In this matter, North J held that the Bindunbur and Jabirr Jabirr, but not the Goolarabooloo Native Title Claim Group, hold native title rights and interests across the mid-dampier Peninsula, Western Australia. The three applications filed in 2013 on behalf of the groups were heard together. The respondent parties were the State of Western Australia, the Commonwealth and the Shire of Broome.
The hearing program ran for 21 months from September 2015 to November 2017 and included on country evidence, closed gender-specific sessions, comprehensive written submissions and oral evidence and expert anthropological evidence.
The respective native title holding groups consist of the descendants, including by adoption, of apical ancestors who were members of a society comprised or included people who identified themselves as members of one or more of the following peoples: Jabirr Jabirr, Ngumbarl (Nyombal), Nyul Nyul or Nimanbur.
The evidence from the Bindunbur and Jabirr Jabirr Aboriginal witnesses, combined with expert evidence, demonstrated that rights and interests in land are held at the local level in family estates known as bur, burr or buru. This system of local land tenure had been documented historically and was captured in the expert evidence. At the sub-regional level the Bindunbur and Jabirr Jabirr applicants have rights and interests in land as members of language groups. In respect of the Jabirr Jabirr application area the language groups are Jabirr Jabirr and/or Ngumbarl. North of that area in the Bindunbur application area are people in the Nyul Nyul and Nimanbur language groups.
Connection
In this case, a large number of the members of the Bindunbur, Jabirr Jabirr and Goolarabooloo claim groups, across a range of age, seniority, knowledge and experience, gave evidence. North J noted at [44] that even with the dispute between Bindunbur and Jabirr Jabirr, on one hand, and the Goolarabooloo, on the other (summarised below), the evidence was credible and consistent, and the case was largely resolved based on the evidence of the 44 Aboriginal witnesses.
An additional nine expert witnesses were called: primary anthropologists (Dr James Weiner, Mr Geoffrey Bagshaw, Ms Catherine Wohlan, Dr Fiona Skyring, Dr Janelle White, Professor Scott Cane), a historian, a heritage anthropologist and archaeologist (Dr Nicholas Green) and a professor of ethnography, specialising in discourse analysis (Professor Stephen Muecke). Professor Peter Sutton submitted evidence on behalf of the State of Western Australia.
The written reports of Mr Bagshaw, Dr Weiner, Dr White and Professor Sutton generally supported the conclusion that the Goolarabooloo applicants have not acquired rights and interests in land under traditional laws and customs. That expert view also reflected the evidence of the Bindunbur and Jabirr Jabirr Aboriginal witnesses. Furthermore, it also reflected the evidence of most of the Goolarabooloo Aboriginal witnesses.
The written reports of Professor Cane, however, reflected the conclusion that the Goolarabooloo applicants have acquired rights and interests in land under traditional laws and customs. Professor Cane presented a model of land tenure not based on patrifilial family estates as argued by Professor Weiner, rather that the earlier ethnographic accounts suggested a broad and loose association of people indicative of a flexible territorial association of family in and around a few named places or a named area. The case of the Goolarabooloo applicants followed the approach articulated by Professor Cane in his written reports. Some of the foundations of Professor Cane’s approach were not accepted by the Court.
It was common ground among all the parties that the Bindunbur and Jabirr Jabirr people have native title rights and interests, subject to questions of extinguishment, in the Bindunbur and Jabirr Jabirr application areas respectively.
The Goolarabooloo application
The Goolarabooloo application area is entirely within the Jabirr Jabirr claim area. The claim rests on the story of the arrival in part of the Jabirr Jabirr application area of Mr P Roe and his wife MP in about 1930. Mr P Roe was a Nyikina man and his wife was a Karijarri woman. The family of Mr P Roe hold the belief that he was given the role of custodian of the Goolarabooloo application area shortly after his arrival by the old people then living in the area. Mr P Roe acquired ritual and mythological knowledge and became a ritual leader in the Northern Tradition and a senior Law man. Mr P Roe and his wife MP had two daughters, Teresa and Margaret. Ms Teresa Roe is now a senior Law woman. She acquired rayi from around Bindingankun, Yellow River.
The Goolarabooloo applicants claimed native title rights and interests in several ways:
Descent from Mr P Roe;
By succession following the custodianship granted by the old people of the area to Mr P Roe;
The acquisition of ritual and mythological knowledge, first by Mr P Roe and then, in the present day, by his grandsons, Mr Phillip Roe, Mr Richard Hunter and Mr Daniel Roe; and
From the rayi connection of Ms Teresa Roe.
The latter two pathways do not create entitlements in all of the Goolarabooloo people or to the entirety of the Goolarabooloo application area.
Each of these pathways must be grounded in traditional laws and customs founded in the normative rules that existed before the assertion of sovereignty: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (Yorta Yorta). The issue raised in this case was whether the rights and interests as claimed by the Goolarabooloo were acquired under the traditional laws and customs of the Jabirr Jabirr people at sovereignty.
His Honour found that the evidence shows that the land is held under traditional laws and customs at the local level in patrifilial family estates known as bur, burr or buru. Subject to the limited exceptions for child adoption and succession, rights in land are acquired under traditional laws and customs only by descent. The limited exception concerning succession applies only where the land holding group has died out but the evidence established that the Jabirr Jabirr had not died out at the time that Mr P Roe arrived in about 1930. He therefore did not acquire rights in land by succession at that time. Further, a person does not acquire rights or interests in land under the traditional laws and customs by reason of appointment or exercise of the role of custodian and, on a balance of probability rationale, the evidence did not establish that Mr Roe was appointed as a custodian, nor that he or his descendants would acquire rights and interests to the Goolarabooloo application area.
The Bindunbur and Jabirr Jabirr applicants, with whom the State and the Commonwealth agreed, denied that the applicable traditional laws and customs entitled the Goolarabooloo applicants to native title rights and interests.
There are specific issues on matters of descent, genealogical memory, succession and custodianship that arose in the case from the opposing positions of the Jabirr Jabirr and Bindunbur applicants, on one hand, and the Goolarabooloo applicants on the other hand.
Descent
The question raised in the dispute was ‘is descent the only way of acquiring rights and interests in land under the traditional laws and customs?’ North J relied primarily on the authenticity of the Aboriginal voice, in which all of the witnesses, male and female, senior and junior, Jabirr Jabirr, Nyul Nyul, and Nimanbur said that under traditional laws and customs, rights and interests in land can only be acquired by descent including by adoption.
A Goolarabooloo witness, a senior Bardi and law man, also gave evidence that said descent was the only way of acquiring rights in land. Other Goolarabooloo witnesses acknowledged that descent was a way of acquiring rights to land.
Within the expert evidence, Dr Weiner argued that the contemporary adaptation of the older patrifiliation is family estate groups that are not strictly recruited along the male line; however recruitment to one’s father’s estate is still normative. Mr Bagshaw’s evidence supported this position. Both Dr Weiner and Mr Bagshaw concluded that additional factors, such as marriage, co-residence, place of birth and/or spiritual connection were not sufficient conditions for membership to the group. Therefore, for a person to validly identify with a particular language group and its territorial domain in that area, they must be a recognised descendent of at least one of the individuals who was identified.
North J concluded that that the traditional laws and customs of the Bindunbur and Jabirr Jabirr peoples prescribe that the only way of acquiring rights and interests in land, subject to the child adoption and succession exceptions, was and continues to be by descent.
Genealogical memory
North J considered whether the traditional laws and customs require descent back to time immemorial or only to remembered recent ancestors.
The Bindunbur and Jabirr Jabirr applicants claimed that the traditional laws and customs prescribed that rights and interests in land could only be acquired by descent where the descent was back to time immemorial. On that basis the Goolarabooloo applicants did not acquire rights in the land of the Goolarabooloo application area because they could not trace their ancestry back to people from the area beyond Mr P Roe. The Goolarabooloo applicants contended that shallow genealogical descent was sufficient. Professor Cane supported this view and argued that the requirement for descent is based on a shallow generational memory: ‘people remember back to their grandparents and perhaps their great-grandparents. It is that memory that defines the line of descent. It also defines the limit of the necessary descent’ [295]. Professor Cane made an argument he has applied to the Western Desert: ‘social and territorial organisation had to accommodate the extreme and changing nature of the Dampier Peninsula environment and that a more formal regime of patrilineal descent based on deep ancestral memory was too rigid to achieve the flexibility necessary for long-term survival in that marginal, changeable environment and was effectively sidelined by other, multiple, forms of individual connection giving rise to rights and interests in land’ [297].
The State argued that this was a remembered historical ancestral connection but not a philosophy of perpetual descent from the beginning of time.
North J did not accept the climatic evidence was certain enough to drive the model proposed by Professor Cane and that the Binbunbur and Jabirr Jabirr applicants established that the laws and customs of the society of the application areas provide for the acquisition of rights and interests in land only by descent and from ancestors back to time immemorial (with exception to adoption).
North J held that the Goolarabooloo applicants have not acquired rights or interests in the Goolarabooloo application area on the basis of the traditional laws or customs concerning descent.
Succession
His Honour considered the traditional laws and customs concerning succession. Bindunbur and Jabirr Jabirr applicants filed contentions in identical terms that succession occurs in the local area of a formerly neighbouring or closely related nearby local group, when a local group becomes extinct. They argued that the Goolarabooloo applicants did not acquire rights and interests in land by succession because they were not a neighbouring or closely related local group, and the Jabirr Jabirr were not extinct when Mr P Roe came to the Goolarabooloo application area in about 1930.
The Goolarabooloo applicants, supported by Professor Cane, contended that Mr P Roe ‘acquired native title rights and interests in the Goolarabooloo application area from Jabirr Jabirr and Ngumbarl people through a process of succession commencing in the 1930s when those persons became so reduced in numbers that they were no longer able to independently hold the mythical or ritual knowledge of the area or maintain responsibility for the places, areas and things of mythological or ritual significance in the area’ [306]. Whereas, they argued, Mr Roe was able to look after country and the law in that area.
The witnesses explained that the land cannot be ‘given away’ when people are still there. The Goolarabooloo witnesses also gave evidence about the inalienability of land and the conference of experts all agreed that land was inalienable and could not be treated as a chattel to be given away.
The evidence established that under traditional laws and customs, country is inalienable and cannot be given away. Succession only applies to a neighbouring group if the original group is extinct.
Custodianship
The question arose about whether rights and interests in land could be acquired by custodianship. The recurring theme in the evidence of the Bindunbur and Jabirr Jabirr Aboriginal witnesses was that custodianship did not confer rights or interests in land. The Goolarabooloo witnesses explained that they considered Mr Roe a caretaker and that he acquired rights through this system, but were ambiguous about whether this became a transferable system of rights through descent.
Professor Cane argued that rights and interests can be acquired by succession and that Mr Roe was the regent in this process for the Goolarabooloo situation. He then went on to say that the evidence suggests succession takes a long time and is a process that is unlikely to be realised in the lifetime of the original successor – as the ‘regent’ will always be remembered as from somewhere else. His children and their children will not be so labelled. They will, in the new and established circumstance (created by the initial succession) be ‘from country’ as a consequence of inheritance and other traditional mechanisms of association.
Whereas Professor Sutton argued that by comparing this case of argued succession with elsewhere in Australia, the Goolarabooloo situation does not include regular features of incorporation or succession, such as adopting the local estates, language and totems. Whereas the Goolarabooloo claim area includes parts of Ngumbarl and Jabirr Jabirr – different to the older estate areas.
North J considered the evidence on whether Mr Roe was a custodian; however since it was established that custodianship does not confer rights and interests in land, that evidence is not included in this summary.
The Court concluded that custodianship was a recent idea for witnesses without a clear explanation of the traditional laws and customs that relate to the case presented for custodianship by the Goolarabooloo witnesses and Professor Cane. Furthermore, the evidence was consistent and clear that if country were given to a person to look after, that person would not, under traditional laws and customs, acquire rights and interests in land. Subject to the exceptions not presently material, descent was the only way rights and interests to land could be acquired.
Rayi connection
The Goolarabooloo applicants pleaded that the traditional laws and customs acknowledged and observed by the members of the regional society include a rule that rights and interests may be possessed by a member of the regional society in relation to a particular area of land or waters where that person is connected to the area by rayi.
Broadly stated, rayi can be understood as a spiritual phenomenon that can lead to a personal attachment to a particular place or animal. This understanding was supported by the Bindunbur and Jabirr Jabirr witnesses. In the conference of experts, all the experts apart from Professor Cane, agreed with the proposition that a rayi connection not in a person’s own local area or language territory is limited to a personal connection to the place that gives rise to an expectation that members of the local or language owning group on whose country the place is located will not refuse the person access to visit and otherwise maintain the personal connection to the particular place.
The Goolarabooloo applicants responded to the Bindunbur and Jabirr Jabirr applicants’ primary argument by comparing the situation of a rayi connection holder to a complete stranger to the country in question. Whereas the latter needs express permission or a licence from the descent-based owners to access country, the evidence was that a rayi connection holder was not subject to control or licence.
This raises the question of whether rayi rights and interests, in the sense of being reciprocal status rights were native title rights. In Akiba v Queensland [2010] FCA 643 (Akiba), ‘tebud’ relationships – a form of customary trading – gave rise to reciprocal rights and interests that were sanctioned by traditional law and custom. However, in Western Australia v Ward [2002] HCA 28, the primary judge found that these rights were not rights and interests in land and waters – native title rights – they are rights in relation to persons. They are ultimately regulated by the relationship between the broader rights holding descent group and the individual, not the individual to land. This was upheld in Akiba with status based ‘tebud’ rights.
North J reached the conclusion that the rayi connection confers a relational right contingent on the core rights holders by descent; therefore not native title rights and not determinative in this matter.
Spiritual/mythical knowledge and rights
The Goolarabooloo applicants’ case was that a person who holds mythical or ritual knowledge and experience of an area and is responsible for places, areas and things of a mythological or ritual significance in the area holds rights and interests in that area.
The Goolarabooloo contentions specified the song cycle path along the coast of the Goolarabooloo application area from near Bindingankun to Willie Creek as an area for which men initiated in the Northern Tradition have a responsibility to look after, care for, protect and maintain. The Goolarabooloo senior male witnesses primarily speak for, make decisions about matters affecting, and are primarily responsible for looking after, caring for, protecting and maintaining the song cycle path and claim native title rights via the laws and customs that provide the framework for law bosses.
However, the Bindunbur and Jabirr Jabirr applicants maintained that under their traditional laws and customs ritual leaders and people with mythical knowledge or responsibilities do not acquire rights or interests in land as a result of that status. Rights and interests in land are acquired, subject to the exceptions previously discussed, by descent alone. More specifically, being a senior law boss involves acting with others who have authority for that area and earning the respect and support of others, but it does not make one an owner for that area.
Mr Bagshaw argued that ritual rights are the collective property of all those persons that subscribe to it and senior law bosses act in a supervisory and instructional way in respect of ritual performances. Furthermore, such a role is limited in geographical scope and performed under the authority of the rights holders by descent.
Professor Cane ultimately argued that religious or ceremonial rights are ‘of paramount importance, over and above, in my opinion, quotidian rights acquired through descent’ [572].
North J concluded that:
Under traditional laws and customs, law status does not confer native title rights in land.
Law men and women are highly regarded for the knowledge of the Law and care for specific places.
People may seek advice in relation to those specific areas from law bosses and law bosses act collectively in giving such advice.
Authority is limited to the Law grounds and other sacred places. It does not extend to the whole of the application areas.
The estate holders have the final say.
The evidence of the Goolarabooloo witnesses did not support the pleaded case – it concerned what law men are required to do rather than whether they hold rights to land.
Lacedpede Islands and surrounding seas
There was a dispute between the Bindunbur applicants and the State as to whether native title exists in relation to the Lacepede Islands and the surrounding seas which is dealt with in section 13 of the reasons for judgment. The Lacepede Islands are a collection of four small islands (West Island, Middle Island, Sandy Island and East Island) located north-west of the Dampier Peninsula in the Indian Ocean.
The Bindunbur applicants contended that the evidence established that the Jabirr Jabirr and Nyul Nyul had an historical and continuing connection with the Lacepede Islands. The State argued that the evidence did not establish such a connection; rather that the connection probably arose after or as a result of white settlement. The State relied on what it argued were inconsistencies in the evidence as to the way, and the time at which, the islands were accessed. However the weight of the evidence still established that the Bindunbur and Jabirr Jabirr people accessed the Lacepede Islands by rafts for hunting turtles and turtle eggs.
The other issue was whether, as the State contended, the evidence demonstrated that any rights and interests in the Lacepede Islands are held by the Jabirr Jabirr and/or Nyul Nyul together with the Bardi. Most of the witnesses saw the Bardi as sharing in the use of the islands. But it is not clear that these witnesses were referring to the Bardi holding rights and interests in the islands as owners.
North J considered that the evidence established on the balance of probabilities that the Jabirr Jabirr and Nyul Nyul people have native title rights and interests in the Lacepede Islands.
Language groups as land holding groups
There was a dispute between the Bindunbur and Jabirr Jabirr applicants on the one hand, and the State on the other, as to whether the determination should identify land holders by reference to language groups.
The Commonwealth adopted the position of the State regarding the identification of the land holding groups by reference to language. The main arguments of the Bindunbur applicants were that the allocation of land among the Jabirr Jabirr, Nyul Nyul, and Nimanbur people within the Bindunbur application area is an intra-mural issue, that the boundaries proposed do not accord with the evidence, that the people of the area have numerous interconnecting relationships not reflected in the proposed order, and that the allocation of people to country would freeze interests for all time in a rigid way which does not reflect the laws and customs of the people.
The primary point made by the State is that the evidence demonstrated that people identified with areas within the Bindunbur application area by reference to language group. Thus, for instance, a Nimanbur person would claim rights in Nimanbur country but would not claim rights in Nyul Nyul or Jabirr Jabirr country. In response, the Bindunbur applicants contended that the native title rights and interests determined by the Court would be held in accordance with traditional laws and customs, and the application of those laws and customs would prevent any such confusion or uncertainty.
North J determined that the State’s position should be accepted. The determination should specify the land holding areas by reference to language identity.
Extinguishment - Section 212, NTA
The State argued that the purpose of s 212(2) of the NTA is to ensure that existing public access to areas of recreation such as beaches and waterways could continue even if that continued access impaired the unfettered exercise of native title rights and interests. The applicants contended that if the construction of s 212(2) proposed by the State is correct and the section does not deal with existing rights but rather with activities and practices, then the section is not concerned with interests as defined by s 253 of the NTA and the activities and practices should not be included in the determination as other interests.
North J said in view of the width of the definition of other interests in s 253 of the NTA, the public access referred to in s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) is likely to have been intended to fall within the definition. Further, the purpose of s 225(c) of the NTA is to require identification of the interests which must coexist with the native title interests and thereby to allow notification to those concerned of the relationship between the two sets of interests so that people may regulate their conduct accordingly. Therefore, leave was granted for the parties to attempt a greater degree to identify the geographical areas of the public access locations.
Location of intertidal zone
The State sought a form of determination which lists the areas of unallocated Crown land within the intertidal zone in which no exclusive native title rights and interests exist. The applicants opposed the proposal, submitting that the determination should state that the high water mark is the boundary between the relevant unallocated Crown lots and the intertidal zone. If the need arises for the boundary to be fixed with certainty for some particular purpose in the future, that can be attended to at the time.
Two considerations arose from the difference between the parties. The first is that the high water mark location will vary from time to time due to tide fluctuation. The second is whether the proposed fixed high water mark is in accordance with the common law definition. The evidence did not establish that the high water mark used for the determination proposed by the State reflects the common law definition of high water mark. Therefore it does not correctly mark the location of the intertidal zone. This issue was left open for further evidence, potential agreement between the parties, or, if not, adjudication by the Court.
Pastoral leases – valid future acts?
There are three existing pastoral leases in the application area, namely, Mount Jowlaenga (N050161), Kilto (N050224) and Country Downs (N050014), each of which commenced on 1 July 2005. Each of the pastoral leases were preceded by former leases which ended on 30 June 2015. It is common ground that the existing pastoral leases are other interests within the meaning of s 225(c) of the NTA and should be so recorded in the determination.
The applicants contended that each of the existing pastoral leases were not valid future acts because the renewals created a larger proprietary interest in the land and waters than was created by each of the former pastoral leaseson the basis of temporality. North J considered at [667] that ‘the term of a lease is not the proprietary interest. The term has the effect of prescribing how long the proprietary interest will last. The proprietary interest is the right in the land, not the length of time for which it lasts.’ His Honour found that each of the temporal aspects of the renewal was shorter than the temporal aspect of the former leases. If the temporal aspect is part of the proprietary interest, then comparing the former leases with the renewals demonstrates that the renewals have a lesser, not greater, temporal aspect than the former leases; therefore the applicants arguments were not sustained.
Section 47B(1)(c)
Section 47B(2) of the NTA provides that, in certain circumstances, any prior extinguishment of native title rights and interests on unallocated Crown land (UCL) by the creation of any interest, must be disregarded. One of the conditions for the operation of the section is that, when the application for a determination of native title was made, one or more members of the native title claim group ‘occupied the area’.
After oral evidence by the Bindunbur and Jabirr Jabirr applicants, the Court found that the applicants did establish evidence of occupation for: UCLs 78, 138, 140, 141, 143, 147, 148, 150, 151, and 152, UCL 139, and UCL 14; however the applicants did not establish occupation of UCL48 and UCL 2.
Broome Shire Council and extinguishment
In the written submissions filed by the Shire a large number of works mainly connected with the Broome-Cape Leveque Road were said to have extinguished native title. By agreements made between the parties, the number of works in issue was narrowed very considerably. In the end the Shire argued that five pits, two bores, two camps and a grader parking area on roads in the application areas extinguished native title; however their evidence did not establish that the other works listed above had extinguished native title.
Also, the Shire contended that the right of any person to use the ungazetted roads should be included in the determination as an ‘other interest’, within the meaning of s 253 of the NTA, pursuant to the requirement in s 225(c) of the NTA. The applicants opposed a reference to any public right to use the ungazetted roads because the roads were not established by any statutory process or at common law, and hence, there is no public right of use. The applicant’s argument was accepted.
North J ordered that that the parties file and serve proposed orders and a draft determination reflecting these reasons for judgment and noted the opportunity for the parties to apply to the Court for the determination of any of the matters referred to in [628], [645], [656], [670] and [734] which are not agreed between the parties.