REASONS FOR JUDGMENT
1 One of the impressions with which I left the Kimberley after the first hearing of the application of the Karajarri People, was the richness of its current music tradition. I wondered, as I contemplated today's proceedings, whether shortly we might have, from Jimmy Chi or The Pigrams or maybe even Mervyn Mulardy Junior and his Shovellor Band, a new song reflecting the long road that has come to an end today.
2 The purpose of the hearing today is for the Court to consider whether to make orders giving effect to an agreement of the parties as to part of the area of the land for which a determination of native title is sought. The making of an agreement is not the end of the road. The agreement must be sanctioned by the Court.
3 The application was filed as long ago as June 1996. The combined application was accepted for registration on 25 February 2000 after the 1998 amendments to the Native Title Act 1993 (Cth) (the Act). Those amendments also prescribed the Federal Court as the forum in which native title determination applications are filed and progressed until a determination by the Court or other relevant order is made.
4 The hearing of this application commenced, as many of you here will know, in the Broome Courthouse on 20 June 2000. It proceeded until 22 July 2000. In all, the case occupied twenty-seven sitting days. Most of the hearing took place on country, first at Bidyadanga just over the way from where we are now sitting and then at a number of coastal sites which the Court visited with the claimants, lawyers and other representatives in a four wheel drive convoy. Those sittings were held under canvas or in the open.
5 Then between 19 and 22 July 2000 the Court, the parties and their representatives were taken east into the Great Sandy Desert into the unallocated Crown Land where the Court sat at a number of memorable places including Munro Springs, Kurriji Pa Yajula, Pirrijiti, Jawani Jawani and Yilpi.
6 The Court heard evidence from about forty witnesses. The evidence occupies over 2400 pages of transcript. Most of the witnesses were Karajarri people and Aboriginal people from neighbouring areas. The evidence of all of these people was central to the applicants' case. Of particular importance was the evidence of John Dudu Nangkiriny, Steven Possum, Mervyn Mulardy Senior, Norman Munro, Donald Grey, Edna Hopiga, Patrick Dodson, Peter Clancy and Mervyn Mulardy Junior.
7 The Court also heard evidence from anthropologists, historians, linguists, hydrogeologists and several other people. Again, without seeking to minimise the evidence of any of those witnesses, special acknowledgment should be directed to the great assistance given by the evidence of the anthropologists, Doctor Bagshaw, Mrs Yu and Professor Maddock.
8 Even while the Court was in the course of hearing the case, mediation was continuing. This was done with the assistance of the National Native Title Tribunal. Only a matter of days ago agreement was reached in relation to a large area of land which is the subject of the application.
9 The parties have now asked the Court to make orders reflecting the agreement. The agreement simply described is that the Court should determine as a matter of law that native title exists in part of the area called Determination Area A. That area appears on the map accompanying the First Schedule to the agreement, in hatched green, the claim area being that bounded by the turquoise line. So, it is obvious that the area, Determination Area A, is a most substantial area of land. It comprises approximately 24,000 square kilometres.
10 The agreement is that the native title rights and interests in the area are held in trust by the Karajarri Traditional Lands Association and that, subject to some limitations outlined in the agreement, the central right of the Karajarri people is described in paragraph 4(1)(a) of the draft determination as follows;
"The nature and extent of the native title rights and interests in Determination Area A held by the Karajarri people are the right to possess, occupy, use and enjoy the land and waters to the exclusion of all others."
11 The limitations recognise that persons holding rights such as mining leases are entitled to exercise those rights.
12 Section 87(1) of the Act allows the Court to make an order giving effect to an agreement relating to part of the native title application subject to two conditions. The first is that the order reflecting the agreement must be within the power of the Court. The second is that it appears appropriate to the Court to do so.
13 As to the question of power, the agreement of the parties is that the Court make a determination that native title exists. The Court has power to make such a determination. An order which makes such a determination must set out the details required by s 225, such as who holds the title and the nature and extent of those interests. The proposed orders meet those requirements. Consequently, the first condition is satisfied.
14 The second condition is that the Court is of the view that the agreement is appropriate. Ordinarily, this condition will be satisfied if the Court concludes that the agreement was freely entered into by the parties without duress, fraud or misrepresentation. Where the agreement occurs early in a case, the Court may not be in a position to assess whether the outcome is fair and reasonable. It will rely on the fact of the agreement alone. But in this case, the agreement comes at the end of the evidence. The Court is, in such a case, able to assess the appropriateness of the agreement with much fuller information.
15 Mr Irving, who appeared as counsel for the applicants, has prepared a lengthy submission in which he identifies each element necessary to be established in order to entitle the applicants to an order that the determination that native title exists. The submission then cited evidence which established each of those elements. He has done a very thorough job. I have no doubt that the agreement reached is appropriate. I rely primarily on the fact that the parties have freely agreed to the terms of the orders. The fact that there is evidence before the Court which justifies the order confirms the view that the agreement freely made is appropriate. It follows that the Court will shortly make the orders sought giving effect to the agreement of the parties which recognises that the Karajarri people have native title in Determination Area A.
16 Before doing that, there are some concluding remarks which I wish to make. There are a considerable number of people who regard the promise of radical change occasioned by the Mabo v Queensland (1992) 175 CLR 1 (Mabo) decision as largely unfulfilled. Whatever the correct view about that is, Mabo stimulated parliament to legislate a framework within which native title could be found to exist. That framework governed the conduct of this case. It has produced an outcome for all parties in relation to part of the land. But the process requires the public investigation by the Court into the most private and even secret areas of the lives and histories and laws of the Aboriginal people making the application. This case demonstrated the highly intrusive nature of that inquiry. This was so even though the respondents' lawyers acted with sensitivity and restraint throughout.
17 The Aboriginal witnesses should be congratulated for their courage, dignity and fortitude in facing the burden placed upon them by the process of litigation. Once the wider Australian community is exposed to the people who gave evidence and the stories they told in this case and similar cases, they will come to accept with ease the basis and strength of the culture and the law of the Aboriginal people.
18 The evidence given in this case is preserved for history in the transcript of proceedings. In time it will contribute to creating an understanding which would not have existed without this case. That said, no transcript can record the beauty of Edna Hopiga's singing, the corroboree or Mullet's music, all of which was admitted as part of the evidence in the case.
19 Furthermore, the evidence given by the senior law people of the Karajarri People has been heard throughout the local community, and, in particular, by the young people. The proceedings gave these young people an opportunity to observe the respect accorded to their elders by the Australian people through the court system.
20 I also wish to acknowledge the contribution of a number of the people involved in the case. All of the legal representatives should congratulated for the way in which they conducted the case. The proceedings gave rise a number of novel issues. Some were matters of particular sensitivity. All the lawyers did a wonderful job, and it gives me pride to be a member of a profession that can adapt to new circumstances in the way that they have.
21 Of course, we are here today, not because there was litigation in the Court, but because outside the Court the parties had the good sense to reach an agreement. That, no doubt, reflected the efforts of many people and some of those have been acknowledged already. The position of the Court is remote from the mediation and that is as it must be. The Court does not know what occurred in the process of mediation. It does know, however, that the process of mediation could not have occurred without the good offices of the National Native Title Tribunal and its staff. In particular the efforts of the Honourable Fred Chaney, Bardi McFarlane and Anita Field should be acknowledged.
22 It is right also to pay tribute to some particular contributions by members of the staff of the Court itself. Many of the lawyers have had dealings with Martin Jan and his staff at the Perth Registry. You will remember Colin Banks who attended with Bob Sheppard at the on-country hearings. Words are inadequate to describe the contribution that Bob has made to the conduct of the proceedings. I need not say anything about his efforts to those who came on country. He commanded, cajoled, abused, offended but kept us all to a timetable. He did a remarkable job. He continues to do a remarkable job and it would be a great dereliction of my duty not to pay tribute to his great efforts on this occasion.
23 Ordinarily judges do not, in the course of a judgement, acknowledge the contribution of their staff because their staff do what their job requires. But I'm sure all those who saw my previous associate, Nehal Bhuta, in operation will understand his deep interest, commitment and knowledge about the Karajarri application which he has passed on to my current associate, Jessica Howard, who sits on my left. They have been of enormous assistance to me, as has Tarwin Shiel, my personal assistant who was present at some of the hearing on-country.
24 The transcript of the proceedings is a valuable product of these hearing. It is the result of the efforts of Graham, Irene and Kathryn Donges. They have served the Court, and the cause of this litigation with great diligence and I thank them for it.
25 Shortly, I will sign the orders which will effect the formal determination of native title. That is the legal act which brings to a close this part of Australian legal and Karajarri history. But, in closing, I wish to address perhaps the greatest significance of this day at Bidyadanga.
26 The people of Australia, through laws made by our elected representatives in parliament, have recognised that indigenous people have rights and interests in land. The law sets out the circumstances in which the rights of those people are recognised and gives the Federal Court the power to determine when those circumstances exist. This law does not grant land rights to Aboriginal people. It creates nothing new with respect to the land. It recognises long standing traditional rights and interests under Aboriginal law.
27 Today is the day of formal recognition under the laws of Australia by all the people of Australia of the ancient rights and interests of the Karajarri people in their land. It is a moment of celebration and joy for all Australians. This act of recognition is a foundation upon which reconciliation is being built. I am immensely proud that my signature on these orders will carry the message of the Australian people to the Karajarri people that justice is now being done.
28 I now make the formal orders determining that native title exists in favour of the Karajarri people in relation to Determination Area A.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.