Rubibi Community v State of Western Australia [2006] FCA 459 | Case summary

The Walman Yawuru claim 13 The Walman Yawuru claimants contended that, as a result of the recognition (at [233] and [375] in Rubibi No 5)that clan members, including Walman Yawuru clan members, have special attachments to specific areas, they are entitled under s 225(c) of the NTA to have that attachment recognised in the determination as an 'other interest' in relation to the determination area. At [9] of Rubibi No 6,I concluded that any special attachment of Walman Yawuru clan members to parts of the claim area is not such as to give rise to a native title right or interest. The difficulty that confronts the Walman Yawuru contention is that s 253 defines an 'interest' in relation to land or waters as meaning, inter alia, a legal or equitable estate, interest or right in, or a restriction on use in respect of, the land or waters. The special attachment of Walman Yawuru clan members is not, and does not give rise to, an interest as defined. The only 'rights' or 'interests' the Walman Yawuru clan members may have in relation to the Yawuru claim area are those held in any capacity they may have as members of the Yawuru community. Those rights and interests are the native title rights and interests that are to be set out in the determination pursuant to s 225(b) and are not 'other interests' that are required to be set out in the determination pursuant to s 225(c). 14 The Walman Yawuru claimants also issued a proceeding in the Court on 16 December 2004 (WAD 285/2004) in which an overlapping claim was made for native title in respect of the Walman Yawuru claim area, which is within the Yawuru claim area. Section 67 of the NTA requires the Court to deal with the overlapping claim in the present proceeding. It was not disputed by the representative of the Walman Yawuru claimants that, as a result of the decisions in Rubibi No 5 and Rubibi No 6, the overlapping claim of the Walman Yawuru claimants must fail. Accordingly, it is appropriate to order that the proceeding of the Walman Yawuru claimants be dismissed. Extinguishment in respect of P. maxima (Issue 31) 15 WAFIC submitted, 'as a matter of formality', that all native title rights to take and use P. maxima (a species of pearl oyster) have been extinguished by the enactment of the Pearling Act 1990 (WA) and the legislative predecessors to that Act (particularly the Pearling Act 1912 (WA)). The reason for the 'formal' submission was that WAFIC accepted that in Sampi (on behalf of the Bardi and Jawi People) v Western Australia [2005] FCA 777 ('Sampi') at [1146]-[1147], French J had rejected the same submission. WAFIC also accepted that the decision of French J would be followed by other single judges of the Court unless it was shown to be clearly wrong. Although WAFIC wished to preserve the point for any appeal, it did not contend that the decision of French J was clearly wrong. Accordingly, I reject WAFIC's submission for the reasons given by French J in Sampi, with which I respectfully agree. Description of the native title holders 16 Several issues arose concerning the description of the native title holders. In accordance with the evidence concerning the traditional laws and customs acknowledged and observed by the Yawuru community, and the findings in Rubibi No 5 and Rubibi No 6, I am satisfied that: (a) Lulu should not be named as one of the apical ancestors; (b) (i) membership of the native title holding community in the case of a descendant of an apical ancestor does not require the criteria of self-identification or general community acceptance to be satisfied where both parents of the descendant are Yawuru; (ii) where only one parent of a descendant is Yawuru, the criterion of self-identification must be satisfied; and (c) persons who are not descendants of an apical ancestor may nonetheless be members of the native title holding community if they were adopted as children or grown up by a Yawuru person as a member of the Yawuru community, or are persons who were born in or have a long term physical association with the Yawuru claim area and have cultural responsibilities in relation to that area, provided that the criteria of self-identification and general community acceptance are satisfied. 17 The Walman Yawuru representative made certain criticisms of the criteria in (b) and (c) above. In particular, it was contended that the criterion of general community acceptance should apply where there was only one Yawuru parent. The criterion of general community acceptance referred to in par (c) above is based on the findings and observations I made concerning that matter at [291] and [348] in Rubibi 5 and at [104] and [105] in Rubibi 6. I have been troubled by whether that criterion should also apply to the situation of a descendant who has only one Yawuru parent but have decided, primarily on the basis of the evidence referred at [105] in Rubibi No 6, that that criterion is not required by traditional law and custom. However, it should be emphasised that in order for self-identification to be genuine, something more is required than an announcement on a particular day that a person identifies himself or herself as a member of the Yawuru community. The genuineness of self-identification is to be determined by reference to all relevant facts, which can include past conduct in relation to self-identification. In all the circumstances, I am not satisfied that traditional law and custom requires that the additional criterion of general community acceptance must be satisfied in the case of a descendant who only has one Yawuru parent. 18 The Walman Yawuru representative also claimed that the evidence did not justify incorporation into the Yawuru community of a person having high cultural knowledge and responsibilities. In my view, the evidence does justify such a principle, albeit that it will only be activated rarely. It is to be recalled that it can only operate where the person in question is closely associated with the area, has the requisite knowledge and responsibilities, has self-identified as a member of the community and is generally accepted by other members of the community as a Yawuru person. 'Class N' freehold areas (Issue 4) 19 These areas were the subject of 140 freehold grants in the Broome area made after 1 January 1994. If the grants are valid they extinguish native title. It appeared to be common ground that the freehold grants were future acts under the NTA and that the future act processes that were applicable at the time of the grants were not followed. It is also common ground that the grants were not validated by subsequent amendments to the NTA. 20 Section 22 of the NTA as originally enacted (cf s 240A of the current NTA) provided that an impermissible future act is invalid to the extent that it 'affects native title'. Section 227 of the NTA as originally enacted provided that an act affects native title if it extinguishes native title rights and interests, or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. The freehold grants were future acts that were not validated by any provision of the NTA, with the result that they were impermissible future acts under the NTA as originally enacted and appear to be invalid to the extent that they affect native title: see Neowarra v State of Western Australia [2003] FCA 1402 ('Neowarra')at [586]. While it can be accepted that the freehold grants are valid insofar as they do not affect native title, they cannot have any extinguishing effect or confer rights that are inconsistent with the native title rights and interests I have found to exist. However, as a result of my finding later in these reasons that reserve 631 (which included 139 of the relevant freehold areas) was validly created, the native title rights and interests in respect of 139 of the relevant freeholds are not exclusive rights. It also appears that the remaining freehold lot was subject to a similar prior tenure or reserve. Accordingly, such of the rights and interests of the freehold owners as are not inconsistent with the rights and interests of the native title holders can co-exist with those native title rights and interests. 21 The State argued that, as the freehold grants were valid for some purposes, s 47B could not apply to the grants. I doubt that the argument is correct but nothing turns on it because, as explained above, the freehold grants appear to have had no extinguishing effect on native title with the consequence that there was no extinguishment to be disregarded under s 47B. In any event, no relevant occupation was established for the purposes of s 47B so the section would not apply to the areas covered by the 140 freehold grants. 22 The Commonwealth made submissions on this issue because two of the 140 freeholds in question are held by the Aboriginal and Torres Strait Islander Commission. In the course of the Commonwealth's submissions, it became apparent that the 140 freehold grants were in the Cable Beach area and probably had houses constructed upon them by the freehold grantees, or by purchasers from those grantees, who had not been informed of these proceedings or of the likelihood that their rights were subject to the rights and interests of the native title holders. This extraordinary situation apparently came about because the Western Australian statutory regime relied upon by the State (to ensure that freeholds granted by it after 1 January 1994 prevailed over native title) was held by the High Court in State of Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 ('the Native Title Act Case') to be invalid. Plainly, the situation is one that will have to be resolved between owners of the freeholds, the State and the native title holders. One likely method of resolution is an indigenous land use agreement under which the native title holders may relinquish their native title rights and interests on appropriate terms. 23 When this issue arose at the hearing, I expressed grave concern at how the matter had arrived at this stage without the freehold grantees or their purchasers having notice of the likelihood that the freehold grants are invalid to the extent that they affect native title. The Commonwealth's response to my concern appears to provide the answer which is that, properly construed, the relevant application of the Yawuru claimants did not claim the areas in respect of which the freehold grants were made. If that contention is correct that would preclude the Court from making a determination of native title in respect of the relevant areas but it will not make the problem disappear. As against the State I have found that, subject to extinguishment, native title exists throughout the Yawuru claim area. Even if the 140 lots do not technically fall within that area they are not relevantly distinguishable from the surrounding areas in which native title has been found to exist. It must follow that the problem created by the State by its 140 freehold grants, which were not validated by the NTA, will still have to be resolved by the relevant parties. 24 I now turn to consider whether the 140 lots fall within the Yawuru claim area. The relevant application (#WN95/7) which was filed on 11 January 1995 was known, prior to the consolidation of the various applications, as Rubibi # 5. The application was lodged with the Native Title Tribunal on 11 January 1995, which was prior to the decision in the Native Title Act Case. After certain amendments, which were made during January 1995, the application was accepted by the Native Title Tribunal. The application was in the form prescribed by Sch 1 of the NTA which, relevantly, provided for a description and a map of the area covered by the application and for the applicants to set out the information known to them about other interests in relation to the land and waters in the claim area: see pars A6 and A7 of the prescribed form. Paragraph A6 of the amended application stated that the area covered by the application was the land indicated on the attached map. It added that: 'The land claimed is in the State of Western Australia in the West Kimberley Region and covers all areas of land, currently designated Vacant Crown Land or Reserve, as fall within the area edged and hatched in heavy black lines on the accompanying map, save and except [certain specified Reserves]. …' (emphasis added) 25 Paragraph A7 stated that the only interests held by persons 'in the area covered by the application' held by persons other than the applicants are 'various reserves'. Paragraph A7 followed a standard form and stated, inter alia, that any current or former valid grants of estates in fee simple or leasehold estates to persons other than the Crown which, under the laws of the Commonwealth, extinguish native title are excluded from the claim. 26 The attached map showed the designated Crown land or reserves that fell within the claim area. The map also showed residential areas and streets, which included the 140 lots in question, that were within the boundaries of the claim area. 27 In my view, irrespective of whether the application of the Yawuru claimants is construed literally or consistently with the express or implicit intention of the Yawuru claimants, it is clear that they did not claim, or intend to claim, the relevant freehold lots or any other freehold lots in the claim area. The area claimed is confined to areas 'currently designated Vacant Crown Land or Reserve' on the map accompanying the application. While there appears to have been several maps created in respect of the application, each of the maps limits the claim to areas currently designated as vacant Crown land or reserve. There is nothing in the application or the accompanying map or maps that states that any claim to freehold land is being made. I do not accept the contention of the Yawuru claimants that the standard form of exclusion of valid freehold lots that extinguish native title has the consequence of some kind of implicit inclusion in the claim of invalid freehold grants that do not extinguish native title. 28 Plainly, the explanation for no claim being made for freehold land was that at the time the application was made (ie prior to the decision in the Native Title Act Case), there was probably no expectation that such claims could be made and no intention that such a claim be made. If there had been such a claim, the other interests required to be set out in par A7 could be expected to have included information about the freehold interests that obviously fell within the outer boundaries of the land covered by the claim. No such interests were disclosed. 29 The above is sufficient to lead me to conclude that the Class N freehold areas were not claimed by the Yawuru claimants and therefore cannot be the subject of the native title determination in the present matter. Whether certain licences create a right to a freehold grant (Issue 24) 30 The issue is whether the grants of certain freeholds after 1 January 1994 are past acts pursuant to s 228(3)(b)(i) of the NTA. Section 19 of the NTA states that a law of the State or Territory may provide that past acts attributable to the State are valid. It is not in dispute that the State Validation Act was enacted pursuant to s 19 of the NTA and thereby incorporated the relevant provisions of the NTA concerning past acts. One of the kinds of acts validated are category A past acts, which wholly extinguish native title. By s 229, a category A past act includes a freehold grant made after 1 January 1994 to which s 228(3), which is stated by s 229 to deal with such things as the exercise of options, applies. Section 228(3)(b)(i) provides for a past act to take place when the act (ie the grant of the freehold) takes place 'in exercise of a legally enforceable right created by…[an] act done before 1 January 1994'. An act is defined in s 226(2)(f) as including 'an act having any effect at common law or in equity'. 31 Section 45B of the Land Act 1933 (WA) ('the LA') at the relevant time empowered the Minister to invite applications for the purchase of town and suburban land by advertisement. Section 43 of the LA empowered the Minister to grant licences to occupy to a purchaser of town or suburban land on payment of the first instalment of the purchase price. Prior to 1 January 1994, the State granted certain licences to occupy under s 43 of the LA to persons whose applications under s 45B to purchase land had been accepted. The Crown grants of the land were made to each of the purchasers (who had been granted a licence to occupy) after 1 January 1994 pursuant to s 41(4) of the LA. Under the licence, and the relevant provisions of the LA, each of the holders of the licences was entitled to the Crown grant upon payment of the purchase price, which the purchasers were obliged to pay. The entitlement was subject to any other conditions being satisfied but there is no evidence of any such conditions. 32 The State contends that the licences to occupy created a legally enforceable right to the grant of the freehold title, which crystallised into a presently enforceable right when the purchase price was paid or tendered for payment. 33 The licence to occupy granted under s 43 of the LA is not, relevantly, distinguishable from a terms contract under which a purchaser is entitled to possession prior to payment of the purchase price. The licence is expressed to be subject to the terms specified in it and also to the terms and conditions of the LA. The terms specified in the licence included a requirement to pay the balance of the purchase price and the LA provided for a Crown grant to be made to the purchaser when the purchase price was paid and any other conditions were satisfied. If, as is apparent from s 229(2)(iii), the legislature intended an option to purchase created prior to 1 January 1994 to be a legally enforceable right to acquire land, it must follow that a contract to purchase was also intended to constitute a legally enforceable right to acquire land. 34 In my view, the licences to occupy granted under, and in the context of, the relevant provisions of the LA created a legally enforceable right, albeit in equity, to the freehold grant. Put simply, the act that created the legally enforceable right to the freehold grant was the purchase made prior to 1 January 1994 (evidenced inter alia by the licence to occupy), rather than the payment of the purchase price after 1 January 1994. The payment of the price and the satisfaction of any other relevant conditions merely resulted in the prior legally enforceable right crystallising into a presently enforceable right. 35 Accordingly, the licences to occupy are past acts pursuant to s 228(3)(b)(i) of the NTA, and the freehold grants made after 1 January 1994 pursuant to the licences granted prior to that date, are therefore valid. Reserves 631, 1637, 1640 and 1644 (Issue 28) 36 The Yawuru claimants contended, and the State disputed, that reserves 631, 1637, 1640 and 1644 were invalidly created. The parties accepted that the issue of invalidity in respect of each of the reserves may be resolved by considering the creation of reserve 631, which covers a large part of the township of Broome. The parties accepted that that if reserve 631 was validly created, it would follow that the three other reserves were also validly created because all were created for 'public purposes' under substantially the same statutory scheme. 37 Reserve 631 was created pursuant to reg 29 of the Land Regulations 1882 (WA). Regulation 29 provided: 'The Governor is hereby authorised, subject to such conditions and limitations as he may think fit, to except from sale, and either to reserve to Her Majesty, her heirs and successors, or to dispose of in such other manner as for the public interest may seem best, such lands, whether surveyed or not, as may be required for the following objects and purposes: 1. For the use or benefit of the aboriginal inhabitants. 2. Military or naval defence. 3. Railways, tramways, and canals. 4. Quays, landing places, and ferries. 5. Sites for churches and chapels, with not exceeding 100 acres of glebe land attached, and sites for parsonages. 6. Sites for schools and other buildings for the purposes of education, and land for the endowment of schools and other educational institutions of a public character. 7. Sites for mechanics' institutes, hospitals, and institutions for charitable purposes, markets, court-houses, prisons, or other edifices for public use or purposes for the Colony, or any borough or road board. 8. Cemeteries. 9. Places necessary for the embellishment of towns, or for the health, recreation, or amusement of the inhabitants. 10. For the endowment of municipal corporations within the Colony. 11. For sinking shafts and digging for coal, iron, copper, lead, or other minerals and metals. 12. Resting places and commonage for horses, cattle and sheep. 13. Any purpose of safety, public utility, convenience, or enjoyment, or for otherwise facilitating the improvement and settlement of the Colony.' 38 Regulation 30 provided: 'A full and complete description of every such reserve, and of the purposes for which it is made, shall, so soon as possible, be published in the Government Gazette, and set forth on the authenticated maps in the Lands Office.' 39 In the Government Gazette dated 27 November 1883, a notice was published that the Governor had set aside as 'Public Reserves, the land described in the Schedule below, for the purposes there set forth'. The lands described in the Schedule were to be set aside as reserve 631. The purpose for which the reservation was made was described in the Government Gazette as: 'For public purposes, adjoining Broome, Roebuck Bay.' 40 Because there is no evidence of the creation of the reserve apart from the notice published in the Government Gazette, the Yawuru claimants contended that the published purpose should be accepted as a full and complete description of the purpose of the reserve. Having regard to reg 30 and the presumption of regularity, that contention should be accepted. The Yawuru claimants then claimed that, because 'public purposes' was not a purpose specified in reg 29, the reserve was not validly created. 41 The law applicable to a challenge to the validity of a regulation made in the exercise of a statutory power to make regulations would appear to be applicable to the analogous exercise of a power to reserve land for certain purposes under a regulation that provides for the exercise of that power. In South Australia v Tanner (1989) 166 CLR 161 at 178-9, Brennan J stated that, as the validity of a regulation depends on whether it answers the statutory description, the problem is one of characterisation. His Honour explained that the character of the regulation is ascertained by the court's own assessment of the directness and substantiability of the connection between the likely operation of the regulation and the statutory object to be served. Wilson, Dawson, Toohey and Gaudron JJ stated (at 165): '… there must be conceded a broad, rather than a narrow, approach in determining the nexus between the exercise of the power and the achievement of the purpose for which it is conferred.' and (at 168): 'In the course of argument the parties accepted the reasonable proportionality test of validity (cf. Deane J. in The Commonwealth v Tasmania (the Tasmanian Dam Case); namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose.' (footnote omitted) 42 Regulation 29(13) is in the broadest of terms and extends to any purpose of public 'utility' or of 'otherwise facilitating the improvement and settlement of the Colony'. In my view, 'public purposes - adjoining Broome, Roebuck Bay' is plainly capable of being considered reasonably proportionate to the pursuit of the enabling purpose and therefore falls within reg 29(13). It is a purpose that is implicitly, if not explicitly, associated with the development of the Broome township and, as such, is both directly and substantially connected to being a purpose of public 'utility' and is also capable of being characterised as a purpose facilitating the improvement and settlement of Broome in the Colony of Western Australia. 43 It can be accepted that the phrase 'public purposes' has a broad meaning. In Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 ('Bathurst') at 590 [58] Gaudron, McHugh, Gummow, Hayne and Callinan JJ stated that the phrase 'public purposes' connotes 'the giving to the public of some rights in the land which subtract from the Crown's full ownership'. Their Honours stated at 591 [62]: 'the meaning of "public purposes" depends in part upon the scope and purposes of the particular legislation…' 44 Further, in the majority judgment in Western Australia v Ward (2002) 213 CLR 1 ('Ward HC') at 137-138 [218]-[219], their Honours observed: '218. Reservation of land under the relevant Western Australian provisions inhibited the Crown's future action in relation to that land. The inhibition, however, was not, and could not be, absolute. As Windeyer J pointed out in Randwick Corporation v Rutledge, even if land were dedicated to a public purpose, it did not take the land outside the authority of the legislature. Moreover, under the Western Australian statutes, reserves, other than those dealt with by the Permanent Reserves Act 1899(WA) and its legislative successor, could be cancelled or the purpose of the reservation altered by executive act. Even permanent reserves could be cancelled or the purpose of the reservation altered by statute. Further, as had been held in Williams v Attorney-General for New South Wales('the Government House Case'), the Crown appropriating lands to a particular purpose, without the creation of a trust, did not mean that the land became dedicated to that purpose, or that it could not later be used by the Crown for some other purpose. 219. Nevertheless, by designating land as a reserve for a public purpose, even a purpose as broadly described as 'public utility', the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.' (footnotes omitted) 45 Although their Honours were not determining the precise legal consequences of a reservation of land for public purposes, there is nothing in the above passages that suggests that there is any particular difficulty with such a reservation. 46 For the above reasons, I am satisfied that reserve 631 was created for one of the purposes specified in reg 29 (13) and was validly created. 47 Reserves 1637, 1640 and 1644 were created for 'public purposes' under the Land Regulations 1887 (WA), which were not relevantly distinguishable from the Land Regulations 1882 (WA), save that the later regulations assumed that reserves could be created for 'public purposes': see regs 2 and 36 (which defined 'public purposes'). Thus, if there is any distinction to be drawn between the two sets of regulations, it is one that provides added support to the State's argument in favour of the valid creation of the relevant reserves. As it was accepted by the parties that the finding in respect of reserve 631 would determine the issue of validity in respect of all four of these reserves, I need not pursue this aspect of the matter further. It follows that reserves 1637, 1640 and 1644 were also validly created. Special lease over reserved land (Issue 29) 48 On 1 April 1930, a special lease was purportedly granted under s 153 of the Land Act 1898 (WA) ('the LA 1898') over Broome Lot 622 (which comprises all of area 2733). The lease, which was for a term of five years commencing on 1 April 1930, was for the purpose of 'a foreshore camp, store site and repairing boats'. 49 At the date of the lease, the area leased was reserved land under the LA 1898. Part III of the LA 1898 (ss 39-46) applied to reserves. Section 39 conferred power on the Governor to reserve any lands vested in the Crown for certain purposes. Section 41A conferred power on the Governor to lease reserved land not immediately required for the reserved purpose from 'year to year, or for any shorter term, for any purpose' on such terms and conditions as the Governor may think fit. Section 42 empowered the Governor by Order in Council to vest reserved land in certain persons and granted power to those persons to lease the land on the terms set out in the section. 50 Part IV of the LA 1898 (ss 47-52) provides for the sale of town, suburban and village lands. Part XII of the LA 1898 (ss 134-161) contains miscellaneous provisions, which include ss 152 and 153. Section 152 empowers the Governor to grant leases of land vested in the Crown for certain specified purposes. Section 153 conferred a general power on the Governor to 'lease any town, suburban or village lands on such terms as he may think fit'. 51 It is common ground that the special lease granted on 1 April 1930 was not a lease that was capable of being granted under ss 41A, 42 or 152 of the LA 1898. The issue is whether s 153 empowered the Governor to lease land that has been reserved under Pt III. 52 Each part of the LA 1898 contained discrete provisions for lands in Western Australia, save for Pts I and XII which contained 'Introductory and General Provisions' and 'Miscellaneous Provisions' respectively. The structure of the LA 1898 suggests that the legislature intended to provide for the creation of reserves and any transactions concerning reserves in Pt III. The general structure of the LA 1898, together with the comprehensive and detailed provisions contained in Pt III in relation to reserves, indicate that the legislature intended that Pt III constitute a code in respect of the creation of reserves and transactions, such as leases, in respect of reserved land. For example, Pt III specifically empowers the leasing of reserved land but only upon particular terms, in specified circumstances or for limited purposes. If s 153 were to be construed as empowering the Governor to lease reserved land without any of the fetters imposed upon the leasing of that land by Pt III, the section would render nugatory the detailed restrictions imposed in Pt III on the leasing of such land. Such a lease could be for purposes that are inconsistent with the reserved purpose, for purposes that are not specified purposes in s 42 or for a term beyond that provided for in s 41A. It is implicit, if not explicit, in the statutory scheme for the leasing of reserved land that the lease must comply with the provisions of Pt III. Put another way, the leasing power conferred in respect of reserved land is set out in Pt III. It follows that s 153 only empowers the Governor to lease town, suburban or village lands that are not reserved lands under Pt III. 53 Accordingly, the Governor did not have the power under s 153 to grant a special lease of Lot 622 on 1 April 1930 and the special lease granted on that date was invalid. Gaol and police station reserves (Issue 44A) 54 The land on which the Broome gaol and police station have been constructed was validly reserved for those purposes. However, part of the reserved land has not yet had any construction take place upon it. The State relied upon Ward HC at 136 [215] to contend that, by reserving land for the purposes of a gaol and police station, and then erecting a gaol and police station on part of the reserved land, the State has asserted rights over the whole of the land that are inconsistent with the native title rights and interests of the Yawuru community. The issue raised by the State is whether the construction of the gaol and the police station on the parcels of land reserved for those purposes has extinguished native title rights and interests in relation to the whole of the respective reserves. 55 The Yawuru claimants did not contest the extinguishment claimed in respect of the areas on which the gaol and the police station have been constructed. As I later explain, it is common ground that extinguishment has occurred in any event in respect of those areas because the gaol and police station are public works. The contest relates to the vacant land in the reserves that has not yet been used for the purposes of a gaol or police station. Although a similar issue was considered in Daniel v State of Western Australia [2003] FCA 666 ('Daniel') at [688] and [698], the question of whether the assertion of the right to build a gaol or a prison on part of the reserved land extinguished inconsistent native title rights over the whole of the reserved land was not considered in Daniel or Ward HC. 56 In Ward HC, the question of extinguishment in respect of a reserve was carefully considered in the majority judgment at 137-142: '214. It is important to recall that the ultimate question is whether, by the steps that were taken, the Crown created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests over the land. It was submitted that the features of the statutory regulation of public reserves which we have mentioned indicated that reservation, even without vesting, amounted to dedication to the purpose specified in the instrument of reservation in the sense, so it was submitted, that reservation prevented the Crown from applying the land to some other purpose and created some right in members of the public generally or a section of the public. 215. The reference by Brennan J, in the passage of his reasons in Mabo [No 2] that is set out earlier, to use of the land that is reserved, may distract attention from the relevant inquiries. They are, as we have said, whether rights have been created in others that are rights inconsistent with native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. Use of the land may suggest, it may even demonstrate, that such rights have been created or asserted, but the basic inquiry is about inconsistency of rights, not inconsistency of use. Further, as has already been pointed out, it is often necessary to examine inconsistency by reference to the particular native title right and interest concerned. … 219. Nevertheless, by designating land as a reserve for a public purpose, even a purpose as broadly described as 'public utility', the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation. 220. The reason that the right to use the land may have survived reservation is the same reason that the grant of a pastoral lease extinguished the right to control access to the land, but not necessarily all the rights of native title holders to use it in accordance with the rights held under traditional laws or customs. The provisions of the Acts providing a penalty for "unlawful or unauthorised use or occupation" of lands (including "lands reserved for or dedicated to any public purpose") did not, on their proper construction, prohibit use or occupation by native title holders. It is, therefore, not right to say, as a proposition of universal application, as Western Australia submitted, that reserved lands could not lawfully be used except for the reserved purpose. The facts that the 1905 amendments to the Land Act 1898permitted leasing of reserves not immediately required for their purpose or that in 1960 the Land Act 1933was amended to permit leasing or licensing of certain kinds of reserve for depasturing stock require no different conclusion. Whether a right in native title holders to use the land continued unextinguished depends upon other considerations, particularly what, if any, rights in others were created by the reservation or later asserted by the executive. 221. The designation of land as a reserve for certain purposes did not, without more, create any right in the public or any section of the public which, by reason of inconsistency and apart from the State Validation Act, extinguished native title rights and interests. … 233. The majority of the Full Court treated the use that had been made of reserved land, even land that had been vested in a body or person, as determining whether native title had been extinguished. So, for example, it was held in relation to Reserve 1059 (a reserve which had been created in 1886 for "public utility" but had not been vested in any body or person) that "[t]he general use of the area for watering cattle, and as a pastoral lease destroyed the exclusivity of native title rights". Their Honours went on to say that "[t]he close use" of the area of Reserve 1059 which now forms part of another reserve "would have wholly extinguished native title in that area". Similarly, in the case of reserves vested in a body, their Honours looked to the use that had been made of the land. 234. As we have said earlier, we consider that looking to the use that has actually been made of land distracts attention from the central inquiry which is an inquiry about rights created in others or asserted by the executive, not the way in which they may have been exercised at any time. Neither the Full Court nor the primary judge considered that central inquiry.' 57 The above passages provide the answer to the State's submission. By creating the reserves for a gaol and a police station, the executive did not create rights in others. Rather, the executive asserted its right to say how the land could be used and the assertion of that right extinguished any native title right to control or say how the land could or could not be used. However, that was not necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation. 58 There remains the question of whether, by constructing a gaol and a police station on the reserves, the Crown 'created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests over the land': see [214] in Ward HC. In my view, the exercise of the right to construct a gaol or police station on part only of the reserved land is not necessarily inconsistent with native title rights and interests in the remaining part of the reserved land if that part of the reserve is not reasonably necessary for, or incidental to, the operation or enjoyment of the gaol or police station: cf De Rose v South Australia (No 2) (2005) 145 FCR 290 ('De Rose No 2') at 332 [152] and 335 [166]. In De Rose No 2, that formulation was applied in respect of the extinguishment that occurred upon the exercise by the lessee of the lessee's right under a pastoral lease to construct improvements. In the present context, the exercise of the right to construct an improvement on a reserve in pursuance of the reserved purpose is analogous to the exercise of the right to construct an improvement under a pastoral lease. Accordingly, it is appropriate to apply the same criterion. As that criterion is similar to, but not identical with, the criterion that is to be applied to the gaol and police station as public works under s 251D of the NTA, it is appropriate to deal with both criteria in the context of the extinguishment that resulted from the construction of the gaol and the police station as public works. 59 In summary, construction of the gaol and police station on part of the reserves extinguished native title rights and interests in the areas on which the gaol and police station were constructed and on areas adjacent thereto that were reasonably necessary for or incidental to the operation or enjoyment of the gaol or police station. However, the construction did not necessarily extinguish native title rights and interests in respect of the remaining areas of the respective reserves. Mining and pastoral leases (Issues 26 and 27) 60 It was common ground that, as a result of the decision in Ward HC, the grant of valid pastoral or mining leases was inconsistent with, and therefore extinguished, any native title right or interest to exclusive possession of, or to control access to or use of, the areas the subject of the leases. It was also common ground that, as a result of the decision of the Full Court in De Rose No 2 at 329-335 [139]-[165], the exercise by the pastoral lessees of their rights under the leases to construct improvements on the land leased was inconsistent with the continuation of any inconsistent native title rights or interests insofar as they related to the land on which the improvements were constructed and any adjacent land the use of which was reasonably necessary for, or incidental to, the operation or enjoyment of the improvements. 61 The issue on which the Yawuru claimants and the State differed concerned whether the native title right and interest 'to live' on the leased land was inconsistent with the rights conferred by the pastoral or mining leases. The State accepted that I was bound by the decision of the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 ('Alyawarr') at 480-481 [130]-[132] to find that the native title right to live on a pastoral lease is not inconsistent with the rights of the lessee under the lease. In Alyawarr, the Full Court stated at 481 [131]-[133]: '131. The pastoral leases which have affected the claim area in the present case are historical grants. The relevant extinguishment of native title rights and interests derives only from inconsistency with the rights historically conferred by those leases. No question of prospective activity under a subsisting pastoral lease arises. Consistently with what was said by Nicholson J in Daniel (No 2) and Sundberg J in Neowarra, the right to 'live' on the land can be interpreted as a right to live permanently on the land without any conflict with pastoral leaseholders' rights. That right does not necessarily involve permanent settlement at a particular place. The issue therefore reduces to the question whether a native title right of permanent settlement is inconsistent with a pastoral leaseholder's rights. There is no logical reason why it must be so. Just as the right to live permanently on the land does not necessarily give rise to inconsistency with the pastoral leaseholder's rights, neither does the right to erect a permanent structure. The existence of such a structure does not preclude a pastoralist's right to require its removal in the event that it conflicts with a proposed exercise by the pastoralist of a right under the lease. It is not inevitable that such a conflict will arise. 132. The inconsistency posited by the Northern Territory in respect of the grant of historical pastoral leases long expired, is based on a theoretical conflict which would not inevitably have occurred. No inconsistency of rights giving rise to extinguishment of the native title right to live on the land and to erect permanent structures thereon is demonstrated. The concept of "permanency" referred to here is, in any event, a relative one. 133. The right defined in par 3(b) to live on the land, to camp, to erect shelters and other structures, and to travel over and visit any part of the land and waters, should stand.' 62 Accordingly, subject to the outcome of any appeal in Alyawarr, the State accepts that the determination proposed by the Yawuru claimants, which includes a native title right to live in the areas covered by pastoral leases, should stand. 63 However, the State contended for a different outcome in respect of areas covered by mining leases issued under the Mining Act 1978 (WA) ('the MA'). The State relied upon the extensive rights conferred under s 85 of the MA to use, occupy and enjoy the land in respect of which the mining lease was granted. The rights included the right to do all things that are necessary to carry out 'mining operations' in, on and under the land. The phrase 'mining operations' is given a wide definition in s 8 of the MA. The State also relied upon the decisions in Neowarra (at [522] and [613]) and Daniel (at [741], [768] and [822]) to contend that any permanent native title right to live on the land in respect of which a mining lease has been granted has been extinguished. 64 The Yawuru claimants disputed the State's contentions. They relied upon a later decision of RD Nicholson J in Daniel v State of Western Australia ([2003] FCA 1425 [23]-[25]) to contend that a mining lease is not relevantly distinguishable from a pastoral lease. Under both leases, so it was argued, a native title right to live on the land the subject of the lease is not inconsistent with the rights of the lessees under the relevant leases although the Yawuru claimants accepted that, upon the exercise of some of the lessee's rights, inconsistent native title rights and interests may be extinguished. 65 The passages relied upon by the parties must now be considered in the light of the Full Court decisions in Alyawarr and De Rose No 2. As was pointed out in Alyawarr, a right to live upon the land does not necessarily involve permanent settlement at a particular place. Thus, even if a permanent structure was erected in pursuance of the right to live upon the land, that 'does not preclude a pastoralist's right to require its removal in the event that it conflicts with a proposed exercise by the pastoralist of a right under the lease': see Alyawarr at [131]. Their Honours added that it 'is not inevitable that such a conflict will arise'. 66 The same reasoning applies to the exercise of the extensive range of rights conferred under a mining lease. A native title right to live on the land leased is not necessarily inconsistent with any of the rights conferred under a mining lease. In the event there is a necessary inconsistency, the lessee's rights will prevail. As is clear from the reasoning in De Rose No 2, if the right under the lease was, for example, to erect improvements necessary for mining operations, the exercise of that right will extinguish any inconsistent native title rights (including the right to live on the land) in respect of the area on which the improvements have been constructed and any adjacent area necessary for their enjoyment. However, it is not suggested that there has been any exercise of rights that are inconsistent with a native title right to live on the areas the subject of the mining leases that are within the Yawuru claim area. 67 Accordingly, I do not accept the State's contention that the rights conferred by the grant of the mining leases under the MA are necessarily inconsistent with, and therefore extinguish, a native title right to live on the leased land. However, the native title right to live on the leased land is qualitatively different from a native title right to live on land in respect of which the holders of the native title right have a right of exclusive possession because, in the latter case, the right of the holder is not subject to the risk of subsequent extinguishment. Sections 47A and 47B (Issues 36 - 41A) 68 Relevantly, ss 47A and 47B of the NTA provide: '47A. (1) This section applies if: (a) a claimant application is made in relation to an area; and (b) when the application is made: (i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and (c) when the application is made, one or more members of the native title claim group occupy the area. Prior extinguishment to be disregarded (2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded: (a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii); (b) the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services). Effect of determination (3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed: (a) the determination does not affect: (i) the validity of the grant or vesting or of the creation of the trust or reservation; or (ii) the validity of the creation of any other prior interest in relation to the area; or (iii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and (b) the non‑extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest. … 47B (1) This section applies if: (a) a claimant application is made in relation to an area; and (b) when the application is made, the area is not: (i) covered by a freehold estate or a lease; or (ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or (iii) subject to a resumption process (see paragraph (5)(b)); and (c) when the application is made, one or more members of the native title claim group occupy the area. Prior extinguishment to be disregarded (2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded. Effect of determination (3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed: (a) the determination does not affect: (i) the validity of the creation of any prior interest in relation to the area; or (ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and (b) the non‑extinguishment principle applies to the creation of any prior interest in relation to the area. …' 69 In Rubibi Community v Western Australia (No 4) (2004) 138 FCR 536, I determined that the date 'when the application is made' is the date of the filing in the Court of the application for native title in respect of 'the area' referred to in ss 47A(1)(c) and 47B(1)(c). Plainly, 'the area' referred to in those sub-sections must be an area within the area the subject of a claimant application. However, as was explained by Sundberg J in Neowarra at [686] and [721], the area need not be the whole of the area claimed as that could lead to clearly unintended consequences in relation to the operation of ss 47A and 47B. Rather, the relevant area is the particular area with which each of the sections is concerned. 70 Textual, contextual and purposive considerations all point to 'the area' that is referred to in s 47A(1)(c) being 'the area' referred to in s 47A(1)(b). That is, 'the area' is the particular area the subject of the defined freehold estate, the defined lease, the defined vesting or the land expressly held or reserved for the benefit of Aboriginal peoples or Torres Strait Islanders. That was the view taken by Sundberg J in Neowarra (at [686]) and, in my view, is clearly correct. Insofar as there may be doubt about that matter, pars 5.45-5.49 of the Explanatory Memorandum for the Native Title Amendment Bill 1997, which inserted ss 47A and 47B, make it clear that the occupation is to be in respect of 'the land' the subject of the past 'land rights type' grant, trust, reservation or other historical act that would otherwise have extinguished native title in relation to that land. It follows that the occupation that must be established for the purposes of s 47A(1)(c) is an occupation in respect of the relevant 'area', that is the whole, rather than merely a part, of the particular area the subject of the freehold estate, lease, vesting etc. 71 The situation under s 47B differs from that under s 47A because s 47B requires that at the date the application is made 'the area' is not covered by a freehold estate, lease, reservation etc. However, as was pointed out by Sundberg J in Neowarra at [721], the relevant area for the purposes of s 47B is 'the particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished'. That construction of s 47B is consistent with par 5.56 of the Explanatory Memorandum for the Native Title Amendment Bill 1997 which states: 'Section 47B is a statutory mechanism designed to allow native title claimants who are in occupation of vacant Crown land to overcome the effect of past extinguishment and have their claim determined by the Court. The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease. This provision will allow a claim for vacant Crown land where the claimants are in occupation of the land, notwithstanding possible extinguishment by any historical act.' 72 It follows that the occupation that must be established for the purposes of s 47B(1)(c) must also be an occupation in respect of the whole, rather than merely a part, of the particular area in respect of which, but for s 47B, native title rights would be extinguished: see Neowarra at [758]-[760]. 73 The more difficult question arising under ss 47A and 47B concerns the requirement that there be occupation of the relevant area. In Alyawarr at 496 ([193]-[195]), the Full Court discussed several cases which had considered that requirement: '193. The requirement of occupation in s 47A of the NT Act, which is the same as that in s 47B, was considered by Beaumont and von Doussa JJ in Ward FC 1. Their Honours considered that a broad view should be taken of the word (at [449]): "We think this requirement is met where a claimant member is one of many people who share occupancy, and that the land may be relevantly occupied even though the person is rarely present on the lands so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so." 194. In Rubibi Community v Western Australia (2001) 112 FCR 409, Merkel J found the following activities to evidence occupation of an area of land for the purposes of s 47A(1)(c) of the NT Act: . continuing supervisory and protective activities of the senior Yawuru men in relation to the claim area; . the holding of traditional ceremonies on the claim area as and when the senior lawmen authorised those activities; . continued storage of sacred objects on the claim area; . occupancy of the Leregon structures constructed on the claim area by members of the Lee family who are acknowledged to be members of the Rubibi claim group. In Passi v Queensland[2001] FCA 697 Black CJ, on a consent determination, said that although the islands the subject of that determination were not permanently inhabited the evidence showed that the Meriam people used the land as and when they wished. Its use was consistent with its reserved purpose. His Honour was satisfied that the people occupied the relevant islands. In Daniel at [973] Nicholson J also applied what Beaumont and von Doussa JJ had said in Ward FC 1. He equated "connection" and "occupation". 195. As Toohey J said in Mabo (No 2) at 188 presence on land does not have to be possession at law to amount to occupancy. He referred to United States and Canadian cases which established occupancy by reference to the demands of the land and society in question "in accordance with the way of life, habits, customs and usages of the [indigenous people] who are its users and occupiers" - Sac and Fox Tribe of Indians of Oklahoma v United States(1967) 383 F 2d 991 at 998. His Honour observed in particular that "... a nomadic lifestyle is not inconsistent with occupancy."' 74 In reliance upon the cases referred to by the Full Court, the Yawuru claimants adduced extensive evidence of connection with, visits to and use of, numerous urban and bush areas within the Yawuru claim area. The evidence was relied upon by the Yawuru claimants to contend that the traditional connection with, and use of, the areas in question over a period of time by certain members of the claimant group constituted occupation of those areas at the relevant date. The Yawuru claimants even argued that they did not have to establish use because the entitlement I had found to exclusive possession of the Yawuru claim area (which was subject to the findings on extinguishment) was sufficient to constitute occupation. The argument is erroneous as it fails to distinguish between the criteria under s 223(1) of the NTA that must be satisfied in order to justify a finding of a native title right to exclusive occupation and the discrete requirement in ss 47A and 47B for occupation as a matter of fact. 75 The State contended that the difficulty with the broad brush approach adopted by the Yawuru claimants is that it equates visits to and use of an area from time to time with occupation of that area. While use and visitation may be sufficient in some instances, each case will depend on its own facts. 76 Although occupation is a question of fact involving matters of fact and degree, some general principles can be discerned from the cases. In Western Australia v Ward (2000) 99 FCR 316 ('Ward FC'), Beaumont and von Doussa JJ considered the meaning of the term 'occupy' in ss 47A and 47B and stated (at 437 [449]): 'A broad view should be taken of the word "occupy" in the requirement in s 47A(1)(c) that one or more members of the native title claim group occupy the area.' 77 This approach has been accepted and followed in a number of other cases (see, for example, Daniel at [938], Alyawar at 496 [193] and Neowarra at [682]). 78 Although it has been accepted that a broad and beneficial construction of the word 'occupy' is to be preferred, there remains the difficulty that, generally, occupation of an area requires something more than a traditional connection with or mere use of or visitation to the area. The cases provide some useful guidance in resolving that difficulty. 79 In Ward FC, Beaumont and von Doussa JJ stated (at 437 [449]) that occupancy may be established notwithstanding that the claimant: 'is rarely present on the land so long as the person makes use of the land for the reserved purpose as and when that person wishes to do so.' 80 RD Nicholson J adopted this approach in Daniel at [973]. Although it is not necessary to establish frequent use of the land, it is clear that frequency of the use of the land can be a relevant factor in determining whether or not there is occupation of that land. 81 In Hayes v Northern Territory (1999) 97 FCR 32 ('Hayes')at 144 ([162]), Olney J pointed out that, given the context in which s 47B was enacted (namely as part of Parliament's response to the decision in Wik Peoples v Queensland (1996) 187 CLR 1), the requirement for occupation of the land should be understood in the sense that the indigenous people had traditionally occupied the land, rather than in the sense of occupation according to common law principles. His Honour then stated at 144 [162] : 'The use of traditional country by members of the relevant claimant group which is neither random nor co-incidental but in accordance with the way of life, habits, customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.' A similar approach was adopted by French J in Sampi at [1136]. 82 In Ward FC at 437 [449], use of the land for the reserved purpose was regarded as an indicator of occupation. In Daniel (at [973]), RD Nicholson J also regarded it as significant that the claimants made use of the land 'for its purpose as and when [they wished] to do so'. The references in the cases to the 'purpose' of the use, at least in relation to s 47A, indicate that a traditional use of the area, or a use that is consistent with the purpose of the reservation, being for the benefit of Aboriginal peoples, may be more likely to result in a finding of occupation of 'the area'. The reason for that was explained by Olney J in Hayes in the passage referred to above. 83 In some cases, evidence in relation to traditional connection has been relied upon to establish occupation: see Daniel at [938] and [973]. Although evidence in relation to connection for the purposes of s 223(1)(b) of the NTA can be relevant to occupation under ss 47A and 47B, it would be erroneous to equate connection with occupation. 84 The State argued that the kind of occupation contemplated by ss 47A and 47B was traditional occupation, in the sense of use of the land in accordance with traditional laws and customs, rather than random or co-incidental use. Whilst random or co-incidental use may be unlikely to constitute occupation, and traditional use may be more likely to constitute occupation, there is no proper basis for reading a requirement of traditional occupation into ss 47A and 47B. However, traditional use was successfully relied upon to establish occupation in Hayes and Daniel. Where the use is not traditional, the question remains whether the evidence about connection, use, habitation or visitation is sufficient to warrant a conclusion, as a matter of fact, that the requisite occupation has been established. 85 Finally, it is not necessary for the occupation of the land to be exclusive or confined in fact to persons who are members of the claimant group. In Ward FC (at 437 [449]), Beaumont and von Doussa JJ noted that it was sufficient for the claim group member to be 'one of many people who share occupancy' and that occupation by non-claimant persons does not preclude the claimants from occupying the area. However, in my view, if the evidence establishes a similar non-traditional use of the relevant area by the general public, the fact that some members of the public using the area are claim group members is unlikely to be sufficient to justify a finding of occupation of the area by one or more claim group members. The Shire of Broome contended that, where the physical presence of a claim group member in an urban area is for a purpose and of a character that is indistinguishable from the physical presence of a member of the public, the presence should not be considered to be 'occupation' for the purposes of ss 47A or 47B. Although there is merit in the Shire's submission, I would not go so far as to accept it as a criterion for refusing to find the requisite occupation. However, general public use of the relevant area is a relevant, if not a determinative, factor. Ultimately, the question is whether the requisite occupation by a claim group member has been established. 86 The Yawuru claimants argued that their traditional connection with the Yawuru claim area, or with specific areas, distinguishes the use of claim areas by claim group members from use by the general public. While that question is a matter for evidence, I do not accept that the connection contended for can be assumed in respect of use of public areas where the use of those areas by claim group members is not a use for a traditional activity and is not distinguishable from use of the areas by other members of the public. 87 In my findings in favour of occupation of a number of areas both within and outside the Broome region and against occupation of certain areas within Broome, I have taken into account the fact that, generally, visits to and use of areas in Broome by the public is largely indistinguishable from visits to and use of those areas by members of the claim group. 88 Plainly, a variety of factors can be relevant to occupation and, as I have just explained, there may be different outcomes, even where the nature of the occupation has superficial similarities. The case put in respect of each area must be considered in its own context and on its own facts having regard to all of the circumstances of the case. 89 The State accepted that ss 47A or 47B applied to a significant number of the areas claimed by the Yawuru claimants. In the light of principles set out above, I turn to consider the s 47A and the s 47B issues that were raised by the Yawuru claimants and disputed by the State. The Shire of Broome ('the Shire') also had an interest in some of the relevant areas but generally adopted the State's submissions. Accordingly, the reasons given in relation to the State's submissions will also apply to the submissions of the Shire. (a) The s 47A areas in dispute Area 263 (CT 1318/469 - Stewart and Herbert Streets) 90 The State accepted that the area falls within s 47A but contended, correctly in my view, that as at the date of the application (11 January 1995), there was no relevant occupation of this block. Accordingly, s 47A does not apply to this area. Area 354 (CT 1438/103 - Walcott Street) 91 The State argued that this area is not within s 47A and that there is no relevant occupation. This area is a freehold block held by the Mamabulanjin Aboriginal Corporation. 92 An initial question arises as to whether land held by a body that is incorporated under the Aboriginal Councils and Associations Act 1976 (Cth) ('the ACA Act') is land held 'expressly for the benefit' of Aboriginal peoples for the purposes of s 47A. The question arises in respect of Mamabulanjin Aboriginal Corporation, Nirrumbuk Aboriginal Corporation and Broome Aboriginal Media Association ('the associations'), which are associations that are incorporated under the ACA Act and hold areas 354, 1742 and 2128 respectively. 93 The ACA Act is stated to provide 'for the Constitution of Aboriginal Councils and the Incorporation of Associations of Aboriginals and for matters connected therewith'. Section 3 defines an 'Aboriginal association' as an association, society or body whose eligibility for membership is limited to Aboriginals and spouses of Aboriginals. Section 49 provides that a person who is not an Aboriginal or a spouse of an Aboriginal is not entitled to become a member of an Incorporated Aboriginal Association. 94 The objects of each of the associations make it clear that the associations are to generally promote the economic and social development of their members. In fact, the objects of the Broome Aboriginal Media Association and Nirrumbuk Aboriginal Corporation state as their main object, inter alia, the provision of 'direct relief from poverty, sickness, suffering, destitution, misfortune, distress and helplessness' of Aboriginal persons in particular regions. The Rules or Constitutions of the associations provide for the property and funds of the association to be available at the discretion of the Committee for the purpose of carrying out the objects. 95 In Neowarra at [697]-[698], Sundberg J considered the requirement in s 47A(1)(b)(ii) that the area be held expressly for the benefit of Aboriginal peoples. His Honour considered that 'expressly' meant not merely impliedly and not arising merely by inference. His Honour also referred to cases that had decided that for something to be express, rather than implied, it must arise directly from the language used and not by inference therefrom. 96 Sundberg J then applied the above criteria to an association incorporated under the ACA Act and stated (at [706]): 'The remaining question is whether, as they assert, the Rules of Kupungarri Aboriginal Corporation (under the ACA Act) show that Kupungarri holds the lease "expressly for the benefit of…Aboriginal peoples". Kupungarri's property is "available, at the discretion of the Committee, for the purpose of carrying out the objects of the Association". The objects in r 6 are all directed to the benefit of a group of Aboriginal people - education, job training, housing, health services and so on. The Rules clearly and unmistakably disclose that Kupungarri's property is held by it for the benefit of Aboriginal persons. They make that explicit. There is no need to imply that from the Rules or any other source. The case falls within s 47A(1)(b)(ii).' 97 I am not satisfied that his Honour was clearly wrong and, indeed, I am in agreement with his Honour's approach (cf Risk v Northern Territory of Australia [2006] FCA 404 at [881]). The rules of the associations are not relevantly distinguishable from the rules considered by Sundberg J. It must follow that the property of each of the three associations is held by them expressly for the benefit of Aboriginal peoples. 98 The remaining issue is whether the requisite occupation has been established in respect of area 354. I accept, as did Sundberg J in Neowarra at [708], that a combination of activities in the area can amount to occupation by claim group members, notwithstanding that the area is also occupied by the corporation. The problem with the claim under s 47A in respect of area 354 is that the activity relied upon is residence in one of the two houses on the area by a Yawuru claim group member. As explained above, s 47A requires occupancy of the whole of the area, not merely part of the area. Accordingly, the requisite occupancy has not been established. Area 691 (CT 1675/397 - Stewart & Hamersley Streets) 99 The State argued that the area is not within s 47A and that there is no relevant occupation. This area is a freehold block in Broome at which Bidyadanga Aboriginal Community La Grange Inc (an Aboriginal Association incorporated under the ACA) conducts a sobering up centre. The association is not relevantly distinguishable from the associations above. For the reasons given in respect of area 354, the area is held expressly for the benefit of Aboriginal peoples. However, the involvement of some Yawuru persons, as well as others, in co-ordinating and using the centre is not sufficient to constitute occupation of the centre for the purposes of s 47A. Area 1742 (CT 1948/550 - Clementson Street, near Hunter Street) 100 The State argued that this area is not within s 47A and that there is no relevant occupation. For the reasons given in respect of area 354, this area is held by Nirrumbuk Aboriginal Corporation expressly for the benefit of Aboriginal peoples. However, the requisite occupation at the date of the application has not been established by the evidence. Area 2128 (CT 2088/999 - Blackman Street) and Area 468 (CT 1606/452 - Blackman Street) 101 The State argued that the area is not within s 47A and that there is no relevant occupation. For the reasons given in respect of area 354, the area is expressly held by the Broome Aboriginal Media Association for the benefit of Aboriginal peoples. However, the involvement of Yawuru persons, together with others, in the association (whether as members or employees) and participation in some of its activities is not sufficient to constitute the requisite occupation. Pastoral Lease Area 2500 (Pastoral Lease 3114/699 - Roebuck Plains) and UCL 259 and 260 102 The State made no concession or submission concerning this area. The area is subject to the Roebuck Plains pastoral lease which has been held by the Indigenous Land Corporation expressly for the benefit of Aboriginal people. Prior to, at and since the relevant date (29 September 2004), the area has been used by various members of the Yawuru claim group to pursue traditional activities as and when they chose to do so. I am satisfied that the requisite occupation has been established. (b) The s 47B areas in dispute 103 The dispute concerning the s 47B areas generally related to whether the requisite occupation had been established. UCL outside the boundaries of the town site Area 2765 (UCL 262) 104 This area is a coastal strip running along the west side of Thangoo pastoral lease. The evidence of continuing traditional use of the area by members of the Yawuru claim group as and when they choose to do so is sufficient to establish, on the balance of probabilities, the requisite occupation as at 2 February 1994. Areas 2766 (UCL 263), 2614 (UCL 111), 2755 (UCL 252), 2764 (UCL 261) 105 These areas are small unallocated Crown land areas within the Thangoo pastoral lease. Although the evidence of hunting in the general area of the lease is sparse, I accept it as evidence of continuing traditional use of the general area (which includes the above areas) by Yawuru claim group members as when they choose to do so. In the circumstances, I am prepared to infer the requisite occupation as at the relevant dates. Areas 2840 (UCL 337), 2784 (UCL 281), 2773 (UCL 270), 2725 (UCL 222), 2784 (UCL 281), 2833 (UCL 330), 2832 (UCL 329), 2835 (UCL 332), 2522 (UCL 19), 2520 (UCL 17), 2513 (UCL 10), 2838 (UCL 335) 106 These areas are coastal areas around Sandy Point or Jurrunguaru. I am satisfied that the general evidence concerning connection with the area and traditional activities in the area by Yawuru claim group members as and when they choose to do so, establishes the requisite occupation as at 2 February 1994. Area 2838 (UCL 335), 2773 (UCL 270), 2758 (UCL 255), 2760 (UCL 257) 107 These areas are coastal areas running north roughly from Marimarigum to Crab Creek. I am satisfied that the general evidence concerning connection with the area and traditional activities in the area by Yawuru claim group members as and when they choose to do so, establishes the requisite occupation as at 2 February 1994. Area 2756 (UCL 253) 108 This area runs from Mangalagun (Crab Creek) to Kunin. I am satisfied that the general evidence concerning connection with the area and traditional activities in the area by Yawuru claim group members as and when they choose to do so, establishes the requisite occupation as at 2 February 1994. Areas 2753 and 2754 (UCL 250 and 251) and Area 2702 (UCL 199) 109 These areas are around the entrance to Dampier Creek. I am satisfied that the general evidence concerning connection with the areas and traditional activities in the areas by Yawuru claim group members as and when they choose to do so, together with the specific evidence of Neil McKenzie's visits as and when he chooses, establishes the requisite occupation as at 2 February 1994. Areas 2514 (UCL 11), 2518 (UCL 15), 2632 (UCL 129), 2690 (UCL 187), 2707 (UCL 204) 110 These are areas in the inter-tidal zone along the coast from Chinatown to Entrance Point. I am satisfied that the general evidence concerning connection with the areas and traditional activities in the areas by Yawuru claim group members as and when they choose to do so, establishes the requisite occupation as at 31 October 1994. Bilingurru - Area 2502 (UCL, formerly part of Waterbank Pastoral lease) 111 The State made no submission in relation to this area but did not concede occupation. These areas are subject to the Waterbank pastoral lease but are presently unallocated Crown land. I am satisfied that the general evidence concerning connection with the area and traditional activities in the area by Yawuru claim group members as and when they choose to do so, establishes the requisite occupation as at 29 September 2004. Wirginmira - Areas 2831 (UCL 328), 2536 (UCL 333), 2534 (UCL 331) 112 These are coastal areas running up to Willie Creek. Although the evidence in relation to these areas is sparse, the areas should be regarded as being occupied at the relevant date (31 October 1994) for the reasons I have given in relation to the other coastal areas that are not within the Broome region. Areas at Willie Creek - Areas 2507 (UCL 4), 2523 (UCL 20), 2568 (UCL 65), 2566 (UCL 63), 2529 (UCL 26), 2582 (UCL 79), 2510 (UCL 7), 2602 (UCL 99), 2620 (UCL 117), 2599 (UCL 96), 2749 (UCL 246), 2747 (UCL 244), 2746 (UCL 243), 2723 (UCL 220), 2691 (UCL 188), 2689 (UCL 186), 2544 (UCL 41), 2817 113 These areas are at Willie Creek. I am satisfied that the general evidence concerning connection with the areas and traditional activities in the areas by Yawuru claim group members as and when they choose to do so, establishes the requisite occupation as at 31 October 1994. Areas 2762 (UCL 259), 2763 (UCL 260), 2500 (part) 114 These areas are within one small unallocated area of Crown land within the area the subject of the Roebuck Plains pastoral lease. For the same reasons given in respect of Area 2500 (ie the area the subject of the lease), the areas are also to be regarded as being occupied at the relevant date by one or more members of the Yawuru claim group. UCL within the boundaries of the town site Part area 2701 (UCL 198), areas 2733 (UCL 230), 2742 (UCL 239), 2743 (UCL 240), 2744 (UCL 241), 2741 (UCL 238) (Burrgugan - Morgan's camp) 115 The evidence relied on to establish occupation of these areas falls short of establishing the occupation required by s 47B as at 2 February 1994. Occupation under s 47B is not established in respect of the section of area 2701 that is associated with and forms part of these areas. Area 2593 (UCL 90) 116 This area is an empty block in Broome. The sparse evidence of use falls short of establishing occupation. Areas 2528, 2534, 2535, 2536, 2538, 2580, 2591, 2715 (UCL 212), 2724 (UCL 221), 2841 (UCL 338), 2693 (UCL 190), 2735 (UCL 232) 2736 (UCL 233), 2738 (UCL 235) 117 These areas are walkways and, in some instances, drains in and around Broome. The sparse evidence of usage relates to usage as a walkway by claim group members. It is not a traditional usage and, more importantly, is not distinguishable from a likely similar usage by the public. Accordingly, the requisite occupation has not been established. Bush areas north of Airport, Tanami Drive subdivision areas, areas 2576 and 2585, Minyirr areas (areas 2806, 2514, 2828 and 2526) and Kavite Road subdivision areas 118 The evidence of traditional usage of these areas was limited. As explained earlier, occupation is a matter of fact and degree. The limited evidence is not sufficient to persuade me of the likelihood of occupation at the relevant dates in 1994 or 1995. Accordingly, the requisite occupation has not been established. Certain bush and coastal areas in the Broome region (areas 2701, 2728, 2729, 2732, 2734, 2512, 2504, 2820, 2543, 2547-7, 2549, 2553-8, 2560-3, 2569, 2574, 2509, 2519, 2525, 2842, 2575, 2567, 2539-40, 2542, 2505 (UCL 2), 2505 (UCL 5), 2511 (UCL 8), 2837 (UCL 334), 2550, 2551, part area 53 (Lot 3143 - formerly part of Clementson street reserve)) 119 In relation to these bush areas, there was evidence that members of the claim group visited and used the areas to obtain bush tucker, bush medicines and, in some instances, different kinds of wood for traditional and ceremonial purposes. There was also evidence of hunting of possums, kangaroo and goanna in some of these areas. In relation to the coastal areas, there was evidence of fishing, crabbing and cockling as well as the obtaining of bush medicine and bush tucker. In most instances, the State accepted that the evidence was sufficient to amount to occupation. However, the State claimed that the evidence concerned contemporary usage, rather than usage at the relevant dates, being, for the most part, dates in 1994 or 1995. 120 In my view, the evidence of the Yawuru claimants establishes that these bush areas were visited and used by claim group members in recent times for traditional purposes as and when the members chose to do so. Further, there is little or no evidence that the areas were also visited or used in a similar manner or on an ongoing basis by the public. In those circumstances, I am prepared to treat the visits to and usage of the bush and coastal areas for traditional purposes as similar to the visits and usage of bush and coastal areas outside of the Broome region, and therefore as sufficient to constitute occupation. It follows that the State's concessions were correct. 121 The remaining issue is whether the evidence of contemporary usage by claim group members justifies an inference that the same usage had occurred at the relevant dates, which appear for the most part to be in 1994 or 1995. This question also arose in respect of several of the areas dealt with above. I have found this to be a difficult question. On balance, I have inclined to the view that the same, or a substantially similar, usage by claim group members occurred at the relevant dates. The main reason for that conclusion is that the usage is traditional and of a kind that is likely to have been ongoing over a long period. Accordingly, I am prepared to infer that, at the relevant dates in 1994 and 1995, it is more probable than not that one or more claim group members visited and used these bush areas as and when they chose to do so and in much the same way as those areas are now being visited and used by present claim group members. Accordingly, the requisite occupation has been established. While it would have been preferable for direct evidence to have been given by claim group members of occupation at the relevant dates, the failure to give that evidence does not preclude the inference I have drawn. 122 I am also satisfied that occupation has been established in respect of the section of area 2701 that is associated with and forms part of the relevant areas referred to above. Inter-tidal areas 123 The State contended, correctly in my view, that exclusive native title was not recognised in these areas under s 223(c) of the NTA. As a consequence, ss 47A and 47B cannot be relied upon to claim exclusive possession because the sections are concerned with past extinguishment, rather than non-recognition: see Gumana v Northern Territory of Australia [2005] FCA 50 at [263]. Improvements on ss 47A and 47B leasehold areas 124 The State contended that past extinguishment by the exercise of the right to erect an improvement on a leasehold to which s 47A or s 47B applies, is not to be disregarded notwithstanding that the sections require the grant of the lease or prior interest to be disregarded. In my view, the contention is not correct because the past extinguishment only occurred by the grant of the lease or prior interest which conferred the right to construct the improvement. As is clear from De Rose No 2 at [157], the extinguishment arises from the grant of the lease and operates when the improvement is constructed. It follows that, if the grant of the lease or other prior interest is to be disregarded under s 47A or s 47B, there can be no extinguishing effect by the exercise of the right to construct the improvement. Public Works (Issues 6 - 22) 125 Public works that are category A past acts (s 229(4)) or previous exclusive possession acts (s 23B(7)) extinguish native title. A public work is defined in s 253 of the NTA to mean: '(a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities: (i) a building, or other structure (including a memorial), that is a fixture; or (ii) a road, railway or bridge; or (iia) where the expression is used in or for the purposes of a Division 2 or 2A of Part 2 - a stock-route; or (iii) a well, or bore, for obtaining water; or (iv) any major earthworks; or (b) a building that is constructed with the authority of the Crown, other than on a lease.' 126 Section 251D provides: 'In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.' 127 The extinguishment provided for in the NTA in respect of public works was confirmed by ss 6 and 12J of the State Validation Act. The Yawuru claimants accepted that certain public works extinguished native title. However, the status of other works, and the extent of any extinguishment by public works, were the subject of dispute at the extinguishment hearing. 128 Although it was accepted by the parties that the resolution of the dispute involved matters of fact and degree, the State's submissions set out a number of useful examples and guidelines: 'In Hayes v Northern Territory (1999) 97 FCR 32 (Hayes) at page 109 (xiv) Justice Olney found that "it may well be inferred that 'recreation equipment' would be both a structure and a fixture." Again, at page 102 (viii), his Honour stated that "… there is no evidence of any building or structure in the nature of a fixture other than possibly a fence …" Clearly Justice Olney regarded recreation equipment and fences as examples of structures that could be considered as public works for the purposes of the NTA. This accords with the ordinary meaning of structure being simply something "built or constructed". At page 108 of Hayes his Honour said: "Whether or not a particular structure is to be regarded as a fixture will depend upon the context in which that question has to be determined but the general principles are well established and do not need to be recited here." The general principles can be summarised as follows: 217.1 The common law previously looked to the degree of annexation of an item; if substantially affixed, the item was a fixture, otherwise, it remained a chattel. 217.2 The importance of annexation has, however, declined over time, and the focus now is on the intention with which the item was put in place; if for better use or enjoyment of the land, the item is a fixture, for better use or enjoyment of the item, it is likely to be a chattel. There are two prima facie presumptions applied: 218.1 first, if an item is affixed to the land, it is presumed to be a fixture, and the burden of proof lies on those who assert it is not; 218.2 second, if an item rests by its own weight, it is presumed not to be a fixture, and the burden of proof rests on those asserting that it is. The presumptions may be rebutted by evidence to the contrary; for example, stone blocks resting by their own weight and placed to form a dry stone wall would be intended for better enjoyment of the land, and hence a fixture, whereas such blocks stacked in a builders yard would not. A concrete rail head or culvert for a drain, on the principles set out above, is more likely to have been put in place to enhance enjoyment of the land, hence would be a fixture, regardless of whether it is affixed or resting of its own weight. Likewise, it cannot be said as a matter of generality that playground equipment or pine bollard fencing are not fixtures, as it will depend upon the intention of the person or persons who bring it onto the land. In Daniel v State of Western Australia [2003] FCA 666 at [1047] Nicholson J found that water tanks and sewerage and waste water treatment plants were public work previous exclusive possession acts. In Sampi at [1126] and [1148] his Honour Justice French found a radio site constructed by Telstra to be a public work previous exclusive possession act. As to major earthworks, the Explanatory Memorandum to the Native Title Bill 1993 gave as examples: "… dams and weirs whose construction permanently and significantly disturbs or changes the land." Excluded from the examples given were digging wells, cultivating land for crops or establishing a walking trail in a National Park. … In any event, as to the extent of the public works in each area, the First Respondent relies upon the decision of his Honour Justice Sundberg in Neowarra v State of Western Australia (No 1) (2003) 134 FCR 208 (Neowarra) at [654] to [660] to the effect that: "Section 251D [NTA] is specifically directed to public works, and is plainly intended to operate in conjunction with ss 23B(7) and 23C(2). There is no reason to deny its beneficial function of ensuring that a public work has the benefit of adjacent land that is necessary for or incidental to the operation of the work, especially in relation to access to landlocked works."' Drains (Issue 8) 129 The question of whether certain drains are public works arises in relation to area 122 (R41279). 130 Area 122 appears from the air to be roughly the shape of an axe; the drain runs down the side of the part of the area which is the handle of the 'axe' and occupies 17% of the reserve area. It is an open, unsealed shallow pindan storm water drain. It was common ground between the parties that to be a public work, the drain would have to be characterised as a 'major earthwork'. It was also common ground that, if the drain was a public work, native title is extinguished in respect of both the 'axe' head and handle sections because those areas were traversed or used to construct the drain. 131 I undertook a site visit to the area to assist in determining whether there was permanent disturbance and change to the land such that it was appropriate to characterise the drain as a major earthwork. Although the drain was not very wide, its length is such that I am satisfied that it constitutes a major earthwork and therefore extinguished native title in respect of both the 'axe' head and handle sections. McMahon Oval (Issue 12) 132 McMahon Oval is area 135 (R41551). This reserve includes an uncompleted sports oval which covers approximately 40% of the reserve. The oval has never been used as an oval. There was uncontested evidence that, in the course of creating the oval, the Shire carried out earthworks and installed drainage ditches and paths. There was also evidence that the whole of the reserve was traversed and disturbed by heavy earthmoving equipment during the creation of the oval and drainage ditches. A water storage tank was installed in the northern corner of the reserve. I undertook a site visit to McMahon Oval. I am satisfied that creation of the oval was a major earthwork the construction of which involved usage of the whole of the reserve. It is therefore not necessary to consider whether the drain on the reserve was also a major earthwork, although it probably was not such a work. 133 The Yawuru claimants also contended that, even if the work was a major earthwork, and therefore a public work, native title was not extinguished because the work was not completed (see ss 15(1)(b)(i) and 23C(2) of the NTA). It is correct that under ss 15(1)(b)(i) and 23C(2), extinguishment only occurs on completion of the construction of the public work or on its 'establishment'. However, the public work relied upon by the Shire was not the uncompleted oval. Rather, it was the completed 'major earthworks'. Accordingly, as the earthworks that were competed are 'major earthworks', they result in extinguishment under ss 15(1)(b)(i) and 23C(2), notwithstanding that not all of the works planned for the area have been completed. Cemetery (Issue 14) 134 There are two cemeteries that are subject to the Yawuru claimants' claim for native title: the Pioneer Cemetery (area 21, R1643) and the Broome Cemetery (area 23, R1647). Each of the reserves on which the cemeteries are situated was created for the purpose of a 'cemetery'. The Yawuru claimants accepted that their native title right to control the use of and access to the reserves had been extinguished by the valid creation of the relevant reserves or reserve 631 (which I have found was validly created). 135 The Yawuru claimants and the Shire accepted that the memorial plaque on reserve 1643 and the light, generator poles and iron roofed shelters on reserve 1647 are public works. However, they submitted that a reserve for a cemetery is not itself a public work and that the graves or tombstones in the cemeteries were not public works because they were not memorials constructed by or on behalf of the Crown. 136 On 5 April 2006, I gave an ex tempore judgment in favour of the Yawuru claimants in respect of the public works in these areas. In summary, I found that the evidence did not support a finding that the graves and tombstones were works that were constructed or established by or on behalf of the Crown or a local government body or other statutory authority of the Crown in any of its capacities. It follows that the graves and tombstones in the cemeteries are not public works. 137 The Shire and the State also sought to rely on the creation of reserve 1647 and its use as the Broome Cemetery to argue that the graves were established with the authority of the Crown. The argument raises the issue of whether the exercise of the right to use the reserve as a cemetery has extinguished native title. It is apparent from the material before the Court and from the legislation that has applied from time to time to the use of the reserve as a cemetery that the exercise of the right of use, either directly or indirectly, was authorised by or on behalf of the Crown. For example, Government Gazettes revealed that under the Cemeteries Act 1897 (WA) ('the CA'), the Governor in Executive Council appointed trustees of the cemeteries, made by-laws for the management of the cemeteries, provided for applications for land in the cemeteries to be used as graves and imposed fees for use of the land as graves. Accordingly, it is appropriate to view the exercise of the right to use the land within the reserve as a cemetery as the taking of steps authorised by the Crown, which 'created in others, or asserted, rights in relation to the land that were inconsistent with native title rights and interests over the land': see [214] in Ward HC. It would follow that, to the extent that there has been an exercise of the right to use reserve 1647 as a cemetery for the conduct of burials, the digging of graves and the laying of tombstones, the exercise of that right has had an extinguishing effect on native title in respect of the areas where that has occurred. However, the extinguishing effect does not extend to vacant areas of the reserve where the exercise of the right to use those areas for the purposes of a cemetery has not yet occurred. 138 However, at a late stage, the State raised a further issue in respect of reserve 1647. Under s 10 of the CA, the Governor may not only appoint trustees of a cemetery but may also by deed of grant vest any lands in the trustees of a public cemetery. The section provides that, when notification in the Government Gazette of appointments and removals of trustees (which is required by the section) is served on the Registrar of Titles, that will result in the legal estate in the trust premises vesting in the trustees (or the new trustees). Also, s 212 of the Municipalities Act 1906 (WA) provides for any vesting of property in councillors as trustees under the CA to be a vesting in the municipality. 139 The Government Gazettes reveal the appointment of, inter alia, councillors as trustees under the CA. While the evidence does not disclose whether a deed of grant to trustees under s 10 was made, it is probable that such a deed did exist, and that the legal estate in the reserved land ultimately vested in the Shire. The reason for that conclusion is that it is implicit in the functions of trustees under the CA that the legal estate in the cemetery vests in them upon their appointment. Also, it is difficult to think of a reason why the Governor would appoint trustees but not vest the legal estate in them. 140 When the totality of the statutory scheme is considered, the conclusion is inevitable that the rights attaching to the vesting of the legal estate in the reserve in the trustees and, subsequently in the Shire, is inconsistent with any native title rights or interests in respect of the reserved land. Accordingly, native title in respect of reserve 1647 has been extinguished. 141 The parties accepted that the situation outlined in respect of the Broome Cemetery does not apply to reserve 1643 (ie the Pioneer Cemetery). As I have found that the only public work that has any extinguishing consequence at the Pioneer Cemetery is the memorial plaque, native title in respect of that cemetery is only extinguished by reason of the public work being a past act in respect of the area covered by the memorial plaque. Of course, the creation of the reserve extinguished the native title right to control access to and use of the reserve, but that is not relevant in this context. Gaol (Issue 16) 142 The gaol is located in area 24 (R2551). Earlier in these reasons I explained why the native title right to control the use of and access to area 24 had been extinguished by the creation of reserve 2551 for the purposes of a gaol. As explained above, the Yawuru claimants do not dispute extinguishment in relation to that part of the area upon which the gaol was constructed. The remainder of the area is outside the gaol perimeter and consists of vacant land. 143 The State argued that the vacant land was properly categorised as being a public work as a result of s 251D of the NTA. It argued that the adjacent vacant land is 'necessary for, or incidental to, the construction, establishment, or operation of the work'. As explained earlier in these reasons, a similar question arose in the context of the use of the gaol reserve for the reserved purpose, being whether the adjacent vacant land is reasonably necessary for, or incidental to, the operation or enjoyment of the gaol. The State argued that the adjacent land is required for privacy, recreational purposes and 'future expansion', thus satisfying both criteria. 144 On the evidence, the question of future expansion is no more than a mere possibility and can be put to one side as it is hypothetical. If the expansion occurs, any extinguishing effect of the expansion will need to be considered by reference to the NTA as at that date. 145 Both before, and after, a visit to the site it was not apparent that the vacant land was required for privacy or for recreation. Accordingly, the evidence does not establish that the criteria set out above have been satisfied. It follows that native title in respect of the vacant land has not been extinguished by the construction of the gaol. Police station (Issue 17) 146 The same issues arose in respect of the police station which is situated on area 35 (R15019). The Yawuru claimants conceded extinguishment in respect of the area upon which the police station was constructed. However, they maintained that native title has not been extinguished in respect of the remainder of the area, which is vacant land. 147 I undertook a site visit to the area and am satisfied that the vacant land does not fall within the criteria for extinguishment discussed above and, as a consequence, native title in respect of that land has not been extinguished by the construction of the police station. Main Roads Depot (Issue 18) 148 The main road depot is located in area 69 (R34891) which was a reserve for the purpose of Depot, Main Roads Department. There was evidence that, prior to 1984, a 2.3 metre high and 561.24 metre long wire mesh security fence was erected around the perimeter of the area. A septic leach drain, a storage shed, accommodation units and ablutions were also constructed and the area was cleared. 149 I undertook a site visit of the area to assist in determining the items that were public works in the area and the extent of those works. I am satisfied that the only public works are the actual buildings constructed on the reserve. 150 However, a further issue arose in respect of the reserve. The State contended that the creation of the reserve and the exercise by the State of its right to use the reserve as a depot secured by its perimeter fencing extinguished native title. It was argued that the extinguishment reasoning in respect of the parts of the reserves used as a gaol, prison and cemetery applies to this reserve save that the whole of the reserve has been used and secured as a depot. In my view, the State's contention is correct. The State, by exercising its right to create and use the reserve as a depot (which included perimeter fencing to secure that use), has asserted rights in relation to the land which are inconsistent with the claimant community's native title rights and interests. In particular, the perimeter security fence is an assertion by the State, in pursuance of the reserved purpose, of its right to exclude others from the depot. It follows that native title has been extinguished in relation to the whole of the reserve. CALM offices (Issue 19) 151 This issue concerned area 22 which was the subject of reserve 1644, which I have found was validly created. It was common ground that the vesting of this reserve in the Conservator of Forests on or about 27 May 1983 had the effect of extinguishing native title rights and interests in the area covered by the reserve. Area 57 (R31340, near Town Beach) (Issue 21) and area 2690 (UCL 187, near Town Beach) (Issue 22) 152 At the further hearing on extinguishment, the parties accepted that the issues and facts in respect of these two areas were interrelated. Accordingly, I have considered them together. 153 In relation to area 57, the Yawuru claimants set out a list of the parts of area 57 which the Shire of Broome initially contended were public works (R31340): '(a) reticulated lawn parkland, in north western and south western corners of the southern section of the reserve, comprising 2700m2, or 20% of the reserve. … (b) a bitumenised car park in the central section of the reserve, comprising 4400m2, or 1/3rd of the reserve, established not later than 1986. It was bitumenised in 1998. It may have been bitumenised before that. (c) a track leading to the groyne outside the reserve, in the south eastern third, not later than 1975. … (d) remnants of old railway platform and internal tracks, in the northern part of the reserve. … (e) on adjacent reserve 17132 to the west, there is, and has been since 1986, a kiosk, ablutions, playground, barbecue area and more extensive reticulated lawn parkland and plinths. … (f) a concrete boat ramp at the southern edge of the reserve, of 240m2, built in 1969 …. (g) A "goods shed (2)", rail lines, shunting lines and siding, a work shop, a retaining wall, a sunken drive and a cottage (apartment was used to accommodate the Secretary of the Australian Workers Union) all constructed before 1950 and removed soon after 1966. …' 154 UCL 187 is unallocated Crown land adjoining area 57 near Town Beach. 155 The Yawuru claimants did not seriously contest extinguishment in respect of the following parts of area 57 in the list above: (b), (c) (d), (f) and (g). The Shire accepted that (a) and (e) did not constitute public works. Therefore, the question remaining for determination is whether the areas adjacent to the public works identified in (b), (c), (d), (f) and (g) fall within s 251D of the NTA because they were necessary for or incidental to the establishment, construction or operation of the relevant public works. 156 There was historical evidence about the use of the areas adjacent to the public works. The evidence included passages from a book entitled 'Broome: The Exciting Years' by Thomas Dampier Chapple, in which parts of the area were described as follows: 'In the earlier years the mode of transport from the old jetty to the Jap and Chinatown was in railway trucks pulled by horsepower. These were later supplanted by a "puffing Billy" to which were attached two open-sided carriages plus additional trucks for the movement of freight. The train was owned by the Government and the engine driver was Bob Murray, a genial Scotman. Again for a shilling you could ride the train from the jetty to Jap town or for 1/6d do the round trip. The arrival and departure of crew was always a noisy and colourful scene as Japanese, Malays, Koepangers, etc piled into the trucks and carriages, to be taken to the Customs Office where they would be signed on or off to their respective Pearling Masters. It was a chaotic situation in the Customs Office, gesticulating Pearlers claiming their crew and Customs Officers growing more irate by the minute, while endeavouring to process each man who at best spoke little English.' 157 On the basis of the historical evidence concerning use of the whole of the area as a railway, jetty, goods shed and sidings, I made ex tempore findings in respect of the southern areas at the further hearing on extinguishment. In substance, I was satisfied that the Shire had made out its case in respect of the southern part of the area that is the subject of issue 21. It was accepted by the parties that that finding would carry with it the unallocated Crown land which is at the very southern portion of the area that is the subject of issue 22. I was satisfied on the evidence that the probability is that the whole of that southern area is land that falls within s 251D of the NTA as it was incidental to the operation of the jetty and railway facilities and therefore is a public work. In respect of the rest of the unallocated Crown land (the subject of issue 22), which was vacant land, I was not satisfied on the evidence before me that that is a public work or an area that should fall within section 251D. Accordingly, I found that that area is not a public work under s 251D. 158 My ex tempore findings and reasons left as an outstanding issue (in respect of issues 21 and 22), the northern part of the area that is the subject of issue 21. I undertook a site visit to this area to assist in determining whether it would fall within s 251D of the NTA. I am not satisfied that the sparse evidence about the area warrants a finding that the whole of the area falls within s 251D. Accordingly, native title is not extinguished in respect of the northern part of the area the subject of issue 21, save for that part of that area on which the old railway platform (about 40 m sq) and the associated railway tracks (about 1600 m sq) were constructed. Conclusion 159 The determination of native title that is now able to be made brings to an end an epic struggle by the Yawuru people to achieve recognition under Australian law of their traditional connection to, and ownership of, their country. The struggle commenced when the first application for that recognition was filed by the Yawuru claimants pursuant to the NTA on 2 February 1994. The matter proceeded in two parts. The first part related to the traditional law ground of the Yawuru community at Kunin. That proceeding involved numerous exhibits, many witnesses, voluminous evidence, a hearing over 18 days and 1488 pages of transcript. The contest in respect of the law ground required resolution of an intra-communal dispute, as well as a dispute between the Yawuru claimants and the State of Western Australia. The determination of native title, which granted exclusive possession of the law ground at Kunin to the Yawuru community, was made on 17 October 2001. Resolution of this part of the matter required two judgments. It was hoped that this resolution might enable a mediated outcome, rather than an adversarial contest, to settle the remaining part of the matter, which was the claim to the rest of the Yawuru community's traditional country. 160 The claim to the Yawuru community's traditional country was not able to be resolved by mediation prior to the hearing. The resolution of that claim, which involved a further intra-communal dispute as well as a dispute with the State, WAFIC and certain other parties again involved numerous exhibits, many witnesses, voluminous evidence, a further 53 days of hearing, further transcript of over 5710 pages and five further judgments. At the conclusion of the substantive hearings in October 2004, the parties requested that the matter again be referred to mediation on the basis that there were promising prospects of a mediated outcome. After the expiration of a further 12 months, during which mediation occurred, I was not satisfied that a mediated outcome was likely to be achieved and fixed a further hearing on the outstanding 160 extinguishment issues. 161 The earlier hearings involved evidence relating the Yawuru community's continuing connection to its traditional country and continuing acknowledgement and observance of traditional laws and customs since 1829. The final hearings, which were held in relation to extinguishment, involved evidence of over 100 years of tenure history in the Yawuru claim area. Although many of the extinguishment issues were resolved consensually during the course of the final hearing, the remaining issues were required to be resolved in these reasons for judgment. 162 The Yawuru claimants have been largely successful in their native title claim as the claim has succeeded in whole or in part over approximately 4900 sq kms of their traditional country in and around Broome. The Yawuru claimants have established a communal native title entitlement to exclusive possession of their traditional country. However, as a result of the criteria laid down under Australian law for extinguishment of native title, the native title of the Yawuru community was partially or totally extinguished in relation to significant parts of the Yawuru claim area. Also, as a native title right to exclusive possession is not recognised under Australian law in respect of the inter-tidal zone and, subject to some exceptions, areas that have been the subject of pastoral or mining leases, the native title rights and interests in respect of most of those areas are not exclusive. 163 I have outlined the history of the present matter for two reasons. The first is to explain why native title claims are not only complex but impose demands on the parties and the Court that are unprecedented in adversarial litigation. In the usual course, proceedings must be commenced within 3 to 6 years of a cause of action accruing. One of the reasons for that requirement is the increasing unreliability of evidence that is more than 3 to 6 years old. Yet native title cases require evidence to be given concerning the claimant community's connection with the claim area and the community's observance and acknowledgment of traditional laws and customs since sovereignty, which in Western Australia was 1829. While it is obviously unsatisfactory for any litigious dispute to take over ten years to be finally resolved, there are special circumstances attending the resolution of native title disputes that make the delay in achieving resolution understandable, even if not acceptable. 164 The second, and far more important, reason is that it would be remiss of me to depart from the present matter without observing that there may be a better, more efficient, more effective and fairer way of resolving native title disputes. In making that observation, I make no criticism whatsoever of any of the parties in the present matter as they were fully entitled to have their disputes resolved by the Court, rather than by mediation or any other alternative method of resolution. However, the fact remains that there are presently 608 applications in relation to native title awaiting resolution in the Court. Most of those applications have been before the Court a considerable time. Four of those applications are either part heard or are reserved for judgment and only one is fixed for a final hearing this year. It follows that 603 of the 608 applications presently before the Court have no final hearing date fixed in the reasonably foreseeable future. In these circumstances, it is fair to describe native title in Australia as being in a state of gridlock. 165 Matters are not failing to proceed to a final hearing because the Court is unable to provide hearing dates or because of the unavailability of the resources necessary for the Court to conduct final hearings. Rather, the reasons include ongoing mediation, lack of financial resources for claimant communities to pursue their claims, the failure to resolve intra-communal disputes and the many logistical difficulties confronting parties when a native title case is to be brought on for a final hearing. Another significant brake on the resolution of native title disputes is that the Court's power under s 87 of the NTA to give effect to an agreement to resolve a native title claim is conditioned upon an 'agreement [being] reached between [all] the parties'. Agreement by all parties is required irrespective of whether the interest of a particular party may, or may not, be affected by the terms of the agreement. Usually, the agreement of numerous parties is required and some parties, including publicly funded parties, may have little incentive to resolve the claim. 166 The purpose of the above observations is to draw the attention of at least the state parties and the indigenous parties to native title disputes to the desirability of seeing the resolution of native title claims as a means to an end, rather than an end in itself. Achieving native title to traditional country can lead to the enhancement of self respect, identity and pride for indigenous communities. However, native title can also be seen as a means of indigenous people participating in a more effective way in the economic, social and educational benefits that are available in contemporary Australia. Obtaining a final determination of native title, where that is achievable, can be a stepping stone to securing those outcomes but cannot, of itself, secure them. The above observations are intended to prompt parties to other native title disputes to increase their endeavours to reach compromises. Those endeavours will necessarily involve give and take on the part of all parties. Native title litigation, like other litigation, need not be conducted on an 'all or nothing' basis. 167 It is also important that indigenous communities appreciate the risk, which recent experience reveals is far from hypothetical, of failure in a native title claim. Where that occurs, it can have devastating consequences for the claimant community. It is equally important for state parties to recognise that their quest to ensure that indigenous communities participate in the economic, social and educational benefits available in contemporary Australia can be advanced when a native title claim is resolved or succeeds, but can be set back when a native title claim fails. If claimant communities and state parties can achieve a mediated outcome, they can ensure that a broad spectrum of mutual benefits can follow the resolution of native title claims. Those benefits can include indigenous land use agreements, traineeship programs and various forms of financial and other support for the native title holding body. 168 If settlements do not occur and native title claims have to be resolved in an adversarial proceeding, there remains the risk for the claimant community that native title may prove to be yet another of the prospects held out to indigenous communities where the realisable gain falls short of that originally expected as a result of the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1. However, if compromises are able to be achieved, the cause of reconciliation between Australia's past and present will be greatly advanced and the economic, social and educational benefits available to all Australians may be better able to be accessed by members of claimant communities. 169 There remains the question of how the present native title gridlock may be resolved by mediation. Plainly, some changes to the present system of mediation and resolution are necessary. The areas of possible change include:

Rubibi Community v State of Western Australia

At a glance

Court

Decision date

Before

Source

Judgment (139 paragraphs)

Parties

Legislation Cited (27)

Cases Cited (26)

Cited By (28)