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O'Grady, Rosemary --- "The Kimberley Land Claim Case" [1991] AboriginalLawB 65; (1991) 1(53) Aboriginal Law Bulletin 14


The Kimberley Land Claim Case

by Rosemary O’Grady

The Claimants

The Plaintiffs in the Kimberley land claim case are representatives of three languagegroups, related within one wunan or sharing system, in the North-East of Western Australia: the Ngarinyin, Wunambul, and Worora peoples.

The land subject of the claim extends from a point just north of Derby in a wide radius north-west to Kalumburu near the Timor Coast. It embraces mineral fields, areas of scientific significance, pastoral leases, Aboriginal and other reserves, as well as certain defence areas and a light-house.

The intention of the Plaintiffs at the outset, in November 1987, was to assert their title to traditional lands on the basis that they meet, in the affirmative, all the tests identified by Blackburn J in Milirrpum v Nabalco Pty Ltd and The Commonwealth (1971) 17 FLR 141.

At the time, the writer identified these tests as follows:-

i) Sole Occupancy: There must be proof of Aboriginal occupation of land by distinct groups,

ii) Group Entity: The relevant peoples must have an entity which is capable of being ascertained with regard to social, cultural, linguistic, geographic and political criteria and traits;

iii) A System of Laws: Two laws still operate in the Kimberleys - despite the introduction of Anglo/Australian law, traditional Aboriginal law has continued to operate.

iv) Time: Title is capable of being claimed on the basis of occupying the land for a certain period of time. 'Since time immemorial' is a long time, but in Mitchel v US [1835] USSC 9; (1835) 9 Pet 711 at 745 and Worcester v Georgia [1832] USSC 39; (1832) 6 Pet 515 at 544, 'for a long time' was deemed to be sufficient, thus easing the stringency of the test. Recent authorities suggest a 50 year period suffices, (US v Seminole Indians (1976) 180 Court of Claims 376) which, if adopted, would mean the Kimberley Plaintiffs could establish occupancy in their/our lifetime and;

v) Change in Living: Relying on both Milirrpum and Mahoney J's judgement in Baker Lake (Hamlet) v Canada (Minister for Indian Development) [1980] 1 P.C 518 (T.D), the Plaintiffs allege no significant change in living style.

Funding for the Kimberley land claim case has been denied, or rather, a decision to fund has been delayed, until the Federal Government has considered the implications of the High Court judgement in Mabo v Queensland and the Commonwealth, expected to be handed down by December 1991.

The reason given for Senator Michael Tate’s refusal to make a decision to fund the Kimberley case is that the fundamental question of law it raises, recognition or otherwise, is the same in this case as in Mabo.

The applicant Plaintiffs object to this administrative reasoning, saying that if Mabo fails, the issue is still open, and their case needs to be put as soon as possible. If Mabo succeeds, a subsequent action, in which proceedings have not yet issued, could be pre-empted by legislation expressly extinguishing customary title or by interpretive legislation deeming implied extinguishment to have effect. Although the Plaintiffs adhere to the view of extinguishment held by the Supreme Court of Canada in Sparrow v The Queen 1199014 W WR 335, they fear that a positive finding in Mabo might stimulate legislative reaction in an attempt to extinguish the rights that they claim to have.

Sovereignty

The Kimberley Plaintiffs' claim includes an argument on the issue of 'sovereignty'. Although conventional wisdom is that the High Court will not depart from Sir Harry Gibbs' reasoning on this subject in Coe v Commonwealth of Australia and Another (1979)

[1979] HCA 68; 24 ALR 118, the Plaintiffs rely on the positions taken in that case by Jacobs and Murphy JJ. That is, they seek to bring evidence in support of allegations that (i) Western Australia was not 'discovered' by the British, and (ii) the British Crown was ambivalent, as late as 1886, as to whether or not administration of Western Australia ought to include the Kimberley region. So ambivalent, in fact, that it reserved to the British Crown, in s.61 of the WA Constitution, a power to sub-divide the colony.

Significantly, if Mabo succeeds in relation to its terra nullius arguments in overturning Cooper v Stuart (1889) 1 AC 286, then the foundation for the reasoning in Coe is eroded and the issue of categorisation of the Australian colonies is reopened. Against the argument that settled law is not to be overturned by historical research, has to be placed the argument that customary law, to be recognised, must be repeatedly proven in the Courts.

Settled vs Colonised

The Kimberley Plaintiffs maintain that neither the 'settled' nor 'conquered' categories apply correctly in their region. Instead, when a closer examination of the historical evidence is conducted what can be seen to have emerged in Australia is a hybrid form of occupation, fitting neither Blackburn's nor Blackstone's criteria - but not unanticipated in Lord Mansfield's commentaries on reception of laws in Jamaica (Decisions. Vol.1. 1803); (Rex v Vaughan, 4 Buv 2494), where he said that a conquered island should be considered a 'colony' because the old inhabitants had left. (Also Vol.II Re Campbell v Hall, Cooper 204).

The Plaintiffs have been advised that they will be unable to bypass lengthy trial processes by arguing this legal theory on a Demurrer. Instead, advice from Counsel has been that evidence will have to be given on all issues which the Plaintiffs allege they can establish contrary to the facts in Milirrpum's case.

The Plaintiffs, who identify the boundaries of their land by means of language, and who describe not only control over access and egress, but also by a system of title by succession, can give direct evidence of the arrival of missionaries in the region and of their own continuing system of laws and government.

Unlike the situation in Milirrpum, there is copious evidence available that the presence of Presbyterian missionaries at Kunmunya did not have the effect of destroying the native way of life, but rather the natural dualism of the Wunan system, by which the three groups shared land and language, took on an extra dimension, with which it coexisted and continues to co-exist.

Fiduciary Relationship

The Plaintiffs also assert a fiduciary relationship with the sovereign, in the event sovereignty is held to have passed to Britain and Australia. Relying on the Letters Patent, various statutes, recent Canadian case law, but most of all the repealed s.70 of the WA Constitution, they allege the sovereign is under an equitable obligation to them. Historical records form the body of evidence in support of this allegation.

Other arguments may include:

(a) an acquisition of lands argument which pleads a s.51(xx)i) of the Federal Constitution obligation on the Commonwealth to acquire on just terms.

(b) a Murphyores argument with respect to the implications of the WA Mitchell Plateau Agreement Act 1972 which is an attempt to prevent the export of resources without including the traditional owners as parties to the agreement, or without recognition of prior ownership; and

(c) an argument grounded in the special environmental quality of the region, (there is evidence of ancient Aboriginal occupation through the existence of Kimberley rock art).

Conclusion

By tracing various legal theories upon which the sovereign appears to rely for exclusive title, the Plaintiffs expect to show error in the processes, and hence invalidate the acquisition, at least to the extent Aboriginal customary title can be shown not to have been extinguished. They also intend to show that what the occupying British perceived in Australia was not terra nullius but gens nullius.

It has been said in Australian courts that historical research is not to be a cause for overturning settled law, but other jurisdictions have found that it is possible to recognise Aboriginal prior ownership without tearing apart their constitutional fabric.

The Plaintiffs say Australia is neither settled nor conquered but shows evidence of both categories, so is a hybrid. In the circumstances, adherence to the 'settled' doctrine of colonial categorisation continues to work injustice against Aboriginal occupiers - so cannot be said to be a definite rule of the law of acquisition; a better rule would recognise Aboriginal title as customary title pursuant to received common law, declare that title, and declare the subsequent extinguishment of Aboriginal sovereign state responsibilities which that entails, by negotiating compensation through tribunals established for the purpose. No procedural difficulty is evident in this approach, but clear recognition of Aboriginal demands is inherent.


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