North J
In these two judgments, which were heard together, the Court held that, under traditional laws and customs, the applicants had the right to access and take the resources of that country for all purposes, including commercial purposes.
The first matter (the Pilki matter) applied to an application by the Pilki people for a determination of native title over an area of unallocated Crown land in the Western Desert region between the Nullarbor Plain and the Great Victorian Desert surrounding Jubilee Lake.
The second matter (the Birriliburu matter) applied to four applications by the Birriliburu people for determination of native title in the Western Desert region near the centre of Western Australia. The applications are known as:
Birriliburu #1 (which was determined except for a small area that was subject to exploration licences);
Birriliburu #2 (the area subject to the exploration licenses, which was largely determined, except for some remaining areas that were finally determined in Birriliburu #4);
Birriliburu #3 (an area adjoining Birriliburu #1 that was subject to a pastoral lease); and
Birriliburu #4 (the remaining area from the determinations in Birriliburu #1 and #2).
Both matters relate to the Western Desert region and the same legal issue arose in both proceedings, with the same legal arguments for both cases addressed together by the same counsel. The evidence led in each of the proceedings was separate, save for part of the expert evidence of Dr Cane (an anthropologist) which was relied on by the applicants in both proceedings.
Dr Cane’s evidence was heavily relied upon in both matters. It included answers to seven questions asked by Central Desert Native Title Services. Dr Cane’s 17 page answers were accompanied by an 89 page background to explain those answers, so that his answers would be better understood in relation to the tradition of trade and meaning of commerce. The information included discussion about trade both pre and post sovereignty, including recent trading activities, and focused on trade and commerce with respect to ochre, shell (baler shell and pearl shell), grindstones, ground stone axes, stone knives, wooden implements and tobacco. The Court described this as ‘detailed and very helpful.’
The Issue to be determined
At issue in both matters was whether the claim groups had established a right under traditional law and custom to access and take resources of the areas for commercial purposes. At [104] in the Pilki matter, North J stated:
At the centre of the case for the State was the proposition that it is necessary to prove that commercial activity has been conducted by the Pilki People in order to establish that the right exists.
North J rejected this proposition. His Honour followed the reasoning by the High Court in Yorta Yorta v Victoria (2002) 214 CLR 422 and, at [118] in the Pilki matter and [89] in the Birriliburu matter, stated:
It is 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.
The Pilki matter
North J heard evidence provided by the applicants and, at [46], accepted that any gaps in the elaboration of relevant laws and customs were addressed by the expert evidence of Dr Cane. Insight was also provided to the Court on the nature of the traditional laws and customs by a brief trip onto the country itself.
Dr Cane’s evidence included, at [72]:
even while there are no substantial resources in the Pilki area or in the largest Spinifex area that I’m aware that were traded, its material resources and maybe their intellectual ones, they’re nevertheless within a system. So, within locations and along potential routes, particularly given some of the large Dreaming Tracks that go through that route, and given the significance of Pilki itself, they’d most likely be part of that broader network. ...I don’t think people generally are aware of how substantial the system of trade was in the Australian continent and how old. So, it was a matter of information transfer really.
Dr Cane’s evidence also included at [82]-[85] details provided by the explorer Richard Maurice, by Daisy Bates (who recorded incidents of trade in ‘articles of commerce in 1911-13) and by records of a pastoralists and their employee. As evidence of recent trading activities, Dr Cane discussed the trade of animal skins, totemic boards as well as copper that some Aboriginal men mined near Warburton in the 1960s. Evidence also included the sale of articles to tourists, passing through Ooldea on the Trans Australian railway. At [89], the Court set out the following paragraph from Dr Cane’s evidence:
By 1932 the trade had become so substantial that railway authorities passed a bylaw prohibiting Aboriginal people from approaching the train and forbidding employees to ‘sell, barter, exchange or otherwise make available either directly or indirectly any food, clothing, or money to any aboriginal’.
A summary of Dr Cane’s expert opinion was provided at [94]-[99] and included the following statements:
Archaeological evidence points to an ancient tradition of trade and exchange across the Australian continent on a large scale that saw resource extraction, production, and the distribution of raw materials and finished products in a regulated, anticipatory manner. The archaeological record is supplemented by an ethno-historic accounts [sic] that describes both regional and local trade and exchange in a wide range of resources (weapons, tools, decoration, twine, bags, baskets, skins, stone, ochre and pigments, shells, tobacco and drugs in established routes across cultural boundaries and geographic zones] - from and between the tropical north, arid centre and temperate south of Australia. … The ethnographic evidence strongly suggests that the claim area is within an area (encompassing the Great Victoria Desert and Nullarbor Plain primarily) that was engaged in substantial trade in various materials (flint, fur twine, hair string, hardwoods, weapons, pearl shell, and ochre: [56 and 110-131]) and I suspect that the antecedents from the claim area were similarly engaged in that regional trade.
The Birriliburu matter
At [45], North J acknowledged that the applicants provided specific evidence of commercial activities involving the sale of resources on the country. North J also relied on the evidence of anthropologist Dr Lee Sackett, provided in a 1994 report for a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) by Western Desert people as well as his expert report provided for this case in September 2013.
North J referenced Dr Sacket’s evidence at paragraphs [46] to [55], including Dr Sacket’s following statements:
… claimants could “freely engage with their countries because they own them, and know their physical and mythological attributes.” This would mean they and their ancestors could freely take and use the resources of the area.…I am not aware of any rules specifying that certain resources could not be taken, that certain resources could be taken but not exchange [sic] or traded with others, and so on.…Trade appears to have gone on both within the confines of the Western Desert and between Western Desert peoples and non-Western Desert peoples. Regarding the former, Gould, writing of stone artefacts unearthed at Puntutjarpa Rockshelter near Warburton, remarked that some came from a quarry some 290km to the east.
As discussed above, North J also relied on the evidence of Dr Cane, provided primarily for the Pilki application but tendered also for this matter.
The State’s evidence
The State provided substantially the same argument in both matters. The State was incorrect in its argument that commercial activity must have been undertaken in order to establish the right. The State also argued that the evidence pointed to a qualitative difference between the traditional use of taking and exchange by an individual (or group) and for 'big things' (akin to commercial exploitation) such as mining.
The State’s contentions included (at [105]-[107] in the Pilki matter and at [75]-[85] in the Birriliburu matter):
that constraints on access and taking resources, such as gender, status and personal or community need, demonstrated that there was no right to access and take for any purpose;
that the taking of resources was the exercise of a right and responsibility to care for land, not the right to access and take resources for any purpose;
that the making of spears, boomerangs, shields and digging sticks was not for trade but for use in daily living and law business); and
that where the evidence went beyond the use of resources for personal use:
that boomerangs, spears and watis were generally made for “joy” and to hunt for personal use;
that although paintings and artefacts may have been sold, this was not a traditional right;
that people could sell their own spears; and
that bush tobacco was not exchanged, just shared (at [41]).
The Court rejected these arguments. North J highlighted that the rules about the exercise of a right are not a limitation on the scope of the right itself.
North J found that the State had not engaged with the extensive evidence of trading activity given by Dr Cane. Also, the State sought to distinguish Akiba on the basis that, in that case the claim group were avid traders. In rejecting this, North J set down, at [122] in the Pilki matter and at [92] in the Birriliburu matter, that regard had to be had for the context in which the right is claimed and that the country in question was harsh, with limited resources for trade.
The State raised the prospect that the applicants were relying on an argument that trade is a commercial activity other than as an incident of an underlying ownership of land, which the State contended is contrary to the authority in Western Australia v Ward (2002) 213 CLR 1. North J examined the authority and stated, at [134] in the Pilki matter and at [103] in the Birriliburu matter, that the vice being addressed in Ward was:
the assumption based on the common law concept of ownership that certain rights flowed automatically from the holding of an underlying title. This criticism cannot be sustained against the applicants in the present case. There was direct evidence of the existence of traditional laws and customs which gave the right to access and take for any purpose resources of the determination area. The right was not said to arise from the occupation of the land. The right was identified, as required by Ward, as a particular defined right to use the land in a particular way.