as Professor Tindale’s work was explicitly concerned with boundaries at the time of sovereignty. But unlike Ms Kaberry’s mapping there is no evidence as to the basis on which Professor Tindale settled the identity of country for the "Duulngnari". For example, there is no evidence that he conducted any field work in the claim area and he appears to have rejected the field notes of Professor Birdsell, who was said to be his principal informant in respect of the claim area. (Ex A41 p47) There was also evidence from Mr Akerman that Professor Tindale, in a meritorious attempt to map the tribal areas for the whole of Australia, had been unable to avoid clear errors in some instances. Further, as stated above, taken as a whole Ms Kaberry’s mapping of the Miriuwung and other tribes was more consistent with other evidence received.



Grant Ngabidj told Dr Shaw (Ex A16 p 31) that he was a Gajerrong person and described his right to occupy and make use of the natural resources of the north coastal area and the eastern side of the the Gulf.



Dr Shaw was extensively cross-examined on his recording of Grant’s Ngabidj’s birth place as Cow Creek (Ex A16 p 31), it being put to him that it was more likely that Grant Ngabidj’s place of birth was Skull Creek on the west side of the Territory border. I am not persuaded there is any error in that part of Dr Shaw’s record. It is consistent with other material he recorded:

"My father gave me a sandy island called Wundarri on the coast where I was born. ... It was a very long island joined to the mainland by a marsh with mangroves growing on it. We called the mangroves Balimbarr and they stretched from Kamilili near Bamboo Spring and Wungabal on the limestone towards Brolga Spring."

(Ex A16 p 32)



It is clear that Dr Shaw was told by Grant Ngabidj that prior to the massacre of his people by the proprietors of Ningbing Station before World War I, Ngabidj, as a young boy, lived a traditional life with his family along the northern coastal part of the claim area between the Gulf and Keep River. (Ex A16 pp 32-35)



The history records the types of "bush tucker" found and eaten in the area when Ngabidj was growing up. Water was obtained from wells dug in the "early days" not far from the sea, and found by lifting up stones when the tide went out to expose fresh water springs. Ngabidj describes an island called Ngarrmorr (Pelican Island) and how people would get to Ngarrmorr on the retreating tide from Wundarri, swimming on logs to hunt porcupine (echidna), pelicans, flying foxes and white cranes and to collect turtle eggs. They would stay overnight and return in the morning.



When Grant Ngabidj was perhaps about ten years of age he saw the European managers of Ningbing Station round up his people near Grant Creek on the north coast, north-east of Ningbing Station as a result of which approximately forty young Gajerrong men were shot and killed. The occurrence of this event and the taking of Grant Ngabidj, his mother and his sister to Ningbing Station is described in plain terms in the record made by Dr Shaw. (Ex A16 pp 28, 36-38; Ex A19 p 45)



Dr Shaw in his evidence confirmed that Grant Ngabidj identified himself as Gajerrong. He also spoke Doolboong but he did not suggest to Dr Shaw that the east coast of the Gulf was the preserve of the Doolboong people:

"...we talk Gadjerau and Dulbung when we answer them back. The people who speak Dulbung came from Forrest River; they bred in that country. Many of them come along for their relations and lived in my country, mixed; but I am Gadjerau properly."



(Ex A16 p31)

As mentioned earlier, Grant Ngabidj in describing Ngarranggarni to Dr Shaw identified Boorroonoong, and the adjacent coastal area, as his country. There was continuity between the Dreamings referred to by Dodger Carlton in his evidence and those told by Grant Ngabidj to Dr Shaw.



The principal "primary" evidence adduced by the first applicants was that of Dodger Carlton. Paddy Carlton was called as a witness by the fifth respondents and the third applicants.



Dodger Carlton was born at Boogoojoowarli, a spring near where the court heard evidence at Ningbing. At that time his parents were ‘walking around’ in the bush with Grant Ngabidj and a "couple of old people from the Wyndham side". He was told that he was born around 1942. When he was still small they went in to Ningbing Station and later when he was a "grown-up kid" they moved to Carlton Hill Station.



His country was said to be the Ningbing area, which was also referred to in the proceedings as Wardenybeng or Yoorra Yoorra, which includes the north and north-west inter-tidal zones, coastal flats and islands in the claim area. Dodger Carlton is also regarded as a regent to the Aldus siblings in respect of that part of the claim area on the eastern side of the Gulf. Regency, it was explained by Mr Akerman, was a situation whereby Dodger Carlton had a responsibility to look after country in respect of that part of the claim area until such time as the Aldus siblings were regarded as having acquired sufficient knowledge, or maturity, under the laws and customs of the Gajerrong people.



Dodger Carlton stressed the similarities between Doolboong, Wardenybeng and Gajerrong, by stating variously that "Mulali" (Reedy Creek) and "Gayirreban" (Mount Connection) above the Ord River on the eastern side of the Gulf were "Doolbung or Gajerrong Doolbung mix"; that Doolbung, Wardenybeng and Gajerrong were "all one"; that "Wardenybeng is Gajerrong"; that in the earlier days Doolboong, Wardenybeng and Gajerrong were "all mixed together"; and that Lacrosse Island was for three groups Doolboong,Wardenybeng and Gajerrong; and that Doolboong and Gajerrong "used to mix, understand one another, speak one another language."



Paddy Carlton is an older man born at around the time of the First World War and it was apparent that as an elder he played an important role in the ritual and ceremonial life of the Miriuwung and Gajerrong community and was respected and deferred to by members of that community especially in respect of traditional matters. He was initiated into the law by Boolngara.



Paddy Carlton identified Doolboong, Wardenybeng and Gajerrong as separate, although contiguous, areas of country. In the light of the understanding that the Doolboong, Wardenybeng and Gajerrong shared the use of some parts of this part of the claim area, albeit that different areas of country may have been more closely identified with one or other, there is no real conflict between the evidence of Dodger Carlton and Paddy Carlton. (See: R M and C H Berndt, "The World of the First Australians", at 96.)



Having regard to the foregoing, the contention that people who now identify themselves as Gajerrong assert a right to this part of the claim area as a result of the introduction, post-sovereignty, of Gajerrong speaking peoples from outside the claim area cannot be sustained.



There is little doubt that there has been a dramatic thinning of population in this part of the claim area and a loss of the cultural and language diversity that may have been present at the time of sovereignty but connection with ancestors who were members of the original community in occupation of the land has been demonstrated. The Gajerrong identity of the present community is rooted in the past and lends weight to the contention that the community has maintained, as far as practicable, a connection with the claim area since the time of sovereignty.



I am satisfied that Gajerrong country included the land in the claim area running from the eastern side of the Gulf, along the northern coast to the State/Territory border, and the three islands off the north coast. As stated earlier, Miriuwung country merges with Gajerrong country from about Point Springs on the east to north of Goose Hill on the west.

Second applicants’ claim

As set out earlier in these reasons, the claim of the second applicants cannot be separated from the claim of the first applicants. The native title is a communal title held by the Miriuwung and Gajerrong community of which the second applicants are part. If native title is determined to exist it will be appropriate for discussions to be held between the first and second applicants before any orders are made under ss 56 and 57 of the Act.

Third applicants’ claim

Boorroonoong (Lacrosse Island)



The case put by both the first and third applicants was that Boorroonoong (Lacrosse Island) was an area in which the interest of the Gajerrong people overlapped with that of Aboriginal people from the western side of the Gulf. As stated above the third applicants also sought to demonstrate that these Aboriginal persons were not persons holding rights and interests under the laws and customs of the first applicant group, rather it was asserted that they were members of the community of native title holders described as the "Balanggarra Peoples".



There was primary evidence that Aboriginal people from the western side of the Gulf, in particular Victor Martin, through his grandfather Kaalgi, regarded Lacrosse Island as part of their country. This is supported by Ms Kaberry who records Boorroonoong as Kaalgi’s "gra" in her Forrest River genealogies. Kaalgi was said to have travelled to Lacrosse Island from the west side of the Gulf in dug-out canoes to hunt flying fox; to have lived on the island for a time to escape massacres and to have a Dreaming and ritual connected with the island. There was also evidence that Boorroonoong was part of the country connected with the Gajerrong people, that they have knowledge of Dreamings associated with that area, distinct from that of Kaalgi, which link the island with Gajerrong country on the eastern side of the Gulf, that Gajerrong men swam to the island on logs for hunting and that the Gajerrong people continue to assert rights and responsibilities in relation to the island under their laws and customs.



The Gajerrong people clearly acknowledge the rights of Victor Martin and his family in Boorroonoong, and there was general agreement from the anthropologists that Aboriginal people from the east and west side of the Gulf had overlapping, but not inconsistent, rights and interests in Boorroonoong under their respective laws and customs. Ms Doohan explained this overlapping of interests as follows in her initial report:

"the two groups do not come together to form a single claimant group but rather two groups whose laws and customs have allowed them to share the use and enjoyment of Lacrosse Island and to maintain their separate and distinctive traditions and connections to the islands".

(Ex C16(a), Appendix A, p 7)



There was "primary" and anthropological evidence that the Aboriginal people represented by the third applicants were distinct from the first applicant group in that they did not observe the classificatory kinship system and were part of a coenobium of common ancestors with people from the west side of the Gulf. I accept Ms Doohan’s opinion that the connection of Victor Martin and other Aboriginal people from the west side of the Gulf does not arise by reason of their membership of the Miriuwung and Gajerrong people, rather they have separate and distinct traditions and connections in respect of Boorroonoong.



It was apparent that Victor Martin acknowledged and observed laws and customs in relation to land by reason of his membership of a wider community. There was limited primary evidence led by the third applicants as to the identity of the group said to hold native title, no doubt because of the comparatively small area of land involved. However the evidence that was led was consistent with Ms Doohan’s report in which she identified a group observing separate laws and customs, which group included the third applicants who made the claim as representatives of that group, however the relevant group may have been identified at sovereignty.



I am satisfied that any determination of native title should take account of the interest of the third applicants in Boorroonoong (Lacrosse Island).



It was faintly submitted in argument that the Court could not make a determination of native title which included a determination of the interests of the third applicants unless the determination was in respect of an application made by the third applicants and referred to the Court by the Tribunal pursuant to s 81 of the Act as it then stood.



That submission may be dealt with quite shortly. It is apparent from the provisions and objects of the Act that the Court is given jurisdiction to resolve a dispute by determining whether native title exists. Once a matter attracting jurisdiction is before the Court the whole of the dispute as to the existence of native title in respect of the land the subject of the application referred to the Court, and arising out of the facts which underlie that matter, can be dealt with by the Court if the appropriate parties are properly joined to the litigation to have that dispute resolved. Such a course was followed in this matter.

Extinguishment of native title

The first issue that arises in respect of the extinguishment of native title is whether there is an onus of proof upon the applicants to show that native title has not been extinguished, or upon the respondents to show that it has.



As set out earlier in these reasons, extinguishment of native title, fragile though the interest is, will not be taken to have been effected by the Crown unless a clear and plain intention so to act is made obvious in the public record either by act of the Executive, authorized by the legislature, or by act of the legislature. (Wik per Toohey J at 126; per Gummow J at 186; per Kirby J at 249.)



In Coe v Commonwealth of Australia [1993] HCA 42; (1993) 118 ALR 193 at 206 Mason CJ, in deciding an interlocutory motion to strike out a statement of claim, opined that the Crown would not bear the onus of showing that native title had been extinguished. Expressions conveying a contrary view are to be found in the reasons of Toohey J in Mabo (No 2) (at 183) and of Gummow J in Wik (at 185). Toohey J referred to the remarks of Hall J in Calder who had stated that there was a presumption of continuance of native title after sovereignty and that the burden of establishing extinguishment rested squarely on the Crown. (Calder per Hall J at 375, 401, 404.) The opinion of Hall J was approved by the Supreme Court in R v Sparrow (at 1099).



In R v Van der Peet (at 585) L’Heureux-Dubé J stated that the "onus of proving extinguishment is on the party alleging it, that is, the Crown" and legislation necessarily inconsistent with the continued enjoyment of Aboriginal rights was not sufficient to meet the test.



In Western Australia v The Commonwealth (at 422-423) Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ stated:

"Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended.



...



The State of Western Australia, acknowledging the presumption, sought to rebut it by showing that the British Crown, in acquiring the territory of Western Australia, manifested an intention to extinguish all native title to land in that territory. That intention was said to follow from the Crown’s intention to assume absolute ownership of all land within the Colony. To discharge the onus, it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title. So much is required of any statute which is said to extinguish native title which has survived acquisition of a territory by the Crown and there is no reason why some lesser standard should be applied in ascertaining the Crown’s intention when exercising the prerogative power to acquire new territory. It may be that even stricter proof is required."

The weight of authority, and the application of principle, requires that the onus of proof in respect of extinguishment rest on the party propounding it.



Except for coastal flats, tidal zones and the islands, land now described as vacant or reserved Crown land was land subject to pastoral leases first granted by the Crown in the last decade of the nineteenth century. The terms on which pastoral leases were granted included the reservation by the Crown of a right to excise from the lease, from time to time, such land as was required by the Crown for public purposes.



The State and the Territory contend that the grant of pastoral leases pursuant to statute, was a clear statement of Crown intention to extinguish native title in respect of land subject to such leases.



In the Goose Hill area the first applicants contend that at least some of the reserved land in that area was not subject to a prior grant of a valid pastoral lease. As set out earlier in these reasons, the first applicants have not established that native title exists in relation to the land in the western part of this Reserve. The State contends that in any event part of that reserved land was the subject of a freehold grant in 1918 to the Wyndham Freezing Canning and Meat Export Works, an incorporated trading concern under the State Trading Concerns Act 1916 (WA). Part of the reserved land in this area was also included in the Noogoora Burr Quarantine Area declared in 1981 pursuant to reg 10 of the Agriculture and Related Resources (Property Quarantine) Regulations 1981 (WA) and under s 105(ia) of the Agriculture and Related Resources Protection Act 1976 (WA). These issues will be dealt with separately later in these reasons.

First, it is necessary to consider the effect on native title of the grant of a pastoral lease before considering whether native title was affected by any subsequent acts of the Crown in respect of land in the claim area.

(a) Pastoral Leases

(i) State



In Western Australia v The Commonwealth, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 433-434) held that native title in Western Australia was not extinguished by the establishment of the colony of Western Australia and that -

"since the establishment of the Colony native title in respect of particular parcels of land has been extinguished only parcel by parcel. It has been extinguished by the valid exercise of power to grant interests in some of those parcels and to appropriate others of them for the use of the Crown inconsistently with the continuing right of Aborigines to enjoy native title."

By an Order in Council made on 22 March 1850, pursuant to the Sale of Waste Lands Act 1842 (Imp) the Crown ordered that the following provisions be of effect in the colony of Western Australia:

"Nothing contained in any pastoral lease shall prevent the aboriginal natives of this colony from entering upon the lands comprised therein, and seeking their subsistence therefrom in their accustomed manner;"

By that Order in Council the Crown sought to avoid problems experienced in the colony of New South Wales, namely, conflict arising out of the exercise of rights asserted by pastoralists and the traditional rights of Aboriginal inhabitants. (See: Wik Peoples v State of Queensland (1996) 63 FCR 450 per Drummond J at 466-475.)



The terms of the Order in Council were incorporated in the Land Regulations 1851 (WA), made by Queen Victoria for proclamation in Western Australia.



The first pastoral leases of the East Kimberley were granted by the Governor under the Land Regulations 1882 (WA) in the form set out in the 11^th Schedule to the Regulations. The interest described as a pastoral lease in that Schedule was subject to a reservation in favour of Aboriginal people expressed in the following terms:

"Except and always reserved to Us, Our Heirs and Successors, ... full right to the Aboriginal natives of the said Colony at all times to enter upon any unenclosed or enclosed but otherwise unimproved part of the said demised Premises for the purpose of seeking their subsistence therefrom in their accustomed manner;"

An identical clause was included in the form of pastoral lease set out in the Land Regulations 1887 (WA), which replaced the Land Regulations 1882 (WA) in respect of pastoral leases issued in the Kimberley Division of the State. Similarly, after responsible government commenced in the colony in 1890, s 92 of the Land Act 1898 (WA) provided that all pastoral leases were to be issued in the form set out in the 24^th Schedule of that Act and the form contained a clause in the same terms.



The Land Act 1933 (WA), which replaced the Land Act 1898 (WA), did not continue that reservation in the statutory form of pastoral lease. However, the Land Act Amendment Act 1934 (WA) inserted s 106(2) in the Land Act 1933 (WA) which provides as follows:

"The aboriginal natives may at all times enter upon any unenclosed and unimproved parts of the land the subject of a pastoral lease to seek their sustenance in their accustomed manner."

It was accepted that no pastoral leases were issued under the Land Act 1933 (WA) in respect of land in the claim area before the Land Act Amendment Act 1934 (WA) came into operation. Under the Land Act 1933 (WA) the term of a "pastoral lease" could be for a period of up to forty-eight years.



There were numerous limitations, described as reservations, upon the interest granted as a pastoral lease under the Land Regulations 1882 (WA), the Land Regulations 1887 (WA), the Land Act 1898 (WA) and the Land Act 1933 (WA).



Under reg 85 of the Land Regulations 1882 (WA) the following rights were reserved by the Crown:

•	to lay out and make public roads through the leased land;

•	to take away "indigenous produce", rock or soil required for public purposes;

•	to cut and remove timber and other woods;

•	to sell any "mineral land" within the limits of the pastoral lease;

•	to sell any portion of the pastoral lease and exercise a right of immediate entry; and

•	for any person to pass over unenclosed or enclosed but otherwise unimproved land, with or without stock, on all necessary occasions.

In the form of pastoral lease set out in the 11^th Schedule to the Land Regulations 1882 (WA), matters excepted and reserved from the grant were further described, for example:

•	full power in the Crown from time to time to sell all, or any, unsold portion of the pastoral lease subject to a claim for compensation for improvements;

•	full power in the Crown to make grants or sales of any part of the pastoral lease for public purposes and to except from sale and reserve, or to resume, parts of the pastoral lease as required in the public interest, including for the use and benefit of Aboriginal inhabitants;

•	full right for any person to enter upon any part of the pastoral lease to examine the mineral capabilities thereof and do all things necessary for the purposes of making such an examination.

The foregoing exceptions and reservations were repeated in reg 61 of the Land Regulations 1887 (WA) and in the form of pastoral lease set out in the 9^th Schedule (see: Moore and Scroope v State of Western Australia (1907) 3 CLR 334 at 336) and in s 107 of the Land Act 1898 (WA) and in the form of pastoral lease set out in the 24^th Schedule thereof.

Section 105 of the Land Act 1933 (WA), equivalent to reg 82 of the Land Regulations 1882 (WA), reg 59 of the Land Regulations 1887 (WA) and s 106 of the Land Act 1898 (WA) described the limited nature of the interest obtained by a lessee under a pastoral lease, the relevant parts of s 105 reading as follows:

"105(1) Subject to subsection (2) a pastoral lease shall give no right to the soil, or to the timber, except as may be required for domestic purposes, for the construction of airstrips, roads, buildings, fences, stockyards, or other improvements on the lands so occupied."

Under s 106(1) of the Land Act 1933 (WA) specified qualifications, described as reservations, on the grant of a pastoral lease included reservation of use of the land in the pastoral lease for the making of public roads; for the taking of any material for public purposes; for the passage of any person, with or without stock, over unenclosed or enclosed but otherwise unimproved land in the pastoral lease on all necessary occasions; and, up until 1982, the right to sell any part of the leased land with a right of immediate entry by the Crown upon exercise of their right. In addition, in s 109 of the Land Act 1933 (WA) the interests of the pastoral lessee were subject to the excision of any part of the land required by the Crown at any time for public purpose without compensation being payable other than for improvements. Land contained within a pastoral lease could be resumed and declared open for selection for homestead farms and working men’s blocks and, until 1939, without compensation necessarily being paid for improvements. After 1963 land within pastoral leases could be resumed, declared open for selection and made subject to another pastoral lease to the "selector".



Under ss 46 and 47 of the Land Act 1933 (WA), land could also be withdrawn from a pastoral lease and declared open for selection as cultivable or grazing land under a "conditional purchase lease". Until 1963, under s 56 of the Land Act 1933 (WA) and previously under s 62 of the Land Act 1898 (WA), a pastoral lessee in the Kimberley Division could apply for a "conditional purchase lease" in respect of up to 1 per cent, but in any event not more than 2,000 hectares, of the Crown land within the pastoral lease.



Pursuant to the Mining Act 1904 (WA) and the Mining Act 1978 (WA) land subject to a pastoral lease was at all times subject to the grant by the Crown of possession to a third party for mining purposes, not limited to prospecting.



A similar position obtained in respect of land subject to a pastoral lease in the Territory.



Land subject to a pastoral lease remains Crown land as defined in the Land Regulations 1887 (WA) (reg 2), the Land Act 1898 (WA) (s 3) and the Land Act 1933 (WA) (s 3). Unlawful occupation or trespass upon Crown lands is made an offence (Land Act 1898 (WA) (s 135); Land Act 1933 (WA) (s 164)). It was not contended that such provisions were intended to apply to native title holders. (See: Mabo (No 2) per Brennan J at 66, Deane, Gaudron JJ at 114; Wik per Toohey J at 120-121; per Gaudron J at 146-147; per Gummow J at 190-194.)



Furthermore, land in a pastoral lease is still "Crown land" for the purposes of other legislation dealing with control, management and possession of such land and of flora and fauna, to wit, legislation dealing with the mining of minerals and petroleum, drainage and catchment of water, and conservation of land, flora and fauna. (See: Mining Act 1904 (WA) (s 3); Mining Act 1978 (WA) (s 8); Petroleum Act 1936 (WA) (s 4); Petroleum Act 1967 (WA) (s 5); Land Drainage Act 1925 (WA) (s 6); Wildlife Conservation Act 1950 (WA) (s 6); Conservation and Land Management Act 1984 (WA) (s 11)).



The nature of the foregoing limitations upon an interest granted as a pastoral lease under the Land Regulations 1882 (WA), Land Regulations 1887 (WA), Land Act 1898 (WA) and Land Act 1933 (WA) do not support a conclusion that the creation of the statutory interest of a pastoral lease by the Crown demonstrated a clear and plain intention by the Crown to extinguish native title in respect of land the subject of a pastoral lease.



In addition to the qualified nature of the possessory rights granted to a pastoral lessee, it is plain that the clauses of the statutory form of pastoral lease set out in the Land Regulations 1882 (WA), Land Regulations 1887 (WA), and the Land Act 1898 (WA) retained for Aboriginal people the right to enter, and to be on, unenclosed and enclosed but unimproved land on pastoral leases, to maintain their existence in their accustomed manner. The effect of that exception was to limit the interest granted by the Crown as a pastoral lease and to preserve an existing right of Aboriginal people. (Wade v New South Wales Rutile Mining Company Pty Ltd [1969] HCA 28; (1969) 121 CLR 177 per Windeyer J at 194; Wik per Gummow J at 200-201.) The statutory exception to, or reservation upon, the statutory interest granted in the form prescribed did not create a new right in Aboriginal people but reserved and acknowledged an existing right. (The Yandama Pastoral Company v The Mundi Mundi Pastoral Company Limited [1925] HCA 38; (1925) 36 CLR 340 per Knox CJ at 348; per Higgins J at 377.)



The qualification expressed in s 106(2) of the Land Act 1933 (WA), in place of the exception, or reservation, in the prescribed form of the pastoral lease, was not intended to have, and did not have, a different consequence for native title.



The use of that substantive statutory provision, which stated that access to unenclosed and unimproved land of pastoral leases for Aboriginal people seeking sustenance in their accustomed manner was unrestricted, made clear that the statutory interest granted to a pastoral lessee did not include a right in the lessee to exclude Aboriginal people from land held for pastoral purposes, nor permit the lessee to restrict the exercise of a right of Aboriginal people to the convenience of the lessee. The substance of the statutory provision was the acknowledgement by the Crown of an existing right based on custom and that such a right, although regulated, continued after the grant of a pastoral lease. Such a statutory provision made it unnecessary for the Crown to further define the nature of the interest granted as a pastoral lease by an express exception or reservation to the grant.



The history of legislative provisions in respect of pastoral leases before s 106(2) was introduced, and the form of the subsection, does not support an argument that by s 106(2) the Crown evinced a clear and plain intention to extinguish native title by the grant of a pastoral lease and create a new statutory right of access for Aboriginal people as a burden on a pastoral lessee’s interest.



The reference to seeking subsistence, or sustenance, from the land in an accustomed manner made it plain that in the exception clauses, and in s 106(2) of the Land Act 1933 (WA), the Crown acknowledged an existing right of access to land over which the Crown had granted rights to depasture stock. Such an acknowledgement was inconsistent with any intention to extinguish native title under which such rights of access and use arose.



In its terms, s 106(2) does not create a right. It is a statement that nothing in an instrument granted under the Land Act 1933 (WA), namely, a pastoral lease, will prevent access by Aboriginal people to Crown land for the customary purpose of obtaining sustenance. In other words, the terms of a pastoral lease are not to be read as disposing of existing Aboriginal rights.



Section 106(2) is to be read with the knowledge that rights granted to a pastoral lessee by the Crown under a pastoral lease may subordinate rights of Aboriginal people under native title if the exercise of those rights conflicts with the exercise of rights granted by the Crown under a pastoral lease. Accordingly, the purpose of s 106(2) is to make it clear that the right granted by the Crown to a pastoral lessee to make use of the fruits of the land of the pastoral lease is subject to and, therefore, cannot be in conflict with, an Aboriginal right to obtain sustenance from the same source.



Although it may follow necessarily that the grant of a pastoral lease may involve regulation of aboriginal rights arising under native title, it does not follow that it is the intention of the Crown that the grant of such an interest effect extinguishment of native title, the root of aboriginal rights in respect of the land, usufructuary and otherwise. As explained earlier, the Supreme Court stated in R v Sparrow (at 1097) that regulation is not to be confused with extinguishment. That an aboriginal right is controlled stringently or in great detail does not mean that right and title is intended to be extinguished.



Recognition by the Crown of an aboriginal right to enter and use land of a pastoral lease for usufructuary purposes, a right that is an incident of native title, and acknowledgement of the priority of that right over rights of a pastoral lessee created by the Crown, denies intention by the Crown to extinguish native title and with it such rights as are available thereunder, for example, rights to have access to the land for spiritual, ritual or ceremonial purposes, or to pass over, or through, the land as necessary according to traditional rights and practices.

The State submitted that the Western Australian land legislation, unlike the legislation considered in Wik, observed a remarkable degree of uniformity with, and adherence to, common law forms of tenure. However, the relevant legislation did not utilize a distinction between "leases" and "licenses" for pastoral purposes in the Kimberley District and it provided for numerous kinds of other leases (see: Pt 4 to the 1^st Schedule of the amending Act) indicating that as in other States there was an invention of Australian tenures of new types by land legislation in Western Australia. Further, at all relevant times the Regulations and legislation contained provisions equivalent to those discussed by the High Court in Wik which "effectually vested without the need for prior entry, the interest granted" (Wik per Gummow J at 189.) As Dr T P Fry states, the evolution of Crown leasehold tenures in Western Australia was destined to develop upon similar lines to colonies on the eastern seaboard. ("Land Tenures in Australian Law", Res Judicatae 3 (1947) 158 at 161.)



Regulation 3 of the Land Regulations 1882 (WA) provided, in relevant respects, that:

"The Governor is authorised,...to dispose of the Crown lands within the Colony in the manner and upon the conditions prescribed by these Regulations,...and all grants and other instruments disposing of any portion of Crown lands in fee simple or for any less estate made in accordance with such Regulations shall be valid and effectual in law to transfer to and vest in possession in the purchasers the land described in such grants or other instruments for the estate or interest therein mentioned."

Equivalent provisions were contained in the Land Regulations 1887 (WA) (reg 3); the Land Act 1898 (WA) (s 4) and the Land Act 1933 (WA) (s 7).



It can be seen that at all relevant times a fundamental requirement for the creation and alienation of a statutory interest in lands of the Crown was completion by the Crown of an appropriate formal grant of interest.



After 1900 the Land Act 1898 (WA), (by s15 of Act No15 of 1900), provided that

"A Notice inserted in the Government Gazette, signed or purporting to be signed by the Minister or the Under Secretary for Lands, to the effect that any lease, license or other holding is forfeited for default in payment of rent, or for breach or non-observance or non-performance of the conditions thereof, shall be deemed equivalent to a re-entry and recovery of possession by or on behalf of the Crown within the meaning of the proviso for re-entry expressed in or implied by the lease, license, or other instrument".

Similar provisions are found in s 163 of the Land Act 1933 (WA). Failure to pay rent under a pastoral lease issued under the Land Regulations 1882 (WA) (reg 78) would result in the lessee forfeiting all right to land and the improvements thereon. Under the Land Regulations 1887 (WA) (reg 101), such forfeiture would occur 120 days after notification in the Government Gazette (WA) of non-payment of rent.

It is unnecessary to further review the analysis of a pastoral lease, its statutory origins and purpose, as undertaken by the High Court in Wik. It is impossible to distinguish in any substantive way the facts relevant to the decision in that matter and the facts established in this case indicated by the limitations upon the interest of a pastoral lessee set out above. The conclusion must follow that in granting a pastoral lease the Crown did not act to extinguish native title. The expression of exception, or statutory reservation, in respect of the grant of a pastoral lease by which a lessee was unable to exclude as trespassers Aboriginal people exercising rights of the type which attach to a subsisting native title, provides further support for that conclusion.



There was nothing in the relevant legislation providing for the creation of a pastoral lease to show a clear and plain intention to effect extinguishment of native title by the grant of such a lease. The grant of a pastoral lease is not the creation of a permanent interest in respect of the land and, a fortiori, except for a few well-defined events, it is unlikely that an act by a pastoral lessee will amount to actual use of the land in a manner permanently inconsistent with the continued existence of native title in respect of the portion of land used for that purpose.



Under the Land Regulations 1887 (WA) a pastoral lessee was required to comply with stocking requirements or prescribed expenditure on improvements within seven years from the date of application for the lease (reg 74).

This provision was repeated in s 101 of the Land Act 1898 (WA) until repealed in 1906. After 1917 (Land Act Amendment Act 1917 (WA) s 33 (3)) it was a condition of all pastoral leases that there be prescribed expenditure on improvements. There was a similar provision in the Land Act 1933 (WA) (s 102) until 1963. Thereafter, plans of proposed pastoral improvements were to be submitted by pastoral lessees. No improvements were to be made otherwise than in accordance with such a plan.



Regulation 105 of the Land Regulations 1887 (WA) provided that no improvements would be considered for the purpose of the Regulations:

"unless the Commissioner shall be satisfied that the same were made bona fide for the purpose of improving the land or increasing the carrying capacity thereof, and unless the same shall consist of wells of fresh water, reservoirs, tanks or dams of permanent character and available for the use of stock,... or of fences, sheds, and buildings erected for farm or shearing and station purposes, not being dwelling houses (except where such dwelling houses exist upon a pastoral lease); or of cultivation, sub-division fences, clearing, grubbing, draining, ring-barking..., or any improvement for maintaining or improving the agricultural or pastoral capabilities of the land".

Improvements were defined in similar terms in the Land Act 1898 (WA) (s 145) and the Land Act 1933 (WA) (s 140), however, after 1963 a dwelling house on a pastoral lease was not considered an improvement for the purposes of the Land Act 1933 (WA) (Land Act Amendment Act 1963 (s 24)).



Of the improvements contemplated by the Act only dwelling houses, and possibly reservoirs and dams, are of sufficient permanence to indicate an intention to extinguish native title by adverse dominion. Erection of fencing cannot be considered an act giving effect to a Crown intention to extinguish native title. It must be associated with some other intensive use of the land that is contemplated before it could be said to reflect a clear intention to extinguish native title. (See: Wik per Gaudron J at 166; per Gummow J at 203.)



The only dwelling houses in the claim area that were said to constitute improvements for the purpose of a pastoral lease were the homesteads of Argyle Downs, Goose Hill, Lissadell and Glen Hill.



The Argyle Downs homestead was constructed on land held under freehold tenure discussed above and it is unnecessary to consider whether the construction of the homestead itself would have had an extinguishing effect. No evidence was submitted to show that the Goose Hill homestead was an improvement relied upon by a pastoral lessee to satisfy the requirements of a pastoral lease. Expenditure on the old homestead at Lissadell was included as expenditure on improvements on a pastoral lease. It is now part of Reserve 31165. Similarly, the expenditure on Glen Hill homestead was included as expenditure upon improvements by the pastoral lessee. The State did not contend that either homestead construction was, in itself, an act that extinguished native title.



The Report on Improvements on Pastoral Leases within the claim area (Ex 24) does not report any substantial dams or reservoirs constructed as improvements on pastoral leases.



There was no evidence in respect of permanent improvements in the way of dwellings or dams or reservoirs constructed by reason of requirements in pastoral leases issued in respect of the Territory area.



Apart from the stocking requirements it was not submitted that there were any conditions added to the pastoral leases issued in the claim area requiring improvements to be made to the lease.



In light of the foregoing conclusion that neither the grant of a pastoral lease or use of the land pursuant to the lease reflected a Crown intention to extinguish native title, it is unnecessary to consider further submissions by the first applicants that the State had not proved that valid leases were issued under the Land Regulations 1882 (WA) and the Land Regulations 1887 (WA) in respect of pastoral leases issued prior to 1898.





(ii) Territory



Until 1926 the land which became the Territory area was included in two pastoral leases granted under the Northern Territory Crown Lands Act 1890 (SA). The leases were in statutory form under regulations made under that Act. In substantial respects, pastoral leases over land in the Territory were subject to similar limitations as those considered above in respect of pastoral leases issued by the State. For example, reservation to the Crown of rights to timber and minerals, and reservation of rights of third parties to travel through the lease with or without stock. Pursuant to reg 39 of the Regulations made under the Northern Territory Crown Lands Act 1890 (SA) a pastoral lease was subject to such conditions as the Governor in Council thought necessary to insert for the protection of Aborigines. The clause inserted in the relevant leases was in the following form:

"...Excepting out of this lease to Aboriginal Inhabitants of the Province and their descendants during the continuance of this lease full and free right of ingress egress and regress into upon and over the said lands and every part thereof and in and to the springs and natural surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they wold have been entitled to do if this lease had not been made..."

After 1926 the Territory area was included within a pastoral lease granted under the Crown Lands Ordinance 1927 (NT). The statutory form of lease was "subject to a reservation in favour of the aboriginal natives of Northern Australia". Section 21 of the Crown Lands Ordinance 1927 (NT) provided as follows:

"21. In any lease under this Ordinance -

...

(e) a reservation in favour of the aboriginal inhabitants of North Australia shall be read as a reservation giving to all aboriginal inhabitants of North Australia and their descendants, full and free right of ingress, egress and regress into, upon and over the leased land and every part thereof, and in and to the springs and natural surface water thereon, and to make and erect thereon such wurlies and other dwellings as those aboriginal inhabitants have before the commencement of the lease been accustomed to make and erect, and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if the lease had not been made."

In 1958 the Territory area became subject to a pastoral lease ("the Newry pastoral lease") granted under the Crown Lands Ordinance 1931 (NT) which included the same form of lease and a similar statutory reservation as set out above.



In 1979 a pastoral lease was granted under Crown Lands Ordinance (No 3) 1978 (NT), expressed to be subject to a reservation in favour of the Aboriginal inhabitants of the Territory. In respect of such a reservation s 24(2) of the Crown Lands Ordinance (No 3) 1978 (NT) provided as follows:

"24...



...

(2) ...in any lease under this Ordinance a reservation in favour of the Aboriginal inhabitants of the Northern Territory shall be read as a reservation permitting the Aboriginal inhabitants of the leased land and the Aboriginal inhabitants of the Northern Territory who in accordance with Aboriginal tradition are entitled to inhabit the leased land -

(a) to enter and be on the leased land;

(b) to take and use the natural waters and springs on the leased land;



(c) subject to any other law in force in the Northern Territory, to take or kill for food or for ceremonial purposes animals ferae naturae on the leased land; and



(d) subject to any other law in force in the Northern Territory, to take for food or for ceremonial purposes any vegetable matter growing naturally on the leased land."

In 1979, 251 square kilometres of the leased land was surrendered by agreement between the pastoral lessee and the Territory. That land later became, by declaration, the Keep River National Park. In 1985, 335 square kilometres of land adjacent to the Park was surrendered to the Territory under an agreement made between the pastoral lessee and the Commission that the area be surrendered.



With respect to the form of Territory pastoral leases, for the reasons already given in respect of State pastoral leases, limitation of the statutory interest granted by the colony of South Australia, and later by the Territory by statutory reservation, was an acknowledgement by the Crown of rights of the type attaching to a subsisting native title. The form of statutory interest described as a pastoral lease was moulded to coexist with the exercise of the existing rights of Aboriginal people. No intention to extinguish native title is manifested in the actions of the Crown and, to the contrary, it is made plain that the Crown had no intention so to act.



The Territory further submitted that the provision described as a reservation constituted the substitution of statutory rights for rights obtained under native title and demonstrated an intention by the Crown to extinguish native title. The Territory referred to Mayor of New Windsor v Taylor [1899] AC 41 in support of its submission. In that case a prescriptive right to exact tolls was replaced by authority provided by statute. It was held that the original prescriptive right no longer existed. Those circumstances have nothing in common with the facts of this case. Here the Crown reserves, or excepts, from the interest that it grants, an interest sufficient to preserve continued exercise of pre-existing rights of third parties. No new rights are conferred in replacement of existing rights.



It was submitted that words used in the exception clauses of the first leases, namely, "as they would have been entitled to do if the lease had not been made" were words which acknowledged that the effect of the lease was to destroy a pre-existing right and to provide for replacement of that right. Those words must be read with the terms and purpose of the exception to the grant made by the Crown. The exception is an acknowledgement by the Crown that the Crown’s interest in the land is subject to rights of Aboriginal inhabitants. By reason of the exception the interest granted to a lessee cannot be said to reflect a Crown intention to extinguish native title which, therefore, continues notwithstanding the grant of a pastoral lease. In effect, the words amount to a statement that such an entitlement of Aboriginal inhabitants would not be in issue if a lease were not granted, and the effect of the exception will be that the entitlement will continue as if the lease had not been made.



By reason of the exception, or reservation, to the interest granted by the Crown to a pastoral lessee, the interest of a pastoral lessee is also burdened by the native title which burdens the title of the Crown. Under the grant of a lease the pastoral lessee does not receive an interest that is free of that burden, although rights granted by the Crown to the pastoral lessee will be concurrent with rights exercisable under native title and in some circumstances may be intended by the Crown to have priority over the latter when exercised.



Whether, or to what extent, the interest created by the Crown in the form of a pastoral lease regulated the exercise of rights under a subsisting native title is unnecessary to consider. The question to be determined is whether, by the grant of a pastoral lease, the Crown extinguished native title and it is clear that it did not.



It was further submitted by the Territory that unlike the form of pastoral lease considered in Wik, pastoral leases granted over Territory land conferred "a right of exclusive possession". I am unable to discern any difference of significance in the form of the respective leases. In particular, the interest granted by the Crown as a pastoral lease in the Territory did not include a right to exclude Aboriginal people exercising existing rights. The right of possession of Crown land for pastoral purposes granted to a lessee under a pastoral lease was not an exclusive right and, at the time of grant, was subject to the rights of access and use of Aboriginal people arising under native title.

(b) Vesting of Keep River National Park and leases to the Corporation

The land surrendered to the Crown from the Newry pastoral lease in 1979 was, as Crown land, leased in perpetuity to the Corporation in 1980. The lease was made under the Special Purposes Leases Act 1953 (NT) as a lease for the purpose of carrying out the functions of the Commission in accordance with the Conservation Commission Act 1980 (NT) (now Parks and Wildlife Commission Act (NT)) and the Territory Parks and Wildlife Conservation Act (NT). In 1981 the area leased was declared a park pursuant to the Territory Parks and Wildlife Conservation Act (NT).



The adjacent area surrendered to the Territory in 1987 was, at the time of that surrender, made the subject of a perpetual Crown lease, granted to the Corporation under the Crown Lands Act 1978 (NT) for the purpose of carrying out the functions of the Commission in accordance with the Conservation Commission Act 1980 (NT) and the Territory Parks and Wildlife Conservation Act (NT).



In June 1989 part of the land leased to the Corporation was excised from the Park and, together with contiguous land which had been surrendered to the Territory by the Corporation from the adjacent Crown lease, was granted by the Crown to Nyawanyawam Dawang Aboriginal Corporation in 1990 as freehold land.



The Crown grant of freehold land to Binjen Ningguwung Aboriginal Corporation in 1990 was land surrendered to the Territory by the Corporation from the Crown lease adjacent to the Park. The land granted by the Crown to Dumbral Aboriginal Community Association was land contiguous with that Crown lease surrendered to the Territory by the pastoral lessee of the Newry pastoral lease.



The leases granted to the Corporation in perpetuity under the Special Purposes Leases Act 1953 (NT) and the Crown Lands Act 1978 (NT) were instruments used by the Crown for the better management of Crown land for the purpose of the Territory Parks and Wildlife Conservation Act (NT). Leases in perpetuity are unknown to the common law. (Wik per Gummow J at 201.) The Corporation is a body corporate under s 27 of the Parks and Wildlife Commission Act (NT). Section 29 provides that the Corporation is not an authority or instrumentality of the Crown and is not subject to the control and direction of the Minister of the Crown. The function of the Corporation, as set out in s 39, is to acquire, hold and dispose of real property (including any estate or interest in real property) in accordance with the Parks and Wildlife Commission Act (NT). It provides further that the Commission has the care, control and management of all land acquired by the Corporation. The functions and powers of the Commission in respect of promotion and conservation or management of land are set out in ss 19 and 20 of the Parks and Wildlife Commission Act (NT). Section 21 provides that the Commission shall not acquire or hold any estate or interest in real property and under s 22 the Commission is subject to the direction of the Minister both in the performance of its functions and the exercise of its powers.



The effect of the leases was little different from a reservation of Crown land for a prescribed public purpose or the vesting of reserved land in a body to manage and control Crown land for the public purpose of the reservation.



The interests in leases granted to the Corporation were interests prescribed by statute granted for statutory purposes. The interest obtained by the Corporation in the land was solely for the purposes of the Parks and Wildlife Commission Act (NT) and the Territory Parks and Wildlife Conservation Act (NT), in particular, to enable the Commission to carry out its functions in respect of the management of land and the protection and conservation of wildlife.



Section 122 of the Territory Parks and Wildlife Conservation Act (NT) provides as follows:

"122(1) Subject to sub-section (2), nothing in this Act prevents Aboriginals who have traditionally used an area of land or water from continuing to use the area of land or water for hunting, for food gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes.



(2) The operation of sub-section (1) is subject to regulations made for the purposes of conserving wildlife in any area and expressly affecting the traditional use of the area by Aboriginals."

The statutory powers and functions of the Corporation, and the Commission, are governed by the terms of s 122 and it follows that the statutory leases granted to the Corporation for the purpose of carrying out the functions of the Commission under that Act cannot be read as intended to create an interest free of an aboriginal right at law to make traditional use of any part of the leased land for hunting, food gathering, ceremonial or religious purposes.



It may be concluded, therefore, that by the grant of the leases to the Corporation, the Crown, in the right of the Territory, did not manifest a clear and plain intention to extinguish native title. The interest granted by the Crown to the Corporation was predicated upon the assumption, expressed in s 122 of the Territory Parks and Wildlife Conservation Act (NT), that performance of the functions of the Corporation, and the Commission, could coexist with the exercise of rights of the character derived under native title. Whilst management of the Park involved carrying out improvements, those improvements were of a minor nature insufficient to reflect an overriding intention by the Crown to have native title extinguished by manner of use of the Park area.



The Territory submitted that in respect of the land that in 1981 became subject to the declaration of a park pursuant to s 12(1) of the Territory Parks and Wildlife Conservation Act (NT), s 12(7) had the effect of "vesting" that land in the Corporation and by the operation of that provision the Crown had clearly demonstrated an intention to extinguish native title.



That submission raises several questions of construction.



Section 12(7) of the Territory Parks and Wildlife Conservation Act (NT) provides that upon declaration of a park all right, title and interest, both legal and beneficial, held by the Territory in respect of the land within the park becomes vested in the Corporation by force of the section. No argument was submitted that the lease to the Corporation merged with the interest vested in the Corporation by statute. (See: Blackstone, Commentaries, Bk II, 177; Rye v Rye [1962] AC 496 at 513.)



Under s 13 of the Territory Parks and Wildlife Conservation Act (NT) notice of declaration of a park may be revoked or amended and if land, "other than land leased by the Corporation as lessee", ceases to be land within a park, all right, title and interest held by the Corporation in respect of that land becomes, by force of s 13(3), vested in the Territory. The notice of declaration of the Park was amended in December 1989 by excising from the Park the area later included in the Crown grant to Nyawanyawam Dawang Aboriginal Corporation in 1990.



Pursuant to s 13(4), if land that ceases to be land within a park is land leased to the Corporation, the lease of that land, by force of the subsection, is "surrendered".



Section 12(7), read in the context of s 13, appears to contemplate that where land is leased to the Corporation by the Territory no greater interest is "vested" in the Corporation under that section. If it were otherwise, the surrender of a lease of land "vested" in the Corporation would not re-vest that land in the Territory.



If it were the intention of the legislature that the words "land leased by the Corporation as lessee" be restricted to land leased to the Corporation by a lessor other than the Crown or emanation of the Crown, one would expect to find appropriate words of limitation.



The provisions appear to accept that a lease of land to the Corporation by the Crown creates a sufficient interest in the land for the Corporation for the purposes of the Act. However, even if a "reversionary interest" in land leased in perpetuity to the Corporation is to be taken to be vested in the Corporation as a statutory interest, the statutory interest enjoyed by the Corporation is a limited interest determinable at will upon revocation by the Crown of the declaration of the Park. It falls well short of equivalence to an interest in fee simple in the land.



The Corporation is a public body created to perform a limited function for a public purpose. The only function of the Corporation is that set out in s 39(1) of the Parks and Wildlife Commission Act (NT), namely, "to acquire, hold and dispose of real property (including any estate or interest in real property) in accordance with this Act..."



By s 39(6) the Commission has the care, control and management of all land acquired by the Corporation. It may be assumed that that function of the Commission extends to land acquired on lease by the Corporation. The Commission is the body that carries out all functions in giving effect to the purpose of the Parks and Wildlife Commission Act (NT) which, according to the long title thereof, at the relevant time, was "to establish a Conservation Commission to assist in the conservation and protection of the environment and for related purposes".



That the Corporation, under the Parks and Wildlife Commission Act (NT), is a person other than the Crown is irrelevant to the nature of any statutory interest "vested" in the Corporation by s 12(7) of the Territory Parks and Wildlife Conservation Act (NT). (cf The Queen v Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395.) The only capacity the Corporation has to deal with real property is to acquire, hold and dispose of it in accordance with the Parks and Wildlife Commission Act (NT), in other words, to meet the requirements of, and as directed by, the Commission.



Furthermore, as already noted, the terms of s 122 of the Territory Parks and Wildlife Conservation Act (NT) govern the functions and powers of the Corporation and make it clear that the exercise of rights of the type which would attach to a subsisting native title would continue notwithstanding any provisions in that Act for the vesting of land set aside for a public purpose under that Act.



As stated by the Privy Council in Attorney-General for the Province of Quebec v Attorney-General for the Dominion of Canada [1921] 1 AC 401 at 409:

"...a declaration that lands are ‘vested’ in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively."

Although s 12(7) of the Territory Parks and Wildlife Conservation Act vests a "legal and beneficial" interest in the Corporation, it is a statutory interest that is subject to the substantial reservations set out in that Act and does not become property within the absolute control of the Corporation. Furthermore, the interest vested is determinable at will upon revocation, or amendment, of a park declaration.



The vesting of the interest in the Corporation by statute is for management of the land for a public purpose and no more. The extent to which the Corporation may enjoy any vested legal or beneficial interest is determined by the terms of the statute which vests it. (See: The Sydney Harbour Trust Commissioners v Wailes [1908] HCA 19; (1908) 5 CLR 879 per Isaacs J at 888.)



Pursuant to s 18 of the Territory Parks and Wildlife Conservation Act (NT) as soon as practicable after a park has been declared, the Commission is to prepare a plan of management in respect of the park. Two such plans were tendered by theTerritory, the first of which came into operation in 1982 (Ex NT 6) and the second in 1991 (Ex NT 7).



Specific reference to the rights and interests of Aboriginals in the area of the Park is made in both plans. For example, in the first plan, one of the objectives of the plan was "to maintain its values for the Aboriginal people, give special protection to the Aboriginal art sites, and other sites of significance, and have regard to the interests of Aborigines associated with the Park".



The second plan acknowledges that "the traditional custodians of the area, the Mirriwung and Gadjerong people, assisted greatly in providing the Plan with its Aboriginal perspective..." Chapter 5 deals with "Management for Aboriginal Interests" and states the following as objectives:

• "To take fully into account in the management of the Park, the interests and concerns of the traditional Aboriginal custodians for the area."

• "In conjunction with the traditional owners, to manage and protect sites of spiritual or other significance to them."

• "To record, document and protect Aboriginal sites, artefacts, cultural resources and tradition according to the wishes of the traditional custodians."

• "In accordance with the wishes of the traditional custodians to enable visitors the opportunity to appreciate and understand the significance of the Aboriginal cultural resources of the Park through appropriate interpretive programmes."

Clearly, the purpose and use of the Park pursuant to the lease and vesting, reflected in the management plans, is not to effect extinguishment of any native title interests but to protect and maintain those interests.



It is to be concluded from the foregoing that the vesting of part of the land of the Territory area in the Corporation by s 12(7) of the Territory Parks and Wildlife Conservation Act (NT) upon declaration of the Park, displayed no intention by the Crown through the legislature to extinguish native title by operation of that statutory provision.



In response to submissions of the second applicants that the acts of the grant of leases to the corporation were "category D past acts", the Territory submitted that if the acts were "past acts", which was denied, they were "category B past acts" and by operation of s 7 of the Validation of Titles and Actions Act 1994 (NT) native title, "to the extent of any inconsistency" of those acts with the continuation of the existence, enjoyment or exercise "native title rights and interests", was extinguished.



In the light of the foregoing finding that native title has not been affected by acts of the Crown described above it is unnecessary to deal with further submissions as to the effect of "validation" provisions enacted pursuant to the Act in respect of acts of the Crown which affected native title before 1 January 1994.



As set out above the grant of the leases to the Corporation was not incompatible with the continuation of native title and at law native title was not extinguished. Rights exercisable under native title may have been subject to regulation, not by grant of the lease but by measures for protection and conservation undertaken by the Commission but, of course, the prospect of such regulation does not show a clear and plain intention by the Crown to extinguish native title.



In so far as s 7 of the Validation of Titles and Actions Act 1994 (NT) applies the Act, it is dependent upon the concept of extinguishment of native title at common law discussed earlier in these reasons and s 7 of the Validation of Titles and Actions Act 1994 (NT) had no operation upon the grant of leases to the Corporation.



With regard to the grants of freehold to the Binjen Ningguwung Aboriginal Corporation, Nyawanyawam Dawang Aboriginal Corporation and Dumbral Aboriginal Community Association made in 1990 and 1993, it must be concluded that the grant of a statutory freehold interest described in the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT) was not intended to have the effect of extinguishing native title in respect of those areas of land. Indeed, the Territory did not rely on those grants as acts which extinguished native title.



Pursuant to the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT) the purpose of the Act was to give effect to a memorandum of agreement between the Commonwealth and the Territory for the granting of "community living areas" on pastoral leases in the Territory. The long title of the Act stated that it was "An Act to amend certain Acts to make provision for the excision of certain areas of land from pastoral leases and the granting of an estate in fee simple in those areas as living areas for the benefit of Aboriginals who are or have been ordinarily resident on those pastoral leases or other Aboriginals, and for related purposes." As noted anove, the grant to the Dumbral Aboriginal Community Association was of a parcel of land excised from the Newry pastoral lease and contiguous with the land leased to the Corporation. Although the grant to the Dumbral Aboriginal Community Association was made under the Crown Lands Act 1978 (NT), the relevant terms of that Act in respect of that grant were as set out in the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT) and discussed above.



In each case the form of freehold interest was a statutory creation for a specific purpose and, notably, was an interest subject to specific statutory restrictions as to disposal.



Having regard to the nature of the interest created under the relevant statutory provisions, it is not possible to be satisfied that such a provision evidenced a clear and plain intention on the part of the Crown to extinguish native title to the relevant land. The principles discussed and applied in Pareroultja v Tickner [1993] FCA 465; (1993) 117 ALR 206 compel that conclusion.





(c) Freehold Interests



There were three parcels of land within the claim area in respect of which interests in "fee simple" had been granted by the Crown before 1 January 1994.





(i) Crown Grants



In 1921, a grant of 400 hectares of land, part of the Argyle Downs pastoral lease, was made to Connor Doherty Durack Limited, the pastoral lessee. The Argyle Downs homestead was situated on that land. The company became entitled to a Crown grant pursuant to s 55(6) of the Land Act 1898 (WA) upon fulfilment of the conditions of a Conditional Purchase Lease issued under s 62, and in the form of the 9^th Schedule of the Land Act 1898 (WA). Under s 4 of that Act, the Governor was authorized to dispose of Crown land by, inter alia, a grant in fee simple "upon such terms and conditions as to resumption of the land or otherwise as to him shall seem fit."



The words of the grant were as follows:

"the natural surface and so much of the land as is below the natural surface to a depth of 110 feet...: TOGETHER with all Profits, Commodities, Heriditatements and Appurtenances whatsover thereunto belonging, or in anywise appertaining: TO HAVE AND TO HOLD...unto the said Grantee, its successors and assigns, for ever: if and they YIELDING and PAYING for the sums to Us...one peppercorn of yearly rent..." [emphasis added]

The grant was expressed to be subject to reservations to the Crown of the power to resume up to one-twentieth of the land for use for public purposes without payment of compensation other than for improvements thereon; power to cut and take timber and to search and dig and carry away stones and other materials on the land as may be required for public works; and the full right to minerals precious metals and gems and to enter upon the land to search and dig and carry them away.



It is to be inferred from the words of grant that an estate in fee simple was granted by the Crown. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 728.) Although the grant is expressed to be subject to the payment of a yearly rent of one peppercorn, that provision, albeit inappropriate, is not inconsistent with a grant in fee simple, being a statutory form of a feudal rentcharge, quit rent or chief rent, a charge on freehold land almost unknown in England since 1290. (See: R E Megarry and H W R Wade, "The Law of Real Property" at 818-829; T P Fry, "Land Tenures in Australian Law" at 160.)



By reason of the grant, the company was recorded on a register of titles under the Transfer of Land Act 1893 (WA) as the registered proprietor of an estate in fee simple in the land.



The reservations to the grant were in favour of the Crown and did not provide rights in the land in third parties and, in effect, apart from resumption without payment of compensation, reflected statutory powers of, and reservations by, the Crown similar to those affecting other freehold land in the State. Therefore, it cannot be said that in granting this interest the Crown did not evince a clear and plain intention to extinguish native title. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 736-739.)



In 1974 land was conveyed to the Commonwealth of Australia by a Crown grant in similar terms under the Land Act 1933 (WA). Pursuant to s 141 of that Act, however, resumption of land granted by the Crown was subject to the payment of compensation. The Commonwealth was registered as proprietor of an estate in fee simple in the land. A telecommunications facility, known as the Lake Argyle Telephone Exchange, was constructed on the site in 1975.



While the use of the land by the Commonwealth may have been limited by the purpose of the acquisition (see: ss 6 and 8 Lands Acquisition Act 1955 (Cth)) no such limitation is imposed by the State on the grant and the estate granted did not contemplate the enjoyment by anyone else of rights and interests in the land. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 736.)



In 1984 a Crown grant of land near Kununurra, in the same terms as above, was made to S G Muller under the Land Act 1933 (WA). Muller was registered as proprietor of an estate in fee simple in the land. That land was not land in the claim area. In October 1994, under s 118CA of the Land Act 1933 (WA), the Minister for Lands approved the amalgamation of a contiguous portion of Crown land with the land previously granted to Muller and declared that such contiguous Crown land vest in Muller’s successors in title in the same interest as that held in the land with which the Crown land was amalgamated.



No submissions were made by the respondents in respect of the effect of this declaration on native title. It is apparent, however, that the purported vesting of an interest in fee simple after 1 January 1994 could have no effect on native title unless the requirements of the "future act" provisions of the Act were met. (Sections 22 and 235 of the Act (as it stood at the relevant time)). (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 729)



The effect of the repeal of those sections and the insertion of Div 2A by the amending Act pursuant to which a law of the State may "validate" such an act, is unnecessary to consider.



In addition to the parcel of Crown land vested as above, a number of other lots were "alienated" by the Crown after 1 January 1994.



In 1996 a lot, 380 hectares in area, was sold by the Crown to Innes Holdings Pty Ltd, the thirteenth respondent, for a sum of approximately $312,000 and conveyed by Crown grant under the Land Act 1933 (WA). The grant was in the same terms as those discussed above, including the payment of a yearly rent of one peppercorn.



The land is on the north-east extremity of the land served by the irrigation scheme and is now an irrigated farm. Prior to sale, it was vacant Crown land. On the boundaries of the lot were several stormwater drains and an irrigation system drain constructed in 1964.



The land was not included in the land released as irrigated farm lots in 1964 because the cost of the works needed to supply the land with water and the nature of the drainage system required to be constructed on the lot made it uneconomic to develop. The land was offered for sale by tender in 1994 on the condition that the successful tenderer construct the works required to supply irrigation water to the lot.



At the time the land was sold by the Crown the native title claim of the first applicants had been lodged with the Tribunal. The State contended that native title had been extinguished when the land was resumed from the Ivanhoe pastoral lease and, therefore, alienation of the land would not "affect" that title and the "future act" provisions of the Act did not apply. Alternatively, the State submitted that the grant of a freehold interest was a "category A past act" pursuant to s 229(4) of the Act as the "establishment" of a public work had commenced before 1 January 1994 and the act was "validated" by the Titles Validation Act 1995 (WA). It may be assumed from the contention by the State that native title had been extinguished that no compensation was offered to native title holders before the Crown grant was made and that "invalidity" was attracted to the act of grant by provisions of the Racial Discrimination Act 1975 (Cth).



As discussed later in these reasons, the act of resumption of Crown land with the intention of making the land available for use for a public purpose was not sufficient in itself to show Crown intention to extinguish native title. Application of the land to the declared purposes of permanent and incompatible character was required before native title could be said to be extinguished. The lot the subject of the Crown grant to the thirteenth respondent was not land appropriated by the Crown in 1964 for development as irrigated farmland and alienation by the Crown to third parties. The decision by the Crown in 1996 to appropriate this area of vacant Crown land for development as irrigated farmland and to alienate the interest of the Crown therein was a separate act, not the "completion" of a "public work" commenced before 1 January 1994.



The thirteenth respondent submitted that pursuant to s 228(3) of the Act the grant of the land to the thirteenth respondent was a "past act" as it gave effect to, or otherwise was because of, an offer, commitment, arrangement or undertaking made, or given, in good faith before 1 July 1993.



The only material relied upon by the thirteenth respondent to support that submission was the admitted fact that in April 1993 the Ord Development Council resolved to recommend to the Minister that the land be offered for conditional sale by tender. Plainly, those circumstances did not meet the requirements of s 228(3).



The consequence of the act of alienation of the land by the Crown in 1996 is as discussed above in respect of the vesting of land in Muller.



A different conclusion may follow in respect of two parcels of Crown land vested in Murlroam Pty Ltd (one of the sixth respondents) in July 1996 by declaration of the Minister under s 118CA of the Land Act 1933 (WA).



The vested land was amalgamated with a property of which the company was registered as proprietor of an estate in fee simple and on which it conducted a fuel supply business on the eastern boundary of the Kununurra townsite.



It was submitted by counsel for the sixth respondents that the declaration vesting the land had given effect to an offer made, or given, in good faith by the Crown before 1 July 1993 and that the vesting was a "past act" pursuant to s 228(3) of the Act.



The admitted facts show that the Crown, in correspondence forwarded by departmental officers in 1991, had, in effect, offered, subject to compliance with several minor conditions, to alienate the relevant land. The facts are sufficient to attract the operation of s 228(3) to make the declaration a "past act" to which s 5 of the Titles Validation Act 1995 (WA) applied.



Other land conveyed by the Crown after 1 January 1994 as freehold interests were residential lots of land in the Kununurra townsite, described as the Lakeside Stage 4 Subdivision. The lots were sold by auction in 1994 and Crown grants issued under the Land Act 1933 (WA) in the same terms as the Crown grants discussed above. The purchasers of the lots are registered under the Transfer of Land Act 1893 (WA) as proprietors of estates in fee simple in the land and some of them are included as sixth respondents.



Subdivision of the land was prepared by departmental officers under the control and direction of the Minister. Before 1 January 1994 the lots were planned, surveyed and marked out; the land cleared and levelled; sewers, drains, footpaths and roadways constructed and sealed; and telephone and electricity services installed.



Either by the permanent nature of the acts of the Crown giving effect to the purpose for which the land was set aside, namely, development of a townsite, or by operation of ss 228 and 229(4) of the Act, which, in the circumstances described, would include as a "public work" the alienation of the land by Crown grant after 1 January 1994, a "past act" intended to extinguish native title occurred to which s 5 of the Titles Validation Act 1995 applied.





(ii) Permit to occupy Crown land prior to issue of Crown grant



In January 1918 Reserve 16729 ("Use and Requirements of the Government of the State") was created, which included land formerly held in other reserves, under pastoral leases and under a special lease. The area of the Reserve was approximately 30,000 hectares. It was situated outside the townsite of Wyndham between Wyndham and Goose Hill. A major part of that land is outside the claim area as established by the evidence.



In June 1918 the purpose of the Reserve was amended to "Use and requirements of the Government of the State in connection with the Wyndham Freezing, Canning and Meat Export Works". In August 1918 an application was made under s 42 of the Land Act 1898 (WA) for a Crown grant of the land contained in the Reserve. The purpose of the grant applied for was "For the Use and Requirements of the Government of the State in connection with the Wyndham Freezing, Canning and Meat Export Works". Section 42 provided for the vesting of a reserve in a municipality or other person in trust for a public purpose or grant of fee simple in a reserve to secure the use thereof for the purpose for which the reserve was made.



The application was signed by H B Lefroy. Details endorsed on the application indicate that the application was approved on 2 October 1918.



On 27 September 1918 a Permit to Occupy Rural Lands ("the Permit") was issued under s 16 of the Land Act 1898 (WA) to the "Wyndham Freezing, Canning and Meat Export Works, incorporated as a State Trading Concern" ("the Works") in respect of the land in the Reserve. In June 1918 the Works had been established as a State trading concern subject to the State Trading Concerns Act 1916 (WA) by the Wyndham Freezing, Canning and Meat Export Works Act 1918 (WA).



Section 16 of the Land Act 1898 (WA) provides that after payment of the purchase money and fee payable for a Crown grant, and having performed all conditions, a purchaser shall, on application, receive from the Minister a permit to occupy, in a form set out in the appropriate Schedule to that Act, being a certificate that the purchaser is entitled to a Crown grant.



The Permit was issued to the Works by H B Lefroy. H B Lefroy was the Minister for Lands and the Minister in control of the Works. It is to be noted that the Permit was issued before the application for the Permit was approved.



The Permit stated that the holder was entitled to receive a grant from the Crown of an estate in fee simple but that the grant had not yet been prepared. It permitted the holder to "enter upon the said tract or parcel of land, and to hold and enjoy the same for his and their absolute use and benefit; subject to the provisos contained in the prescribed form of Crown Grant for rural lands in the Third Schedule to The Land Act 1898.’"



Under s 6 of the State Trading Concerns Act 1916 (WA) the administration of the Works was under the control of a Minister of the Crown charged by the Governor with that function and all property, assets, and rights vested in the Crown for the purposes of the Works became vested in the Minister upon appointment to those duties. It may be said that at the time of the formation of the Works the Reserve became vested in the relevant Minister, H B Lefroy.



According to the evidence, the land referred to in the Permit was not surveyed and a Crown grant did not issue. Section 12 of the Land Act 1898 (WA) provided that all Crown grants must be signed by the Governor, Minister and Surveyor-General and dated and sealed with the seal of the Colony and entered on record in the Department of Lands and Surveys. The date endorsed on the grant is deemed to be the date of issue.



The State submits that a Crown grant, or alternatively the Permit, was entered in a register maintained under the Transfer of Land Act 1893 (WA) and thereafter an indefeasible interest in the land had been obtained under s 68 of that Act. However, under the Transfer of Land Act 1893 (WA), as it then stood, registration of a grant in fee of Crown land, and hence the protection of s 68, depended upon the deed of grant being delivered to the Registrar of Titles and the Registrar making out a certificate of title and endorsing a memorandum on the grant specifying the folium of the Register Book where the certificate of title is bound (s 18). A certificate of title is not deemed, or taken, to be "registered" under the Transfer of Land Act 1893 (WA) until the Registrar has marked on that certificate the volume and folium of the Register Book in which it is bound (s 52).



There was no deed of grant and no certificate of title was made out. The record relied upon by the State appears to be a register of details relating to applications for Crown grants. It is to be noted that unlike every other entry in the relevant pages of that register there is no notation of a freehold interest being created and no record of the issue of a sealed deed of grant as required by s 12 of the Land Act 1898 (WA). It appears that the Permit was delivered to the Registrar of Titles in 1918 and filed but, of course, no memorandum was endorsed on the Permit by the Registrar and no certificate of title prepared by reason of presentation of the Permit. It was only the sealed Crown grant with which s 18 of the Transfer of Land Act 1893 (WA) was concerned not a permit to occupy issued under s 16 of the Land Act 1898 (WA).



At material times it would seem that the land was vested in the Minister for the purpose of the Reserve and that the Minister was not registered as a proprietor of an estate in fee simple under the Transfer of Land Act 1893 (WA).



Between 1918 and 1962 the Reserve was used for the grazing and watering of cattle before the cattle were taken to the Works at Wyndham. After 1962 cattle were delivered to the Works by road train and thereafter the Reserve was not used by persons taking their stock to the Works. Thereafter consideration was given to reserving the land for the purpose of conservation of flora and fauna. In 1969, by an instrument of transfer, purportedly pursuant to the Transfer of Land Act 1893 (WA) and executed by two Ministers of the Crown, the land was said to be the subject of "transfer and surrender" to the Crown by the Works.



Having regard to the foregoing, the assumption in that transfer that the Works had been registered as the proprietor of an estate in fee simple was erroneous and the instrument operated not as a transfer of an interest in fee simple in land but a surrender or cancellation by the Minister administering the Works, of the interest of the Works in the Permit.



The Permit was issued and held by the one Minister of the Crown for the use of a Crown instrumentality. That the land was not surveyed and a Crown grant not issued suggests that the Crown may have regarded the interest accorded by the Permit, as sufficient for the purposes for which the Reserve was to be used.



There was no provision of statute, nor alienation from the Crown of the Crown’s interest in the land, by which paramount rights in the land were divested from the Crown to a third party. The Crown’s interest in the Reserve was vested in the Minister under the State Trading Concerns Act 1916 (WA) and neither that vesting nor the Permit, nor the manner of use of the land for the purpose for which the Reserve had been created, demonstrated a clear and plain intention by the Crown to extinguish native title in the land. The Reserve, a substantial area of land, remained undeveloped, used only for the purpose of grazing and watering cattle.

(d) Roads

The following areas, described as roads, are said by the State to be lands in respect of which native title has been extinguished:

Lake Argyle Road

The land on which this sealed road is situated (formerly known as Parker Road) was "set apart, taken or resumed" under s 17 of the Public Works Act 1902 (WA) by declarations published in the Government Gazette (WA) in April and August of 1977. It is not apparent on the material presented to the Court how it is said a road became dedicated as a public street under s 288 of the Local Government Act 1960 (WA) (now repealed and replaced by the Local Government Act 1996 (WA)). Section 288 of the Local Government Act 1960 (WA) provided that the Governor, on the request of a local authority, may declare land to be a public street and from the date of publication of that order the land is dedicated to the public as a public street. In Ex 34r (p 5,850) the area is depicted as "Dedicated Road (Sec 288 LGA)". No issue was raised as to the fact of dedication. In any event, the permanent public work for which the land was set aside was effected. It is to be concluded that the principles set out in Fourmile apply and that native title has been extinguished in that part of the claim area occupied by Lake Argyle Road. If that act of extinguishment by the Crown was invalid and a "past act", it was "validated" by s 5 of the Titles Validation Act 1995 (WA).



Long Michael Plain Road and Durack’s Folly Road

The Governor, in a notice published in the Government Gazette (WA) in September 1977 pursuant to s 288 of the Local Government Act 1960 (WA), declared the above roads to be public streets and thereupon the land specified therein became dedicated to the public as public streets. Both are unsealed roads used by the public. According to the reasons set out in Fourmile, native title has been extinguished in that part of the claim area occupied by these roads. If that act of extinguishment by the Crown was invalid and a "past act", it was "validated" by s 5 of the Titles Validation Act 1995 (WA).



Cycas Court, Livistona Street and Celtis Street

Each of these roadways is a bitumen road constructed as part of the "Lakeside Stage 4" subdivision in 1993 and used by the public thereafter. The roadways were part of the survey of subdivision of Crown land into lots in the plan certified as correct in September 1994 by an authorized officer of the Department of Lands and Surveys.



Under s 294A of the Local Government Act 1960 (WA) where Crown lands in the district of a municipality are surveyed into lots by direction of the Minister under s 17 of the Land Act 1933 (WA) and the plan of such a survey is certified as correct by the Surveyor-General, or by an "officer duly authorized", then from the date of that certification any land delineated in the survey as a new street is dedicated as a street. If the certification of the plan of subdivision was a "past act" in that it completed a public work under way before 1 January 1994 (see: ss 228, 229(4) and 253 ("public work") of the Act), s 5 of the Titles Validation Act 1995 (WA) applied to give effect to the extinguishment of native title that would have been effected had the acts not been invalid.



Ibis Road

The only evidence in respect of this "road", depicted as a short side street intersecting with Packsaddle Road at the southern end of the irrigated lands, is a diagram of survey certified as correct in August 1994 by an authorized officer of the Department of Lands and Surveys. Whether the survey was pursuant to a direction of the Minister that Crown lands in the Shire be surveyed into lots pursuant to s 294A of the Local Government Act 1960 (WA) is unknown but on the face of the diagram its purpose seems to have been to provide a survey of Lot 780 to create Reserve 43002 and a survey of Ibis Road. The diagram was prepared in November 1993. Under s 294A of the Local Government Act 1960 (WA), the land delineated as Ibis Road was dedicated as a street upon certification of the diagram and native title was extinguished. If certification was a "past act", in that it completed a public work under way before 1 January 1994, it was "validated" by s 5 of the Titles Validation Act 1995 (WA).



Martin’s Gap Road

The only evidence in respect of this "road", depicted as being in vacant Crown land to the north-east of developed irrigated land, is a diagram of survey made in 1969. (Ex 34r p 5,852) According to a map prepared by the State (Ex 34r p 5,848), a portion of land is said to be a "Dedicated Road (Sec 294A LGA)". The segment said to be a dedicated road is not the part shown as Martin’s Gap Road in the diagram of survey. Section 294A was not inserted in the Local Government Act 1960 (WA) until December 1975.



There is no evidence that native title has been extinguished in respect of any land described as Martin’s Gap Road.



Portion of Victoria Highway

This portion of Victoria Highway is on the State side of the State/Territory border. The State Quarantine Inspection Station is situated on land set aside for the road. The road was sealed before 1975 and at all times has been used as a public road. A diagram of survey of the road reserve and the adjoining Lot 771 set aside as Reserve 42710 ("Quarantine Checkpoint") was certified as correct in February 1994 by an authorized officer of the Department of Lands and Surveys. The Reserve was created in June 1993 and the diagram prepared in February 1993. If it is assumed that the diagram was prepared as a result of a direction by the Minister that Lot 771 be created by survey and the portion shown on the diagram was a new survey of the road area for the highway, then, upon certification of the diagram, that area was dedicated as a street and native title extinguished. It would be a "past act" under ss 228 and 229(4) of the Act either, because certification of the plan of survey completed a public work under way before 1 January 1994, or because the road was a public work constructed before 1 January 1994. Therefore, s 5 of the Titles Validation Act 1995 (WA) would apply to "validate" the act and extinguish native title.





(e) Creation of reserves



The reserved Crown land in the claim area is land reserved under the Land Regulations 1882 (WA), the Land Act 1898 (WA) or the Land Act 1933 (WA).



Under the Land Regulations 1882 (WA) the Governor, by reg 29, was provided with the power to except from sale and reserve Crown land for specified purposes including, inter alia, "any purpose of...public utility...or for otherwise facilitating the improvement and settlement of the Colony". Under reg 33 the Governor may direct by order published in the Government Gazette (WA) that a reserve vest in, and be held by, any corporation "in trust" for like or other public purposes specified in the vesting order.



Under s 39 of the Land Act 1898 (WA) the Governor was authorized, subject to such conditions and limitations he may think fit, to except from sale and either, to reserve to Her Majesty, or to dispose of in such other manner as for the public interest may seem best, any lands vested in the Crown that may be required for specified purposes including the general purpose described above in the Land Regulations 1882 (WA). As in the Land Regulations 1882 (WA), s 41 provided the Governor with an unfettered power to amend, cancel or change the specified purpose of a reserve provided notice was published in the Government Gazette (WA). Under s 42 of the Land Act 1898 (WA) the Governor could direct that any reserve "vest in and be held by" a municipality or other person "in trust" for like or other public purposes specified in the vesting order and was also empowered to lease, in a form prescribed by Schedule to that Act, or to "grant the fee simple" of any reserve to secure the use thereof for the purpose for which the reserve was made.



Under s 29 of the Land Act 1933 (WA), as it stood prior to 1982, the Governor may, subject to such conditions and limitations as he thought fit, reserve to Her Majesty, or dispose of in such a manner as for the public interest may seem fit, any lands vested in the Crown. The power of disposition appears to have been broadened in that it was not a requirement that the land disposed of be land that had been excepted from sale. Section 31 of the Land Act 1933 (WA) allowed the Governor, prior to 1949 by notice and thereafter by proclamation, to declare reserves for certain purposes to be Class A Reserves by which classifications land so reserved remained dedicated to that purpose until an Act of Parliament provided otherwise. A reserve declared to be a Class B Reserve was reserved from alienation, or otherwise being dealt with, subject to cancellation of the reserve by the Governor by notice in the Government Gazette (WA) after presentation to both Houses of Parliament of a special report giving reasons for the cancellation. All other reserves are classified as Class C. Pursuant to s 37 of the Land Act 1933 (WA) there was otherwise an unfettered power to cancel and amend the boundaries, or change the purpose, of any reserve not classified as a Class A or Class B reserve.



In 1982 s 29 was amended to allow land to be reserved for a specified purpose without the requirement that the purpose be a purpose specified in the Act. Section 31 was amended to allow lands reserved for that purpose to be classified as a Class A or Class B reserve.



Section 32 of the Land Act 1933 (WA) provided power for the Crown to lease a reserve for any purpose if the land is not immediately required for the purpose for which it is reserved, the term of the lease not to exceed ten years. In 1960 provisions were added to this section allowing the Crown to grant a lease, or licence, for a term of one year for the purpose of depasturing stock over land reserved for the purpose of parks or recreation or amusement of inhabitants notwithstanding that the land is being used for the purpose for which it was reserved. Clearly, it was intended that the land remain available for use for the specified purposes notwithstanding the grant of a lease, or licence, to depasture stock thereon.



Section 33 of the Land Act 1933 (WA), in similar terms to s 42 of the Land Act 1898 (WA), empowered the Crown to direct that a reserve vest in a municipality, body corporate or other person but did not authorize the Governor to "grant the fee simple" in reserved land. In 1949, s 33 was repealed and a provision substituted which authorized the Governor to direct that reserved land be vested in a municipality, body corporate or other person for the purpose for which the land is reserved with power to lease the land for that purpose. Further, the Governor was empowered to direct that any reserved land be leased or "granted in fee simple" to any person subject to such conditions and limitations as the Governor deemed necessary to ensure that the land is reserved for the reserved purpose. In 1987 s 33 was expanded to include in the reserved purpose "any purpose ancillary, and beneficial" to that purpose.



Under s 34B of the Land Act 1933 (WA), inserted in 1982, the Governor has power to revoke any vesting order in respect of reserved land. Leases granted by a person in whom the reserve had been vested prior to revocation were to continue as if the Crown were the lessor.



The State submitted that the creation of reserves for a purpose had the effect of withdrawing the lawfulness of the use of the land for any other purpose. If by this submission it is contended that the use of the land by native title holders was rendered unlawful, the contention cannot be accepted. An offence of unlawful occupation of Crown lands applied equally to vacant Crown land and land withdrawn, reserved or excepted from sale, for a public purpose including reserved land leased or vested for the purpose. (See: Land Act 1898 (WA) s 135; Land Act 1933 (WA) s 164; Mabo (No 2) per Brennan J at 66, per Deane, Gaudron JJ at 114; Wik per Gummow J at 190-194.) The effect of a reservation of land was to enable the Crown to hold back from alienation areas of land which it deemed necessary to retain for use for a public purpose. Upon reservation, the land did not pass from the control of the Crown and something more formal than mere reservation by the Crown was required to create a right in members of the public or a section of the public. (See: Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54 per Windeyer J at 74.)



In addition the State submitted that pursuant to the ordinary meaning of the word "vest" the vesting of reserved Crown land in any person had the effect of a conveyance of an estate in the land with the right to exclude others thus evidencing a clear and plain intention to extinguish native title. Such a submission may elevate the concept of "vesting" of land reserved for public purposes beyond the effect thereof hitherto applied or understood.



As was stated by the Privy Council in Attorney-General for the Province of Quebec v Attorney-General for the Dominion of Canada at 409:

"...a declaration that lands are ‘vested’ in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively: Tunbridge Wells Corporation v. Baird [1896] A.C. 434, an interest which may become devested when these functions are transferred to another body. In their Lordships’ opinion, the words quoted from s.1 are not inconsistent with an intention that the Commissioner should possess such limited interest only as might be necessary to enable him effectually to execute the powers and duties of control and management, of suing and being sued, committed to him by the Act."

In Tunbridge Wells Corporation v Baird [1896] AC 434 the issue before the Judicial Committee was the vesting of a street in an urban authority under the Public Health Act 1875 (UK) and at p 442 Lord Herschell stated:

"the vesting of [a] street vests in the urban authority such property and such property only as is necessary for the control, protection, and maintenance of the street as a highway for public use."

In The City of Perth v Crystal Park Limited [1940] HCA 35; (1940) 64 CLR 153 Crown land was reserved for recreation and parking pursuant to s 33 of the Land Act 1933 (WA) and was vested by the Governor in the State Gardens Board. Rich ACJ and Williams J referred, with apparent approval, to the opinion expressed by the Privy Council in Attorney-General Quebec v Attorney-General Canada concluding that the word "vest" is a word of elastic import and of limited meaning when lands are vested in a public body for public purposes.



A similar opinion was expressed by Romer LJ in Port of London Authority v Canvey Island Commisioners [1932] 1 Ch 446 at 502.



In Sheffield City Council v Yorkshire Water Services Ltd [1991] 1 WLR 58 Lord Browne-Wilkinson VC suggested that a distinction could be drawn between statutory provisions which simply vest in a public authority something which is not the land itself and the transfer of property from a proprietor to a public authority. That may have been an appropriate distinction on the facts according to the proper construction of the relevant legislation in that case but as The City of Perth v Crystal Park Limited makes clear, the well-settled principles in relation to vesting of property in a public authority for use for a public purpose apply equally to the vesting of land and unless the circumstances and context require a conclusion that a greater interest in land is conveyed to an authority, mere vesting will not settle on the authority more than that which is necessary for it to execute its powers of control or management effectively.



The State suggested that the right to exclude others as a consequence of a vesting order must signify an intention to extinguish native title. First, it may be said that any power to exclude is likely to be found in the statutory powers conferred upon the vestee and not as a consequence of the vesting of the reserved land. Second, the right to exclude in itself may be no more than is necessary for the management of the land for the purpose of the reserve.



The effect of the use of reserves for the purpose for which they have been created will be considered separately later in these reasons.

(f) Mining tenements

(i) "Argyle" and "Normandy" mining leases



Under the Agreement made between the State and the Argyle Diamond Mine Joint Venturers, the Joint Venturers proposed to mine and market diamonds. Pursuant to cl 15 of the Agreement upon certain matters being performed and preconditions satisfied, the Joint Venturers were entitled to the grant of "the Argyle mining lease" under, and subject to, the Mining Act 1978 (WA) but in the form set out in the Schedule to the ratifying Act. The Argyle mining lease was to be subject to such conditions as applied to "previous tenements" as the Minister for Mines determined.



Pursuant to cl 15(4) of the Agreement the Joint Venturers were required to permit the State, and third parties with the consent of the State, to have access to, and to pass over, the Argyle mining lease so long as that access and passage did not unduly prejudice or interfere with the operations of the Joint Venturers under the Agreement. Pursuant to cl 15(2) of the Agreement the term of the Argyle mining lease would be for a period of twenty-one years with a right to successive renewals of periods of twenty-one years.



Under s 7 of the ratifying Act, applications for certain mineral claims that had been made by one of the Joint Venturers under the Mining Act 1904 (WA) were deemed to have been validly made and, by operation of the ratifying Act, to be approved and registered. The ratifying Act provided in s 7(8) that the validity, or effect, of the application for, and approval or registration of, those claims was not liable to challenge or review in any court proceeding whether the proceeding was instituted before or after the coming into operation of the ratifying Act.



Under s 8 of the ratifying Act it was further declared that, for the purposes of the Mining Act 1904 (WA) and the Mining Act 1978 (WA), the Joint Venturers had "exclusive possession" of land the subject of, inter alia, the mineral claims referred to above upon the ratifying Act coming into operation and until the grant of the Argyle mining lease. Section 8 provided further that any diamonds found on that land before the ratifying Act came into operation, and before the Argyle mining lease was granted, were the property of the Joint Venturers, and that such entitlement could not be challenged, or called into question, in any court proceeding, whether commenced before or after the coming into operation of the ratifying Act. Section 9 of the ratifying Act provided, inter alia, that any right, title, interest, benefit or entitlement under and for the purposes of the Mining Act 1904 (WA) held by a person other than the Joint Venturers in respect of that land was extinguished and deemed never to have existed. Section 10 stated that the marking out of a mining tenement under the Mining Act 1904, or Mining Act 1978 (WA), by a person other than a Joint Venturer on, inter alia, the land referred to above before the coming into operation of the ratifying Act, was of no effect and deemed never to have had effect.



Part 4 of the ratifying Act, in contemplation of the commencement of a mining operation and providing for the security thereof, provided for the creation, by declaration of the Governor, of "designated areas", being land or premises used for, or proposed to be used for, mining, treatment, processing, sorting, storage or cutting of diamonds. A "designated area" was not restricted to an area within the land held by the Joint Venturers under the Argyle mining lease. The ratifying Act authorized the Joint Venturers to instruct security officers employed by them to detain and search persons in a "designated area" and to enforce strict control of that area for better security of diamond mining and recovery operations. The ratifying Act prescribed offences for, inter alia, entering or leaving a "designated area" other than by a "controlled access point" and failing to comply with the requirement of a security officer in a "designated area".



In due course, the Argyle mining lease was granted to the Joint Venturers in 1983. The leased land was the land to which ss 7 and 8 of the ratifying Act applied, only the northern portion of which was within the claim area. It was not contended that the land in the Argyle mining lease within the claim area was within a "designated area" at any time.



In November 1984 an Order in Council was published in the Government Gazette (WA) which declared a number of sites to be "protected areas" under the Aboriginal Heritage Act 1972 (WA). One of those sites was described as "Flying Fox Hole – Mythological Site". That site was referred to in the primary evidence of John Toby. (Ex A9 - marked "Wariminy") The dimensions of the protected area were set out in the declaration.



In November 1986 the leased area was extended pursuant to cl 15(6) of the Agreement. At the same time the Minister for Mines imposed conditions to which the mining lease was subject, namely, an obligation on the Joint Venturers to comply with the provisions of the Aboriginal Heritage Act 1972 (WA) and to ensure that no action was taken which was likely to interfere with, or damage, any Aboriginal site. In addition, the Minister for Mines excised from the leased area, the area of a miscellaneous licence, reserving to that licensee rights of ingress and egress, and passage across the Joint Venturers’ lease to the licensed area at all times. In 1992 the Minister imposed further conditions on the Joint Venturers by prohibiting mining on Reserve No 31165 without the prior written consent of the Minister and by prohibiting mining absolutely on the areas of land declared as "protected sites" in 1984, namely, "Flying Fox Hole" and other sites.



In respect of the portion of the Argyle mining lease within the claim area, the whole of that part is situated on Reserve No 31165. There is no evidence that mining on that Reserve has been permitted by the Minister.



Argyle submitted that by the grant of the mining lease and, or, by reason of the provisions of the ratifying Act, the Crown had signified a clear and plain intention to extinguish native title in respect of the whole of the area, the subject of the Argyle mining lease.



With regard to the provisions of the ratifying Act, the mischief sought to be addressed by the unusual provisions contained in ss 7-10 thereof was explained in the Second Reading Speech of the Minister for Resources Development (Legislative Assembly Second Reading, Hansard 18 November 1981, 5811 at 5812-5813) on introducing the Bill to the Parliament. (See also the remarks of Mr Stephens, MLA at 6213-6217.) The security of some of the mining tenements upon which the Joint Venturers proposed to conduct a diamond mining operation was in doubt and under challenge in legal proceedings undertaken by a third party claiming that a possessory title had been obtained under the Mining Act 1904 (WA) and the Mining Act 1978 (WA). Sections 7-10 had a specific purpose, namely, to defeat the claim of that party to an interest under the Mining Act 1904 (WA) and the Mining Act 1978 (WA) in respect of land sought to be used for mining purposes by the Joint Venturers. The specific purpose of the legislative provisions was, by extinguishing any competing interest obtained under the Mining Act 1904 (WA) and Mining Act 1978 (WA) by the third party, to validate the current position of the Joint Venturers and, further, to validate the issue of the Argyle mining lease to the Joint Venturers in due course.



It was not the intention of the legislature to extinguish in general all pre-existing interests in that land. Under s 9 of the ratifying Act the interests extinguished were, inter alia, those held under, and for the purpose of, the Mining Act 1904 (WA). The "exclusive possession" of the land over which the Argyle mining lease was to be granted, declared by s 8 to be held by one of the Joint Venturers until the lease was granted, was possession for the purposes of the Mining Act 1904 (WA) and the Mining Act 1978 (WA). That provision was directed to putting beyond question that the Joint Venturer which held the mining tenements under challenge, had possession of the land at all material times, thereby validating the acquisition of any property by the Joint Venturer in diamonds that may have been recovered by it on the tenements after October 1979.



It is confirmed by s 85 of the Mining Act 1978 (WA) that a mining lessee is given possession of land (which may include freehold land) for mining purposes, namely, to extract from that land minerals vested in the Crown. Under par 82(1)(b) of the Mining Act 1978 (WA) a mining lease is granted subject to the condition that the lessee, inter alia, use the land in respect of which the lease is granted only for mining purposes in accordance with the Act. The right to mine is exclusive in respect of the land to which it is granted. The possession granted to a lessee under a mining lease is limited, both in time and in purpose. It remains a mining tenement for the extraction of minerals, by definition a finite operation, requiring removal of the mining equipment and rehabilitation of the land at the completion of the mining project. The grant of such an interest does not display an intention by the Crown to extinguish native title. Just as the rights of the owner of a freehold interest in land subject to a mining lease may be impaired, rights exercisable by the holders of native title over Crown land may be impaired or suspended. Whatever degree of impairment it may cause, the lack of permanence in purpose and duration of a mining operation precludes the conclusion that by the grant of a lease for mining purposes the Crown has intended to extinguish native title. The grant of such a tenement is consistent with an intention of the Crown that there be full resumption and utilization of rights under native title upon completion of a mining operation.



The grant of exclusivity of possession of land by the Crown is not the determinant of the Crown intention as to the extinguishment of native title. The character of the act of the grant of possession has to be assessed by having regard to the purpose for which possession is granted.



The underlying purpose of a statutory instrument described as a mining lease is of greater relevance to the character of that instrument than the nomenclature used. As Toohey J pointed out in Wik (at 117), the mining lease considered in Wade v New South Wales Rutile Mining Company Pty Ltd was properly described as a sale by the Crown of minerals reserved to the Crown, to be taken by the lessee at a price payable over a period of years as royalties.



The terms of cl 15(4) of the Agreement acknowledge, in effect, the reservation of existing rights of access to, and passage over, the land subject to the exercise of those rights not unduly prejudicing or interfering with the operations of the Joint Venturers. In its terms, cl 15(4) of the Agreement qualified the interest to be granted as the Argyle mining lease and amounted to a reservation by the State from the interest granted. The reservation is consistent with the exercise of a right of access to the land by the holders of native title.



It was submitted that in so far as cl 15(4) of the Agreement refers to third parties who have the consent of the State to pass over the mining lease, the lessee retains the right to refuse permission to persons who do not obtain that consent. Whether that is so is not a material issue. The consent may be express or implied and would include a consent the Crown is unable to refuse, for example, by reason of the rights granted to the holders of the miscellaneous licence, the area of which was excised from the mining lease. There would be implied consent from the Crown for the holders of that licence to have access to the licensed area and to pass and re-pass over the Argyle mining lease for that purpose. Similarly, the holders of native title whose interest burdens the title of the Crown, would have an implied consent from the Crown to exercise rights of entry and passage under that title until such time as the title is extinguished by the Crown. In this case, that conclusion is reinforced by the declaration of "protected sites" under the Aboriginal Heritage Act 1972 (WA) within the area of the mining lease and the imposition of conditions prohibiting the carrying on of mining operations on any of those sites. The declaration of such sites is consistent with the Crown intention that a right of access to those sites attached to a subsisting native title would continue subject to the exercise of the right of access not unduly prejudicing or interfering with the operations of the Joint Venturers under the Argyle mining lease. If any of the "protected sites" were within a declared "designated area", the opportunity to exercise a right of access to the sites may be severely curtailed, or even suspended, but it would not follow that it was the intention of the Crown that native title, and a right of access to the site arising thereunder, be extinguished.



Further, with regard to that part of the Argyle mining lease that is within the claim area, the whole of that part is subject to a condition that no mining be conducted thereon without the consent of the Minister. Such controlled used of the land does not, on its face, signify any intention by the Crown to extinguish native title under which access, or other rights in respect of the land, may be exercised.



For the foregoing reasons relating to the character of a mining lease the conclusion must follow that in respect of the mining leases granted under the Mining Act 1978 (WA) to Argyle and to Normandy, all situated in Reserve No 31165, no clear and plain intention by the Crown to extinguish native title is manifested by the grant of such tenements and creation of rights in Crown land in third parties. It was a condition of each of the mining leases granted to Argyle and to Normandy within Reserve No 31165 that the lessees comply with the terms of the Aboriginal Heritage Act 1972 (WA) to ensure that no action is taken which is likely to interfere with, or damage, any Aboriginal site and in respect of two of those leases, both granted to Normandy, there was a specific condition that there be no mining without the permission of the Minister.



It was submitted by the first applicants that the material presented by Argyle and Normandy did not prove the validity of the grant of the tenements under the Mining Act 1978 (WA). In the absence of any material pointing to actual invalidity, it should be presumed that tenements recorded in a register of tenements have been validly created.





(ii) Other mining leases



A general purpose lease and a number of mining leases were granted to the parties included as the sixth and ninth respondents. For the foregoing reasons the same conclusion set out above applies to these interests, namely, that the grant thereof did not evince a clear and plain intention by the Crown to extinguish native title.





(iii) Other mining tenements



With regard to other mining interests it was not contended by the eighth respondents that the grant of prospecting licences or exploration licences evidenced an intention by the Crown to extinguish native title. It was submitted by the ninth respondents that the issue of an exploration licence would extinguish native title.



Under the Mining Act 1978 (WA), exploration licences are for a limited term and in the period of the licence part of the land in respect of which the licence is granted must be relinquished (s 65(1)). Strict conditions are applied to prevent damage to land and property (s 63AA).



It is unnecessary to expand the foregoing reasons to conclude that such licences granted under the Mining Act 1978 (WA) demonstrate no intention by the Crown upon grant to extinguish native title in respect of Crown land over which the licences may be issued.



The State submitted that a general purpose lease issued under the Mining Act 1978 (WA) evidenced a Crown intention to extinguish native title. Under s 86 of the Mining Act 1978 (WA) a general purpose lease may be granted for use with respect to mining operations on such terms and conditions as the Minister considers reasonable. Under s 87 a general purpose lease entitles the lessee to the exclusive occupation of Crown land for one or more of the following purposes:

•	erecting, placing and operating machinery thereon in connection with mining operations;

•	depositing or treating the minerals or tailings;

•	using the land for any other specified purpose directly connected with mining operations.

Under s 88 of the Mining Act 1978 (WA) a general purpose lease may be granted for twenty-one years and renewed for a further term of twenty-one years. Under s 86 of the Act the maximum area of a general purpose lease is ten hectares.



For the reasons relied upon for the conclusion that the grant of a mining lease does not extinguish native title, the grant of a general purpose lease will not be a declaration of Crown intention to extinguish native title. A general purpose lease is a statutory interest ancillary to the statutory tenement of a mining lease, and has no particular characteristic that demonstrates a Crown intention to extinguish native title upon grant of that interest.



The reasons given for concluding that the grant of tenements for the extraction of minerals under the Mining Act 1978 (WA) is not an act of the Crown intended to extinguish native title apply equally to the grant of tenements under the Mining Act 1904 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA) for the use of land or waters for the purpose of exploring for and recovering petroleum.





(g) Limitation Act 1935 (WA)

In the course of its submissions the State put an argument that a limitation period under the Limitation Act 1935 (WA) could be applied to an application to enforce native title and that upon expiration of such a period the title could be said to be extinguished. The submission, in part, was based upon the remarks of Deane and Gaudron JJ in Mabo (No 2) (at 90) in which their Honours stated that where the actual occupation or use of the native title holders was terminated "an ultimate lack of effective challenge" would found either an assumption of acquiescence in the extinguishment of the title or a defence based on laches or some statute of limitations.



In this proceeding the Court is concerned only with the determination of the existence of native title under federal legislation providing machinery for that purpose. The legislation is predicated upon the assumption that the rights are rights of antiquity and, as far as the common law is concerned, date at least from the time of sovereignty. The Court is not concerned with curial ascertainment of the enforceability of rights that arise under native title. (See Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 731.)



As stated earlier, native title existing at sovereignty is a burden on the radical title of the Crown. If extinguished by the Crown it ceases to exist. It will cease to exist also if it has been abandoned. It will not be shown to exist if a claimant for native title is unable to show that, as far as is practicable, connection with the land has been maintained and traditional laws and customs observed. It is not necessary for proof of the existence of native title to show that it has been asserted against the Crown. It is a "sui generis" interest, inalienable to third parties, and is not an estate in land capable of being lost to the Crown by prescription.





(h) Proclamation of the Ord Irrigation District



Under s 28 of the Rights in Water and Irrigation Act 1914 (WA) any defined part of the State may be constituted an "Irrigation District" by Order in Council. Pursuant to s 29 of that Act the District may be extended by adding further land thereto.



In 1962 the Ord Irrigation District ("the District") was constituted by proclamation. Prior to that, by proclamation made in 1960 pursuant to s 27(3) of that Act (as it then stood), it was declared that Pt III of the Rights in Water and Irrigation Act 1914 (WA), which provided for the vesting of rights in the Crown for the use and flow, and to the control, of water in any watercourse, applied to the Ord River and its tributaries. The District was extended by two further proclamations made in 1965 and 1973. As now constituted, the District is an area of land which covers all the potentially irrigable land in the East Kimberley region (a minor part of the District), the whole of the area of the Argyle Downs pastoral lease and the catchment area of the Ord River, a vast area which includes numerous pastoral leases that extend hundreds of kilometres to the south of Lake Argyle beyond Halls Creek.



Under s 27(4) of the Rights in Water and Irrigation Act 1914 (WA) (as it then stood) every river, stream, watercourse, lagoon, lake, swamp or marsh within the boundaries of the District became subject to Pt III of that Act. Section 5 in Pt III of that Act declared and deemed that the bed of a watercourse, lake, lagoon, swamp or marsh had not been, and would not be, alienated by the Crown and at all times remained the property of the Crown. Under s 26 of that Act the bed of any lake, lagoon, swamp or marsh on any land alienated by the Crown did not exceed the width of the watercourse at its inlet to, or outlet from, such lake, lagoon, swamp or marsh.



By providing that the bed of any watercourse or water area was not land subject to alienation, the Crown did not act to elevate the nature of the title it held in the land but made it plain that land that was necessary for the use and control of water in any watercourse or water area, remained with the Crown at all times as of its usual estate.



Section 7 of that Act acknowledged the existing right of an owner or occupier of land adjacent to the bed of a watercourses or water area by stating that such a person was entitled to have like access and use of the portion of the bed to which land is adjacent as if that Act had not been passed, as long as the Crown had not "actually appropriated" that portion of the bed for a purpose of that Act. Furthermore, the right of such an owner or occupier to control the access of others by remedies in trespass, continued as if that Act had not been passed save that it did not entitle such an owner or occupier to pursue a remedy in trespass against the Crown. In accord with the principles discussed earlier, such recognition and retention of existing rights did not reflect any intention by the Crown to extinguish native title, a right based on occupation pursuant to which a right of access to, and use of, land may be exercised.



The State submitted that the proclamation of the District and of its extension were acts by the Crown intended to extinguish native title. It is plain that the vesting of rights for the control of watercourses may lead to regulation of the exercise of some rights under native title but it is equally plain that it does not involve a statement of intention by the Crown to extinguish native title. Similarly, the nature of the rights of the Crown in water and beds of watercourses and water areas within the District may lead to regulation of some rights exercisable under native title but regulation of those rights does not bespeak an act calculated to extinguish the native title vested in Aboriginal people in respect of the land and waters within the vast area of the District.



The comments of Fullagar J in Thorpes Ltd v Grant Pastoral Co Pty Ltd [1955] HCA 10; (1955) 92 CLR 317 at 331 in respect of the effect of like legislation in South Australia, are equally apt in respect of the provisions of the Rights in Water and Irrigation Act 1914 (WA):

"I should have thought,...that the real object of the Water Rights Act 1896, as revealed by the latter part of s. 1, was to enable the Crown, in a country in which water is a comparatively scarce and important commodity, to exercise full dominion over the water of rivers and lakes and to undertake generally the conservation and distribution of water. For the attainment of that object it was not necessary to destory anybody’s rights, but it was necessary to give to the Crown, or to some statutory authority, overriding rights to which private rights must, if need arise, give way.



The effect given to the statutue in Hanson’s Case (1900) 21 NSWLR 271 means that a riparian proprietor has no remedy as of right if a river is dammed by an upper owner so that no water reaches him, or if it is polluted and poisoned by the refuse of a factory. There is much to be said for the view that it would be contrary to elementary rules of construction to give to it any such effect in the absence of clear and unmistakable language. The view which I am disposed to take is that the Act does not directly affect any private rights, but gives to the Crown new rights – not riparian rights – which are superior to, and may be exercised in derogation of, private riparian rights, but that, until those new and superior rights are exercised, private rights can and do co-exist with them."

These remarks were considered and followed by the Supreme Court of Western Australia in Rapoff v Velios [1974] WAR 27.



The State further submitted that the content of certain by-laws, made in 1963 under the Rights in Water and Irrigation Act 1914 (WA) in respect of the District, which prohibited or controlled certain activities in specified areas within the District including the use of flora or fauna, displayed an intention to extinguish native title within those specified areas.



Again, it is plain that at their highest the by-laws controlled the exercise of some rights under native title but did not signify Crown intention to extinguish native title in the prescribed areas. Even the imposition of stringent regulation does not deny the continuation of native title and the exercise of the Crown’s power of regulation is not to be confused with the exercise of a power to extinguish native title. (See: R v Sparrow at 1097; Mason v Tritton (1994) 34 NSWLR 572 per Kirby P at 592-593.) It was not submitted by the sixth respondents that the approval of applications under the by-laws to pump water from the Ord River and Lake Kununurra could reflect an intention to extinguish native title.





(i) Proclamation of Townsite of Kununurra



In 1961 the Governor, by notice in the Government Gazette (WA), constituted and defined the boundaries of the town of Kununurra pursuant to s 10 of the Land Act 1933 (WA). It was submitted that such a declaration had the effect of a clear and plain intention to extinguish native title under that Act.



The major part of the area developed as the town of Kununurra is within that part of the townsite that was part of the land resumed in 1960 from the Ivanhoe pastoral lease for the Project, approximately 600 hectares. The land resumed in 1961 for the Kununurra townsite from the Ivanhoe pastoral lease was an adjacent area of land (approximately 3,000 hectares) to the east. Only a minor part of the land resumed for the townsite has been developed for use as residential lots and dwellings. Approximately two-thirds of the area resumed for the purpose of the Kununurra townsite was removed from availability for townsite development by the proclamation of the Mirima (Hidden Valley) National Park in 1982 and by the extension thereof in 1989. The area of the Park is 2,067 hectares. The land in the Mirima National Park (Reserve 37883) was open land that had not been used for any townsite purpose after resumption of the land in 1961.



Although the development of a town pursuant to the declaration of a townsite may involve a use of the land of permanence and inconsistent with continuation of native title to cause extinguishment thereof, the bare declaration of a townsite on open land cannot be said to have such a consequence. In keeping with any other form of reservation of land for a public purpose, extinguishment of native title will depend upon the extent and form of utilization of the land for the reserved purpose. As noted below, the claim area does not extend to that part of the land within the townsite that has been developed as the town of Kununurra with the exception of certain reserved land.



A substantial part of the area of the townsite consists of vacant Crown land, approximately 20 per cent. At some time some of the land may be subdivided and used for residential lots but other parts of the vacant land are unsuitable for subdivision. At this time there is no use of the land, which remains open country, which is inconsistent with the continuation of native title.



With regard to that part of the townsite which remains vacant Crown land, it follows that it has not been shown that native title has been extinguished by declaration of the townsite, the land not being used for the declared purpose. Whether the grant of "special leases" by the Crown in respect of part of this land has affected native title will be considered later in the reasons.

(j) Resumption and acquisition of Crown lands from pastoral leases for Project and other purposes

A large part of the land resumed or acquired for the Project remains in unaltered form. Substantial areas have been used for reserves and a large part remains as vacant Crown land. The balance has been put to a variety of uses. The principal uses have been for the construction of the diversion and main dams and reservoirs, irrigation works and farmlands, and some land has been included within the townsite of Kununurra.



The claim area does not include land resumed or acquired for the Project developed as irrigated lands or used for roads or drains on that land, nor does it include the land resumed and used for an airfield, or the land which was resumed in 1947 to form the Kimberley Research Station. That part of the land resumed for the extension of the Kimberley Research Station which now forms Reserve 38358 is included in the claim area. The claim area does not include that part of the land resumed for the Project later included within the townsite and developed as the town of Kununurra other than specific reserves which are dealt with below.



Land required for the purpose of the Project was resumed, or acquired, by the State by three different means:





(i) Resumption of land under s 109 of the Land Act 1933 (WA)



Most of the land used for the Project was resumed under s 109 of the Land Act 1933 (WA).



Pursuant to s 109 the Governor was empowered to resume, enter upon, and dispose of the whole or any part of the Crown land in a pastoral lease, for agricultural or horticultural settlement, mining or for any other purpose thought fit in the public interest. In 1963 those purposes were enlarged by adding "industry" and "to enable the land to be declared open for selection for pastoral purposes and again leased..."



Relevantly, the statutory form of a pastoral lease in the 19^th Schedule of the Land Act 1933 (WA) provided that the land was leased for pastoral purposes under, and subject to, the provisions of Pt VI of that Act (ss 90-115 "Pastoral Leases") and that the lease was granted subject to the powers, conditions and reservations set out in Pt VI and to all rights and privileges lawfully acquired or exercisable thereunder. The right was also reserved to the Crown to dispose of such portions of the land under the provisions of Part III (ss 29-37B "Reserves") as may be required for any purpose prescribed therein of public utility or for otherwise facilitating the improvement and settlement of the State.



It appears from the foregoing that s 109 is not a plenary power in the executive to resume Crown land comprised in a pastoral lease and dispose of it at will. It is not a power to deal with land that is wider than the power to reserve and otherwise deal with Crown land under other parts of the Act. Land resumed from a pastoral lease would be Crown land available to be used for the purpose set out as the purpose for resumption or reserved under the Land Act 1933 (WA) or otherwise held as vacant Crown land. Pursuant to s 3 of the Rights in Water and Irrigation Act 1914 (WA) as it stood at relevant times, all lands acquired for, or dedicated to, the purposes of that Act were vested in the Minister until such lands, irrigation works and constructions were vested in a Board.



The word "dedicated" is there used in its broadest sense not in the narrow sense of rights conferred on the public giving an entitlement to cause the Crown to have the land used for the purpose declared by the Crown. (See: Williams v The Attorney-General of New South Wales [1913] HCA 33; (1913) 16 CLR 404; Council of the Municipality of Randwick v Rutledge per Windeyer J at 73-74.)



The relevant resumptions for the purpose of the Project were made by the Crown from the Ivanhoe pastoral lease between 1960 and 1967.