Judgment Delivery - Transcript of Video

Bennell v State of Western Australia [2006] FCA 1243

WILCOX J
19 SEPTEMBER 2006
PERTH


[Inside court room. Legal counsel talking (inaudible).

View of Coat of arms. Various people within courtroom talking (inaudible).

View of full court room before commencement of judgment. People talking in public gallery (inaudible) (2 mins approximately).

View of applicants sitting and talking (inaudible)]

Court officer: All stand.

[Justice Wilcox walks into court room, bows and sits at bench.]

Court officer: The Federal Court of Australia is now in session. Be seated please.

[Associate speaks briefly (6 seconds) (inaudible)]

Justice Wilcox: Before the Court are six native title cases. Each of them concerns land and waters in, or near to, the Perth metropolitan area.

Five of the cases arise out of applications for a native title determination by Christopher Robert (‘Corrie’) Bodney. Four of the applications concern particular small areas of land, being land at Hartfield Park, Wannerro Road, Burswood Island and Swanbourne respectively. The fifth application claims a larger area of Perth land, and adjoining coastal waters to the twelve nautical mile limit.

The sixth case arises out of a native title application which has been called ‘the Single Noongar application’. It takes this title from the fact that it was brought to the Court by 80 Aboriginal persons who allege that, in 1829 (the date of European settlement in Western Australia), there was a single Aboriginal community throughout the whole of the south-west of Western Australia. The applicants call this the ‘Noongar community’ and claim the 1829 rules governing the occupation and use of land, throughout the south-west, were the laws and customs of that community. The applicants say the Noongar community continues to exist, and they are part of it; and that its members continue to observe some of the community’s traditional laws and customs (including in relation to land), although with changes flowing from the existence and actions of the white community. The applicants seek a Determination of native title, in favour of all members of the present Noongar community, over a substantial portion of Western Australia. The boundary of the claimed area commences, on the west coast, at a point north of Jurien Bay, proceeds roughly easterly to a point approximately north of Moora and then roughly south-easterly to a point on the southern coast between Bremer Bay and Esperance. The Single Noongar applicants also claim rights and interests over Rottnest and Carnac Islands and coastal waters to a distance of three nautical miles from land.

I will refer to the whole of the land and waters claimed in the single Noongar application as the ‘claim area’.

It will be appreciated that the claim area includes the whole of the Perth metropolitan area as well as centres such as Bunbury, Busselton, Margaret River, Albany, York, Toodyay, Katanning, Merredin and many other towns. However, the applicants excluded from their claim all land and waters over which native title had been extinguished by a past act of the Commonwealth or State governments. The effect of that exclusion is to omit from the application all freehold land in the claim area, and probably most leasehold land. Having regard to the extent of urban development, and intensive farming, in the claim area, the result is that a large proportion of the land within the claim area is unaffected by it.

The Court decided to break up the trial of the Single Noongar application by first dealing with an area, in and around Perth, that had been the subject of several earlier, smaller claims and later aggregated together as the ‘Combined Metro claim’. The Court took this course because of the expressed desire of the State (supported by the Commonwealth) for early finality about the question whether native title still survived in the Perth area. With the agreement of all parties, the Court created a separate proceeding in relation to the Perth area. With the assistance of the parties, the Court framed a separate question in that proceeding, asking whether native title existed in the Perth area and, if so, who were the persons who held the native title and what rights and interests it included.

On 11 October 2005, I commenced a hearing relating to all issues arising out of Mr Bodney’s five applications and the issues raised by the separate question in the Single Noongar application. The Court took evidence over a period of 20 days. On eleven of those days, the Court sat ‘on-country’ at eight different locations: Jurien Bay, Albany, Toweringup Lake near Katanning, Dunsborough near Busselton, Kokerbin Rock and Djuring in the Kellerberrin district and, in Perth, at Swan Valley and in Kings Park. The Court heard evidence from 30 Aboriginal witnesses and five expert witnesses: two historians, two anthropologists and a linguistic expert. A considerable volume of written evidence was also received.

After the conclusion of the evidence, most parties prepared and filed written submissions. On 23 June 2006, I conducted a video-link hearing between Sydney and Perth to discuss aspects of those submissions.

The judgment I will deliver today will deal with all issues arising in respect of Mr Bodney’s applications but, in relation to the Single Noongar applicants, only the separate question. Unless resolved by agreement between the parties, all other issues arising out of the Single Noongar application will be determined by another judge.

In order to obtain a Determination of native title, applicants must establish two fundamental matters:

1. the identity of the community whose laws and customs governed the use and occupation of the land within the claim area at the relevant date of settlement, in this case 1829;

2. that this community continues to exist today, and continues to acknowledge and observe those laws and customs, albeit perhaps in an attenuated or somewhat changed form.

These two issues lay at the heart of the hearing conducted by me late last year and the parties’ subsequent submissions.

As I have said, the Single Noongar applicants claim the laws and customs governing land rights and interests in 1829 were those of a single community whose members were scattered throughout the whole claim area. The case put on behalf of the principal respondents (the State and the Commonwealth) was that there were, at that time, a number (perhaps 12 or 13) of separate communities, each with its own set of laws and customs concerning land. Mr Bodney seemed to contend for a much greater number of land-owning units. If either the principal respondents or Mr Bodney is correct, the Single Noongar application would have to be dismissed; that application is premised on the existence of a single community throughout the whole claim area.

An unusual feature of this case is the wealth of material left to us by Europeans who visited, or resided in, the claim area at, or shortly after, the date of settlement. Several maritime explorers visited the south-west coast and left written accounts of their observations, including of the Aboriginal way of life. In 1826, a military garrison was established at King George’s Sound (modern Albany). Three people associated with that garrison became friendly with local Aboriginal people and left accounts of their observations and the information they had gleaned. In addition to this, several early Swan Valley settlers published accounts of the way of life of Aborigines in the Perth district. This material was supplemented, later in the 19th century, by the writings of other settlers. Very early in the 20th century, Daisy Bates carried out an extensive investigation about Aborigines for the Western Australian government. She left numerous writings, the most significant of which was later published as ‘The Native Tribes of Western Australia’. The cumulative effect of these writings is to provide an insight into Aboriginal life, including Aboriginal laws and customs, in and about the date of settlement, which is possibly not replicated elsewhere in Australia.

I have reached the conclusion that the Single Noongar applicants are correct in claiming that, in 1829, the laws and customs governing land throughout the whole claim area were those of a single community. My principal reasons for that conclusion are as follows:

1. this conclusion best accords with the information left to us by the early writers;

2. I am satisfied, on the evidence of Dr Nicholas Thieberger, an expert in Aboriginal languages, that in 1829 there was a single language throughout the whole claim area, albeit with dialectic differences between various parts of that area;

3. the evidence establishes some important customary differences between people living within the claim area and those living immediately outside it (Yamatji to the north and Wongai to the north east);

4. there is evidence of extensive interaction between people living across the claim area;

5. there is no evidence of significant differences within the claim area, as regards the content of laws and customs relating to land.

However, I am satisfied the laws and customs observed in 1829 did not extend to rights and interests over the off-shore islands, such as Rottnest and Carnac Islands, or to the sea below low-water mark. It is clear from the early writings that, in 1829, the south-west Aborigines were not accustomed to use any form of boat. Although the coastal people took fish, they seem to have done so from dry land or places accessible by wading. The off-shore islands are important in Aboriginal legend, but the absence of evidence of physical use means there can be no native title over those areas of land and water.

The second question is whether the Noongar community has continued to exist, as a community, and to acknowledge and observe its traditional laws and customs concerning land.

The Noongar community was enormously affected by white settlement. Aboriginal people were forced off their land and dispersed to other areas. Families were broken up. The descent system was affected by the fact that many children were fathered by white men. Probably in every Noongar family there is at least one white male ancestor. Over a long period, mixed-blood children were routinely taken away from their parents. Notwithstanding all this, and surprisingly to me, members of families seem mostly to have kept in contact with each other, and families with other Noongar families. Many, if not most, children learned at least some Noongar language. Many, if not most, were taught traditional skills, such as for hunting, fishing and food-gathering, and learned traditional Noongar beliefs, including in relation to the spirit world.  All of this was graphically illustrated by the witnesses who gave evidence in these cases.

A major issue in the Single Noongar case was whether it can be said the present Noongar community continues to acknowledge and observe its traditional laws and customs concerning land. Undoubtedly, there have been changes in the land rules. It would have been impossible for it to be otherwise, given the devastating effect on the Noongars of dispossession from their land and other social changes. However, I have concluded that the contemporary Noongar community acknowledges and observes laws and customs relating to land which are a recognisable adaptation to their situation of the laws and customs existing at the date of settlement. In particular, contemporary Noongars continue to observe a system under which individuals obtain special rights over particular country – their boodjas – through their father or mother, or occasionally a grandparent. Those rights are generally recognised by other Noongars, who must obtain permission to access another person’s boodja for any traditional purpose. Present day Noongars also maintain the traditional rules as to who may ‘speak for’ country.

It follows that the Court should find that native title continues to exist in the area that was made the subject of the separate question. The native title holders are the whole Noongar community, on whose behalf the Single Noongar application was made.

The evidence enables me to identify eight native title rights which have survived and should be recognised. The wording of these rights will need refinement in the light of discussions between the parties or rulings concerning some particular parcels of land. However, I will provide an answer to the separate question that proposes a tentative list.

Mr Bodney’s applications must all be dismissed. I am not satisfied that the Ballarruk and Didjarrak people, through whom he claims, were ever land-holding groups, whether singly or in combination. The better view is that ‘Ballarruk’ and ‘Didjarruk’ were the names of moiety (skin) groups. Also, there is no evidence that the members of Mr Bodney’s claim group are descended from anybody who was a Ballarruk or Didjarruk person alive at or about the date of settlement or that they have continued to acknowledge and observe whatever were the Ballarruk and/or Didjarruk rules about landholding at that time. Finally, Mr Bodney’s claims are inconsistent with my finding that the relevant community in 1829 was the Single Noongar community.

Litigation over native title in the Perth area has gone on for a long time. It has undoubtedly cost much money – mostly taxpayers’ funds. Unless the parties make a determined effort otherwise, it will absorb a lot more money, before it is finished. My answers to the separate question will not themselves end the litigation. There may be an appeal. If there is not, or my finding is sustained on appeal, it would ordinarily be necessary for the State to carry out land tenure searches relating to every one of hundreds of thousands of individual parcels of land in the Perth area. This would be an expensive exercise and take a long time. Any disputes about extinguishment would need to be resolved. It would then be necessary to deal with the remainder of the area covered by the Single Noongar claim, but outside the Perth area which is the subject of the separate question. This also would be an expensive and time-consuming process.

Having regard to these considerations, it seems to me sensible for the parties to discuss the future course of the Single Noongar application, perhaps after disposal of any appeal from my orders but before embarking on land tenure searches or litigation about other matters. It might be preferable for the parties to concentrate their attention on a limited number of larger parcels, in relation to which there is a reasonable likelihood of frequent use by members of the Noongar community. I have in mind areas of undeveloped, or sparsely developed, land, perhaps including national parks. A relatively early determination of rights over those properties may better serve the interests of the Noongar community than a lengthy pursuit of a Determination over every legally available parcel of land; and this course is likely to be both less expensive to the State and conducive to earlier certainty about the status of each particular parcel of land.

It is perhaps important for me to emphasise that a Determination of Native Title is neither the pot of gold for the indigenous claimants nor the disaster for the remainder of the community that is sometimes painted. A Native Title Determination does not affect freehold land or most leasehold land; it cannot take away peoples’ back yards. The vast majority of private landholders in the Perth region will be unaffected by this case.

A Native Title Determination recognises the traditional association of the claimant community with particular land. I recognise the immense symbolic and psychological importance of such recognition. Native Title Determinations have an important part in achieving the reconciliation between indigenous and non-indigenous Australians to which we all aspire. However, a Determination does not give to the claimant community a right that enables them to sell or lease the land or to develop or use it for any non-traditional purpose.

It follows that a Native Title Determination impedes the use of public land only to the extent of the rights listed in the Determination.

I believe it would be worthwhile, in the present case, for the government and local government respondents carefully to consider to what extent, if at all, their proper functions would be impeded by a formal Determination along the lines suggested by the answer to the separate question I am about to announce. On the other side, it would be worthwhile for the Single Noongar applicants to consider how they might assist to ameliorate any genuine problem. In short, it would be desirable for the parties to engage in some serious thought and discussion before any of them spends more money on legal action.

The formal orders that I make are as follows:

(i) in relation to each of Mr Bodney’s claims (matters WAD 137, 138, 139, 140 and 149 of 1998) I order the application be dismissed;

(ii) in relation to the Perth Metropolitan part of the Single Noongar claim (Part of WAD 6006 of 2003), I order that:

1. The question which was directed, by an order entered on 6 April 2005, to be decided separately from any other question (as amended up to and including 21 December 2005), be answered as follows:

As to para (i):

But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), native title exists in relation to the whole of the land and waters in the area of the separate proceeding, other than off-shore islands [applause in the public gallery] and land and waters below low-water mark;

As to para (ii):

The persons who hold the common or group rights and interests comprising the native title in the said land and waters (hereafter ‘the area’) are the Noongar people, as identified in Schedule A of the application for determination filed on 10 September 2003 in matter WAD 6006 of 2003;

As to para (iii):

Without purporting to specify the final terms of a formal Determination of Native Title, the said native title rights and interests are the rights to occupy, use and enjoy the area in the following way:

(a) to access and live on the area;

(b) to conserve and use the natural resources of the area for the benefit of the native title holders;

(c) to maintain and protect sites, within the area that are significant to the native title holders and other Aboriginal people;

(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;

(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;

(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;

(g) to use the area for the purpose of teaching, and passing on knowledge, about it, and the traditional laws and customs pertaining to it;

(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.

2. The notice of motion filed by the State of Western Australia on 25 August 2006 be dismissed.

3. The State of Western Australia pay the costs incurred by the Applicants, in the principal proceeding in relation to the said notice of motion.

4. The costs of other parties in relation to the said notice of motion be reserved for consideration, on application, by Justice French.

5. The separate proceeding constituted by the order made on 21 December 2005 be remitted to the Western Australian native title provisional docket judge, Justice French, for the making of such further orders and directions as may be necessary.

The Court will now adjourn.

Court officer: All stand. This Court is now adjourned.

[Justice Wilcox stands and bows to the court and walks out of the court room. View of public gallery – people embracing each other, talking, congratulating each other. Several people weeping and smiling. People leaving the court room.]

Man in court room [speaking to another man]: This is [inaudible], one of the descendants.

[View of applicants and counsel and others still in court room. General talking (inaudible).]

Read judgment in Bennell v State of Western Australia [2006] FCA 1243