Express law No. 44

29 September 2006

Basis for recognition of native title over Perth

The Federal Court (Wilcox J) has decided that, subject
to matters of authorisation and extinguishment, native
title exists in the Perth metropolitan area and is held
by the Noongar people.

Bennell v State of Western Australia

Federal Court of Australia, 19 September 2006, [2006]
FCA 1243

The decision relates to the hearing of a separate question
in a separate proceeding from the balance of the Single
Noongar Claim #1 (WAD 6006 of 2003). The separate question
related only to the question of the existence of native
title over the Perth metropolitan area. The matters of
authorisation and extinguishment are to be left to another
judge following Wilcox J's retirement on 30 September
2006.

Summary of reasons for the decision

System of landholding at sovereignty

Wilcox J found that at sovereignty, land was held by 'country
groups' or 'estate groups'. The areas
of land held were relatively well defined. Rights in those
areas of land were inherited primarily by patrilineal descent,
although there were exceptions. The rights were of an exclusive
nature, but were subject to the rights of others to use
the land for certain purposes.

Society at sovereignty

Having made these findings, Wilcox J then turned to the
question of identifying the society whose laws and customs
gave rise to these rights and interests in land. The applicants
asserted a single Noongar society. This claim was disputed
by a number of the respondents. The State in particular
argued that the relevant societies for native title purposes
were the 12 or 13 dialect groups which broadly correspond
with the 'tribes' identified by Professor N
B Tindale (Aboriginal Tribes of Australia, University of
California Press, 1974). In resolving this question, Wilcox
J considered certain aspects of the laws and customs at
sovereignty to determine whether there was a body of persons
united in and by its acknowledgement of traditional laws
and customs: (i) language; (ii) laws and customs in relation
to land; and (iii) other laws and customs. His Honour relied
on the writings of early observers, and the expert evidence.
In the event, his Honour was satisfied that there was a
single Noongar society at sovereignty. In reaching this
conclusion, Wilcox J relied primarily on:

  • the evidence of the expert linguist called by the
    applicants to the effect that there was a common language
    throughout the claim area, albeit with dialectical differences
  • the early writing of Daisy Bates who recorded that,
    throughout its area, the 'Bibbulmun Nation' was 'one
    people, speaking one language and following the same
    fundamental laws and customs'
  • evidence about the existence of the 'circumcision
    line'
  • evidence about a unique practice of skinning kangaroo
  • evidence of interaction between tribes over areas
    of land greater than their particular dialect areas
  • what his Honour considered to be an absence of any
    suggestion of differences in laws and customs throughout
    the claim area.

Wilcox J said the test from Yorta Yorta as applied in
that and subsequent cases did not require that members
of the relevant society had knowledge of one another, or
acknowledged each others' rights.

Continuity

Wilcox J considered that the applicants would succeed
if they were able to show that they, as members of the
Noongar society, continue to acknowledge and observe 'at
least some traditional laws and customs relating
to land' (emphasis
added).

Despite that narrow focus, Wilcox J proceeded to consider
the evidence of present day witnesses in relation to three
aspects: (i) community identification and interaction;
(ii) customs and beliefs; and (ii) laws and customs in
relation to land.

In reaching the conclusion that present day Noongar continue
to be a body of persons united in and by its acknowledgement
of traditional laws and customs, Wilcox J relied 'heavily' on
the evidence of Aboriginal witnesses as to their identity
as Noongar. He also referred to:

  • a 'high degree of consistency' in relation
    to spiritual beliefs which was evidence of both 'unity … and
    adherence to traditional ways'
  • evidence of a rule forbidding marriage between second
    cousins as a 'powerful indication of …continuity'
  • 'some traditional beliefs' persisting in
    relation to funeral practices
  • evidence that traditional rules still apply to hunting,
    fishing and food-gathering.

Interestingly, despite the reliance placed on language
for the purposes of identifying the relevant society at
sovereignty, this aspect received little attention in this
part of the reasons. Wilcox J did find elsewhere that the
evidence supported the proposition that there is, and always
has been, only one indigenous language in the south-west;
that language is called 'Noongar' and is still
spoken by many Noongar people.

A crucial finding in relation to the continuity of traditional
laws and customs in relation to allocation of rights in
land was that 'the move away from a relatively strict
patrilineal system to a mixed patrilineal/matrilineal or
cognative system should be regarded as not inconsistent
with the maintenance of the pre-settlement community and
the continued acknowledgement and observance of its laws
and customs'.

In addition to the change in descent rules, Wilcox J also
found that 'home areas' (the relatively well
defined areas held by 'country groups' or 'estate
groups' at sovereignty) had 'effectively disappeared',
replaced by modern day boodjas, which correlate to the 'runs' of
earlier times.

A significant factor in Wilcox J's finding of continuity
seems to have been the fact that the changes in the system
of landholding were not of the Noongars' own making,
rather they were inflicted on them with the arrival of
Europeans. Also, his Honour appears to have proceeded on
the basis that, unless he was able to find a 'new
society' in the terms described by the High Court
in Yorta Yorta (see AGS Litigation Notes No.
9 23 June 2003
), the applicants must succeed.

Importantly, Wilcox J rejected the proposition that the
claimants had to establish that at least some of them are
descended from the group in occupation of the Perth metropolitan
area at sovereignty.

Geographical extent of rights

Consistent with his approach that the question of the
existence of particular rights in particular areas are
a matter for 'intracommunal allocation', Wilcox
J gave no consideration to the existence of particular
rights in particular areas, the exception being in relation
to the sea (see below). In particular, his Honour offered
no analysis of the question of the holders of rights within
the Perth metropolitan area and how those rights came to
be acquired. In the result, his Honour found that native
title is held in the Perth metropolitan area by members
of the Noongar society as a whole.

In relation to the sea portion of the claim, Wilcox J
agreed with the position taken by the Commonwealth at trial
that the low water mark represents the seaward extent of
native title rights and interests.

Nature of rights

While Wilcox J was not required to make a final determination,
in answering the separate question his Honour made findings
as to the nature of native title rights and interests within
the Perth metropolitan area.

The applicants claimed non-exclusive rights in relation
to the area generally and exclusive rights over identified
categories of land. The applicants largely succeeded in
relation to the non-exclusive rights claimed. They failed
to prove some, and Wilcox J reformulated others.

Wilcox J declined to answer the question of the existence
of exclusive native title rights and interests. His Honour
left open the possibility of the existence of exclusive
rights in the categories identified by the applicants.
His Honour did so on the basis that the question of the
existence of exclusive rights would need to be determined
on a parcel-by-parcel basis.

The Bodney applications

Wilcox J also heard a total of five overlapping applications
in and around the Perth metropolitan area. These applications
were made by Mr Christopher (Corrie) Bodney, on behalf
of the Ballaruk and Didjarruk people. Wilcox J dismissed
all of the Bodney applications, largely on the basis that
Mr Bodney failed to prove either the existence or the continuity
of Ballaruk and Didjarruk as relevant groups for the purpose
of the Act.

The State's strike-out motion

Late in the proceedings, the State applied to set the
proceedings aside on the basis that they had fallen into
procedural error. That application included an application
to strike out the application under s 84C of the Act. Wilcox
J dismissed the application, and his reasons form part
of the judgment.

Appeal period

Parties have 21 days within which to make application
for leave to appeal (Order 52 rule 10(2A)(a)), that is
by Tuesday 10 October 2006.

Text of the decision is available at: http://www.austlii.edu.au/au/cases/cth/federal_ct/2006/1243.html

Alex Rorrison of AGS Perth instructed Raelene Webb QC
who appeared on behalf of the Commonwealth of Australia,
on instructions from officers of the Native Title Unit,
Legal Services and Native Title Division, Attorney-General's
Department. Alex is a leader of the AGS Native Title and
Indigenous Law Network, which includes specialist native
title lawyers across Australia.

For further information please contact:

Alex Rorrison
Senior Executive Lawyer
Australian Government Solicitor
T 08 9268 1143 F 08 9268 1198
alex.rorrison@ags.gov.au

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