Barker, Perry and Charlesworth JJ
Background
On 2 May 2018, North J made two determinations of native title;
in favour of the Bindunbur native title claim group in WAD359/2013 (the Bindunbur determination) and
in favour of the Jabirr Jabirr/Ngumbarl native title claim group in WAD357/2013 (the Jabirr Jabirr determination).
A consequence of the Jabirr Jabirr determination was that the claimant application of the Goolarabooloo native title claim group in WAD374/2013 was dismissed. In relation to this, the primary judge held that:
rights and interests arising from a rayi connection held by a Goolarabooloo person; and
rights and interest held by Goolarabooloo people who are acknowledged as ritual leaders in the Jabirr Jabirr determination area
were not native title rights and interests for the purposes of the Native Title Act 1993 (Cth) (NTA).
This case concerns appeals from these findings, under three applications: The Goolarabooloo appeal (WAD217/2018), the Bindunbur appeal (WAD215/2018) and the Jabirr Jabirr appeal (WAD216/2018).
The Goolarabooloo appeal (WAD217/2018)
Their Honours cited the authorities of Mabo and Others v The State of Queensland (No 2) (1992) 175 CLR , The State of Western Australia v The Commonwealth (Native Title Case) (1995) 183 CLR 373, and Members of the Yorta Yorta Aboriginal Community v State of Victoria and Others (2002) 214 CLR 422 in affirming that the native title rights and interests which are recognised and protected by the NTA as defined in s 223(1) are those which were held to have survived the acquisition of sovereignty. Consequently, s 225 requires that a determination of native title must determine whether native title exists, and if so, who holds it and the nature of the rights and interests. The primary judged considered ‘rayi’, which is a ‘spiritual instantiation by means of localised anthropomorphic or theriomorophic agents called rayi. An Aboriginal person may be recognised by Aboriginal society as having a rayi or spirit from a particular place’ (quoting the original judgment at [440]). However, a rayi connection holder could not ‘speak for’ the country, but rather was required to seek permission from the descent-based owners to access and use the area associated with the rayi event, and in an instance of serious wrongdoing by a rayi connection holder, permission could be withdrawn. Per this reasoning, the primary judge held that rayi derived rights are not in relation to land or waters as native title rights are, but instead are in relation to persons (at [498]-[499]).
The primary judge also found that the functions and rights of persons who hold mythical or ritual knowledge and experience of an area are not native title rights or interests within the meaning of s 223 of the NTA. His Honour relied on evidence provided by the Bindunbur and Jabirr Jabirr people to the effect that those who protected and cared for the land or who had ritual status did not possess any proprietary right in country, as the rights holders by descent have the final say about the use and care of country.
The Appeal was made on the following grounds: (1) that the primary judge erred in law in failing to find that rights arising from a rayi connection are not native title rights and interests within the meaning of s 223 of the NTA; and (2) that functions and rights of persons who are ritual leaders holding mythical and ritual knowledge and experience are not native title rights and interests within s 223 of the NTA.
Does a rayi holder possess native title rights or interests?
Their Honours in the present case agree with the finding of the primary judge that the rayi ‘association’ (rather than ‘connection’) is one which is an important tool for the ‘social inclusion of strangers on country’ (at [60]), and may give rise to some limited personal rights and interests. However, these are not territorial or proprietary (thus do not give rise to rights or interests ‘in relation to the land or waters’). Any right or interest conferred by a rayi association is subject to the discretion of the right holders by descent.
Their Honours considered the authorities and concluded that not every right and interest arising under the laws or customs of Indigenous peoples will necessarily be found to be ‘in relation to’ land or waters. These decisions also demonstrate that ‘where rights are held mediately by reason of a personal relationship only with a native title holder, who may grant of [sic] withhold permission, the rights cannot be said to be native title rights for the purposes of s 223 of the NTA’ (at [86]).
Their Honours dismissed this ground of the appeal.
Does a ritual leader possess a native title right or interest?
A ‘ritual leader’ or Law man is an initiated male who has acquired the relevant knowledge and experience for a particular area within the determination area. The Northern Tradition is the ritual practice of the Goolarabooloo application area. The role of a ritual leader involves knowledge of ritual practice and of all the stories, music and dance used in ceremony to explain the cosmology and social mores of the people’ (at [94]). Whilst the mythology enacted in ceremonies is related to place and country, territorial concerns only form part of the matters of concern to ritual leaders. The evidence provided by Jabirr Jabirr and Bindunbur men negated any proposition that a ritual leader, by right of this role and status, may possess rights or interests under the law in relation to land or waters (at [101]).
On this ground, their Honours dismissed the appeal.
The Bindunbur Appeal (WAD215/2018) and The Jabirr Jabirr appeal (WAD216/2018)
The issue for consideration was whether the primary judge erred in including in the determinations a clause regarding existing public access and enjoyment of beaches and other places as ‘other interests’ for the purpose of s 225(c) of the NTA.
The primary judge concluded that the confirmation of public access to and enjoyment of waterways, beds and banks or foreshores of waterways, coastal waters, beaches, stock routes or certain public places 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 of ‘other interests’ in s 253 of the NTA and directed the parties to attempt a greater degree of identification of public access locations. The primary judge held that public access to beaches and other places was a ‘privilege’ and thus an ‘interest’ under s 253 of the NTA, which arises in the absence of any prohibition on such access and enjoyment. S 212 of the NTA enables the States to enact confirmatory laws regarding existing public access to and enjoyment of beaches etc., as the State did under s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA).
Their Honours disagreed with the primary judge’s finding, noting that s 212, properly constructed, has the capacity to confirm only ‘existing’ rights and not create new ones. At [149] their Honours explain that whilst the common law ‘recognises public rights to fish and to navigate above the high water mark… there appears no basis upon which it can be said that the law recognises… any right, entitlement or interest to roam across, let alone enjoy, unallocated Crown land’. A clear and plain parliamentary intent would need to be demonstrated, as it would constrain the exercise of existing native title rights and interests. Their Honours found that such ability or expectation of access could not be characterised as a privilege.
Their Honours did note two possible ways in which s 212 may give rise to public access and enjoyment of places in question as an ‘other interest’: where a demonstrated common law or statutory right of access was identified, or where evidence was provided to prove that public access to and enjoyment of such places existed as a matter of fact at the time of the enactment of s 212 (see [171]). However these were not present in the current case.
Their Honours allowed the appeals of the Bindunbur and the Jabirr Jabirr people and ordered that those parts of the two determinations which purported to determine other interests on the basis of s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) should be removed from the determinations.