Barker J
This case relates to 2 related claims for a determination of native title by the Badimia people in relation to land and waters in the vicinity of Mount Magnet in the Murchison region of Western Australia.
The matter was listed for final hearing on 10 April 2015 and Barker J ordered that the Court was to hear from the parties as to the terms of the final orders to be made.
The case has a long history, beginning with an initial claim by the Badimia People in 1998. In 2012, the Badimia People made a further claim to take the benefit of s 47B of the Native Title Act 1993 (Cth) (NTA) (which applies when vacant Crown land is covered by an application). The Court treated the two applications as one.
In this matter, Barker J considered various connection and extinguishment issues in some depth. His Honour explained at [6] and [7] that issues going to the existence of native title, who holds it, and the nature and extent of those rights and interests are often referred to as ‘connection issues’ . Other issues, particularly those going to the nature and extent of native title in light of post sovereignty executive and legislative acts are often referred to as ‘extinguishment issues’.
Connection Issues
Barker J relied on the requirements in s 223 of the NTA and the reasons for them as set out in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 (Yorta Yorta) where the Court emphasised that, for native title to subsist today, claimants must, in effect, be able to demonstrate that they are successor "society" to that which held native tile at sovereignty and in each generation since then without "substantial interruption".
The State of Western Australia submitted that the claimants had failed to establish their claim. All but 1 respondents adopted the State's position.
Barker J set out what he considered to be the four key, although overlapping, connection issues:
whether the claim area was Badimia country at sovereignty
if so, whether the apical ancestors identified by the claimants were Badimia people
if so, whether the native title rights and interests now claimed by the claimants can be said to be possessed under traditional laws and customs and
if so, whether the claimants presently have a connection with the claim area by those traditional laws and customs.
Whether the claim area was Badimia country at sovereignty [107 - 209]
Barker J referred to the following examples, at [12] and [13], where connection issues might arise:
if a group migrates to the country, subsequent to sovereignty (see AB (deceased) (on behalf of the Ngarla people) v State of Western Australia (No 4) [2012] FCA 1268); or
where a group are the traditional owners, but all members of the claimant group cannot trace their ancestry to traditional owners at sovereignty (see State of Western Australia v Graham on behalf of the Ngadju people [2013] FCAFC 143).
European records concerning Aboriginal connection with the claim area were limited and Barker J stated at [17] that this impacted on ‘what reasonable inferences may be drawn by the Court’. His Honour referred to ethnographic material and found, at [19] that, while this material referred to Badimia people, ‘none provides a precise account of their culture or the location of their traditional country.’
At [21], Barker J noted that the historical association of the claimants and their old people who gave evidence was not in doubt. Rather, what was in issue was the traditional association of the claimants and their ancestors with the claim area.
Barker J considered the evidence of the claimants and the experts at [21] to [206] and, although recognising that a degree of imprecision and difference of opinion is to be expected in relation to Aboriginal concepts of boundaries (see De Rose v State of South Australia [2002] FCA 1342 at [908] and Commonwealth of Australia v Yarmirr [1999] FCA 1668 at [335]), his Honour noted at [202] that the degree of imprecision went ‘beyond debates at the margins’.
At [205], Barker J stated, '… the Court is unable confidently to infer that the knowledge of present witnesses reliably describes the boundaries of traditional Badimia country as they were at sovereignty.'
Barker J held at [208], that the claimants had not proved that the claim area was traditional Badimia country at sovereignty and this was enough to support an order that the claim be dismissed. However, Baker J went on to consider the other three connection issues.
Whether the apical ancestors were Badimia People (at [210]-[339])
Barker J found that only the descendants of 4 of the 18 named apical ancestors were Badimia people. His Honour stated, at [338] that, '... these findings, taken with the Court’s earlier finding that the claimants have not established that the claim area was traditional Badimia country at sovereignty, also lead to the result that the claim should be dismissed.'
Whether the claimed rights and interests were possessed under traditional Badimia laws and customs (at [340]-[435])
His Honour considered the meaning of ‘traditional’ and 'society', as discussed in Yorta Yorta and applied in Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 and Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9.
Barker J considered the applicants evidence and submissions on their traditional laws and customs, the expert anthropological evidence and the State’s extensive submissions and inferred, at [432] that, ' at some point in the past, probably in the course of the 20th Century, a "new" society of people who identified, and identify, as Badiamia for explicable historical reasons became responsible for maintaining a connection with what was considered to be Badiamia country.'
His Honour found, at [434] that, 'the Court is not satisfied that the laws and customs of the claimants under which they presently claim rights and interests are to arise, are “traditional” as required by s 223 NTA.'
Whether the claimants had maintained a connection with the claim area by traditional law and custom (at [436]-[493])
Barker J considered the evidence and submissions of the applicants and the State with respect to continuity of acknowledgement of traditional laws and customs and found, at [468] that, the claimants, in the Court’s judgement, have not established by satisfactory evidence that the current laws and customs giving rise to those rights and interests are rooted in sovereignty laws and customs.
And, at [479] said that all the evidence suggested the laws and customs and rights and interests claimed belonged to a “new” society, borne of post-sovereignty disruption to the pre-sovereignty group.
Extinguishment Issues
Although stating that it was not strictly necessary, Barker J ruled on the extinguishment issues, at [497] to [1153] as follows:
General principles relating to extinguishment
Barker J applied the position taken by the High Court in Western Australia v Brown [2014] HCA 8 and the Federal Court in Banjima People v State of Western Australia (No 2) [2013] FCA 868 and Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516 and summarised the relevant approach at [500], as:
a Court must make an objective assessment of whether the relevant rights and interests granted in the claim area are inconsistent with native title rights and interests
it is necessary to first identify the relevant rights by reference to their legal nature and content, and not by the way they have been, or will be, exercised
the question whether two or more rights are inconsistent is determined by reference to the nature and content of the rights as they stood at the time of the grant of the allegedly inconsistent rights. In this respect, in Brown at [37], the High Court held that to the extent the decision in De Rose (No 2) supports a notion that extinguishment might be contingent on the later performance of some act in exercise of the “potentially inconsistent” rights granted, this decision is wrong and should not be followed.
Whether certain acts had wholly or partially extinguished native title
Discussed at [546] to [880] these acts included the creation of freehold estates, pastoral leases, special leases, freehold leases, residential leases, reserve leases, nature reserves, reserves the subject of public works, roads, mining tenements, rights in minerals and petroleum.
Barker J was satisfied that the creation of most interests in the claim area were valid. However, some interests were not validly created or did not otherwise extinguish native title. These included certain freehold titles granted after 23 December 1996, special leases, residential leases and certain reserved leases created without execution of required formalities and reserves created for the purpose of being “exempted from sale”.
Whether certain acts partially extinguished native title [779-880]
Barker J rejected the applicants’ submissions that a qualified native tile right to control access exists in the claim area and this right is not inconsistent with the grant of a pastoral lease, at [788], but held that rights under a pastoral lease were not necessarily inconsistent with non-exclusive native title rights and interests and the creation of certain interests in land extinguished the native title right to determine use and control access, but not other native title rights. These other interests in land included pastoral leases, certain reserves, State forests, mineral and petroleum tenements and prospecting areas.
The Court also treated favourably the applicants’ objection to the inclusion of a generic public works clause in any native title determination, at [736].
Whether certain acts done prior to 23 December 1996 are valid.
These acts were discussed at [881] to [900] and included the creation of reserves and mining tenements. His Honour found that:
reserves for the purpose of “exempted from sale” were not valid; and
mining tenements, where a condition precedent (in this case, a relevant survey) had not been fulfilled, were valid.
Whether certain acts done after 23 December 1996 are valid future acts.
These acts were discussed at [915] to [978] and included the creation of freehold title over land subject to special lease, land subject to compulsory acquisition , a reserve for the purpose of “rubbish disposal site” and various mining tenements. Some interests were not valid future acts, others were, with the principle of non-extinguishment enlivened.
Whether the second Badimia application should be dismissed
The State sought to have the Badimia #2 application dismissed as an abuse of process. Barker J agreed that the filing of the #2 application was designed to take advantage of the beneficial operation of s 47B NTA. However, his Honour did not consider that this was an abuse of process and, at [1018] said that the #2 claim should not be dismissed.
Whether extinguishment was to be disregarded
This included considerations from [1021] to [1153] of:
a pastoral lease held by an aboriginal corporation
Barker J found, at [1033], no evidence was presented that the pastoral lease in question had been held by or on trust for the native title claimants and, therefore, any extinguishment of native title could not be disregarded by application of s 47 NTA.
reserves covered by claimant applications
Barker J found that the evidence provided did not establish 'occupation' in relation to the Paynes Find Aboriginal Reserve or Mount Magnet Aboriginal Reserves and therefore any extinguishment of native title could not be disregarded by application of s 47A NTA
vacant crown land covered by claimants' application
Barker J looked at various areas and detailed specifically for each area why the Court found that the claim group had failed to establish tenure, use or occupation of the lands and therefore s 47B NTA did not apply.