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High Court of Australia Transcripts |
Perth No P24 of 2000
B e t w e e n -
BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
Applicants
and
CROSSWALK PTY LTD and BAINES RIVER CATTLE CO PTY LTD
First Respondents
CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHAINE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK MCDONALD and DIANNE DINGAL
Second Respondents
Office of the Registry
Perth No P25 of 2000
B e t w e e n -
BEN WARD & ORS
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
Applicants
and
THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
First Respondent
CECIL NINGARMARA & ORS
Second Respondents
DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN
ON BEHALF OF THE BALANGARRA PEOPLES
Third Respondents
Office of the Registry
Perth No P26 of 2000
B e t w e e n -
BEN WARD & ORS
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
Applicants
and
THE STATE OF WESTERN AUSTRALIA
First Respondent
CECIL NINGARMARA & ORS
Second Respondents
DELORES CHEINMORA & ORS
ON BEHALF OF THE BALANGARRA PEOPLES
Third Respondents
KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE
Fourth Respondent
Office of the Registry
Perth No P27 of 2000
B e t w e e n -
BEN WARD & ORS
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
Applicants
and
ALLIGATOR AIRWAYS PTY LTD, PETER LAURENCE ALVIN, OASIS FARMS, C.A. & T. BRADLEY, W.R. & A.J. BROGMUS, J. CARETI, L. & M. CONLEY, T. & E. CROOT, C.W. CURTIS, MAURICE DAVIDSON, DALENE N. DAVIES, UTE & HANS DIEDRICKSON, C.C. & P.M. DONE, IAN & COLLEEN DUPE, KIMBERLEY NATIVE -SEEDS, J. ELLETT, B.M. & J. FAIRCLOUGH, STEVE FARQUHAR, JOHN FILE, H.G. GARDINER T/AS UPSTREAM ORD BANANAS, JEFF GOODING & G. HARDING T/AS GOLDEN FRUITS, DOUG G. & E.M. GRANDISON, GUERINONI NOMINEES PTY LTD, NOEL A. & AILEEN M. HACKETT, ROY & ROSALIE HAMILTON T/AS R. & R. PLANTATION, WARRAMINGA PTY LTD, STEVE & CHRYSTABELLE HOWELL T/AS SPEEDY & BOB'S ELECTRICS, MICHAEL & HEATHER HOWELL, HOWARD & LESLEY JAMES, GRAHAM JOHN & SHEILA WEBSTER, KIM G. JOHNSON T/AS ITCHY PALM PLANTATION, G.T. KING & D.P. GAEBLER, J. & P. KIRBY, LAKE ARGYLE CRUISES, LAKE ARGYLE INDUSTRIES PTY LTD, PATRICIA LAMOREAUX, ANTHONY & JULIE LARSEN, J. & J. LEACH PARTNERSHIP T/AS WILF ORD-RIVER PLANTATION, C.R. & S.A. LEAVER T/AS DELESTION RANGE ESTATE, B. LERCH & D. SPACKMAN T/AS BARDENA FARMS PTY LTD, PETER AND BELINDA LETCHFORD, ROBIN & SHANE MACKAY, SUZANNE MACKAY, DIELRO PTY LTD, SHARAL PLANTATION, STEPHEN MASSEY & JULIE KEMP, SHANE & SUZANNE MOORE, CRAIG & GAIL MUIR, J.L. & D.G. NICHOLSON, DAVID OGILVIE, IAN OLIVER, ORD RIVER DISTRICT CO-OP LTD, ADUR PTY LTD T/AS PARKER POYNT PLANTATION, LYNDON & KAREN PARKER T/AS KARLYN PLANTATION, IAN H. & ALMA V. PETHERICK, RONALD M. PORTER, CHRIS & DIANE ROBINSON T/AS ORIA ORCHARDS, R. & J.V. SCHOEPPNER, S.C. & P.M. SHARPE, BETHEL INCORPORATED, KENNETH G. SKERMAN & HILARY E. BRETT, KERRY SLINGSBY, P.J.E. & L.A. SMITH, ALAN J. & JANET A. STENNETT, DAVID THORNEYCROFT, JENNIFER TOMKIN, WAYNE R. & JANICE A. TREMBATH, GREG & JANE HARMAN, FOLLE INVESTMENTS, HELGA WEISS, MERV & TERESA WELSH T/AS FORESHORE FRUITS, TIMOTHY B. & LYNETTE J. WESTWOOD T/AS EMELS ORCHARD, G.S. TURNER & Y.M. WHITEHEAD T/AS GARVON PLANTATION, ALLAN & SUE WILSON, ROD WILSON, WILLIAM R. & J.M. WITHERS, J.L. & S. WOODHEAD, GREG WYNN, JENNY RYMER, CALYTRIX INVESTMENTS PTY LTD, JOHN W. READ, STJEPAN VUK, HOWARD YOUNG, J.L. WOODHEAD, J.S.W. HOLDINGS PTY LTD, EAST KIMBERLEY SPORTS FISHING CLUB, KUNUNURRA RACE CLUB and KUNUNUYRRA WATER-SKI CLUB
First Respondents
CECIL NINGARMARA & ORS
Second Respondents
Office of the Registry
Perth No P28 of 2000
B e t w e e n -
BEN WARD & ORS
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
Applicants
and
ARGYLE DIAMOND MINES PTY LTD and THE ARGYLE DIAMOND MINE JOINT VENTURE
First Respondents
CECIL NINGARMARA & ORS
Second Respondents
DELORES CHEINMORA & ORS
ON BEHALF OF THE BALANGARRA PEOPLES
Third Respondents
THE STATE OF WESTERN AUSTRALIA
Fourth Respondent
Office of the Registry
Perth No P29 of 2000
B e t w e e n -
THE STATE OF WESTERN AUSTRALIA
Applicant
and
BEN WARD & ORS
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
First Respondents
CECIL NINGARMARA & ORS
Second Respondents
DELORES CHEINMORA & ORS
ON BEHALF OF THE BALANGARRA PEOPLES
Third Respondents
Office of the Registry
Perth No P31 of 2000
B e t w e e n -
CECIL NINGARMARA & ORS
Applicants
and
THE NORTHERN TERRITORY OF AUSTRALIA
First Respondent
CONSERVATION LAND CORPORATION
Second Respondent
THE STATE OF WESTERN AUSTRALIA
Third Respondent
BEN WARD & ORS
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
Fourth Respondents
DELORES CHEINMORA & ORS
ON BEHALF OF THE BALANGARRA PEOPLES
Fifth Respondents
Office of the Registry
Perth No P33 of 2000
B e t w e e n -
THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
Applicant
and
BEN WARD & ORS
ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE
First Respondents
CECIL NINGARMARA & ORS
Second Respondents
Applications for special leave to appeal
GUMMOW J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
FROM PERTH BY VIDEO LINK TO CANBERRA
ON FRIDAY, 4 AUGUST 2000, AT 10.40 AM
Copyright in the High Court of Australia
MR M.L. BARKER, QC: If the Court pleases, I appear with my learned friend, MS A.M. SHEEHAN, for the applicants in P24 of 2000, P25 of 2000, P26 of 2000, P27 of 2000 and P28 of 2000, and for the first respondent in P29 of 2000, the fourth respondent in P31 of 2000 and the first respondents in P33 of 2000. (instructed by the Aboriginal Legal Service of Western Australia (Inc)).
MR J. BASTEN, QC: If the Court pleases, I appear with my learned friend, MR K.R. HOWIE, for the second respondents in P24 of 2000, P25 of 2000, P26 of 2000, P27 of 2000, P28 of 2000, P29 of 2000, the applicants in P31 of 2000 and the second respondents in P33 of 2000. (instructed by the Northern Land Council)
MR T.I. PAULING, QC, Solicitor-General for the Northern Territory: If the Court pleases, I appear with my learned friend, MS R.J. WEBB, for the first respondent in P25 of 2000, P31 of 2000 and the applicant in P33 of 2000. (instructed by the Solicitor for the Northern Territory)
MR W. SOFRONOFF, QC: If the Court pleases, I appear with my learned friend, MR G.M.G. McINTYRE , for the third respondents in P25 of 2000, P26 of 2000, P28 of 2000, P29 of 2000, the fifth respondents in P31 of 2000 and the fourth respondent in P26 of 2000. (instructed by the Kimberley Land Council)
MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: If the Court pleases, I appear with my learned friend, MR K.M. PETTIT, for the applicant in P29 of 2000, the first respondent in P26 of 2000, the fourth respondent in P28 of 2000 and the third respondent in P31 of 2000. (instructed by the Crown Solicitor for the State of Western Australia)
MR D.W. McLEOD: If the Court pleases, I appear with my learned friend, MR P.L. WITTKUHN, for the first respondents in P27 of 2000. (instructed by McLeod & Co).
MR H.B. FRASER, QC: If the Court pleases, I appear with my learned friend, MR K.R. JAGGER, for the first respondents in P28 of 2000. (instructed by Freehills)
GUMMOW J: Gentlemen and ladies, the Court has considered the materials in all of these applications. The five Ward matters appear to us to fall together and, in respect of the five Ward matters, we have concentrated on P26 of 2000. In respect of P26 of 2000 we have reached, provisionally of course, a view as to what might be the appropriate method of disposing of that application, P26, and we can hand out to counsel in Canberra and in Perth - and that should now be done - a sheet of paper of our proposed course in P26 and consequentially in P24, P25, P27 and P28 as indicated.
Now, what we invite counsel to do is to consider that and, in particular, Mr Barker, in the light of your document of this morning, I think it is, headed Applicants' Summary of Grounds, a document of nine pages, we will invite counsel to do that. We will then adjourn any further treatment of these applications and when we come back to them we will invite counsel to address us, Mr Barker, as to whether there should be any expansion of what we have proposed; Mr Meadows, Solicitor-General for Western Australia, as to whether there should be any contraction or, indeed, extinction of what is proposed. Mr Basten and Mr Sofronoff, your interests supports Mr Barker, I suppose, does it, in P26?
MR BASTEN: Yes, your Honour.
GUMMOW J: Would you be wishing to supplement anything he puts to us?
MR BASTEN: Could we reserve our position in relation to that, your Honour?
GUMMOW J: Yes. Can I ask you and Mr Sofronoff to think about that - - -
MR BASTEN: Yes, certainly.
GUMMOW J: - - - and, if necessary, to divide your time with Mr Barker, having half an hour between the three of you.
MR BASTEN: Thank you, your Honour.
GUMMOW J: Very well. Well, we will stand down then any further consideration of the first group of applications in the Perth list and we will pass immediately to the Yougarla matter.
AT 10.44 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 11.31 AM:
GUMMOW J: Yes, Mr Barker. Concentrating on P26 of 2000, you would wish to expand the proposed grant of leave?
MR BARKER: Yes, we would, your Honours.
GUMMOW J: Have you had any discussion with Mr Basten and Mr Sofronoff as to division of time between you?
MR BARKER: Twenty minutes, five and five.
GUMMOW J: So you have 20 minutes, and they have five each. Thank you.
MR BARKER: Perhaps it would assist, however, before I make any substantive submissions, to seek some clarification about what your Honours' intent might be in limiting the grant as proposed in paragraph 1 to some, but not certain other, paragraphs. If it were - - -
GUMMOW J: Some of the grounds seem repetitious and duplicative.
MR BARKER: Yes. We made an assumption, your Honour, that if we were to succeed on the matters that have been identified, that it would probably follow that the Court would remit the matter to the Full Federal Court to determine the matter generally in relation to the principles.
KIRBY J: Any factual matters that might require reconsideration if you were successful on these grounds would have to go back to the Full Court.
MR BARKER: Yes. Can I raise then a particular issue, your Honour. I am not sure where it then fits in that. That is in relation to say grounds 16, 17 and 18, they are in the draft notice of appeal in P26 at page 529, I think. Leaving 16 for the moment; that is a matter that raises the exclusivity issues which your Honours have taken on as one of the earlier paragraphs 2.4. Paragraph 2.17, though, raises a question which is of some importance to the applicants. It concerns on a stricter view the question of operational inconsistency. Your Honours have indicated that that particular ground would not be taken on. That is presently 2.6, although the way it is phrased it might have been thought to be confined to a more narrow issue.
HAYNE J: Paragraph 2.17 is introduced by error:
as a consequence of the errors identified in grounds 1, 2, 3, 4 - - -
MR BARKER: Yes, your Honour is right. I just wanted to, in that respect, understand that point because, as I say, our understanding would be that if your Honours found for us on those general points, that the question of the Ord Project area would have to go back to the Court for determination in accordance with the Court's findings. If that understanding - - -
HAYNE J: That is a very broad statement, to put it in terms of "the Ord Project area would have to go back". It may obscure too much. But if you were to have leave and to succeed in demonstrating error of principle, you presumably would wish to say, either here or in the Full Court, that error of principle has the following consequences. It has the particular consequences in relation to these pieces of land, or so on, but presumably there may be debate between the parties about whether an acceptance of the asserted error of principle did, in fact, have that consequence for the conclusions. Whether that occurs here or below, at least at the moment my own understanding would be is that that is a debate that would occur in the Full Court on remitter.
MR BARKER: Yes.
HAYNE J: But I think there is great risk, if we talk in generalities of, "Oh, the Ord Project has to go back; it will obscure too much".
MR BARKER: Yes, I erred, I think, in putting it too generally, your Honour. But, as your Honour Justice Hayne has pointed out, we do rely on general principles in relation to the areas we say that are in the findings identified in that ground 2.17 and so we would seek ultimately either to satisfy the Court by reference to general findings of that nature from the Court below said to be errors by reason of the general principles and, as you say, whether or not they are finalised here or remitted, would, as we understand it, then remain the issue.
The other areas, taking them in order, your Honours, that we seek to raise are some of the past act matters. We note that the general ground for dealing with past acts is not included, but we would still invite the Court to grant special leave in respect of some of these issues.
GUMMOW J: Now, looking at your useful memorandum, where are we in dealing with past acts?
MR BARKER: Yes. We are dealing with paragraph 6 at page 6, your Honour; 2.9 your Honours have not included in the list, but I do invite your Honours to go to ground 21 at page 532 of the application book. Your Honours have indicated that ground 2.19 concerning the resumption of land in the Packsaddle Plains area might go forward. We are concerned that if the Court were to uphold the decision of the majority in relation to that matter, that we say there would still be a question whether a post-1975 Racial Discrimination Act 1978 resumption would not be caught by the past act provisions. The point that we seek to make here is that if there has been a resumption, or in other areas that I will come to in relation the issue of mining leases a post-Racial Discrimination Act disposition or transaction that raises the question of invalidity under the Racial Discrimination Act, then that will result in the particular disposition being considered a category A, B, C or D past act, and we submit that the Court can - - -
GUMMOW J: Just looking at ground 21 which you referred to.
MR BARKER: Yes.
GUMMOW J: Now, it is said against you in Western Australia's helpful way of dealing with it - at page 554, paragraph 52, you see it said:
never raised below.....
(b) Findings of fact -
would be necessary; and that seems to be consistent with what you say in ground 21(b):
The Court should have.....
(b) referred the matter to the trial judge for determination.
It seems to be suggested that we are being asked to take on something that requires facts and which was not dealt with below.
MR BARKER: Your Honour, we do respond to that in our reply at 581. As to the grounds not argued below proposition, we do say that numerous of the past act provisions have been dealt with by one party or the other. And the question of invalidity, particularly in relation to the mining leases that I will come to, was raised. That is something dealt with specifically in our response to the Argyle submissions.
HAYNE J: Raised at trial or raised on appeal?
MR BARKER: Raised on appeal.
HAYNE J: Part of the point against you is "not raised at trial, not enough facts found".
MR BARKER: In our submission, your Honour, there is no need for any more facts. Our submission in relation to the - - -
KIRBY J: But the facts in your submission engage the Racial Discrimination Act.
MR BARKER: It is the general operation of the law that we rely upon as causing the discrimination under section 9, I think, in most of these cases. We say that you do not need - - -
KIRBY J: Do you say that it is enough for your purposes to mount the argument that: (a) the applicants are Aboriginal Australians; and (b) that the Act says what it says on its face?
MR BARKER: Yes, and the effect - - -
KIRBY J: Is there anything more that you need in your submission?
MR BARKER: Not in our submission. We say the effect of the operation of the legislation is to take away native title rights when the equivalent state of the general law say a freeholder that would be unaffected in the relevant case. For example, take a mining lease. The grant of a mining lease over freehold land or, indeed, over a pastoral lease is effective to convey the mining rights, but it has no effect on the general underlying interest. So that when it is lifted, that freehold pastoral lease interest, or whatever, remains good, whereas the finding in the court below is that the mining lease extinguishes native title, and it cannot be revived, of course.
We say that is wrong as a matter of common law, and that is another ground I wish to come to. But we say that under the Racial Discrimination Act there is a relevant discrimination because there is an unequal treatment of like interests. We say you do not need another fact to deal with that issue. It was not an issue before the trial judge, if I can say that to Justice Hayne.
HAYNE J: It was not?
MR BARKER: No, because his Honour did not find that there was extinguishment in these cases.
GUMMOW J: But that was his finding. But you did not know that was going to happen.
MR BARKER: That is true, your Honour. I think - - -
GUMMOW J: The question is: was it argued before him?
MR BARKER: I think it may be fair to say that some of the past act propositions were, perhaps, thought to be unexceptional at the time but they were argued before the Full Court, particularly in relation to the mining lease propositions.
KIRBY J: Well, in any case, it is a short point. Whether one adds it, or whether or not there were multiple facts that, had you raised it, the respondent might have wished to present. We can hear what the respondent has to say. You say there are no facts. It is just Aboriginal - - -
MR BARKER: We say it goes to that matter, as I have enunciated it, and we say with respect to a special leave point to your Honours, that it is a very important point and it would be, we say, a suitable occasion on which the Court might examine it.
GUMMOW J: Yes. Looking at your memorandum on page 6 then, paragraph 6, which of those grounds encapsulate the point sufficiently?
MR BARKER: The ones that I identified as making the point, your Honour, would be 21 and also 36. They were the - - -
HAYNE J: And not 9, the general one? Just 21 and 36?
MR BARKER: Well, 9 picks up other propositions.
HAYNE J: So, 21 and 36 relevantly.
MR BARKER: Yes, 21 and 36, I think, if one is looking at them as appropriate instances for the proposition to be argued, yes.
GUMMOW J: Now, where do we go from past acts?
MR BARKER: Your Honours, I have mentioned the question of mining leases. That brings us to grounds 31, 32, 33 and 34, which your Honours have not identified in the list.
GUMMOW J: Where are they in your memorandum, could you just assist?
MR BARKER: In the memorandum, they appear in more than one place, I think. But, certainly - - -
GUMMOW J: Well, let us find the place, because it will assist us.
MR BARKER: At paragraph 3, for example, your Honour - - -
HAYNE J: We are talking 31 to what?
MR BARKER: Thirty-one to 34, that is the question of extinguishment in relation to minerals, the question of whether the determination is limited to traditional resources and the effect of the Argyle mining agreement and mining leases respectively. So that 33 and 34 are raised in paragraph 3 of my memorandum under the permanency topic, and - - -
HAYNE J: Thirty-one in paragraph 2 and 31 in paragraph 1.
MR BARKER: That is correct. The submissions that we make about these issues is as follows. In respect of ground 31 we say this that the Western Australia mining legislation is different from legislation otherwise of a similar nature in other parts of Australia. We say that, ultimately, the Western Australia mining regime can be equated with the regulatory analysis that the Court provided in Yanner and the Queensland Fauna Legislation. From the 1890s it is correct that the Western Australian legislation placed minerals in public ownership but minerals in private ownership at that point which had been put into private ownership through grants of fee simple since sovereignty remained in private ownership and the dominion exercised by the State over minerals from the 1890s did not affect private ownership.
We say it is a clear and plain intent issue, ultimately, namely, that there is no intent manifest in the legislation, properly construed, to take away those private rights nor should there be seen an intent to take away native title rights. So, our submission is that it certainly depends on the Western Australian legislation. We are not making a similar submission in respect of the Northern Territory legislation, at relevant times, which we say is a different order, but we do invite the Court to grant special leave in respect of that issue.
HAYNE J: What do you gain from such a grant that you do not gain if there is a grant on the first five grounds?
MR BARKER: Put that way, your Honour, you correct me and I think it follows, but as we argue the general proposition in one - - -
HAYNE J: It is a question, Mr Barker.
MR BARKER: Yes.
HAYNE J: It is not a statement.
MR BARKER: No. One remains concerned for that reason, I suppose. That is why I raise it that it is not in the list. It is a specific point that appears to be excite interest throughout the country as to what the position with minerals is and so it strikes us that it would be as well to take it specifically rather than leave it to general principles. It provides a particular statutory context that requires analysis and for that reason we do press your Honours to accept that as a special leave point.
If I can go to very next one, that is the traditional resources point, we say that there is a very important issue at stake here that the Court should allow special leave on and it is - - -
GUMMOW J: Where do we find that in your memorandum? It does not seem to have a separate heading.
MR BARKER: It is caught without any ceremony at page 8, paragraph 13.32. The point that we seek to raise in special leave is this, it has been said by the majority in the court below that if there is any specific entitlement to resources it must be limited to those which have been traditionally used and, so, for example, if there were some evidence, as I think there was in this case, of ochre having been used for whatever purpose, ceremonial or otherwise, that that might be a resource in respect of which there could be an expressed native title right.
The submission that we would seek to put to the Court on an appeal is this that the nature of native title is in the nature of possessory right. It flows from the order, for example, made in Mabo [No 2] where the Meriam people were granted a right to the "possession, occupation, use and enjoyment" of their land that it is a possessory right.
GUMMOW J: Now, I understand the importance, I think, of what you are saying but what, as a practical matter, in this litigation would have flowed from the right finding? What would then follow? Suppose the majority got it right, what would be the next step, to reduce it to practicalities?
MR BARKER: The practical outcome, so far as the native title holder is concerned, is this, that - - -
GUMMOW J: But in this case.
MR BARKER: In this case.
GUMMOW J: Yes.
HAYNE J: What order would have been made?
MR BARKER: There would not have been a determination restricting resource use to those of a traditional customary type. In fact, one would delete that part of the determination altogether. It is otiose and we would seek to do that.
GUMMOW J: Yes, I understand.
MR BARKER: So, that particular point, your Honour, is what we would say is a very important one for native title throughout the country as to the nature of the rights. It is a point, I should note, that will or should arise in the course of considering partial extinguishment as to the nature of the interest that native title is. Whether it is a collection of rights, or not, begs the same question. But because it is in the determination, again, we submit that it would be appropriate to allow that specifically to go ahead on special leave. The other two items, your Honours, 33 and 34, dealing with the Argyle Project and mining leases, I have - - -
GUMMOW J: You have mentioned them before.
MR BARKER: I have mentioned them before and I make the same point, that in respect of the Argyle Project, they are already made in respect of mining leases. Essentially, it raises the question of suspension of native title which, in our submission, the Court has not finally adjudicated on. The majority in Wik, with respect, noted the possibility of suspension, or at least a contention in respect of it, and it was not necessary for that argument to be addressed, and I think the postscript to the judgment of Justice Toohey reflects that.
We say this is exactly the type of case where suspension might apply in respect of mining projects, grant of mining leases, and we draw to your Honours' attention that a mining lease, in fact, is identified as a past act category C in the Native Title Act which is subject to the non-extinguishment principle. So, one might submit that a general expectation, legislatively, that there is not extinguishment and that there, indeed, might be suspension of native title in those cases; we say that that is the common law. It is a matter found against us by the majority and, with respect, we say that is the sort of issue, whilst suspension is generally there, it would be, perhaps, as well for that matter to go directly ahead.
Your Honours, the only other matter that I, with respect, think does not fall under the general propositions with a flow-on effect would perhaps be the question of statutory construction raised in ground 43. That requires the application of section 229(3) - - -
GUMMOW J: Whereabouts is that in the memorandum?
MR BARKER: I am sorry. That is, again, under the separate issues, your Honour, towards the - - -
GUMMOW J: Well, 43 is mentioned amongst the past act points. It seems to be dealing with a one year tourist facility.
MR BARKER: Yes, there is a specific - yes, at page 6, item 6, your Honour. It is raised in the past act context and that is appropriate. The point is dealing with a one year lease for a tourist facility where there was a discretion to renew it.
GUMMOW J: To renew it for consecutive periods of one year, or just to renew it once, or - - -
MR BARKER: For consecutive periods. The question is whether that can fit under the words that are used in that particular part of the Native Title Act dealing with agreements and - - -
GUMMOW J: So it raises a question of construction - - -
MR BARKER: A specific statutory construction question, your Honour, which - - -
GUMMOW J: Yes, what is it? What is the provision? What is the statutory provision?
MR BARKER: It is section 229(3)(c)(i).
GUMMOW J: What is the point of construction about 229(3)(c)(i)? What is the debate about it?
MR BARKER: Your Honour, I am sorry that I have lost my place in relation to that matter.
GUMMOW J: That is all right. There is a lot of matter.
MR BARKER: I might have to come back to it.
GUMMOW J: So I will rub out ground 43 at the moment.
MR BARKER: For the moment, your Honour. The only other matter that we wish to invite the Court to take on special leave is the section 47B of the Native Title Act provision, which is the - - -
GUMMOW J: At ground 22.
MR BARKER: Which is ground 22, yes.
GUMMOW J: It is at paragraph 10 of your memorandum.
MR BARKER: Yes, that is correct, your Honour. This is a particularly beneficial provision which in respect of vacant Crown land occupied by Aboriginal people enables extinguishment to be discounted. It is put against us that that is not a particular ground of defence that was run before the trial judge or the Court below. We submit that in relation to a beneficial provision like section 47B, it must be applied as part of the law and cannot be ignored. So we seek to bring that matter to the Court. It does not, in our submission, require any further consideration of the facts as found. There is no contest about the facts, it is simply a matter of taking the facts and determining whether section 47B should apply.
In our submission, the point really is one that would properly be remitted to the Court below to determine whether, on the facts, section 47B applies.
GUMMOW J: Did the Full Court deal with it? Did it say, "We are not going to apply 47B"?
MR BARKER: Not in those terms, no. There is no adversion to it.
GUMMOW J: Were they asked to apply section 47B?
MR BARKER: Not specifically, no.
GUMMOW J: It is a fall-back position, really, is it not?
MR BARKER: It is, your Honour. Our position is this: that if one finds that there is extinguishment in whole or in part of native title, then a court is bound to have regard to the beneficial provisions. Here there was a finding in respect of land within the Ord irrigation district that it was totally extinguished. We say section 47B has to be addressed and we seek to have that process undertaken by the Court below. May it please the Court.
GUMMOW J: Thank you. Mr Basten.
MR BASTEN: Your Honours, may I deal briefly with three sets of grounds. Firstly, we, of course, raised in our application a matter which is dealt with in ground 14 of the draft notice of appeal which appears at page 528. May I reserve our position in relation to that matter? We formulate the grounds slightly differently in our application, but it relates to the Keep River National Park, which is in the Northern Territory.
Secondly, in relation to the mining tenements, which are dealt with in the notice of appeal at page 536, grounds 34 to 35. Paragraph 35 is curiously drafted but it reflects the formulation used by the Full Court at paragraph 581 of their Honours' judgment, a majority judgment, at page 318, end of the page, in volume 2. Paragraph 34 is not expressly objected to by Western Australia. It raises an issue in relation to mining tenements which have arisen under that Act post the commencement of the Racial Discrimination Act. The issue is simply this: if a mining tenement does not extinguish an ordinary title of any sort, then the effect of the RDA would be to protect the underlying native title from extinguishment. That was the way in which the legal issue arose. That is a matter which, with respect, is contrary to the way the Full Court dealt with it in that paragraph and we respectively submit it is a matter this Court might consider.
GUMMOW J: That is ground 35.
MR BASTEN: That is grounds 34 and 35, in effect, your Honour.
GUMMOW J: Yes.
MR BASTEN: The other grounds which I lump together are grounds 44 and 45. They appear at page 540. They relate to the public right to fish. They are an identical issue to that raised in Yarmirr. They will therefore be considered by this Court and the consequence should perhaps be allowed to flow on to the native title holders in these proceedings if the argument for the claimants is correct.
GUMMOW J: Yes, just pardon me a minute. Yes, are you appearing in the other one?
MR BASTEN: Yes, your Honour. If the Court pleases.
GUMMOW J: Mr Sofronoff.
MR SOFRONOFF: Your Honours, we support the submissions made by our learned friend Mr Barker. There is only one additional matter that I seek to raise. My clients are interested in a portion of land that is identified because it was resumed from two pastoral leases for "government purposes" in connection with the Ord River Irrigation Scheme. The actual government purpose was to prevent cattle losses through the flooding that would result, and to prevent erosion, we take it, through cattle walking on the property. In other words, the resumption was to prevent pastoralists using the land for the purposing of depasturing cattle.
The Full Court concluded, reversing the trial judge, that that resumption and the dedication - to use the term not legally - the dedication of that land for that purpose effected an extinguishment of native title. Nothing else was done to the land, except that it was resumed for the purpose of preventing cattle being depastured on it. The Full Court concluded that native title was extinguished for two reasons: one is that the land was reserved, occupied, held or used in connection with the Ord River Irrigation Scheme - in other words, its occupation and use was a notional one because of what had happened, as I have explained; secondly, their Honours concluded that the use of the land in that form rendered the land "works" within the definition of that term in the Rights in Water and Irrigation Act.
We would wish to challenge both those conclusions. They arise in our learned friend's Mr Barker's draft notice of appeal in paragraphs 2.16 and 2.17, most particularly in 2.17(e) and the point in our submission is a simple and discrete one that involves no factual dispute and it raises for consideration this question, in our submission. Your Honours will recall that in Mabo [No 2] at page 68 Justice Brennan said this after dealing with reserves, that if land is resumed or reserved and nothing more, that would not extinguish native title. His Honour went on to say:
But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished.
Your Honours, the approach of the Full Court in this respect, in our submission, extends the application of the principle contained in that dictum far more - - -
GUMMOW J: Which is the particular paragraph in the Full Court?
MR SOFRONOFF: It is at paragraph 422. If your Honours have the ALR version, then it is just above line 35 on that page to the end of the paragraph.
GUMMOW J: "Even though"?
MR SOFRONOFF: Yes. Now, your Honours, as you can see, their Honours not only speak of the occupation and use of the land, although nothing has happened to the land, in fact, which we would wish to raise before this Court for argument, but they also speak about the word "works" Now, your Honours will find on the preceding page in paragraph 420 the term "works" defined in the Rights in Water and Irrigation Act. That definition ceased to apply in 1985. It was deleted from the Act in 1985 by Act No 25 of 1985, section 275; and, instead, another definition was substituted by reference to the Water Authorities Act, the definition in section - - -
GUMMOW J: Does the later definition help you in some way?
MR SOFRONOFF: It does because it emphasises what, in our submission, in any event, appears from the original definition that "works" are something that are constructed.
GUMMOW J: Anyhow, you say the Full Court had in mind the wrong definition?
MR SOFRONOFF: Correct.
GUMMOW J: So that is ground 17(e).
MR SOFRONOFF: Yes.
GUMMOW J: You mentioned another.
MR SOFRONOFF: And 18, your Honour, because it raised the word "works".
GUMMOW J: And 18. Yes, I see.
MR SOFRONOFF: That is all I wish to add to our learned friend's submission.
GUMMOW J: Thank you, Mr Sofronoff. Yes, Mr Solicitor.
MR MEADOWS: May it please the Court, given the indication which has come from your Honours about those matters in respect of which you are minded to grant special leave, we would not make any submissions in opposition to that at this stage. However, we do wish to address some submissions to counter those that have been put forward by my learned friends. And in doing this, might I say that some of my colleagues on this side of the Bar table will also be making submissions which would be in addition to what I propose to make.
GUMMOW J: Yes, they are not in P26.
MR MEADOWS: No.
GUMMOW J: Would it be convenient - - -
MR MEADOWS: I am assuming that because your Honours have embraced the other application - - -
GUMMOW J: You are quite right. Would it be convenient if you starting now had the 20 minutes and Mr Fraser and Mr McLeod - are they the parties involved?
MR MEADOWS: Mr Fraser certainly is, and Mr McLeod, yes, your Honour.
GUMMOW J: Anyone else?
HAYNE J: Mr McKenna?
GUMMOW J: What about Mr McKenna in Perth? How does he stand?
MR MEADOWS: I do not know where he stands in this.
MR McKENNA: To assist the Court, I anticipate being approximately a minute after Mr Meadows is finished.
GUMMOW J: In support of Mr Meadows?
MR McKENNA: Indeed, your Honour.
GUMMOW J: Yes, Mr Pauling, do you want to be heard on this?
MR PAULING: Yes.
GUMMOW J: You are yourself an appellant in another matter.
MR PAULING: Yes, I would rather reserve my submissions until the next matter, your Honour. It will not advance the Western Australian case.
GUMMOW J: I thought you would. All right. Yes, Mr Meadows.
HAYNE J: With that encouragement.
GUMMOW J: With that encouragement, Mr Meadows, we will hear you then for the 20 minutes, then Mr Fraser, and Mr McLeod. That is the order between them. That is convenient?
MR MEADOWS: Yes, may it please the Court. Perhaps I could begin by reference to what I would call the Ord River Irrigation Project, and to support the exclusion of any grant of special leave in relation to that project, and we put it on this basis, if it please the Court. The matter of the Ord River Irrigation Project is one which is entirely dependent upon an assessment of fact. As we perceive it, the applicants do not challenge the principles upon which the majority in the Full Court proceeded. Those principles are stated at paragraph 419 of the judgment of the Full Court and in the ALR at page 267.
Effectively, what their Honours said there was that the resumption by the Crown of land for the project under section 109 of the Land Act, did not itself effect extinguishment but the use of the land for the project did extinguish title to the extent of inconsistency. As we perceive it, none of that is contested as a principle. It is not alleged, as we understand it, that the area set aside for the project was excessive or beyond what was reasonably required.
The applicants' complaint is of two things. They say there has to be an inconsistent use of every piece of the land; and, secondly, they say that the use of the land by the Crown has to demonstrate the impossibility of co-existence.
As I understand from the paper that we have been provided by the Court, the issue of impossibility of co-existence would be the subject of a grant of special leave.
HAYNE J: What would happen if the applicants succeeded on that ground?
MR MEADOWS: It would not make any difference, we would submit.
HAYNE J: Why is that?
MR MEADOWS: Because of the nature of the project and the use to which the land has been put. You see, your Honours, the Full Court, and the majority in particular, examined this matter in detail and the essence of their factual finding, which the applicants would ask you to revisit, is to be found at paragraph 410 which is at page 263 of the ALR. I will not read it to the Court but it does indicate the extent to which this project has taken over the land in question. It is clear from the judgment that the majority have accepted the expert engineer's report in Mr Wilkin and the evidence of the government officer responsible, Mr McCosker, because, as a fact, the court found, at paragraph 442, that with a project of this kind, and I am quoting:
it can be expected that at times parts of the land will be put to a variety of uses, including recreation, which, as a matter of fact, are not only consistent with some of the traditional activities of the indigenous inhabitants of the area, but may even bear a close similarity to them. However, there remains an operational necessity for the Crown to have the legal right of complete control, to be exercised as and when necessary over human activity in the area, whether by members of the general public or by members of an Aboriginal community.
So, as a matter of fact, the majority has found that the State does require, and has assumed, control of the whole area of that land. Without taking your Honours to specific passages in the judgment, it is clear that this control is required and a monitoring role is involved in issues, such as ground water, flooding, erosion, silting, weeds and vermin, dangers, access road, drainage and irrigation works, et cetera.
So, however the matter is advanced to the Court by the applicants, it boils down to a context as to the facts. They would ask the Court to review the facts to see if the State really does require a control of all of the areas set aside for the project. It is pertinent, we would submit, to examine what the outcome would be if the applicants' contention was right, that is, if there was a capacity for a co-existence. The result would be at common law, that is, but for the Native Title Act, that anything to be done in the project area could be prevented. We would say that is no different, except in scale, from, say, the headmaster of a school, which was located on a school reserve, being obliged to negotiate every time they wanted to conduct a cricket match on the ground, because one of the results of the decision of Justice Lee, at first instance, was that in every part of the project which remained unalienated Crown land, a full native title existed which could actually have been exercised to prevent the Crown seeing to its responsibilities in respect of flood control, et cetera, if it were not for the Native Title Act.
Now the applicants, as we understand it, do not now expressly propose such a radical disregard of the project's requirements. But the coexistence that they propose is little different in result. We would say either the Crown can do everything required for the project or it cannot. If it can, then we would submit that it is plain that no native title right is left. So for these reasons we would submit that the Court was correct in proceeding on the basis that special leave should not be granted in respect of the grounds which relate to the Ord River Project, and in particular to grounds 17, 18 and 25.
GUMMOW J: You mentioned ground 18.
MR MEADOWS: Because it does refer to that project, your Honour.
GUMMOW J: I think Mr Sofronoff fixed on that, did he not, for a rather different proposition, I think?
MR MEADOWS: His point was directed to the definition of "works", and he pointed to what appears to be an error on the part of the Full Court in the definition to which it referred. But we would submit that that really does not make any difference to the outcome of the case because, as we have suggested, it does turn on a finding of fact about the requirement to control the whole area and the mistaken use of that definition would not make any different to that outcome.
Could I then briefly turn to the issue of minerals. This is with reference to grounds 31 and 32 where, as I understood it, my learned friend, Mr Barker, was contending that special leave should be granted in respect of those grounds. We would submit that the judgment of the majority in regard to the issue of minerals is so plainly right that special leave should not be granted. Can we put it this way, your Honours, that in order for your Honours to decide that it was arguable that the applicants could have a native title to minerals or petroleum which continued to exist in relation to this land, your Honours would have to accept as arguable the following propositions, which we say just could not be entertained. That is, that there could be native title to minerals and petroleum, notwithstanding that there was no evidence whatsoever that the claimants or their forebears exploited minerals or petroleum. That is the first proposition which we would say just could not be sustained.
My learned friend made reference to ochre. There is reference to ochre in the Full Court's judgment at paragraphs 536 and 538, where the Full Court sought to exclude ochre as a particular "commodity", if I could use that word, as being one to which perhaps they might have held native title. We would say that ochre is a mineral but the Full Court appears to say that it is not. That is an academic issue, because we have not sought to appeal on that ground. But otherwise, we would say there is no evidence whatever of any exploitation of minerals or petroleum on the part of the claimants or their forebears. So we would submit that ultimately there could never be a finding of native title in respect of minerals or petroleum.
GUMMOW J: That is 31, 32 and 34, is it? Am I right in that?
MR MEADOWS: Well, 34 deals with mining leases.
GUMMOW J: Yes, so it is 31 and 32.
MR MEADOWS: It involves a wider extinguishment, we would say.
GUMMOW J: It is really 31 and 32.
MR MEADOWS: Yes, your Honour.
GUMMOW J: Yes, thank you.
MR MEADOWS: The second proposition which would have to be seen to be arguable is that the legislation providing for the vesting of minerals in the Crown and the scheme of licences to exploit minerals and of royalties which are to be charged did not divest all citizens of personal or communal rights to own or exploit minerals and petroleum. It would be taken, we would say, as axiomatic that the provisions of the legislation divested all citizens of any personal or communal right to minerals and petroleum. So, our submission is quite short and that is that these propositions are not reasonably arguable and special leave should not be granted in respect of those grounds.
Might I turn then to the issue of mining leases and take your Honours to what the majority said at paragraph [569]. This was in relation to both the Argyle mining lease and in regard to mining leases, generally, under the Mining Act . They said:
we cannot, with respect, accept the trial judge's statement that the "grant of exclusivity of possession ... is not the determinant ...". As we have previously noted, it was accepted in Mabo (No 2), Wik and Fejo as beyond argument that a common law lease, that is, one that confers exclusive possession will, by virtue of that conferment, wholly extinguish native title.
Now, there is no doubt here that a mining lease confers an exclusive right "to use, occupy and enjoy the land" for mining purposes. That is to be found in section 85(2) and (3) of the Mining Act 1978 . The majority made reference to this in paragraphs [551] - at [569] and [581]. The applicants' appeal is on the grounds that a mining lease is not permanent and this is referred to in ground 34. To accept that such a proposition is arguable, this Court has also to accept that it is arguable that no lease extinguishes native title and we would say that would be contrary to Mabo, Wik and Fejo and if it was to be so accepted that would throw significant doubt on parts of the Native Title Act 1978 .
May it please the Court, could I ask my learned friend, Mr Pettit, to address you on one other matter?
GUMMOW J: Yes, certainly. Yes, Mr Pettit.
MR PETTIT: Thank you, your Honours. As my learned leader has said, the State has no difficulty with the grounds which the Court has tentatively proposed be taken up. That is because, and the point I want to address is whether there is land to which those propositions will apply. There is no difficulty with grounds 1 to 5 or with grounds 8, 10, 11 or 12. That is to say, there is some land to the west of the project area which is near Mantinea - it is an old station called Ascot - and that would suffice, your Honours, for the purpose of testing each of those grounds, that is 1 to 5, 8, 10, 11 and 12.
However, in respect of ground 19 there is a difficulty. Ground 19 is the resumptions of land pursuant to two statutes of Western Australia. The Rights in Water and Irrigation Act and the Public Works Act.
Those resumptions are in terms which vest in the Crown land freed of all other interests. They are very similar. In fact, your Honours, they are, we would say, indistinguishable in principle from the operation of the Lands Acquisition Acts of the Commonwealth. We can well appreciate, your Honours, why that issue strikes the Court as important and, indeed, can I just interpose here to inform the Court that that very issue was before Justice Lehane in July of this year and is presently reserved. That is in the context of the Perth Airport Case and - - -
GUMMOW J: Which airport?
MR PETTIT: Perth airport. Of course, that entails a Commonwealth acquisition rather than a State, but otherwise the issue is identical with the one raised in ground 19. Now, coming to the difficulty of ground 19, it is within the project - - -
KIRBY J: Why do you raise that? What can we do about that?
MR PETTIT: Nothing, your Honour. I raise it only to indicate that this issue will come almost inevitably in any event, especially now that your Honours have indicated an interest in the subject. But the problem with - - -
GUMMOW J: As I understand it, you say ground 19 does not bite on any actual relevant land.
MR PETTIT: That is so, your Honour, and the reason for that is that it is within the project and everything said by the Full Court in paragraphs 410, 417 and 422 of the reasons for decision of the majority would apply to that land as part of the project, even if it were resumed by some other process. All other land within the project was resumed pursuant to a completely different section, a completely statutory provision.
GUMMOW J: At a later date?
MR PETTIT: No, at an earlier date, your Honours.
GUMMOW J: At an earlier date.
MR PETTIT: Section 109 of the Land Act, and some even was acquired by contract. Notwithstanding that those processes had no effect of themselves upon native title, their Honours have found that the land was subsequently used in the manner outlined by the Solicitor-General, and extinguishment effected. So, there is a difficulty, we say, with ground 19. We would submit that it could be left out of the Court's deliberations on the grounds that the issue is bound to re-emerge.
Exactly the same difficulty arises in respect of one of the grounds which my learned friend, Mr Barker, wishes added, and that is ground 22 dealing with section 47B of the Native Title Act. Your Honours will recall that section 47B takes effect where there is vacant Crown land on which there has been, at the time of the application for native title, occupation by Aboriginal persons - the claimants - but also, there are other circumstances which must obtain before section 47B comes into play, and they include that land is not subject to a resumption, a dedication and so on - reservation. Your Honours, we say that it is plain, unarguable indeed, that the land reserved for the project fits that description. That is why the issue was never raised below. As we say in paragraph 48 of our written submissions - I have not got the time to take your Honours to it - but there were aspects which could have been dealt with in evidence, for example, there could have been cross-examination to elicit whether there was actual occupation.
This gets us into a much broader debate, your Honours, about exactly what is meant by "occupation", but there are at least two ways of looking at it. One is that residents, somewhere within the claimed area, can amount to occupation of it all - traditional lands. But we would say that under section 47B it has to be actual occupation of the vacant Crown land in contemplation for the purposes of that section, and cross-examination was not directed to that issue because it was never part of the claimants' case. We presumed because it was subject to a reservation, et cetera. So there is that enormous, with respect to my learned friend, factual issue.
GUMMOW J: Yes, I think we have seized of that.
MR PETTIT: Thank you, your Honours.
GUMMOW J: Mr Fraser.
MR FRASER: Thank you, your Honours. I just wish to add a few remarks to what was said by the learned solicitor and in relation only to two collections of grounds which had been discussed in the oral submissions. The first are grounds 31 and 32 concerning the factual question about the applicants' rights to minerals
GUMMOW J: Yes.
MR FRASER: I just wish to add and I will not go over the propositions, but there was, in fact, a specific claim at trial which was sought to be the foundation of the claim to minerals in the native title. It is mentioned in the judgment of the Full Court at paragraph 514, page 312 of volume 2 of the application book in which the majority point out that in the pre-trial particulars of the customs which it was alleged gave rise to the connection to land, there were allegations both of digging for and using stones, ochres and minerals and then allegations of sharing and exchanging those resources. As the following paragraphs make clear, that claim was not sustained by the evidence at the trial. It was for that reason that the majority construed the determination as intended to refer only to resources of a particular kind to be used for ceremonial or traditional purposes. That is all I wish to add on that topic.
In relation to the ground 36, which concerns the application of the Racial Discrimination Act, can I just give the Court a couple of other references. There is, in fact, a finding which we would submit is a finding of validity of the project lease, that is the Argyle special agreement lease. In the judgment at first instance which is reproduced in volume 1 of the book at page 50 of the application book which is page 580 of the Australian Law Reports, just above the heading near the bottom, "(ii) Other mining leases". This was the issue which was raised at trial and his Honour refers to the submission:
by the first applicants that the material presented by Argyle and Normandy did not prove the validity of the grant of the tenements under the Mining Act (WA).
I am sorry, I am referring here to the Mining Act leases. His Honour said:
In the absence of any material pointing to actual invalidity, it should be presumed that tenements recorded in a register of tenements have been validly created.
The same general submissions were made in relation to the Argyle Project special lease and they were the issues disposed of at trial by his Honour. So there was no allegation that the leases were invalidated by the Racial Discrimination Act.
KIRBY J: Yes, but what extra point of fact would be raised to agitate the matter? It seems to be a question of law.
MR FRASER: Well, your Honour, I was going to come to that. In relation to the question of law which was agitated by my learned friend, Mr Barker, for the applicants, the proposition put was that invalidity should flow as a matter of law because a lease granted under the Mining Act extinguishes native title on the assumption we are discussing, but does not extinguish freehold. But, with respect, the proposition has no relevance to the lease granted under the special agreement Act. The special agreement Act is not a general mining act, it has no relationship with the effect of leases granted under it on freehold and there was a - - -
KIRBY J: What does that have to do with the operation of the federal Racial Discrimination Act?
MR FRASER: Well, your Honour, because the proposition that it is racially discriminatory to have a special Project Act, as to which we have findings that it was not directed to native title, but was directed to establishing projects - - -
KIRBY J: But if it has that effect, it does not have to spell it out in chapter and verse.
MR FRASER: But that is the question which was not agitated at trial in terms of facts, your Honour.
KIRBY J: But that is a question of law. That is not a question of fact.
MR FRASER: Well, your Honour, the - - -
KIRBY J: That is not a matter upon which a ton of evidence would have altered the matter one jot. You see, we have to start from the proposition that this matter is being brought up into the Court and that the Court will be dealing with a lot of very important questions but does not want to get down into the engine room and deal with every question. But, at least arguably, that point seems a matter of general importance and, unless there is some want of procedural fairness to you because it was not raised before, such as evidence that could have been brought or something of that kind, then - - -
MR FRASER: Yes, well, your Honour, there is an issue that arises in relation to the project agreement. The point I was endeavouring to make was that my learned friend, Mr Barker, can put the matter as a matter of general application for leases granted under the Mining Act because those leases are granted over freehold and do not extinguish freehold. But in relation to the Special Agreement Act, it was an Act which was designed for a particular purpose, to establish a project. It has no general application.
Now, the only evidence concerning whether it affected any other interests at trial was that there was, in fact, a claim by a mining company to a different interest in the area, a mining interest, which would have been extinguished by the grant of a lease under the - or by the Act itself. But because the RBA point was not agitated at trial, there was no particular evidence about that matter. With respect, there is nothing in the proposition that a statute which it has been found was for the purposes of establishing a particular project and not directed at title held by native title holders at all, could be held to fall foul of the Racial Discrimination Act.
The same complaint, presumably, could be made by a person of any race who could claim that their interests were affected but there is no evidence of discrimination here. That is the point that we rely upon. The findings by the Full Court of the Federal Court on this topic are at paragraphs 556 and following, particularly in paragraph 556, where they refer to the fact that in the:
background to the passage of the Ratifying Act, that there had been an earlier dispute with a third party, concerning a claim (not a native title claim) to a possessory title.
This is page 316 of the application book, volume 2. So they refer to that non-native title claim which was necessarily destroyed by the Act to grant a lease under it. They go on to say further that the provisions of the Act did not offend section 9, which was raised in the Full Court for the first time:
as was suggested in argument before us. The Ratifying Act is directed at the legitimation of the mining operations and project infrastructure; it is not, we think, aimed at native title, and makes no distinction based on race - - -
KIRBY J: Except, one might say argumentatively that it is only indigenous people who, under the doctrine of the court and the Native Title Act, enjoy native title rights.
MR FRASER: Yes.
MR FRASER: Yes.
KIRBY J: And that therefore they alone suffer that discrimination in so far as a statute purports to take away that right, which is special, peculiar, particular, to indigenous Australians. That is the argument.
MR FRASER: I understand that, your Honour, but in terms of the question your Honour asked me about evidence, we refer, of course, to the first two lines of that paragraph suggesting at least the possibility of evidence that there were interests held by other people. In addition to that, I recall in the submissions from Western Australia, they mention the possibility of bringing evidence about there, in fact, having been some compensation afforded to people. I cannot advance that further; I have no instructions about those factual questions. But in my submission, it is not appropriate to grant special leave in those circumstances in which the matter was not agitated at trial and in which there was at least a real possibility that evidence might have been led dealing with the topics. That is all I wish to say.
GUMMOW J: Thank you, Mr Fraser. Mr McLeod.
MR McLEOD: Your Honours, the Alligator respondents that I represent fully support the submissions made by the Solicitor-General and Mr Pettit in regard to the effect of the Ord Project. There is a particular reason for the Alligator respondents to be interested in the ground relating to the Ord Project in that all but one of the approximately 100 respondents that we represent have interests which are - or their interests are located within the area of the Ord River Project. They were affected principally by the matters set out in ground 17 of the applicants.
We support the submission that has been made that the majority decision below in relation to the effect of the Ord Project turned, essentially, on a question of fact. You can see that, your Honours, when you look at paragraph [410] of page 299 of the application book, page 263 of the Australian Law Reports report. In particular, the majority took up a submission that was made, in fact, by the Alligator respondents. They said:
The Alligator appellants colourfully, but we think accurately, emphasised the interrelated and interdependent elements of the Ord Project by saying that practically the entire area that has been developed is linked and criss-crossed with irrigation supply channels and drains such that the Ord Project can in a practical sense be regarded as a "living, breathing entity, protected from heavy external natural runoff by levies and hillside drains, with water distributed by a precise combination of gravity and pumping and drained back into the Ord and Keep River Systems by means of artificial drainage linking up with natural drainage patters". And while "the Project harnesses, to some extent, the natural topography and forces of nature, nevertheless there is a fundamental imposition of a completely new order onto the landscape...involving precision engineering solutions applied on a very large scale".
Their Honours, in the ensuing paragraphs down to - - -
GUMMOW J: How is this focused on the immediate questions we are dealing with now, Mr McLeod?
MR McLEOD: It emphasises the factual - - -
GUMMOW J: I just mention it because you have limited time.
MR McLEOD: Yes. It emphasises the factual nature of the findings of the majority in regard to the effect of the Ord Project.
HAYNE J: The applicant says the Full Court got the principles wrong. The applicant says further that because the principles were wrong, that should lead to a different result. There are two steps in that process. As I understand it, you would say that even if the principles are wrong, the same result follows.
MR McLEOD: Yes. The majority made it quite clear that they saw the imposition of the Project as a fundamental imposition of a new order on the landscape. So that there was a special approach to the findings in relation to the Ord Project, which is different from the approach in relation to other interests.
HAYNE J: If the question of principle should come to this Court, why should not the application of the question of principle be open on remitter to the Full Court of the Federal Court, if that comes about?
MR McLEOD: The principle that the majority applied in relation to the Ord Project, we submit is not controversial. But they were applying the principle of fundamental inconsistency. That is quite apparent from the comments made in paragraph [410].
GUMMOW J: Yes, Mr McLeod.
MR McLEOD: Apart from referring your Honours to paragraphs 12, 13 and 14 of the summary of submissions, which take up the point that I have made and put it into a context, I have nothing else to say on that issue. The only other point: if ground 17 was to disappear from the appeal, then the majority, in fact all but one of the Alligator respondents, would cease to be affected by the appeal. The one other Alligator respondent that would be affected is the holders of the Harman and Osborne lease. I would, with your Honours' leave, ask that my friend, Mr Wittkuhn have a brief opportunity to speak to you on that.
GUMMOW J: Yes, very well.
MR WITTKUHN: Your Honours, the reasoning of the majority can be found at paragraph [650] of the application book, where their Honours found the lease in question to be a category A past act and therefore to have the effect of totally extinguishing native title.
GUMMOW J: What suggested ground of appeal are you addressing?
MR WITTKUHN: Ground 43. At ground 43 it is suggested that the lease was not a category A past act, but it should have been held to be a category D past act.
GUMMOW J: Ground 43 is not presently in play, is it?
HAYNE J: Has any party suggested we should take 43? I thought not?
.....:I think I did, your Honours, and I could not find the passage, though I did wish to come back to it.
MR WITTKUHN: It is suggested, your Honours, that the lease in question was a category D past act, rather than a category A past act. But if we look at the reasoning of the majority at [650], they found it to be a category A past act because, firstly, it came within the definition of "a commercial lease"; and, secondly, although there was a renewal of the lease post-31/12/93, which is a cut-off date for past acts, nevertheless it was a grant which gave effect to, or - - -
KIRBY J: What is the theory behind these past acts, that if it is a commercial grant, native title is extinguished? If it is a Crown grant, you can still argue it. Is that the theory behind it?
MR WITTKUHN: There are four categories. Category A comprises basically freehold and certain leases, including commercial leases. Category B comprises carious other leases. Category C covers mining leases and category D is the default provision for anything else. But the other criterion which excites a past act is the time criterion and that, generally speaking, it needs to be before 31 December 1993.
GUMMOW J: Now, just persuade us. If, as now seems to be the case, Mr Barker depresses 43, why that is not a leave grant point.
MR WITTKUHN: It is not a leave point, with respect, your Honours, because the reasoning of the majority, we respectfully submit, is plainly correct. It was a fairly straightforward application of the provision, section 229(3)(c)(ii) which is set out at [651].
KIRBY J: It all comes down to a quirk of dates, as they say.
MR WITTKUHN: Yes, your Honour.
GUMMOW J: All right. I think we are seized of that.
MR WITTKUHN: Yes, the lease was granted, or was renewed, after the cut-off date but the previous lease had existed and there was no interruption.
KIRBY J: We would not normally get involved in a matter of this kind, unless there were to be such issues resolved on the appeal to this Court that it would be just to keep the point open for re-agitation in the light of the decision of this Court in the Full Court of the Federal Court. But you say the quirk of dates will not go away and that the point is dead.
MR WITTKUHN: It is covered by a precise statutory provision, which has the effect of total extinguishment. There is no question of general principle.
GUMMOW J: I think we have grasped that.
KIRBY J: We have not heard what Mr Barker has to say. He seemed to be very dubious about the point himself earlier. He could not really advance it, could not find the page, could not find the Full Court, so I think you are in front at the moment.
MR WITTKUHN: May it please the Court.
MR WITTKUHN: May it please the Court.
GUMMOW J: Thank you. Yes, Mr Barker. Yes, we need to go to Perth.
KIRBY J: For one minute.
MR BARKER: I have become more dubious about the last point.
GUMMOW J: Just a minute, Mr Barker.
KIRBY J: We have counsel in Perth for a minute.
MR BARKER: I am sorry, your Honour.
GUMMOW J: Yes.
MR McKENNA: Very briefly, your Honours, in relation to the appeal in P24 of 2000, we fully support the submissions of the State and simply draw the Court's attention to the fact that ground 19 of P26, which is repeated in P24, does not apply to any interest held by the first or second respondents in P24 of 2000. In short, the point about the resumption of Packsaddle deals with land that is not in the Northern Territory, which is the interest of the second respondent, and does not overlap with either of the leases held by the first respondent. Accordingly, it seems an otiose point in P24. That is all I have to say.
GUMMOW J: Thank you. Yes, Mr Barker.
MR BARKER: Thank you your Honour.
GUMMOW J: Now, points have been made, firstly, about 31 and 32, which is the minerals; then it was said that your mining lease point in 34 would really seek to undermine Fejo; then there is the point that has just been dealt with about the tourist leases; and then there is point 22, which is the 47B point. I think we would be assisted if you dealt with those.
MR BARKER: Thank you, your Honour. Your Honour, in relation to 31 and 32, in relation to 31 in particular, we maintain our submission that there is a real issue on the West Australian legislation where there - and is private ownership of minerals, which ownership was acquired prior to the 1890s. That indicates, in our submission, that there was no clear and plain intent in respect of the extinguishment of native title when the 1890s legislation came in in respect of the vesting of minerals. Our submission remains that this, in the case of Western Australia, therefore, is a case not unlike that which the Court has seen in Yanner. We have regulation, but not extinguishment, and the West Australian mining legislation in that respect is different, as we say, from, for example, that in the Northern Territory.
The second provision, your Honours, was in relation to the traditional resources point. We say this, that certainly it is the case that there is no evidence led as to use of minerals in certain ways historically, although to say that is perhaps to discount what Justice North said of the evidence, which your Honours will see at 826 to 828. Those paragraphs of the Full Court's judgment which, to seek to paraphrase what was there, is this, that Aboriginal people did not live their lives in some static way, that there was technological advance in relation to the use of resources generally, in relation to spear points, in relation to trading and the like.
The submission that we put to the Court in relation to 32 in particular is that native title is not defined by reference to what people do. What people do in the connection they have maintained with their land says what the nature of the interest is that they have. If they have a possessory title, they can do with their land what they will, subject to their traditional laws and customs. So if there are restrictions on the use of minerals, they would be restricted. But the nature of the native title that they have permits them to use resources. So it is not a case, as Mr Fraser put it, with respect, of us having to prove some particular use of resources that resembles a modern day use in - - -
KIRBY J: Has the Court said that? This is the theory of fast speed boats doing the fishing.
GUMMOW J: We dealt with it in Yanner to some extent.
MR BARKER: Well, Yanner deals with it as well. I think Justice Callinan made reference to the steel tomahawk used to catch the crocodile in the final analysis. So it is all that theory which, with respect, has been mentioned in Mabo, in Wik, certainly in Yanner and we say you bring that to bear here as well. Your Honours, in relation to section 47B, that is the protective provision in relation to - - -
GUMMOW J: Ground 22? Reliance on 47B?
MR BARKER: Yes, that is correct. Your Honour, we say this, that there are certainly proper conditions which have to be satisfied in order for 47B to operate. It is a simple question of statutory construction whether or not those conditions have been met and we say the beneficial provision can be identified by the Court as a matter of proper construction and determined by the Full Federal Court on remitter and, in our submission, it is that simple. The other ground that your Honour asked me to respond to, I am sorry I lost - - -
GUMMOW J: That is the tourist one.
HAYNE J: 43.
GUMMOW J: 43.
MR BARKER: I have, as I said earlier, become entirely dubious about that, your Honour. May it please the Court.
GUMMOW J: Mr Basten, do you wish to - yes.
MR BASTEN: Your Honour mentioned 34, which was one I raised, I think. There is no challenge to Fejo. The argument is purely that a mining interest would not extinguish an ordinary title if granted over it and, therefore, the effect of the Racial Discrimination Act would be similar in relation to native title and that is the point which I sought to raise as being, assuming the validity, nothing to do with an invalidity of a mining tenement, it is simply that operation.
MR BARKER: Your Honours, I wonder if I might be permitted to raise one final point that I overlooked. The question of what had been raised before the trial judge in connection with Racial Discrimination Act arguments was mentioned.
GUMMOW J: Yes.
MR BARKER: At page 690 of the application book in volume 3 the third respondent's summary of argument is set out and it includes what was put before the trial judge and the court below and it goes specifically, as you will see in paragraph 4 there, to questions of the Agreement Act as well as mining leases and their compliance with the provisions of the Racial Discrimination Act, but we say the matter was squarely raised. Thank you.
GUMMOW J: Yes, Mr Sofronoff.
MR SOFRONOFF: I merely want to correct one thing that I said. I answered your Honour Justice Gummow's question did the Full Court have the wrong definition of the word "works". Their Honours had the correct definition of the word "works" at the time that the lands were resumed. We draw reinforcement from the amendment that shortly followed in the application of the principle that their Honours applied that lands used in connection with works - - -
GUMMOW J: Yes, I follow.
MR SOFRONOFF: Yes, thank you, your Honour.
GUMMOW J: We will take a short adjournment.
AT 1.03 PM SHORT ADJOURNMENT
UPON RESUMING AT 1.16 PM:
GUMMOW J: There will be a grant of special leave in application No P26 of 2000. The grant is limited to the issues raised in grounds 1-5, 8, 10-12, 17(e), 18, 19, 21, 22, 31-36 and 44-46 of the draft notice of appeal, otherwise the application is refused.
To the extent that the grounds I have just indicated are replicated in the draft notices of appeal in applications Nos P24, P25, P27 and P28 of 2000, there will be grants of special leave in those applications, limited, however, in the same way as the grant in respect of P26 of 2000, otherwise those applications are refused.
There should be one notice of appeal filed in respect of the grants of leave in applications Nos P24, P25, P26, P27 and P28 of 2000.
There remains for considerations, applications Nos P29, P31 and P33. The Court has considered the papers in these matters and, of course, has had the advantage of argument in the application in P26. We are presently minded to grant leave in application No P29, that is the State's application. Applications Nos P31 and P33 require extensions of time. We would be minded to grant those extensions and to grant special leave in P31. In P33, where some only of the grounds are pressed by the Northern Territory, we would be minded to grant special leave limited to grounds 1 and 2 of the draft notice of appeal, otherwise that application would be refused.
We will now adjourn until 2.00 pm at which time we will hear any submissions counsel wishes to make on the remaining applications. I should make it clear that the grounds enunciated in P26 excluded 43. I am sorry, Mr Barker.
AT 1.16 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GUMMOW J: Call the application P29 of 2000, that is the State of Western Australia's application. Yes, Mr Solicitor.
MR MEADOWS: If it please the Court, we would take the position that we would wish to respond to whatever submissions might be made and my learned friend, Mr Pettit, will address any of those submissions.
GUMMOW J: Thank you, Mr Solicitor. Mr Barker.
MR BARKER: May it please your Honours. There are two matters in relation to the State of Western Australia's application that we wish to make submissions about. Page 724 of the application book in volume 4 sets out a description in paragraph 2 of the grounds, and it is A and B that - - -
GUMMOW J: Page 724?
MR BARKER: Page 724, and it is 2A and 2B. They are the ones, paraphrasing them, your Honours, concerning whether a spiritual connection is sufficient to found a determination and, secondly, whether a community that is said to have existed at sovereignty can hold native title. Your Honours, the points we wish to make about those two grounds are set out in our summary of argument commencing at page 733 of the application book. At page 734, the spiritual connection issue commences at paragraph 10.
Your Honours, the question that has been raised by the applicant here, the State, is in respect of Lacrosse Island, east of the Cambridge Gulf, and another small island, Pelican Island. If your Honours still have the reference book that this respondent provided in the other matters, you will see a large map of the claim area which give you some idea of the area of the claim that is the subject of this question. You will see at the top Lacrosse Island marked. That is in the middle of Cambridge Gulf. You have the mud flats area, really, the shaded green area, coming across the top there and Pelican Island you will see marked as well.
In essence, what we wish to put to the Court about this ground is that there is no isolated question, in our submission, about spiritual connection. This is not a case where the court below found that there was an entitlement to native title simply on the basis of spiritual connection but rather there was much evidence led about connections with the northern part of the claim area, including the shaded green area I have referred to, but also the traditional country south of that coming down towards where Ningbing is marked on that map.
HAYNE J: Is it not then important to pay attention to the particular assignment of error given in the draft notice of appeal rather than the general description of errors in summary of argument? Grounds of appeal are at 710 and following and there are certain contentions there made about errors.
MR BARKER: Yes.
HAYNE J: Now, at least for my part, it seems to me that that is where attention needs to be directed, not to the much more general description that might appear in the applicant's summary of argument. What is the point? Do you say that that assignment of error, what, cannot be made out, is not raised by the facts? What is the point you are now making?
MR BARKER: The point we are making in relation to the ground which is, I think, 2.1 at page 710, your Honour, is that it was a mixed question of factual, physical connection and spiritual connection that was before the Court so that the Court ultimately made a decision of a factual nature. That is, we say, what is now being sought to be agitated before the Court on this application. There is no precise factual situation here, if I can put it that way, that native title was awarded on the basis of spiritual connection only. So, in our submission, this is not the type of vehicle that one can imagine that might come before the Court with the only basis upon which an applicant group can make out a connection to the land is within the basis of a spiritual connection where they say, "We know the important places here, even though we do not go to them or near them or have not enjoyed them in a long, long, long time".
HAYNE J: Are you saying that there was evidence or proof below of possession, occupation, use or enjoyment?
MR BARKER: Yes, we are.
HAYNE J: If that is right, the State fails on the asserted ground.
MR BARKER: Yes. We seek, here, of course, on a special leave application to bring that contention to the attention of the Court, to say this is not the type of issue that ought to go on a special leave point.
Your Honour, in relation to the second point, 2(b), this is the ground 2.2 in the draft notice of appeal at page 710 that concerns the Miriuwung Gajerrong as it is set out there. They are Ward and others on behalf of Miriuwung Gajerrong applicants, the first respondents here. We deal with this question at page 737 of our summary of argument. The point we seek to emphasise before this Court today is the point really that is made at paragraph 25 of our written submission. It is this: that there is a plain suggestion that there were not relevant communities at the time at sovereignty and that they came into existence artificially at some time since. That, in our respectful submission, is not something that really ought to go on special leave when one knows what the facts are. The evidence before the trial judge was that at sovereignty there was Gajerrong country to the north and Miriuwung country to the south, and that the right people, descendants of those groups at sovereignty, had made the claims and they had made them out.
All that his Honour did was accept that the Miriuwung and Gajerrong had become something of a composite community since sovereignty, particularly because the Gajerrong community had been thinned out considerably. But they shared a lot in common by way of law, that there was a lot of intermarriage and that, in that sense, they had become regarded, as I think the Full Court put it, by themselves as a community today. But there was no finding by his Honour that the Miriuwung had native title rights in the Gajerrong country, or the Gajerrong community had native title rights in the Miriuwung. It is a shorthand expression for the people who today have the native title rights.
Properly understood, we say there is no issue before the Court below or that should trouble this Court in terms of paragraph 2.2. It is not a case of some community having come into existence after sovereignty, and the facts, we say, are very clear about that. This is, again, the finish of it. It should not go on special leave. They are the two matters, may it please the Court.
GUMMOW J: Mr Sofronoff.
MR SOFRONOFF: We would oppose leave being granted to advocate ground 2.3 in the draft notice of appeal which is premised upon the proposition that the Balangarra Community had not been established at relevant times to exist. That ground of appeal finds expression in the special leave issues at page 724 of volume 4. In paragraph 2B one of the issues raised is:
Whether native title can be held by members of a community when:
(a) that community did not exist at the time of the Crown's acquisition of sovereignty -
and when the community which did exist at that time was "not found to still exist". That, in our submission, is premised upon a false premise. If your Honours would go to the reasons of the Full Court at paragraphs [264] to [266], especially [265] and [266]. Your Honours will see at [264] their Honours begin by setting out the contention of the State:
that the Balangarra peoples were a group with sufficient identity to hold native title.
Their Honours then sketch the evidence in relation to that that was before the trial judge. They quote some of the evidence in paragraph [265] and then at [266] summarise the proposition in dismissing it by identifying it really as a complaint and that the group of people who were proved to be descended from a group who held native title adopted for present purposes a name for the purpose of this proceeding and that what was being argued really was whether their characterisation under this modern name destroyed their status or falsified their status as a community which might have held native title.
His Honour Justice Lee dealt with the matter at pages 550 to 551 of his reasons which your Honours will find in the appeal book, volume 1 at page 35, and your Honours will see if you skim from the foot of page 550 over to 551 that his Honour considered the evidence before him, including at line 25 the evidence of an anthropologist, Ms Doohan, and concluded at the foot of page 551:
I am satisfied that any determination of native title should take account of the interest of the third applicants -
That is - - -
KIRBY J: Is your theory that the box is the same, it has just had a different label put on it?
MR SOFRONOFF: Correct, and that is what their Honours found in the Full Court. What your Honours would need to do, if your Honours were minded to hear - - -
KIRBY J: That was based on an elucidation of the factual evidence on which this issue was fought?
MR SOFRONOFF: Yes. In order to consider the ground of appeal, your Honours would first need to find whether it was true that on the facts there was no Balangarra community at sovereignty, by whatever name called, and your Honours would need to determine whether it is true that the trial judge held that whether there was one was irrelevant, as your Honours will have gleaned from scanning those passages. That is not what his Honour found. His Honour was satisfied that such a community did exist of which the present claimants are the descendants, and the Full Court agreed.
So, while the issue raised for consideration of the Court is one which is important, it does not arise here unless the Court were to embark upon, first, determining whether the premise of fact raised by the State was correct. In our submission, that would involve delving into the evidence where four out of four judges found our way.
HAYNE J: Just one matter of information more than anything else, can I take you to the form of order made by the Full Court at 391. Have I got the Full Court order at 391 in volume 2?
MR SOFRONOFF: Yes, your Honour.
HAYNE J: How am I to understand paragraph 2? Am I to understand that your clients have native title to the whole of the determination area as well as Lacrosse Island?
MR SOFRONOFF: No, I think that is to be read as my clients having native title in common with the Miriuwung and Gajerrong People in Lacrosse Island. The Miriuwung and Gajerrong People hold title in the determination area and in respect of part of it they share that with my clients.
HAYNE J: Yes, thank you. It has been a long morning.
MR SOFRONOFF: Yes, that is all I wanted to say by way of opposition to special leave, otherwise I rely on my learned friend Mr Barker's submissions, your Honours.
GUMMOW J: Yes, thank you, Mr Sofronoff. Mr Basten. Mr Solicitor. Mr Pettit. Could you just deal first with Mr Sofronoff's point, his objection to the proposed ground 3, 711?
KIRBY J: We have so many things to deal with here. Why should we really be getting down into a factual matter of this kind? It really is a misuse of the time of this Court, which is going to have to set aside at least a week, and possibly more, in these cases.
MR PETTIT: Your Honour, with respect, it is not a factual matter. The issue in respect of the Balangarra is exactly the same issue as arises in respect of the Miriuwung and Gajerrong. The issue - - -
GUMMOW J: Mr Barker takes a similar point there.
MR PETTIT: Yes, indeed. There does not seem to be any dispute as to the facts that at sovereignty there was a Gajerrong community and a Miriuwung community, nor at sovereignty that in respect of what are now known as the Balangarra people there was a Guinee community, a Jangaloo community and an Arrwarri community, and no doubt each of those five communities had native title to certain lands at sovereignty. None of that is in dispute. What has happened in the history since then is that the Gajerrong and Miriuwung have come together. They, by and large, reside in Kununurra and they, by and large, have come to regard themselves as a single community. That is what the court at first instance found and that is what the Full Court upheld and we do not dispute it.
Similarly, with the Balangarra, no doubt one of those three communities held native title to Lacrosse Island. Our complaint there is that it has never been identified which of those three communities, that is the Guinee, Jangaloo or Arrwarri held title to Lacrosse. But the evidence now is that they have come together and quite recently decided to use the word Balangarra in order to bring a native title claim. The native title which is said to inhere in respect of Lacrosse Island is said to inhere in that composite body. Now, the issue for the Court in both those cases, with great respect to my learned friends, does not involve any factual contest. We accept those facts.
So the issue for the Court is this: your Honours will recall from the reasons of the Full Court that there was also a good deal of evidence about the existence of other Aboriginal communities in the eastern side of the gulf, they being the Goolawarri, the Doolboong, the Gija, the Malngin and the Wardenybeng. What has happened, in effect, is that the Gajerrong and the Miriuwung, as one body, now are said to hold title to the lands previously, even if one accepts that native title can be held by a tribal or a linguistic group rather than a smaller estate-based group. If we accept that for the sake of the argument, what is now said by the Full Court is that native title can inhere in one body, Miriuwung Gajerrong, whereas at sovereignty native title of that land was held by Doolboong, Wardenybeng, Gajerrong, Miriuwung, Gija, Malngin and Goolawarreng.
Now, if that is the case, your Honours, if that is the law, there is nothing to prevent native title claimants bringing vast regional claims in all cases. We say about that our complaints about that are not academic. Our complaints are these - these are the results at least: firstly, in respect of the Miriuwung Gajerrong, we do not know what is the precise boundary between the Miriuwung Gajerrong, and for the Balangarra we do not know which of the earlier communities is said to be the primary native title holder for Lacrosse.
Secondly, all that sort of detail has been left by the trial judge and by the Full Court to be resolved somehow by the communities which are now said to hold native title. But there is no evidence at all of any composite decision-making body, for one thing. The second thing that arises from it is that it leaves government, it leaves all other respondent parties, indeed, the entire community, ignorant about who it is that holds title to any particular spot. Mr Barker might, as he has said, maintain that it is for the Miriuwung and the Gajerrong to themselves decide who are the native title holders to save Point Springs. But that is, in our respectful submission, not the role of the Court, to simply leave such vital matters to be determined in an unspecified manner. The Native Title Act requires the identification of native title and who holds it.
The third consequence of that approach is that it leaves genealogies which a vital part of proving native title, not redundant, that would be an overstatement, but certainly of marginal significance, because one takes a said to be Miriuwung person now, all he has to find is an ancestor which is either Miriuwung or Gajerrong or, indeed, Goolawarreng, or Doolboong or Wardenybeng. Everybody has parents, so that genealogy has served no purpose in that regard. So, the result, your Honours, is that the paradigm for proving native title, community at sovereignty which held title, descendants of that community, still on the same land, still observing traditional laws and customs, still hold.... That paradigm has been lost.
GUMMOW J: What do you say about ground 1? It said that the evidence shows more than that form of connection.
MR PETTIT: That is the other objection, yes, your Honours.
GUMMOW J: Yes. A spiritual connection is said to not really arise because it was not just that.
MR PETTIT: There are two answers to that, your Honour. The first is that we can say with confidence that in respect of, for example, Rocky Island and Pelican Island, that there was no evidence whatever that any person, any claimant or claimant's parents, had set foot on those islands. Secondly, though, even if we be wrong about that and there was evidence, the fact remains that the Full Court held that there was native title on what it described as extremely limited evidence and it set out what is the evidence. That is the error which we say should be given special leave.
Now, it may be that my learned friend puts in a contention which says, to the effect that, "Well, the result in the Full Court can be upheld on the grounds that there was evidence which could not be described as extremely limited", but that is a contention for them. We are appealing against the finding of the Full Court. That whole point, I might add, your Honours, is not limited to - it is most poignant in the case of the Lacrosse Island, Pelican Island and Rocky Island because, notwithstanding extremely limited evidence for Lacrosse Island and no evidence at all for the others, that there has been granted a full right of exclusive possession, every complainant has been able to have a right to do anything they wish in those three islands. That is because there is no extinguishment.
But the corollary for the proof of native title is that a claimant need not show the exercise of any particular right in those islands. No one has ever hunted on those islands. No one has ever lived on them. Yet they have rights to all those things. The effect of refusing a grant of leave to the State on this particular aspect of the application, your Honours, would be minimal, with respect. That is because, in the first place, we chose those islands because they were pristine. They were unencumbered by other issues such as extinguishment issues, pastoral leases, and so on.
But given that special leave has been granted to the Miriuwung/Gajerrong people for other areas, all these matters will come up on contention anyway, as they have in our draft notice of contention, because within the area over which there has been partial or complete extinguishment, exactly the same point will arise. There are other areas where there has been no evidence of use or occupation, hunting, and so on.
GUMMOW J: We do not need to hear you any further, Mr Pettit.
There will be a grant of leave in matter No P29 of 2000, a grant in terms of the draft notice of appeal.
I think we should then call and deal together the two Northern Territory applications which are P31 and P32.
MR PAULING: Your Honours, in respect of P31, which is the application on behalf of the Northern Territory claimants, if I can call them that, we have no submissions to make in opposition to the proposed grant of special leave. In respect of P33, which is the Attorney-General's application, we again do not wish to supplement anything. We are content with the orders proposed by the Court.
GUMMOW J: Thank you. Mr Basten?
MR BASTEN: I thought Mr Solicitor might speak for me. I have nothing to say on either.
GUMMOW J: Thank you. Mr Sofronoff?
MR SOFRONOFF: I have nothing to say, your Honour.
GUMMOW J: Mr Barker?
MR BARKER: We have no submission, your Honour.
GUMMOW J: Then I think Mr Pettit or the Solicitor.
MR PETTIT: We have nothing to say, your Honour.
GUMMOW J: I think that covers the spectrum. Very well then. In No P31 and P33, there will be grants for the necessary extensions of time. There will be a grant of special leave in P31. In application P33, there will be a grant of special leave limited to the issues raised in grounds 1 and 2 of the draft notice of appeal. Otherwise, that application is refused.
Then what I am about to say governs all the leave applications we have been dealing with this morning in relation to this matter.
When all the notices of appeal have been filed, the appeals will be listed at a time fixed by arrangement between the Senior Registrar and counsel for directions before a Justice in respect of the preparation of the record and the readying of the appeals for hearing and the giving of estimates for the time to be consumed at the hearing. The costs of the special leave applications will be costs in the appeals.
AT 2.29 PM THE MATTER WAS CONCLUDED
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