Barker J
In this matter, Barker J considered an application by members of the Banjima language group for a determination of native title under the Native Title Act 1993 (Cth) (NTA) over land and waters in the East Pilbara region of Western Australia (claim area), in the Hamersley Range and in the vicinity of what is today known as Karijini National Park.
The respondents were the State of Western Australia (State), Rio Tinto Iron Ore, BHP Billiton, various pastoralists, the Shire of Ashburton and various Hancock interests.
Findings
The Court was satisfied that:
the claimants constitute a single group, generally known as the Banjima language group or people;
the claim area was part of the traditional country of the Banjima people at sovereignty;
the claimants and those from whom they were descended had maintained a relevant connection with their traditional country in accordance with their traditional laws and customs; and
subject to particular findings, including about extinguishment, native title exists in the claim area and is held by the claimants.
Reasoning
The Court considered various issues relating to the claim, including:
whether the claimants constitute a single group
whether the claim area is part of traditional country of claimants
whether the claimants have maintained a connection with claim area
whether the claimants are descendants of ancestors who had rights and interests in claim area
what native title rights and interests exist
what non-native title rights and interests exist
whether various acts extinguished native title rights and interests
the extent of any extinguishment of native title rights and interests
Key Connection Issues
The key connection issues raised by the respondents, although often interrelated, were identified by reference to the following topics:
Banjima society
The State accepted that at sovereignty (1829 in the case of Western Australia) Banjima people occupied their traditional country in the vicinity of the claim area but disputed the extent of the northern and eastern boundary areas claimed and questioned the claimants’ claim that, as today, at sovereignty they were comprised of sub-groups. Each party called experienced anthropologists (Dr Palmer, on behalf of the claimants, and Mr Robinson, on behalf of the State) to investigate the history of the Banjima people. The claimants sought to restrict part of the State's supplementary anthropological report, which referred to a previous representation made by a person to prove the existence of a fact, pursuant to s 136 of the Evidence Act 1995 (Cth) on the basis that this information is unfairly prejudicial or misleading or confusing. Barker J declined to make the order but agreed to consider the fact that the materials were produced late and the makers of the materials were not, or were unable to be, called in the proceedings when considering what weight to give to the materials.
In considering detailed evidence from both parties' anthropological reports, Barker J found that the Banjima were a distinct group of Aboriginal people and at sovereignty were a single community or society. However, further inquiry was necessary to determine whether they were comprised of sub-groups and the precise country they occupied.
Banjima sub-groups
His Honour was persuaded by all the evidence that, on the balance of probabilities, there were local groups of Banjima people at the time of contact with British settlers and so at the time of sovereignty which exist today and are referenced in the anglicised expressions “Top End Banjima” and “Bottom End Banjima”, or Milyaranba Banjima and Fortescue Pantikurra Banjima.
Traditional Banjima boundaries
The northern (Fortescue Valley) and eastern (Weeli Wolli and Yandicoogina) boundaries were disputed, particularly by the State.
Barker J found that the strength and consistency of the direct evidence of the Aboriginal witnesses concerning the traditional boundaries of the Banjima on the northern side of the claim area, together with the ethnographic data and other evidence, lead to the conclusion that the disputed northern boundary was an area in which the Banjima traditionally held rights and interests at sovereignty.
The Court also rejected the State's argument that the claimants were required to call upon Yindjibarndi people or other mentioned language groups to give evidence in relation to the northern boundary or that the Court should conclude that those people could not have given evidence which would have helped the claimants’ case.
In respect of the eastern boundary at Weeli Wolli and Yandicoogina, Barker J found the Banjima people held traditional rights and interests in this location.
Maintenance of connection
In their joint report the anthropologists, Dr Palmer and Mr Robinson, agreed that members of the Banjima society together hold and observe laws and customs that show continuity with the laws and customs likely to have been observed by their forebears at the time of sovereignty.
Despite this agreement, the State argued that there was degree of change and adaptation in the practices of the Banjima people today which meant that continuity with the laws and customs observed at the time of sovereignty by their forebears could not be demonstrated. The State argued that from 1829 to the present the following changes could be seen:
from rights held at the level of 'estates' to the level of either the Banjima people as a whole or to Top and Bottom End Banjima;
from patrilineal to cognatic descent; and
from some other internal subdivision to Top and Bottom End subdivision.
As a result, rights at sovereignty were dependent on 'one regime' of laws or customs but were now dependent on a 'new regime'. The State also argued that :
the chain of possession since sovereignty had been broken by a 'substantial interruption' in the observance of laws and customs and there could not be a revival of a lost title, regardless of the reasons for the interruption;
the claimants must establish that native title rights and interests subsist throughout the claim area and this cannot be demonstrated by proving that an activity occurred in some other locality; and
there had been no establishment of exclusive possession of native title rights or interests.
Barker J considered the Court's approach to connection and the 'society' requirement in Yorta Yorta v Victoria [2002] HCA 58 and held at [504] that, having regard to all of the evidence given by Banjima people and also the anthropologists’ assessments and understandings of the significance of that evidence, the Banjima people, whether they primarily identify as Top End Banjima or Bottom End Banjima or both, comprise a single group, community or society of the type envisaged by the plurality in the Yorta Yorta High Court decision and have maintained a connection with their traditional country by their traditional laws and customs which has not been substantially interrupted.
Claim group membership and description
Barker J held that it was not appropriate to find that the Banjima people as a whole held native title rights and interests. Instead, the claim group comprises descendants of the named ancestors in the application, except for Daisy Yijiyangu given the uncertainty of evidence that she was Banjima.
Nature and extent of native title rights
The claimants claimed rights and interests in relation to three areas:
Exclusive Rights
Area A – land not previously the subject of any Crown grant or areas to which ss 47, 47A, 47B or 238 NTA apply
The Court found that exclusive rights, subject to extinguishment findings below, should be:
The right as against the whole world to possess, occupy, use and enjoy the land and waters.
A right to make decisions about the use of the land and waters by persons who are not members of the Aboriginal society to which the native title group belong.
A right to control access of others to the land and waters.
Non-Exclusive Rights
Area B – nature reserves and Area C – balance of the area where native title rights and interests exist.
Barker J found that the following non-exclusive rights and interests existed:
In Areas A, B and C (apart from a right to hunt, fish, take traditional resources other than minerals and petroleum, and take fauna in relation to Area B):
The right to access and move about the land and waters, be present on the land and waters, live on the land in camps and shelters, and engage in cultural activities on the land and waters including conducting and participating in ceremonies and meetings;
The right to hunt and take fauna, gather and take flora, take fish and take stones, timber, ochre and water;
The right to have access to, maintain and protect places and areas of importance on or in the land and waters, including rock art, engraving sites, stone arrangements and the like provided however that such rights are not exclusive of the rights and interests of others in relation to the land and waters the subject of this determination.
Extinguishment issues
Barker J considered the effect of a large number land interests on the native title interests claimed including mining and associated leases, reserves, management orders, licenses, public works, nature reserves, Karijini National Park, church leases, pastoral improvements, indigenous land titles and other interests on native title as well as evidence of occupation of unallocated Crown land.
At [1984] Barker J lists a summary of his extinguishment findings in relation to these items.
Proposed confidentiality order
The Banjima claimants sought an order to protect the confidentiality of certain anthropological material filed in the proceeding. Barker J declined to make the order as his Honour was not persuaded on the evidence that such an order was necessary 'to prevent prejudice to the proper administration of justice or to protect the safety of any person' at [2041]. His Honour also noted that practical considerations weighed against the granting of the order because much of the evidence the claimants' were seeking to protect had been discussed publicly in open court.
Orders
The Court ordered that the claimants were entitled to a determination of native title under the NTA and the claimants were invited to present a minute of proposed determination for consideration by the Court.