Jagot, Barker & Perry JJ
This is an appeal by the State of Western Australia of the decision by Justice Marshall in Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455. Justice Marshall found that native title exists in the trial area; it is held by the Ngadju people in common; and the extent of native title was set out in the order pages accompanying the reasons for judgement.
The State of Western Australia’s Grounds for appeal were:
That the primary judge erred in accepting that the claimant group established connection to, what the State referred to as, the south-west sector of the Ngadju trial area, for the purposes of s 223(1)(b) of the Native Title Act (NTA). This area was considered to be Kalarku country.
Justice Marshall accepted that the Kalarku were a sub-group of the Ngadju and, “Upon the extinction of the Kalarku, Ngadju family groups succeeded to their lands”. This was not in contention and the Full Court held that, it should therefore be accepted that Kalarku country was also Ngadju country. In paragraphs 41 to 45, their Honours referred to established authority that:
not every right must be reflected in the physical occupation and use of the land (Gumana v Northern Territory (2005) 141 FCR 451 at 225-228);
the question of the existence of native title rights is directed by the possession of the rights or interests, not their exercise (Members of the Yorta Yorta Aboriginal Community v Victoria [2002] 214 CLR 422 at 84);
the use of every part of the land or waters in the claim area is not required to establish the geographical extent of native title rights and interests for the purposes of s223 NTA (Moses v Western Australia (2007) 160 FCR 148 at 238); and
the fact that access to or physical presence on the land is rendered impracticable, if not impossible, is not an impediment to connection being found (Western Australia v Ward (2000) 99 FCR 316 at 262).
Their Honours also considered it significant that:
the original proceedings were “not conducted on the basis that native title needed to be established on a locality basis or by reference to any imaginary line” (at 52);
that evidence of “knowledge, visitation and Dreaming stories, and the travels of mythological beings in the general area … all indicate that the claimants have a connection with the trial area” (at 71); and
“the anthropologists … accepted connection was not in issue” (at 74).
The Full Court held that Ground 1 of the appeal failed and that the s 223(1)(b) NTA connection requirement is met.
If the Full Court found that the claimant group did establish connection to the south-west sector of the Ngadju trial area, the State of Western Australia contended that the primary judge erred by:
identifying that the Ngadju people are the persons holding common or group rights comprising the native title;
failing to make findings as to who all the persons or each group of persons holding the common or group title comprising the native title area; and
holding that the identity of the claimant group is a matter for it, and is based on the relationships within the group and the manner in which members recognise and associate with one another.
The Full Court emphasised that, in appropriate circumstances, a determination of native title under s225 may identify the group who hold native title by a language group description. However, the Full court said, if the ancestry of a particular claimed apical ancestor is brought into question, the issue will usually need to be resolved by the Court (at 91).
In the report filed on behalf of the claimants, anthropologist Dr Palmer raised a question about whether Hettie Dimer (a claimed apical ancestor) was in fact a member of the Ngadju ancestry. This report was not contradicted in the primary case by the claimants. The Full Court held, therefore, that it was not necessary for the State to make an issue of the status of Hettie Dimer in the primary case in order to raise the Ground in appeal.
The Full Court stated (at 101) that, in the particular circumstances of this case, “the determination should be expressed in a way that unambiguously determines that the descendants of Hettie Dimer are not among the group that hold the native title.”
The Full Court upheld Ground 2 of the appeal so that the orders made by the primary judge should stand, save that individuals in the claim group be recognised by relation to apical ancestors.
That the primary judge erred by failing to undertake analysis of the evidence and consider evidence that persons from outside the trial area held native title rights and interests in areas subject to the claim, making a finding of exclusive possession inconsistent with the evidence.
The Full Court noted that exclusivity depends on the ability of the members of the native title group “effectively to exclude from their country people not of their community” (Griffiths v Northern Territory (2007) 165 FCR 391 at [127]).
The State contended that, the expectation to seek permission to enter Ngadju country does not extend to Lawmen or wati of the Western Desert and “featherfoots”. Furthermore, it is not that these two categories of entrants are exempt from seeking permission. Rather, these two categories of entrants do not require permission because they hold rights and interests in land and waters in the Ngadju trial area.
The State’s position was that these two categories constituted a class of non-Ngadju people who held rights inconsistent with exclusivity of possession and control by the Ngadju people. (at 108)
With respect to the State’s submissions about “featherfoots”, their Honours stated:
We reject the submission completely and are surprised that such a submission should be made given the clear evidence of the anthropologist, Dr Palmer, as to what a featherfoot is, and his Honour’s clear acceptance of that evidence. (at 114)
With respect to the State’s submissions about outside Lawmen, their Honours considered that any exercise of the “rights” alleged, are undertake at the express or implied invitation of the Ngadju people, stating at 119:
Properly analysed … their “rights” are merely the right to be invited and to advise in respect of, but not actually to make decisions about, land or waters in Ngadju country.
The Full Court considered that outside Lawmen exercised “reciprocal rights”, expressed in Akiba v Queensland (No 3) (2010) 204 FCR 1 at [508] - [509] as being relationship-based and are not rights “in relation to” waters within the meaning of s 223(1) NTA.
The Full Court held that Ground 3 of the appeal failed.
That the primary judge erred by finding that non-exclusive native title rights and interests existed with respect to the intertidal zone of the claim area where such a finding was not supported by the evidence.
The Full Court considered that, although there was little or no evidence about the exercise of particular rights within the intertidal zone:
native title rights should not be limited to only those places where evidence establishes that they are currently exercised. It is a question of possession of rights, not their exercise. (at 138).
The Full Court found that a determination of the listed non-exclusive rights in the intertidal zone to be appropriate and, therefore, held that Ground 4 of the appeal failed.