In this matter, North J ordered the parties to file a draft determination in accordance with the reasons for judgment. The judgement addressed the outstanding issues between the parties to the native title application brought on behalf of the Bindunbur and Jabirr Jabirr peoples: the land holding area issue, the public access and enjoyment issue and the negative determination issue. The judgement also addressed three drafting issues relating to captured water, the relationship clause and the description of non-exclusive native title rights and interests. Finally the reasons for judgment determine a drafting issue on the description of the right to access resources and to protect places and things.
The main contest on these issues was between the Bindunbur applicants and the State. The Jabirr Jabirr applicants generally adopted the arguments put by the Bindunbur applicants, and the Commonwealth adopted the arguments put by the State.
Land Holding areas
The parties were unable to reach agreement on the boundary designations defined by reference to language identity. In broad terms, the State sought to delineate the land holding areas within the external perimeter of the area of the main claim by reference to language groups using generally straight or defined boundary lines. The reason given for that clear definition was so that /those needing to seek authority to do things on the land in the future will know whom they must contact in order to seek permission.
The Bindunbur applicants contended that the evidence did not support such delineation. Often boundaries were indefinite and, in some instances, there was country which was shared between members of different language groups. The Bindunbur applicants proposed that the areas of the land holding groups be described by reference to particular sites identified in the evidence as the sites of the group. Further, where country limits were less defined or merged, the Bindunbur applicants proposed that the area be described in the determination as being ‘generally’ in a particular location.
There was controversy among some members of the Bindunbur native title holding group over which language group holds rights in some particular areas. That controversy was evidenced by a copy of a letter dated 12 February 2018 sent by Mr Bruno Dann to the KLC contesting the characterisation of Winawal as shared country.
In the course of argument, a map prepared by the KLC for internal purposes came to light. It represented boundary areas in a feathered colouring reminiscent of fairy floss. That visual representation, together with a verbal description reflecting the visual representation, seems suitable to accommodate the positions of the parties as near as possible. The parties were directed by the Court to confer to create a map and words in accordance with the fairy floss concept.
Public access and enjoyment
The public access and enjoyment issue was dealt with in [633] to [645] of the reasons. The State proposed that the interest of the public to access and enjoy is to be recognised in the Bindunbur application areas as an ‘other interest’. The Bindunbur applicants accepted that the public has a right to access and enjoy the areas designated in the State draft for the purpose of exercising the common law public right to fish and to navigate. They proposed an alternative draft limited to access and enjoyment for the purpose of the exercise of those rights.
[19] The Bindunbur applicants contended that the public was able to access and enjoy the contested areas only because there was no proscription preventing such access or enjoyment. But they contended that the ability of the public to access and enjoy those coastal areas by reason of the absence of any proscription does not fall within the definition of an ‘other interest’. That result, so it was argued, can be seen by reference to the consequence of an interest being recorded as an ‘other interest’. The operation of the relationship clause would mean that the ability of the public to access and enjoy the coastal areas would prevail over native title rights and interests. The Bindunbur applicants argued that such an outcome was not likely to have been intended by the legislation.
North J did not accept the argument of the Bindunbur applicants stating at [20]: ‘Section 253 of the Native Title Act 1993 (Cth) (NTA) defines interest to include a privilege in connection with land or waters. The ability of the public to access and enjoy coastal areas because access is not proscribed falls within the definition of an interest because it is a privilege in relation to land and waters.’ The description proposed by the State was accepted by his Honour.
The ability of the public to access and enjoy coastal areas in the Jabirr Jabirr application area requires a different description because the areas in question relate to unallocated Crown land or parts of unallocated Crown land rather than reserve areas as in the case of the Bindunbur application area. Nonetheless, the issues otherwise raised by the Jabirr Jabirr applicants in respect of their application area are the same as those raised by the Bindunbur applicants. North J found at [24] that the State’s draft should also be adopted in respect of the Jabirr Jabirr application.
Negative determination issue
North J held at [34] that the argument of the State should be accepted and the determination specify that there are no native title rights and interests in the agreed areas where they have been extinguished.
Captured Water
The State sought the inclusion in the determination of a statement that there are no native title rights and interests in relation to water lawfully captured by the holders of other interests. The reason advanced by the State was that, unlike flowing water, captured water is property and capable of being owned. The act of capturing water does not permit of recognition of a right or interest in the native title holders to access, use or take that lawfully captured water. The Bindunbur and Jabirr Jabirr applicants opposed the inclusion of the subparagraph because the capturing of water is the way in which a right is exercised, not the right itself (Akiba v The Commonwealth [2013] HCA 33), and hence cannot constitute the relevant necessary inconsistency.
The Bindunbur and Jabirr Jabirr applicants stated that the determination should include a statement that ‘the water and the activity of lawfully capturing it falls to be dealt with by reference to the relationship between the native title rights and the rights under the ‘other interest’ under which the water is captured. There is no extinguishment of the native title right involved in the exercise of the other interest to capture water. Either the right under which the water is lawfully captured itself extinguishes (or partially extinguishes) the native title or it doesn’t.’
North J accepted the Bindunbur and Jabirr Jabirr applicants’ argument and held that the determination should not contain the statement proposed by the State.
The relationship clause
The State and the Bindunbur and Jabirr Jabirr applicants proposed clauses that set out the relationship between the defined native title rights and interests and the recognised other interests in accordance with s 225(d) NTA. On this issue North J held at [44]: ‘The Bindunbur and Jabirr Jabirr applicants’ proposed clause should be adopted as both formulations accurately reflected the legal position.’
Non-exclusive rights and interests
[45] The State proposed that [8] of the determination include a statement that the native title rights and interests referred to in paragraphs 6(b) and 7 do not confer:
possession, occupation, use and enjoyment of those parts of the Determination Area on the Native Title Holders to the exclusion of all others, nor
a right to control the access of others to the land or waters of those parts of the Determination Area.
The Bindunbur and Jabirr Jabirr applicants argued that (b) is unnecessary and redundant. The State contended that (b) was plain and understandable, attributes which are important where the rights recognised are rights in rem granted in perpetuity. North J held at [47] that ‘Whilst (b) does not add to the substance of (a) it does serve a purpose. It is explanatory of the practical effect of the limitations expressed in (a). Subparagraph (b) proposed by the State should be included in the determination.’
The right to access and use resources
[49] The Bindunbur and Jabirr Jabirr applicants sought the inclusion of a clause defining the non-exclusive native title right ‘to access and take for any purpose the resources in [specified areas].’ The State proposed a form of the clause which would delete the words ‘for any purpose’ and add the word ‘natural’ before the word ‘resources’. The debate centred on the evidence concerning the traditional laws and customs concerning the prohibition on the waste of resources.
[52] The State argued that the evidence demonstrated that resources could not be used for the purpose of waste. The Bindunbur and Jabirr Jabirr applicants’ formulation would permit such a use because it allows for the use of resources for all purposes including for the purpose of wasting them. The expression ‘for any purpose’ is so wide that it allows for a right which exceeds the right found in the traditional laws and customs. Traditional laws and customs do not permit resources to be used for the purpose of wasting them. [53] The Bindunbur and Jabirr Jabirr applicants contended that the prohibition on waste under traditional laws and customs was a restriction on the manner of the exercise of the right to use resources. It was not a qualification on the right itself. The evidence, so it was argued, was that the right to access resources was untrammelled.
North J considered at [54] that ‘The formulation proposed by the Bindunbur and Jabirr Jabirr applicants has been used in a number of recent determinations, namely, Akiba v Queensland [2010] FCA 643, Pilki v Western Australia (No 2) [2014] FCA 1293, Birriliburu v State of Western Australia [2016] FCA 671, Rrumburriya Borroloola Claim Group v Northern Territory (No 2) [2016] FCA 776. There is value in adopting a consistent approach to the drafting of the terms of determinations where the evidence justifies the formulation proposed.’ [55] ‘Further, the articulation of the right must be read with the provision in the determination that the native title rights and interests must be exercised in accordance with traditional laws and customs. That provision would limit the exercise of the right by prohibiting waste whilst at the same time allowing the terms proposed by the Bindunbur and Jabirr Jabirr applicants to reflect the untrammelled right to access the resources.’
North J held that: [56] ‘In the present case the evidence supports the draft proposed by the Bindunbur and Jabirr Jabirr applicants and that formulation should be adopted.’[57] Further, the State has not made out grounds for limiting the resources concerned to natural resources.
The right to protect places, areas and things of traditional significance
[58] The Bindunbur and Jabirr Jabirr applicants sought to express non-exclusive native title rights and interests ‘to protect places, areas and things of traditional significance’. The State sought to replace ‘areas and things’ with ‘sites’. [60] The State argued that using the word ‘sites’ was clearer than the reference to areas. The State further contended that it is unclear whether there is a distinction between places and areas. It further argued that the reference to things should be deleted because the word ‘things’ is unclear and may refer to something more than a right or interest in relation to land or waters contrary to s 223(1) of the NTA.
[61] The Bindunbur and Jabirr Jabirr applicants contended that the things referred to are things of traditional significance in the determination area where non-exclusive native title exists. In other words, the word must be read in the context of the clause as a whole. It is unlikely that protecting such things would not be a right in relation to land. The Bindunbur and Jabirr Jabirr applicants contended that the reference to sites has an ambiguity which the reference to areas does not have. Further, there is no reason why place and area should not be used together even if they have some overlapping meaning. [62] In the Birriliburu, Borroloola, and Wiluna determinations, the right to protect was expressed to apply to places and areas. In the in the Yilka and Narrier determinations the right to protect was expressed to apply to places alone.
North J considered at [63] that ‘There is a useful distinction between places and areas used in the context of a native title determination. A place suggests something more confined than an area. A site suggests perhaps a yet more confined area. In the end, whilst there is little to argue about, the preferable wording is places and areas as proposed by the Bindunbur and Jabirr Jabirr applicants. Sites have not been used in the recent determinations referred to above, and is probably somewhat too confining to reflect the nature of the likely locations intended to be included.’
[64] ‘Things of traditional significance is a formulation that was recently used in the Borroloola determination. In the Yilka determination the reference was to objects of significance. The argument of the Bindunbur and Jabirr Jabirr applicants that the reference to things read in context properly signifies the necessary relationship with land should be accepted.’
North J found at [65] that the clause reflecting the right to protect proposed by the Bindunbur and Jabirr Jabirr applicants should be adopted.