In this matter the Court made findings about the native title rights and interests that the Ngarla and Warrarn claimants hold in an area of land that was left out of the Ngarla people’s previous determination (Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025).
Background
The Court found that in addition to the non-exclusive rights to access, camp, take traditional resources, conduct ceremonies, and protect significant sites, the Ngarla people also had the exclusive rights to control access by non-Ngarla Aboriginal people to law grounds and resources used for ceremonies, and to control access by all others to a particular significant site. The Court found that the Warrarn claimants did not hold rights and interests in the claim area of a kind that could be recognised under the Native Title Act 1993 (Cth) ('NTA'). The Court did not make a formal determination of native title, although this is likely to occur after the parties have consulted about the exact terms of a determination.
The areas claimed by the Ngarla people are in the Pilbara area of Western Australia, east of Port Hedland. In 2007 a consent determination was made in relation to the majority of their claim area, including coastal and offshore areas. Some areas were left for future determination. One area that was left out of the 2007 determination was the Mount Goldsworthy mining area – the Full Court of the Federal Court recently decided issues about the extinguishing effect of the mineral leases there (Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154). The current case deals with the rest of the areas claimed by the Ngarla people that were not determined in 2007. These remaining areas are called the ‘Overlap Area’ because they are subject to an overlapping claim by the Warrarn claimants.
No agreement was reached between the Ngarla people and the Warrarn people about the rights held by each group in the Overlap Area and so the Court was required to decide between their competing claims. In addition, there was disagreement between the state of Western Australia and the Ngarla claimants about the rights that the Ngarla people held in the area.
The parties agreed on many aspects of this case – importantly, they all accepted that the Ngarla people held some rights in the Overlap Area. The issues in disagreement were:
Whether the Warrarn people were a part of Ngarla society or not, or whether there was a broader Pilbara society encompassing both Ngarla and Warrarn people;
Whether the Warrarn people hold native title rights in the Overlap Area;
The nature and extent of the rights and interests held by the Ngarla people in the Overlap Area;
Whether the extinguishing effects of certain leases in the area should be disregarded under s 47A Native Title Act 1993 (Cth).
1. Society
To establish native title, claimants need to show that their rights and interests are held under traditional laws and customs. Part of the definition of ‘traditional’ requires that the society that existed in the claim area before colonisation is the same society that exists in the area today (Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58). In this case, the Warrarn people said that they were either part of Ngarla society or that both Warrarn and Ngarla people belonged to a broader ‘Pilbara society’.
The Court compared evidence of the Ngarla people's laws and customs and the Warrarn people's laws and customs, together with other cultural and linguistic factors. The Court found that at the time when British sovereignty was first asserted in the area, there was a distinct Ngarla society that did not include the Warrarn people. The Court did not consider that the idea of a ‘broader Pilbara society’ had been defined clearly or precisely enough. Further, the Court found that the Warrarn people had not been ‘incorporated’ into Ngarla society during the period after colonisation.
2. The Warrarn people's rights and interests
The Warrarn people did not claim to have lived in the Overlap Area before the assertion of sovereignty; instead, they moved to the area during the 20th century. The Warrarn people say that they have native title rights and interests in the Overlap Area because during the 20th century the Ngarla people granted a kind of permission or licence for the Warrarn people to do certain things in the Overlap Area.
The Court found that while ownership under the Ngarla people's law was strictly based on descent, and so could not be given to outsiders, the Ngarla people's law did allow permissions or licences to be granted. Nevertheless, the Court found that the proven examples of permissions granted to Warrarn people did not amount to ongoing rights or interests of the kind that can be recognised in a native title determination. The Court held that any permissions that were previously granted were personal rights rather than rights in relation to land – this was dictated by the Ngarla people's law and custom, and was also supported by the decision in Akiba v Queensland (No 3) [2010] FCA 643. The Court also held that even if the High Court overturns the Akiba decision and holds that ‘reciprocal relationship rights’ are able be recognised under native title law, Bennett J held that the Warrarn people did not prove that any such rights were held by Warrarn individuals in current times.
Further, the evidence about the history of the Warrarn people did not establish that they were a group with a traditional connection to the Overlap Area. The evidence did not show that they existed as a group before the assertion of British sovereignty; instead the evidence suggested that the group had come together during the 20th century from a range of different traditional groups. This meant that as a group they did not have the necessary traditional connection to the Overlap Area.
As an alternative argument, the Warrarn claimants argued that they could be recognised as holding native title rights and interests as individuals rather than as members of a group. Bennett J, however, found that these individual claims were not proven on the evidence.
3. The Ngarla people's rights and interests
There was a disagreement between the state and the Ngarla claimants about whether the evidence proved that the Ngarla people currently hold exclusive possession rights in the Overlap Area. The Ngarla people accepted that they needed to prove more than a subjective belief in their right to exclusive possession, and the state accepted that the right could exist even if not strictly enforced or obeyed. In considering the anthropological and Aboriginal evidence, the Court inferred that before colonisation the Ngarla people held exclusive possession rights, and non-Ngarla people were restricted from entering without permission. In relation to current practice, however, the evidence did not clearly establish that non-Ngarla people still seek permission before entering Ngarla country, or even that Ngarla people expect permission to be sought.
Even though their claim for overall exclusive possession rights was unsuccessful, the Ngarla people also claimed that they held certain limited exclusive rights: to prevent non-Ngarla Aboriginal people from opening or accessing Law grounds in the area; to prevent non-Ngarla Aboriginal people from gathering ceremonial resources in the area; and, to control access by all people to a particular site (Mikurrnya). The state argued that if the general exclusive possession right could not be established, then the Ngarla people could not hold lesser exclusive rights either. The Court held that there was no reason why the more limited exclusive rights could not be recognised, provided they could be established on the evidence. In considering the evidence, the Court found that these rights had continued in force in Ngarla society and therefore should be recognised.
A separate question was raised regarding the right for Ngarla people to accompany non-native title holders who are spouses of Ngarla people or who are required by traditional law for the performance of ceremonies onto the Overlap Area. The state argued that this right was essentially the same as the right to exclusive possession and so could not be recognised. The Court, however, found that the right to say who could come onto the land is not the same as the right to say who could not come onto the land. They are different rights, and the loss of one does not automatically mean the loss of the other. Bennett J held that the right to be accompanied is not meaningless without the right to exclude and should be recognised.
4. Disregarding extinguishment
Finally, the Court had to decide whether two leases in the Overlap Area had the effect of extinguishing native title. Under s 47A NTA, the extinguishing effect of certain tenures must be ignored in certain circumstances. The Court found that the area of the two leases had been ‘occupied’ by at least one member of the Ngarla claim group at the time their native title application was filed. This met the first requirement for s 47A. The second requirement is that the tenures are held expressly for the benefit of Aboriginal people or Torres Strait Islanders. In relation to the Strelley pastoral lease, Bennett J held that the second requirement was not satisfied. Even though the founding document of the Strelley Pastoral Company specified that all but 4 shares in the Company were to be held by ‘natives’ and also specified that one of the purposes of the Company was to advance the welfare of ‘natives’, Bennett J held that this was not the sole purpose of the Company and that the Company was free not to pursue that purpose if its directors chose. Accordingly, s 47A would not apply to the pastoral lease. The other lease was a special lease held by the Strelley Housing Society, an association whose founding document specified that its purpose was to provide housing for a particular group of local Aboriginal people. Bennett J found that this was enough for s 47A to apply, and so the extinguishing effect of the special lease was to be disregarded.
Conclusion
The parties are to consult together on the form of a determination (including the need to maintain any necessary restrictions and confidentiality) – if they cannot agree, each party is to present their draft determination for the Court to consider.