Mansfield, Kenny, Rares, Jagot and Mortimer JJ
In this matter, the Full Federal Court heard appeals by both the State of Western Australia (the State) and the Banjima people from the decisions in Banjima People v State of Western Australia (No 2) [2013] FCA 868 (Banjima 2) and Banjima People v State of Western Australia (No 3) [2014] FCA 201 (Banjima 3).
These cases relate to the recognition of the Banjima people’s native title rights and interests over land and waters in the East Pilbara region of Western Australia, in the Hamersley Range and in the vicinity of what is today known as Karijini National Park. The appeal considers some important aspects of the Banjima people’s proof of connection to the claim area specifically related to the ability to exclude others and the interrelationship this has with exclave possession native title rights and interests.
Appeal by Western Australia
The State appealed on several grounds, all of which the Full Federal Court rejected.
Ground 1
Ground 1 had several aspects. The State argued that:
Native title has its origin in and is given content by the traditional laws acknowledged and traditional customs observed by the relevant society. 'Acknowledgment' and 'observance' means the practice of law and custom.
This proposition was non-contentious. However, the State submitted that the custom of expecting others to seek permission to be or do things on Banjima country was not about the exercise of a customary right of excluding anyone, but rather a custom of protecting those who enter Banjima country from spirits or dangerous places. The State argued that this was not sufficient to establish a native title right of exclusive possession.
The State relied on Griffiths v Northern Territory of Australia [2007] FCAFC 178 (Griffiths) as authority that:
'evidence of granting/obtaining permission to avoid the country’s pitfalls can found exclusive possession if the custom carries an "ability ... to effectively exclude people not of their community".'
The State argued that the Banjima People did not have the ability to effectively exclude others. Furthermore, the State submitted that the primary judge had focused on the maintenance of connection by the Banjima People over the whole claim area as sufficient to establish exclusive possession and that this:
'… erroneously substituted connection for acknowledgment and observance of traditional laws and customs, contrary to Yorta Yorta.'
The Full Federal Court did not agree with the State’s interpretation of the primary judge’s findings. Nor did the Full Federal Court agree with the State’s interpretation of Griffiths or, in the alternative, the State’s contention that Griffiths had been wrongly applied.
In rejecting the State’s appeal, their Honours said:
at [18] that the primary judge found not only an expectation held by the Banjima people that others would seek permission to enter, but also a 'need' for them to do so
at [17] that ‘protecting others’ was one important reason found by the primary judge for the custom. However, his Honour also identified that the custom existed to ensure that ‘sacred or religious sites created in the Dreaming were not violated’
at [20] that the primary judge found that the Banjima people had exerted their right to exclude others in situations where their custom was not observed
at [22] the primary judge referred to evidence of seeking Banjima permission as 'ample' and 'strong', and not 'minimal' as the State contended and, with respect to the State’s focus on the Banjima people’s ability to enforce their laws and customs against Europeans, their Honours referred to Griffiths, at [21], stating:
'...traditional law and custom, so far as it bore upon relationships with persons outside the relevant community at the time of sovereignty, would have been framed by reference to relations with indigenous people'. In other words, it is the Banjima people and other indigenous people that matter, not people who stand outside the relevant frame of reference.
The Full Federal Court then discussed the State’s erroneous assumption that a traditional law or custom in which permission is needed from traditional owners for others to enter their country (being others within the universe of traditional laws and customs) cannot be recognised by the common law as a right of exclusive possession. Their Honours set out, at [27]-[34] that such an assumption is inconsistent with the reasoning in Griffiths and stated, at [38]:
'The primary judge expressly found that under Banjima traditional law and custom, there was a need to obtain Banjima permission to enter Banjima country. The necessary corollary of this finding is that, by the system of traditional laws and interests acknowledged and observed by the Banjima People and relevant others, the Banjima People controlled access to Banjima country.'
The State also appealed the primary judgment on the basis that the Yindjibarndi people held traditional rights over part of the claim area (in particular, Mulga Downs, a station covering a substantial part of the area north of the northern escarpment of the Hammersley Range). The State described this area as a ‘transitional or border area’ of the claim area and argued that it could not attract exclusive rights and interests.
The Full Federal Court discussed that Yindjibarndi interests may have been traditionally expressed in or around the disputed northern boundary area but that the primary judge found no evidence that would allow such a finding and that ‘expressing an interest’ did not equate to native title rights and interests. Their Honours found the State’s focus ‘inappropriately narrow’ (at [50]) particularly as the Yindjibarndi had subsequently made a claim which did not include any part of the Banjima claim are). Consequently, as there was no person who could presently assert the existence of continued shared rights in any part of Banjima country, their exclusive rights and interests remain and were capable of being asserted against the world.
Ground 3
The State also argued that the primary judge’s conclusions about this area were against the weight of the evidence. The State sought to rely upon ethnographical evidence which other anthropologists and ultimately the trial judge determined were of ‘limited usefulness’. The Full Federal Court discussed in detail the substantial evidence heard by the primary judge, at [57]-[77], and the failure by the State to come to grips with the circumstances that allowed the primary judge a greater advantage over the Full Federal Court to weigh the evidence.
Their Honours rejected this ground of appeal on the basis that the rule in Fox v Percy (2003) 214 CLR 118 could not be satisfied. This rule requires, before appellate intervention could be justified, that the State establish such error in circumstances such as the present by pointing to some finding contrary to 'incontrovertible facts or uncontested testimony', 'glaringly improbable' or 'contrary to compelling inferences'.
Ground 4
The State appealed against the primary judge’s application of s 47B of the Native Title Act 1993 (Cth) (the NTA) to find that the grant of two exploration licences under the Mining Act 1978 (WA) had not extinguished native title over three areas of unallocated Crown land.
The operation of s 47B NTA
Section 47B NTA provides that any extinguishment by the creation of a prior interest over an area must be disregarded if:
One or more members of the native title claim group occupy the area and
the area is not covered by interests such as a freehold estate, a lease, a reservation or
the area is not subject to legislation providing that the area is to be used for a public purpose or for a particular purpose.
The primary judge had considered, amongst many parcels of land, seven particular parcels of land. His Honour found insufficient evidence of occupation by Banjima people over four of the parcels, however his Honour determined that native title had not been extinguished on the three parcels of land based primarily on the evidence of a man who was living in the area and hunting around the community.
Although the State conceded at trial that this evidence was sufficient to demonstrate occupation, the State argued that the granting of the exploration licences over the three parcels of land had extinguished native title on the basis that the areas had been allocated for public or particular purposes, pursuant to s 47B(1)(b)(ii) NTA.
The Full Federal Court set out the rules of statutory construction and various leading cases in native title, to highlight that the proper construction of s 47B NTA should be, having regard to the preamble of the NTA, that its purpose is beneficial and that any qualification on its application should be read narrowly. Their Honours rejected the State’s arguments, finding at [110] that Parliament did not intend that:
'the use of only a small fraction of a very large parcel of land or waters under a permission or authority were sufficient to extinguish native title over the whole parcel.'
Furthermore, their Honours applied Western Australia v Brown (2014) 306 ALR 168 (WA v Brown) and found that the Banjima people could have exercised their native title rights anywhere on the three parcels of land without any breach of any right that had been granted to the licensees. Following this reasoning, the Court also rejected this ground of appeal.
Appeal by the Banjima people
Ground 1
The Banjima people unsuccessfully appealed against that the primary judge’s application of s 47B NTA in determining that the Banjima people were not in occupation of 18 parcels of unallocated Crown land.
The primary judge’s decision was challenged generally on the basis that the areas in question are mostly along or adjacent to the ridge lines of the Hamersley Range and the Banjima people argued their occupation of these areas should have been found based on the evidence of the Banjima people using the various nearby gorges to pass through the Hamersley Range.
The Full Federal Court rejected this general proposition, as well as rejecting the challenge on the basis that his Honour erred by:
requiring evidence of particular activities at particular times instead of considering the use of the area as a whole
requiring evidence of occupation of entire parcels and was, therefore, dealing with the State’s parcel numbers instead of considering the use of the area as a whole
allowing the inaccessibility of the terrain in the Hamersley Range to weigh against a finding of occupation, rather than considering the rugged nature of the terrain as evidence that the Banjima People used the gorges for hunting and fishing and that rituals associated with the gorges and prohibitions on access should have meant there could be a finding of occupation of the Range generally and
requiring evidence in respect to each parcel to a degree of particularity beyond that which was required in Moses v State of Western Australia [2007] FCAFC 78 and, therefore, misconstrued that case.
The Court noted that the evidence presented before the primary judge was too vague and imprecise to satisfy the judge that there had been an assertion of being established over the particular areas.
Ground 3
The Banjima people submitted that his Honour erred by concluding that the creation of two reserves extinguished native title. The Full Federal Court noted that his Honour had considered the application of the leading cases of WA v Brown and Griffiths, which stand for the proposition that the exercise of native title rights may well have been prevented while the reserves and the buildings remained, but upon cancellation of the reserves or the earlier removal of the buildings, non-exclusive native title rights and interests remained unaffected.
The State contended that the construction of each building was a public work which extinguished native title. However, the Full Federal Court did not agree because there was no evidence of an agreement with the State for the construction of buildings. Therefore, the Court allowed Ground 3 of the Banjima people’s appeal.