LEGAL FRAMEWORK
60 It is important not to lose sight of the relevant statutory provisions relating to the determination of claims under the NTA. The applicable principles are not really contentious. The legal debate, to the extent it is a live one, concerns matters of onus of proof and characterisation of the contentious rights on the evidence.
61 Section 225(b) of the NTA requires a determination of native title to include a determination of the nature and extent of the native title rights and interests in relation to the determination area.
62 Section 223(1) of the NTA defines "native title" and "native title rights and interests" as follows:
Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group, or individual rights and interest of Aboriginal peoples … in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples …; and
(b) the Aboriginal peoples …, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
63 As the Commonwealth pointed out, while subs (a) and (b) of s 223(1) are based on the judgment of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo No 2) at 70, it is to the terms of the NTA that primary regard must be had in any determination of native title: see Ward HC per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [16].
64 The starting point for the matter is that upon the acquisition of sovereignty on 7 February 1788, the Crown acquired radical title, but that the rights and interests held by Indigenous people in land or waters under their traditional laws and customs were recognized by, and became enforceable under, the common law: Mabo (No 2) at 15 per Mason CJ and McHugh J, at 52 per Brennan J and at 109 per Deane and Gaudron JJ; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [77] per Gleeson CJ, Gummow and Hayne JJ (Yorta Yorta).
65 Thus, as was observed by the majority in Yorta Yorta:
[43] … It is important to recognize that the rights and interests concerned originate in a normative system, and to recognize some consequences that follow from the Crown's assertion of sovereignty. Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.
[44] That is not to deny that the new legal order recognized then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognized by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognized included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be "significant adaptations". But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognized after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.
66 The Territory and the Commonwealth emphasised the concluding sentence of each of those paragraphs. Thus, they say, while it is to be accepted that rights and interests, which are the products of laws and customs which adapt or develop, may themselves change without losing the entitlement to recognition, in these claims the proper enquiry is whether the claimed native title right to access and take for any purpose the resources of the area finds its origin in pre-sovereignty law and custom.
67 It is clear enough that the Applicants have the burden of proving that there was a traditional right to take resources from the land as claimed, and to prove to the extent they can, the particular resources which were taken and the specific circumstances and manner in which that right was exercised. The burden of proof is the civil standard, that is, on the balance of probabilities.
68 The Commonwealth stresses the potential difficulties in demonstrating the content of traditional law and custom, as explained by the majority in Yorta Yorta where Gleeson CJ, Gummow and Hayne JJ said at [80]:
It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.
69 The evidence of the Aboriginal witnesses about their traditional laws and customs and their rights and responsibilities with respect to land and waters deriving from them is of the greatest importance in a native title claim: Sampi v Western Australia [2005] FCA 777 at [48] per French J (which aspect of the judgment was not overturned on appeal in Sampi v Western Australia [2010] FCAFC 26); see also Alyawarr, Kaytete, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 (Alyawarr SJ) at [89] per Mansfield J and De Rose v South Australia [2002] FCA 1342 at [351] per O'Loughlin J. In addition, as here, anthropological evidence will provide considerable assistance to the determination of the issues. As observed by the Court in Alyawarr SJ at [89]:
… anthropological evidence may provide a framework for understanding the primary evidence of Aboriginal witnesses in respect of the acknowledgment and observance of traditional laws, customs and practices … Not only may anthropological evidence observe and record matters relevant to informing the court as to the social organization of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organization with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.
70 Caution must be taken in considering anthropological evidence if it is based on hearsay statements from claimants living at the time of the trial and who were either not called to give evidence or who did not give evidence in terms of the statements contained in the anthropological report. Those circumstances will be relevant to the weight to be accorded to such evidence: Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548 at [2] and [26] per Cooper J; see also TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No. 3) [2015] FCA 1359 at [9] and [10] per Rares J and Bodney v Bennell (2008) 167 FCR 84 (Bodney FC) at [92] and [93] per Finn J, Sundberg and Mansfield JJ.
71 Given the real nature of the contentious and complex issue in these applications, all parties submitted that the proper approach to the complex fact finding, that is the factual issue ultimately required to be resolved and which may be informed by consideration of a series of primary or other qualitative factual findings, would be informed by consideration of a series of earlier decisions of the High Court and of this Court, largely in a chronological sequence and ending with the decisions in Akiba v The Commonwealth (2013) 250 CLR 209 (Akiba HC) and in Western Australia v Willis [2015] FCAFC 186 (Pilki FC).
72 An appropriate theme running through all the decisions is that the existence and content of native title is a question of fact, to be ascertained by evidence as to the laws and customs of the applicants, on a case by case basis. It is therefore highly fact specific: Commonwealth v Yarmirr (1999) 101 FCR 171 at [16] per Beaumont and von Doussa JJ, citing Mabo No 2 at 58 and 61, Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 452 and Wik Peoples v Queensland (1996) 187 CLR 1 at 169. Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the applicant group; the ambit of the native title right is a finding of law: Yanner v Eaton (1999) 201 CLR 351 at [109] per Gummow J.
73 The relevant task is to find how rights and interests possessed under traditional law and custom can properly find expression in common law terms: Ward HC at [89].
74 Subject to the question of extinguishment, evidence of activities on land or how land is used is relevant to the extent that it focuses attention upon the right pursuant to which the land is used: Ward HC at [78]. The exercise of native title rights or interests may constitute powerful evidence of both their existence and their content: Yorta Yorta at [84].
75 The Applicants' case is that, at the time of acquisition of sovereignty, their ancestors held rights to access and take for any purpose the resources of the estate, and to control access to and use of the estate and its resources by others. Whether that can be established depends upon the whole of the evidence.
76 The Territory says, relying on Pilki FC at [38]-[39] per Dowsett J and at [112] per Jagot J, that if the relevant traditional law and custom at the time of sovereignty distinguished between use of land and/or resources for commercial or business purposes and use of land and/or resources for purposes of a domestic or subsistence nature, there would be a foundation for defining rights by reference to such purposes. It acknowledges that, if at the time of sovereignty land and/or resources were not used for commercial or business purposes, the search for such a distinction will necessarily be unsuccessful. However, it says, it does not follow from the absence of such a distinction that a "purpose-less" right is established, again relying on Pilki FC per Dowsett J at [37]. It is also said that, if traditional law and custom at the time of sovereignty placed constraints upon the use of resources taken, which are either directly or indirectly against use for commercial or business purposes, there would also be a foundation for defining rights by reference to such purposes: Pilki FC at [113] per Jagot J.
77 The Territory also pointed out that, where the native title rights and interests are non-exclusive because of the extinguishment by the grant of pastoral leases (or other tenures not conferring rights of exclusive possession), there is a loss of the right to control access to that land: Ward HC at [92], [417] and [422] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
78 It is convenient to address, and put aside, one further matter advanced by the Territory.
79 It is about the significance of the fact that past consent determinations, both in the Northern Territory and Queensland, have not recognised a right to take and use resources except as a limited one. That is a correct description of the traditional right recognised by a number of consent determinations.
80 Since King v Northern Territory [2007] FCA 1498, it has been common in the Northern Territory to determine a native title right of possession, occupation, use and enjoyment of an area to the exclusion of all others, and/or a non-exclusive native title right to share or exchange subsistence and other traditional resources obtained on or from the claim area, but to provide that the native title rights and interests are for the personal or communal needs of the native title holders which are of a domestic or subsistence nature and not for any commercial or business purpose: see also for example, Rory v Northern Territory [2015] FCA 1240; Roberts v Northern Territory [2012] FCA 223; Pwerle v Northern Territory [2016] FCA 304; Young v Northern Territory [2011] FCA 583; Brown v Northern Territory [2013] FCA 1082. A similar approach has been taken in Queensland, where non-exclusive native title rights have been expressed as rights to hunt, fish and gather or take and use water, or take, use, share and exchange natural resources, but only "for personal, domestic and non-commercial communal purposes": see for example, Lampton on behalf of the Juru People v Queensland [2015] FCA 609.
81 The terms "commercial", "business", "domestic" and "subsistence" are routinely not defined in determinations of native title. Dowsett J in Pilki FC at [9] observed that they are not terms susceptible of precise definition. However, the Territory says, the terms "commercial" and "business" clearly contemplate enterprise or activity in which a transaction or a system is directed, via buying and selling or barter or exchange of goods, to the making of profit or material gain and the latter two terms "domestic" and "subsistence" are used in contrast to refer to provision for a person's or a community's sustenance and necessities of life.
82 It also points out that the Full Court in Northern Territory v Alyawarr (2005) 145 FCR 442 (Alyawarr FC) held (at [156]-[157]) that evidence limited to evidence of sharing and exchanging (or "swapping") ochre, spears, boomerangs, feathers and hair belts for personal use; evidence of sharing and exchanging goods in a ceremonial context, which witnesses described as "like a thank you" or "to pay him off"; and evidence of the collection of beans to make beads sold to a shop for purchase by tourists, did not support a finding of a native title right to trade in the resources of the claim area. The Court re-defined the determined right as "the right to share or exchange subsistence and other traditional resources obtained on or from the land and waters".
83 It also points out that in Yarmirr v Northern Territory (1998) 82 FCR 533 (Yarmirr SJ), Olney J rejected a claimed right to trade in the resources of the waters and land of the clan's estate, notwithstanding evidence that, prior to sovereignty, ancestors of the applicants engaged in a "form of trade" both amongst themselves and with the Macassan trepangers. His Honour held (at 588) that the evidence suggested no more than that the Macassans sought and received permission to take trepang from the waters of the claim area, and that it fell short of establishing that the applicants' forbears had traded with the Macassans. His Honour also found (at 588) that there was no evidence to suggest that trade in the resources of the claim area formed part of the traditional laws and customs of the applicants' ancestors.
84 To the extent that those decisions reflect terms agreed between the parties, they do not in my view provide any assistance in determining the present applications. There may have been a range of factors taken into account by the applicant and by the relevant State or Territory leading to the agreed terms for the consent determination.
85 Alyawarr FC involved an appeal on a broad range of issues: firstly concerning the proper definition of the native title holders; secondly concerning the native title rights and interests as recognized in the determination; and thirdly concerning the application of s 47B of the NTA to a township in the particular circumstances. The particular passage relied on by the Territory concerns the second broad issue, and within it the relevant subheading is "the native title rights and interests - the right to trade". It comprises only a short section of the Full Court's reasons at [152]-[157]. The terms of the determination, relevantly, recognized: the right to share, exchange or trade subsistence and other traditional resources obtained on or from the land and waters.
86 In that case, the Territory submitted that the right to trade is not a right or interest in relation to land or waters: see at [152]. The Full Court in Alywarr FC rejected that proposition at [153]-[156].
87 The Territory then said that the right to trade in resources necessarily implies a native title right to exclusive possession, and that the evidence did not support any right to trade: see at [156]. The summary of the evidence, the Territory contended in that case, made no reference at all to any commercial or profit motives or any level of organized business operation.
88 The Full Court (Wilcox, French and Weinberg JJ) referred to evidence of the asserted right to use the natural resources of the claim area including water, trees, bark medicines, soakages, sacred sites and other things including ochre from various places in the claim area. At [157], their Honours concluded:
In the circumstances it is difficult to see how this evidence was capable of supporting a finding of a native title right to trade in the resources of the area. There appears to have been no evidentiary support for this aspect of the determination.
Hence, the refinement of the determination as noted.
89 The decision at first instance in Alyawarr SJ is also quite brief in dealing with this topic. The claimed right, as recognised in the determination (but varied on the appeal) is set out in [67]. It was separate from claimed rights to use the resources of the land: see at [66] and [67]. The finding of a right to trade is then made at [160] on the evidence (as summarised to the Full Court) and without any detailed consideration of what evidence might in particular have supported the "trading in" resources.
90 In those circumstances, I do not think that decision on that topic can be viewed as establishing any particular principle. It is a decision based upon an analysis of the available evidence.
91 Yarmirr SJ concerned a claim to have recognized native title rights and interests in the seas in the region of Croker Island in the Northern Territory. In the recital of the issues, Olney J at 539-540 did not refer to an issue specifically as to whether, either as a matter of principle or as a matter of fact, there could be or was a native title right to trade in the resources of the sea, as distinct from a right to use and enjoy the marine resources. Nevertheless, the claimed right to trade was said at 586 to be a "separate right of some importance".
92 The Full Court in Alyawarr FC at [154]-[155] explained that that decision concerned evidence of an activity, but not evidence of the exercise of a right in relation to the [land and] waters of the claim area. As their Honours then said, there was no evidence establishing an historic trade between the forbears of the Croker Island claim group and the Macassans, and no direct evidence since European contact of any sale or exchange in the resources of the waters in the claim area, or suggesting that such trade formed part of the traditional customs of their ancestors. As the Full Court pointed out, there was no finding of a right or interest in relation to the land or waters of the claim area. The finding in Yarmirr SJ at 588 was that there was, on that evidence, no basis for a finding of consensual dealings with the Macassans, nor any evidence of any dealing with others by "sale or exchange" in the sustenance resources of the waters.
93 Again, in my view, that decision reflects particular findings of fact on the evidence. It does not set down any direct principle which necessarily leads to the consequence that, without regard to the evidence in these claims, the claimed right under consideration should be rejected.
94 Indeed, it is fair to say that the Territory and the Commonwealth did not pitch their contentions at that high level.
95 Having referred to the contentions, and having considered certain of the authorities referred to, I now revert to the guidance provided by the High Court, and certain of the more recent decisions specifically addressing issues such as the present.
96 In Ward HC at [14] the plurality said:
As is now well recognised, the connection which Aboriginal peoples have with "country" is essentially spiritual: In Milirrpum v Nabalco Pty Ltd (129), Blackburn J said that: "the fundamental truth about the aboriginals' relationship to the land is what whatever else it is, it is a religious relationship … There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole". It is a relationship which sometimes is spoken of as having to care for, and being able to "speak for", country. "Speaking for" country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture.
97 Their Honours then pointed out and explained the difficulty of expressing that relationship in terms of rights and interests: "The spiritual or religious is translated into the legal".
98 As to the right to speak for country, their Honours said at [88]-[89]:
It may be accepted that, as counsel for the Ningarmara claimants submitted in reply, "a core concept of traditional law and custom [is] the right to be asked permission and to 'speak for country'". It is the rights under traditional law and custom to be asked permission and to "speak for country" that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others (cf s 225(e)). The expression of these rights and interest in these terms reflects ow only the content of a right to be asked permission about how and by whom country may be used, but also the common law's concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.
The expression "possession, occupation, use and enjoyment … to the exclusion of all others" is a composite expression directed to describing a particular measure of control over access to land. To break the expression into its constituent elements is apt to mislead. In particular, to speak of "possession" of the land, as distinct from possession to the exclusion of all others, invites attention to the common law content of the concept of possession and whatever notions of control over access might be thought to be attached to it, rather than to the relevant task, which is to identify ow rights and interests possessed under traditional law and custom can properly find expression in common law terms.
99 It is therefore the task of the Court to identify, from the evidence, the rights and interests possessed under traditional laws and customs and then to address how they can properly be expressed in common law terms. The observations at [88] tend to support the position put by the Territory, and accepted by the Applicants, that the task of doing that is more complex where non-exclusive rights and interests only are established.
100 It is the common position that the two most directly informative decisions, because they concerned a similar issue to the present one, are the decisions of Finn J in Akiba v Queensland (No 3) (2010) 204 FCR 1 (Akiba SJ) and of North J in Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714 (Pilki SJ). Akiba SJ was reversed by the Full Court of this Court by majority: Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (2012) 204 FCR 260, but the decision at first instance was restored by the High Court: Akiba HC. An appeal from Pilki SJ was dismissed by the Full Court: Pilki FC. The Full Court as constituted by Dowsett, Jagot and Barker JJ delivered separate judgments, but each agreed on the outcome of the appeal.
101 Pilki SJ was heard and determined by North J with another case BP (Deceased) on behalf of the Birriliburu People v Western Australia [2014] FCA 715 (Birriliburu). Following the decision in Pilki SJ, a determination was made by McKerracher J in terms potentially relevant for present purposes: Willis v Western Australia (No 2) [2014] FCA 1293 (Pilki D). No similar step has apparently yet been taken in Birriliburu, so it is not necessary to refer to it in any detail.
102 Each of those decisions in Pilki SJ and in Birriliburu related to a remote and arid part of Western Australia, associated in each case with the Western Desert Cultural Bloc. The Pilki claim concerned a remote part of the Western Desert region situated between the Nullabor Plain and the Great Victoria Desert. The application area was infertile, saline and flat, though it contained some distinct environmental zones within it. In each case, the applicants claimed the right under traditional law and custom to "access resources and to take for any purpose resources of the area". In each case, the State did not accept that there was any traditional right to access and take resources for commercial purposes. It accepted that the claimants were entitled to take the resources of that area, but only for the purpose of satisfying their personal, domestic or non-commercial needs, including social, cultural, religious, spiritual and ceremonial needs and by way of sharing and exchange. This was the only contentious issue in either case: Pilki SJ at [4]-[6], [10]; Birriliburu at [15]-[17], [21].
103 The determination in Pilki D makes it clear that exclusive rights were determined in respect of the whole of the determination area. Order 3 provides that "the nature and extent of the native title rights and interests is the right of possession, occupation, use and enjoyment of the Determination Area as against the whole world including the right to access and take for any purpose the resources of the land and waters".
104 That determination was made, having regard to the claimed rights (as here, in relation to areas of exclusive native title) to "access resources and to take for any purpose resources of the area".
105 As North J said in Pilki SJ at [7], the question whether there was a right under traditional law and custom to access and take resources of the area for commercial purposes depended on a "proper understanding of the evidence", and his Honour described it as an "evidentiary exercise" informed by ss 223(1) and 225(b) of the NTA.
106 The relevant issue being a question of fact, it is not really helpful to refer to the evidence in that case from the four Aboriginal witnesses (which his Honour described at [31] as "not expansive"). The State did not challenge the evidence of the Indigenous witnesses that their traditional laws and customs gave them "complete control over their country, including all that was on, in and under it": Pilki SJ at [47]. But North J concluded at [46] that any gaps in the elaboration of the relevant laws and customs were addressed by the evidence of the anthropologist Dr Cane.
107 The position is not so clear in these matters, by reason firstly of the strongly competing views of the two anthropologists who gave evidence: Mr Stead called on behalf of the applicants and Professor Sansom called on behalf of the Territory, and secondly because of the contention of the Territory and the Commonwealth that the use of Mr Stead's views, if accepted, should be confined to areas of his personal knowledge or his expertise based upon appropriate materials, but excluding any "hearsay" information, that is factual information which might have been provided by the direct evidence of an Aboriginal person. In any event, I observe that what was or might have been a traditional law or custom of the Western Desert society in relation to "commercial" activities does not routinely transport to the present Claim Group. Nor is it to be assumed that the ethnographical, historical and other material to which Dr Cane referred, even though his references appear to extend to a much wider area of Australia than the claim area of the Pilki People or of the wider Western Desert society of Aboriginal people, is applicable to the present application.
108 It is however of note that, in the section of his reasons referring to the contentions of the parties, North J in Pilki SJ at [104] referred to the contention of the State that it was necessary for the Pilki People to prove that commercial activity had been conducted by them. The nature of that submission was described at [104]-[106] as follows:
The State contended that there was no evidence of such activity in the present case. The evidence would need to show a regular and systematic regime of commercial exploitation undertaken as a right under traditional laws and customs. The State accepted that there was evidence of a right to take resources to share, and to engage in gift exchange, but contended that this was not evidence of a traditional right to exploit resources commercially.
Further, the State said that the evidence established that the taking of resources was constrained by gender, status, personal or community need, or that it was the exercise of a right and responsibility to care for land. These constraints demonstrated that the right to access and take resources was not a right to access and take for any purpose.
Other evidence of trade, so it was argued, was far removed from commercial exploitation.
In the circumstances of that case, where (it said) there was no such evidence, the State submitted that the Pilki People were forced to "rely on trading as an incident of an underlying ownership of the land", but to do so was inconsistent with Ward HC.
109 As to that contention, North J at [118] and [119] said:
Contrary to the argument of the State, it is not necessary as a matter of logic to prove that activity in conformity with traditional laws and customs has taken place in order to establish that a right exists. In many cases, proof of activities undertaken pursuant to laws or customs will assist in proving the existence of the right. But evidence of the activity is not necessary. Thus, if the applicants had not shown that they traditionally accessed and took resources for commercial purposes, they could still show that they had the right to do so if there were traditional laws or customs which gave them such a right. In the same way, the holders of freehold title do not need to show that they have leased out their properties to prove that they have the right to do so. If there is evidence of witnesses accepted by the Court that there are traditional laws and customs which give a right to access and take for any purpose the resources of the country, then the right is established even if there is no evidence of trading activity.
…
Thus, without evidence of actual trading activity, if the evidence of traditional laws or customs which give a right to access and take for any purpose the resources of the country is accepted by the Court, then the right would be established.
Jagot J in Pilki FC at [99]-[100] expressly agreed with that observation.
110 In my view, the difference between the existence of a right under traditional laws and customs is (as North J said) logically separate from the fact of its exercise. The nature and extent of an activity may inform the existence of a right, but it is the possession of the right, not its exercise, which is the proper question. That point was forcefully made by the High Court in Yorta Yorta per Gleeson CJ, Gummow and Hayne JJ at [84], albeit in a somewhat different context.
111 In Pilki FC, Western Australia took issue with the second step taken by North J of relying on the anthropological evidence. It argued that:
(1) the right to take resources for any purposes, including commercial purposes, could not be established by broad rights or ownership or dominion over land, rather than having to be proved more specifically; and
(2) the same right (a "use right") could not be proved without proof that the activity the subject of the right has ever been conducted, or was conducted, over the land or waters in question.
112 Dowsett J at [7] noted those contentions, and observed at [8] that the State's contentions used the word "commercial" in a way which did not include "sharing" or "exchange" or "barter" (the latter word otherwise requiring a commercial rather than a personal, domestic or cultural or spiritual purpose). After referring to the evidence in detail, and to the reasons for the decision at first instance, Dowsett J at [35] said that he was not satisfied that the evidence showed that the ancestors of the Pilki People, prior to first European contact, "took resources form the claim area at all, let alone for commercial purposes". However, his Honour said at [36], it was not critical to the claim that the Pilki People prove that resources were taken for commercial purposes (a conclusion also reached by Jagot J). He there said:
The question will always be whether the evidence satisfies the court, on the balance of probabilities, that a claimed right or interest is recognised by traditional law and custom and has not been abandoned.
That step involved rejection of the State's first contention.
113 Jagot J's reasons largely address what her Honour perceived, and rejected, as a qualitative attack on the findings made by the primary judge based on the evidence. It is significant to note what her Honour said at [112] in relation to the appeal:
Sixth, the submissions in support of the appeal seek to draw what, in the specific context of this case, is an arbitrary distinction between the use of land for some purposes (domestic, communal, spiritual, ceremonial and exchange) and use for another purpose (commercial). The distinction is arbitrary because virtually all of the pleaded facts about the Pilki People were accepted (as summarized above) including their right to exploit land for, apparently, any purpose other than a purpose described as commercial. Yet nothing in the evidence supported any distinction in traditional law or custom, or any difference in activity that was or could properly be inferred to have been carried out in accordance with traditional law and custom, between use of land for purposes other than commercial purposes and use for commercial purposes. This lack of distinction, in common with the lack of any prohibition to which the primary judge referred at [124], is to be understood in the context of the evidence that was available - being evidence about the continued observance and meaning of the Tjukurrpa and its significance to the relationship of the Pilki People to their land, the opportunistic nature of these societies in terms of resource exploitation, the location of the claim area and its context in a larger overall system of desert societies, the relationship between the claim area and the two vast and ancient trade routes, and the limited resources, being the hardwoods, of the claim area and the likelihood of them being exploited for trade.
Barker J at [115] agreed with those conclusions.
114 As to the that proposition, Dowsett J said at [16]:
As I understand the law, it is not a sufficient basis for such an inference that the claim group claims to "own" the claim area, and that which is on or under it. On the other hand, the claim group need not prove a specific canon of traditional law and custom, dealing expressly with taking resources for commercial purposes. In effect the claim group must show that had the question of taking for commercial purposes arisen at any relevant time, traditional law and custom would have permitted the claim group to act in the relevant way.
115 Having reviewed the evidence, his Honour concluded at [44] that:
Given the history of trade in the wider Western Desert area, one must ask why the resources of the claim area, such as they were and are, would not have been used for trade or commercial purposes. There is no obvious answer to that question. It is more likely that the absence of evidence of trade in resources from this area is attributable to the lack of resources than to any limitation upon the general right to take and use them. The claim to be entitled to take resources from the claim area should not be seen as a claim to lesser rights and interests than those exercised in other parts of the Western Desert by the larger group of which the claim group is part. In my view the primary Judge's conclusion was correct.
116 That conclusion is also reflected in Jagot J's conclusion at [113].
117 In short, in Pilki FC Dowsett J considered that there was evidence to support the finding of use of resources, that the Pilki People (like others) were "opportunistic exploiters" of what was available to them, and there was nothing to suggest that, in their traditional laws and customs, there was any distinction drawn about the use of land for one or other purposes, in particular to exclude other than commercial purposes.
118 Barker J in Pilki FC took a somewhat different approach in his consideration of the appeal. Having regard to ss 223(1) and 225 of the NTA, to their origin in the judgment of Brennan J in Mabo No 2 at 59-60 and 70, and to the plurality judgment in Ward HC at [89]-[93] and to the joint judgment in Yorta Yorta at [40], he said that the finding that native title rights and interests are exclusive will not generally satisfactorily elucidate the particular rights and interests which are possessed by the relevant Aboriginal people. He concluded at [154], consistently with what is said earlier in these reasons and in other decisions, that the question in any case as to what rights should be determined under the NTA ultimately is an evidentiary one.
119 As to the right to access and take resources, his Honour noted the finding of Finn J in Akiba SJ at [847], and the rejection by Finn J of the submission at [751]-[752] that such a right could only be determined if the claimants established exclusive native title rights (which they did not assert in that case). Reflecting the general conclusion referred to in the preceding paragraph of these reasons that the issue is an evidentiary one, his Honour said at [150] that:
The point ultimately is that, in Akiba TJ, the trial judge found that there was, on the evidence of the claimants' traditional laws and customs led before him, an unrestricted right to use resources. The question of the purposes for which resources were to be used was irrelevant to the existence of that right.
120 His Honour also noted that that understanding was accepted when the matter subsequently went on appeal to the High Court in Akiba HC.
121 Barker J further noted that French CJ and Crennan J at [21] said in Akiba HC that the right may be exercised for commercial or non-commercial purposes and that "[t]he right is one thing; the exercise of it for a particular purpose is another" with the rider:
That proposition does not exclude the possibility that a native title right or interest arising under a particular set of traditional laws and customs might be defined by reference to its exercise for a limited purpose. That is not this case. The right defined by … the Determination, which, save for the extinguishment question, was not in dispute, was a right "to take for any purpose resources in the native title areas".
Reference was also made to the judgment of the plurality (Hayne, Kiefel and Bell JJ) in Akiba HC at [66]-[68] to the same effect.
122 The subsequent analysis by Barker J of the reasons of the primary judge in Pilki SJ, and of the evidence, led his Honour to observe at [169] that ordinarily evidence of the exercise of a right between sovereignty (or the early European presence) and the present would be adduced. He added at [170]:
While it might, at least in theory, be possible for a court to be satisfied that the particular right contended for is proved without any such activity evidence, it must be said that, without any evidence of the exercise of a right, a court would ordinarily be reluctant to find that the right exists. It is one thing for claimants to say that, under their laws and customs, they own everything on, under and above their traditional country, and that their "ownership" rights include the right to take any resources and use them as they wish, and another thing to support what might otherwise be at risk of being untreated as a mere assertion with corroborating evidence. While it may be said that the failure to adduce activity evidence in many, if not most cases, is likely to prove fatal to claimants' contentions that they possess certain rights, it should also be said that each case will ultimately depend on the nature and quality - relevance and probative value - of the evidence led.
123 Thus, as he said, it is a matter of careful consideration of the evidence in a particular case. The mere assertion of "ownership" or that the land "belongs" to a particular group is but a beginning to the inquiry as to the nature of the traditional rights and interests: per Barker J in Pilki FC at [183]. Then, his analysis of the evidence was found to support the conclusion of the primary judge at [212], although taken alone the evidence of the four Aboriginal witnesses would not have satisfied his Honour of that conclusion.
124 In Akiba SJ, because the claim area was seaward of the high water mark, it was accepted that any native title rights and interests were non-exclusive.
125 As in these two applications, the claimed rights were broadly framed to include rights to access the resources and to take the resources of the sea: Akiba SJ at [512]; and to a livelihood based upon accessing and taking resources: at [522]. The evidence referred to at [523]-[524] shows that taking was subject to the injunction against waste and to conserve resources for the next generation, and in some instances the manner of taking.
126 Finn J at [526] observed that taking the resources of the sea, and using them in trade, has a long and well chronicled history, so the fundamental resource-related right of use was the right to take, and the use of what was taken was unconstrained, except by internal communal rules: at [529]. His Honour found that there was a native title right to access and take marine resources, not circumscribed by the use to be made of the resource taken. That was so, even though it was accepted at [847] that, where the taking is for a discrete purpose, the activity may be treated as a distinct incident of the right for extinguishment purposes: at [847].
127 In Akiba SJ, it was held that that native title right had not been extinguished by the relevant fisheries legistration of Queensland. That was the principal focus of the decision in Akiba HC. In the course of its consideration of that issue, Hayne, Kiefel and Bell J at [66] remarked:
The relevant native title right that was found to exist was a right to access and to take resources for sale or trade as an incident of the right that had been identified. The purpose which the holder of that right may have had for exercising the right on a particular occasion was not an incident of the right; it was simply a circumstance attending its exercise.
French CJ and Crennan J at [21] made observations to the same general effect.
128 The consideration of the authorities to which the Court was referred leads to the conclusion that the nature and extent of the native title rights and interests is to be determined upon the careful consideration of the whole of the evidence.
129 It is to that task that the Court now turns. It may be desirable to refer back to those decisions, or some of them, depending upon the findings which are made.
130 To inform that process, it is noted that the Territory and the Commonwealth say that the decision in Pilki FC, on the facts, was made in the context of the right to take resources for personal or communal purposes having been acknowledged (as here) and the anthropological evidence of trading in resources was uncontradicted. The Court has already remarked upon that feature, compared to the present circumstances.
131 It is also said by the Territory and the Commonwealth that the mere assertion of a right to take resources for any purposes, of itself, is not sufficient to conclude that the claimed right existed "where there was no supporting evidence of the custom or activity which gave rise to the right". That it is necessary to show a traditional right to take resources is not contentious. The evidence of the exercise of such a right may inform the answer to that question. Expert evidence may also inform the answer to that question (as was the case in Pilki SJ and in Pilki FC). Ultimately, and in my view uncontentiously, it is said that each case will depend on the nature and quality of the evidence adduced.
132 I do not think that the decisions in Akiba SJ or in Lardil v Queensland [2004] FCA 298 (Lardil) in themselves take the evidentiary challenge confronting the applicants on these applications any further.
133 Akiba SJ clearly resulted from findings of fact in quite different circumstances, including "activity evidence".
134 Lardil was a decision finding a right to take resources was confined, so as to exclude doing so for commercial purposes, notwithstanding evidence of "ownership" of the seas and the sea resources. Again, the focus was on what the evidence in that case showed, or did not show. Cooper J at [180]-[181] said that the evidence showed the right to take resources from the sea was confined to taking only that which was sufficient to satisfy immediate needs, and that there was no evidence of a traditional right to take and use those resources "for organized trade or commercial exploitation". It is, of course, clear from the references above that constraints upon the taking of resources having regard to preservation of the resources or, depending upon their significance, requiring specific approval to do so, or cultural restrictions on the manner of taking resources, do not routinely or necessarily mean that the right to take resources is confined to doing so for domestic or personal non-commercial use: see Akiba SJ at [523]-[524] and [529].
135 Nor do I accept that observations of Gummow J in Yanner v Eaton (1999) 201 CLR 351 at [72] or of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta at [47]-[50] or [75]-[77] further inform the nature of the factual inquiry. At [84] of that judgment, their Honours said:
First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.
136 In my view, that statement - made in the context of addressing whether there had been an interruption in the use or enjoyment of native title rights and interests - also does not require any different approach.