Dowsett, Jagot and Barker JJ
This matter concerned an appeal to the Full Court of the Federal Court, lodged by the State of Western Australia (the State) on appeal from a ruling of the Federal Court reaffirming a native title determination recognising the exclusive native title rights and interests of the Pilki people. The determination included the right to take and use resources from the determination area for any purpose. The State appealed to the Full Court, contending that the Pilki people had not established the right to take and use resources for commercial purposes. All three judges found in favour of the Pilki people, though each wrote a judgement based on different lines of reasoning.
The native title determination was in relation to land in the Western Desert of Western Australia, between the Nullarbor Plain and the Great Victoria Desert surrounding Jubilee Lake. The north west of the determination area borders the Neale Junction Nature Reserve and the north of that area adjoins the Ngaanyatjarra native title determination area. The south east of the determination area borders the Great Victoria Desert Nature Reserve and the balance of the eastern side of the application area borders the Spinifex native title determination area.
The State lodged the appeal on six interrelated grounds related to the type and strength of evidence under consideration and the application of Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422;  HCA 58 (Yorta Yorta) in characterising s 223 of the NTA. The state summarised in their submissions as follows:
…contrary to Yorta Yorta, his Honour:
- failed to consider the particular content of the laws and customs which existed at sovereignty because his Honour relied upon evidence of contemporary claimants as to belief of ownership of the land and ruled that evidence of activities was not required to prove acknowledgment and observance of laws and customs; and
- by doing so, failed to consider the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty [(Grounds 1, 2, 5 and 6)].
…the [primary judge]
- erred in concluding that expert evidence as to trading activity in areas surrounding and including the claim area was evidence of a right to take for commercial purposes (Ground 3); and
- erred in concluding that the expert evidence supported a finding that the Pilki People’s ancestors had engaged in extensive and ancient trading activities (Reasons at ) (Ground 4).
The State had made a number of admissions in response to the pleadings filed by the Pilki people, including that the claimants are members of the relevant society and observe the traditional laws and customs of that society, and have a connection with the determination area by virtue of that observance; that those laws and customs are normative and traditional; that the Pilki people share beliefs in the Tjukurrpa; and that the Pilki people possess rights to take and use the fauna and flora from the determination area for the purpose of living and surviving on that area only. The State denied that the Pilki people have the right to take and use the flora or fauna for commercial purposes.
The Pilki people maintained that they possess rights under the traditional laws and customs to take and use the resources of the claim area for any purpose. Four claim members gave evidence in support of their case: Mr Walker, Mr Hogan, Ms Kennedy and Mr Sinclair. Dr Cane, an anthropologist, was also called by the claimants to give evidence.
Dowsett J characterised the issue to be decided as a question of whether traditional law and custom conferred on the claim group the right to take resources from the claim area for commercial purposes.
His Honour considered that the evidence of the Pilki people was at best equivocal, and that of Dr Cane was subject to the caveat that it ‘generally did not relate directly to the claim area or the relationship of the claim group to it’. His Honour however accepted that the evidence established that the claim group is entitled to access and take resources from the claim area, and that resources are limited within that area. Dowsett J accepted the evidence of Dr Cane that there is a long history of trading in the Western Desert, that major trade routes pass by, but not through the claim area, and that there is a reliable source of water at the Pilki soak that was likely used by those travelling along the trade routes. His Honour was unable to accept on the evidence that the claim group’s ancestors, prior to first contact, took resources from the claim area for any purpose, including commercial purposes.
Dowsett J nonetheless agreed with the primary judge and Jagot J that it was not necessary for the claimants to prove that resources were taken for commercial purposes. His Honour considered that the passage at  in Yorta Yorta contemplates proof of the content of traditional laws and customs by reference to events subsequent to first contact, but does not require evidence of the exercise of the right in question in every circumstance. Dowsett J agreed that the relevant evidence might take different forms. His Honour considered that the question will always be whether the evidence satisfies the court, on the balance of probabilities, that a claimed right or interest is recognised by traditional law and custom and has not been abandoned. The question on appeal to the Full Court then became whether the primary judge correctly inferred that the group possessed the claimed right, in the absence of direct evidence of pre-sovereignty and subsequent usage.
Dowsett J rejected the State’s submission that the right to take resources should be accepted in relation to non-commercial purposes only. His Honour considered that no basis for such a distinction existed in the claimant’s evidence or that of the State. The claim group members’ evidence established the claim group’s right to take resources without any limitation, and the absence of evidence of trading was more likely attributable to the lack of resources than to any absence of a right to take for that purpose.
Jagot J considered that the primary judge had correctly identified the remaining issue to be resolved between the parties as ‘the nature and description of the right of the claim group to access and take resources of the application area’.
The State’s Argument
The State argued that the primary judge based his conclusions solely on the evidence of the members of the claim group, which the State contended amounted to a ‘belief’ that the area ‘belonged’ to them. It was argued that such reasoning was contrary to Yorta Yorta at , which requires evidence establishing the content of traditional laws and customs and that the content has normative effect, such effect being demonstrated by things done on or in relation to the land. The State considered that the primary judge reasoned that a ‘mere assertion’ of ownership in absence of an inquiry into the content of the traditional laws and customs that existed at sovereignty and the particular rights held under those laws and customs was sufficient to establish the right claimed. It was argued that to do so also undermined the concept of native title as a ‘bundle of rights’ established in Western Australia v Ward (2002) 213 CLR 1;  HCA 28 (Ward) at  and . This meant that the primary judge had failed to find, as required, that the traditional laws and customs of the Pilki people at sovereignty conferred a right to take resources for any purpose and that such right had continued substantially uninterrupted since sovereignty.
Jagot J identified six difficulties with the State’s submissions:
- Her Honour rejected the characterisation of the evidence of the lay witnesses as mere assertion that traditional laws and customs entitle them to do everything on, in or under the land. Her Honour held that such a characterisation took the evidence out of the context of the overall hearing and, in particular, the admissions which the State had made and which formed the foundation for the way in which the matter proceeded before the primary judge. Her Honour held that within that context, the primary judge’s reasoning was in line with Yorta Yorta as cited. Jagot J commented that if the evidence supports a positive finding that the right was never exercised before sovereignty the right should nevertheless be found to exist, but rather that evidence of the exercise of the right is not an essential pre-condition to the finding of the right.
Her Honour considered that the primary judge had held, in line with Yorta Yorta at , that it was ‘not necessary as a matter of logic to prove that activity in conformity with traditional laws and customs has taken place in order to establish that a right exists. In many cases, proof of activities undertaken pursuant to laws or customs will assist in proving the existence of the right. But evidence of the activity is not necessary’. Furthermore, Jagot J considered that the primary judge in referring to ‘traditional laws and customs’ meant that there had been proved to exist laws and customs, of the required normative effect, which united the relevant group pre-sovereignty and had continued to do so. It was open for the primary judge to do so, given that those facts were not in dispute by virtue of the State’s admissions
- Jagot J did not accept that the claimant evidence was to be understood in isolation from the expert evidence of Dr Cane, nor that had the primary judge based his reasoning solely on the evidence of the claimants. The primary judge stated that the issue was to be resolved as a matter of evidence, meaning all of the evidence.
- Jagot J considered that the primary judge expressly found that the evidence established that the claimants had, at sovereignty, a right to take resources from their land for any purpose, and that right is continuing.
- Her Honour rejected the submission that there was no evidence to support the finding of a right to take resources for any purpose. Jagot J considered that both the claimant and expert evidence established the right claimed, and that the State’s reliance on the evidence to support the contrary proposition was misplaced, and in the case of the expert evidence, was based on a selective reading of the evidence given.
- Her Honour rejected the argument that the primary judge’s reasoning was not inclusive of Dr Cane’s evidence regarding hardwood in the area, and that that evidence was therefore immaterial. Jagot J considered this to be a narrow reading of the reasons, given that evidence was quoted in his Honour’s reasons.
- Jagot J considered that the State’s appeal submissions drew an arbitrary distinction between the use of resources for domestic, communal, spiritual, ceremonial and exchange purposes on hand and commercial purposes on the other. Such a characterisation was not supported by the evidence, nor had the State established why the evidence supported the contention that the evidence supported the use of resources for all purposes with the exception of commercial purposes.
For those reasons, Jagot J dismissed the State’s appeal.
Barker J framed the issues in appeal to be whether the judge erred in finding that:
- the evidence of the four Pilki witnesses, even without evidence of trading activity, established the claimed right; and
- in any event, the evidence of Dr Cane, and also that of the Pilki witnesses, including of trading activity established the claimed right.
Barker J held that it was not open to the primary judge to conclude, as his Honour had, that the evidence given by the four Pilki witnesses was enough, in the absence of further evidence of trading activity, to establish the right to take and use resources for any purpose, as claimed. Barker J considered the test to be met to be: ‘it is necessary…for the claimants to show that the right contended for was possessed both at sovereignty and, according to the test laid down in Yorta Yorta, today under traditional laws and customs’. His Honour noted that in the ordinary course, it is expected that claimants would lead evidence of the exercise of such a right during the period between sovereignty and the present (activity evidence) to ensure that the court is satisfied that the right claimed was possessed at sovereignty, and continued to be so, generation by generation. Barker J noted that it is one thing to assert a right, and another to support that assertion with corroborating evidence. Ultimately, the question of activity evidence will depend on the nature and quality – relevance and probative value – of the evidence led in each particular case.
In relation to the evidence of the four Pilki witnesses, the primary judge had found that each of them had given evidence that they owned the land and were entitled to take and use the resources without limitation. Barker J considered that the evidence given by Dr Cane that the term ‘ownership is confusing and is better framed in the context of “rights” in country and resources’, the dicta of Olney J in Yarmirr v Northern Territory (No 2)  FCA 771 (Yarmirr) to the effect that the term ‘ownership’ adds nothing to the understanding of the rights claimed without reference to the incidents that attach to them, and the statements of the plurality judges in Ward around the need to go beyond statements of ‘possession’ or ‘occupation’ when determining specific rights and interests possessed under traditional laws and customs, need to be taken into account when evaluating the weight of evidence. Barker J held that in light of that authority, statements of ‘ownership’ do not of themselves support the determination of a right to take resources for any purpose. His Honour concluded that further evidence is necessary to establish that the right is possessed.
Barker J held that the relevant evidence of the four Pilki witnesses constituted evidence of a ‘right to control access to and use of resources by others under traditional laws and customs, but not to take for any purpose resources in the claim area’. His Honour concluded that while activity evidence is not necessary in every case to the prove possession of a right, in the particular circumstances of this case, more evidence beyond that of the Pilki witnesses was required to establish the right contended for.
Barker J ruled that in light of the evidence given by Dr Cane, it was open to the primary judge to conclude that at sovereignty, the Pilki people customarily used resources for subsistence and ceremonial purposes, as well as for other purposes that can be characterised as commercial in nature.
Barker J considered that the activity evidence of the four Pilki witnesses, including that regarding the sale of necklaces made from seeds, artefacts, baskets, claps sticks, and the shooting and selling of rabbits by younger members of the claim group, pointed to a belief by the claimants of a right to use the resources of their land as they wish, and was relevant to the question of continued possession of the right to take and use resources for any purpose.
His Honour considered that it was open to the primary judge to rely on the evidence of the exercise of the right to take for any purpose resources in the claim area provided by Dr Cane in describing the trading activities of claimants in more recent times, as well as the evidence of the Pilki witnesses to find, as his Honour did, that the activities were not of a different nature to those engaged in at sovereignty and, given the nature of Pilki country and the limited resources within it, could not be said to be insubstantial.
Barker J noted in relation to the distinction made between commercial and other purposes in the State’s submissions that such a characterisation is too narrow, and care must be taken, as the Court in Yorta Yorta and Ward said, not to conflate indigenous rights concepts with those that fit the lexicon of the common lawyer. His Honour preferred to characterise the question as whether the Pilki people ‘were entitled, as of right, opportunistically to use the resources of their country (subject to any traditional proscriptions) for any purpose’.