rights and interests in the claim area which survived sovereignty
164 As explained in the recent decisions of the High Court, it is the intersection of the traditional laws and customs at the time of sovereignty, and the laws of the sovereign applied by the assertion of sovereignty, which s 223(1) of the Act requires to be considered to determine whether or not there is such an inconsistency that the traditional rights and interests will not be recognised by the common law of Australia. Control of access to the land and waters of the inter-tidal zone and the territorial seas with the right of exclusion, albeit a traditional right or custom acknowledged and observed at sovereignty, will not be recognised by the common law of Australia: Yarmirr at [99] - [100]; Ward at [388]. Nor will it be recognised by attempting to admit of an exception in favour of the traditional rights of navigation and fishing given by the common law to the public at large. Such an attempt was made on the hearing of the appeal in Yarmirr in the High Court. It was rejected by the majority in their joint judgment for the following reasons:
'[97] Much of the debate on this aspect of the matter proceeded by reference to the metaphor of "fractur[ing] a skeletal principle of our legal system" used by Brennan J in Mabo (No 2) ((1992) 175 CLR 1 at 43). The use of the metaphor cannot, however, be allowed to obscure the underlying principles that are in issue. There are obvious dangers in attempting to argue from the several elements of the metaphor to an understanding of the principles that lead to the result that is expressed by the metaphor. It is, therefore, not profitable to stay to consider what principles of the legal system are, or are not, part of its "skeleton". Rather, attention must be directed to the nature and extent of the inconsistency between the asserted native title rights and interests and the relevant common law principles.
[98] When that is done in the present case, it is seen that there is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.
[99] The successive assertions of sovereignty over what now are territorial waters, without any further or other act of the executive or legislature, brought with them, and gave to the public, the public rights that have been mentioned. The assertion of sovereignty in 1824, over part of those waters, may have conceded the right of innocent passage to all vessels over those waters, and later assertions of sovereignty over other parts of the waters certainly did. Assertion of sovereignty, on those terms, is not consistent with the continuation of a right in the holders of a native title to the area for those holders to say who may enter the area.
[100] Although the inconsistency does not arise as a result of the exercise of sovereign power (as is the case where a grant in fee simple extinguishes native title (Fejo v Northern Territory (1998) 195 CLR 96 at 128 - 129 [47] - [48]) the inconsistency which exists in this case between the asserted native title right sand the assertion of sovereignty is of no different quality. At its root, the inconsistency lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights.'
165 The right to control access generally within these areas of sea Country, as asserted by the sovereign, related to people and activities generally, and not simply control of access in favour of the public engaged in navigation or fishing. In Yarmirr, Kirby J (at [278] - [279]) was prepared to acknowledge the possibility of a limited exception of the type contended for in Yarmirr on appeal and again in Ward on appeal in the High Court, and before me in these proceedings. The other members of the High Court in Yarmirr (McHugh and Callinan JJ), for different reasons, would not recognise the ability of s 223(1) of the Act to operate in respect of the land and waters in the claim area.
166 The position with respect to the inter-tidal area is no different, as appears in the following reasoning from the joint judgment in Ward (Gleeson CJ, Gaudron, Gummow and Hayne JJ):
'[388]If the evidence otherwise established that the claimants had, under traditional law and custom, an exclusive right to fish in tidal waters, that exclusivity has been extinguished. As has been explained in the joint reasons in The Commonwealth v Yarmirr ((2001) 75 ALJR 1582 at 1604 [96]-[98]; 184 ALR 113 at 144 - 145) there is a fundamental inconsistency between a native title right and interest said to amount to a right to occupy, use and enjoy waters to the exclusion of all others or a right to possess those waters to the exclusion of all others and public rights of navigation over and fishing in those waters. Likewise, there is a fundamental inconsistency between the public right to fish in tidal waters and a native title right and interest said to amount to an exclusive right to fish those waters.'
167 See also Kirby J at [594] and Callinan J at [880], with whom McHugh J agreed at [472] on this issue.
168 The present forms of the draft determination contended for by the applicants recognise the impact which the decisions of the High Court in Yarmirr and Ward have had on their claim to native title as originally made. However upon analysis, the underlying core claim to control access to and activity in the claim area is still maintained.
169 Any right expressed in terms of 'possession', 'occupation', 'use' and 'enjoyment' to the land and waters, other than on an exclusive basis, invites attention to the common law concepts of such terms when applied to land or waters. It immediately gives rise to conceptual difficulties because the concept of possession 'involves notions of control of access' (Ward at [89]; see also [477] - [478]). So too the use of the term 'occupation' raises its own difficulties because legal possession is not the same as occupation. As was said by Lord Denning in delivering the opinion of the Privy Council in Newcastle City Council v Royal Newcastle Hospital [1959] AC 248 (on appeal from the High Court of Australia ((1956) 96 CLR 493) (at 255)):
'... Occupation is a matter of fact and only exists where there is sufficient measure of control to prevent strangers from interfering, see Pollock and Wright on Possession in the Common Law, pp. 12, 13. There must be something actually done on the land, not necessarily on the whole, but on part in respect of the whole.'
170 The use of the common law concept of occupation immediately brings into question the ability of the original peoples at and before sovereignty to control the areas claimed 'as far as the eye can see' and raises the factual question: what activity did these persons engage in on the land and waters with respect to the claim area as a whole?
171 The decisions in Yarmirr and Ward denied the continued existence of any notion of a right to control access to, or conduct in, the claim area by persons other than the applicant group. In consequence, to talk of, or to attempt to articulate the relevant native title rights and interests which existed at sovereignty in terms of possession or occupation, or variants of them, is not a useful exercise. Nor is it useful to attempt to state native title rights as existing in a broad and expansive way, subject to the common law rights of fishing and navigation, or the recognised international right of free passage.
172 The right of non-exclusive possession, occupation, use and enjoyment of the waters and land (par 3.1 of the draft determination); the non-exclusive right to occupy, use and enjoy the waters and land (par 3.2); or an interest in maintaining the land and waters of the determination area free from intrusion, interference and affection inconsistent with spiritual connection and responsibility for the lands and waters (the alternative par 3.1); beg the question: what is the content of this non-exclusive right or interest if it has no element of control of access or control of use and activity within the claim area? What are the residual rights and interests which do not involve elements of control of access to and use of the claim area?
173 The Act requires that the relationship between a community or group of Aboriginal people and the land is to be expressed in terms of rights or interests in relation to that land. This means that a relationship which is essentially religious or spiritual, must be translated into law. 'This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them.': Ward at [14].
174 This task is difficult and at times incapable of being translated into law - so much is obvious from the reply of Mr Parsons SC to my enquiry as to the rights or interests which exist in respect of Dreaming tracks and spiritual places in areas of the claimed seas incapable of demarcation other than in the most general of terms. In citing the submissions, I intend no criticism of Mr Parsons; his response is merely to describe the relationship between these people and their sea Country. It is a relationship which, at sovereignty, was one of sustenance and religious and spiritual belonging. It was a unity of land, sea and person. It was a unity which was maintainable because there existed a right to control access to, and use of and activities in, the land and waters so as not to fragment the unity. Mr Parsons said:
'Your Honour also asked yesterday about dreaming tracks and the spirits returning to the seas. Your Honour, the deceased people issue is dealt with in our submissions at paragraphs 6.91 and 6.92, and the dreaming tracks issue is at 6.87 and 6.88. But I'll also refer your Honour on that to Dr Trigger at pages 10 to 11, and Dr Memmott at page 57, because in a sense it really is perhaps useful to observe. It flows on from, really, with respect, what - the question of continuity. The reality is, of course, that the deceased people - the deceased Kaiadilt People remain in those seas.
The belief about the people in the seas - when you're on the seas, that is where your dead relations are. That's where they've gone. They invest that whole area of sea country. And, of course, it's a similar belief for the Ganggalida: that the spirits of the deceased are in the ocean, are in the sea. And, of course, in the same way that the dreaming tracks are, and of course they're described more particularly in those expert reports, but the point is it's a presence. And, of course, the real measure of the presence is this: you know when you're on the sea that if you breach the rules - the rules and the laws and the customs of your particular group - then of course you're being watched.
You're being watched by the spirits of the deceased. You're being watched by those particular travelling ancestors. And, of course, the censures will be applied. The reality is that it's simply a living area of country; it's a living area of sea country. And, of course, when one tries - as impossible as it might be - to put oneself in the mind of Big Jake as he's out on his bit of sea, or Roxanne, or Murrandoo, or whomever it was, the reality is in your world that's in a sense - I suppose in two senses. One is in a way it's a cemetery, but not in a macabre sense. But it is a spiritual place.
But equally it's your back yard. I mean, it's the back garden. And you can imagine Big Jake sitting up on his sand hill under the shade there, simply looking at his back garden and simply realising - I mean, it's the sort of thing that - really when one thinks of it in those terms - that this is the major source of your sustenance. And, of course, he sees not only sea and a source of produce, but he sees the world of spirits; the worlds of his - I think a spotted stingray is his - the Bujimala, I think, it's - I can't remember what the spotted stingray is.
But he sees a different world. He sees a spiritual world and one which really - I would do a horrible injustice to try and recapture it now, but of course when one starts from Professor Stanner's understanding of the dreaming and Dr Memmott is trying to grapple with that, and then translating that into all the spiritual aspects of their world which are extant. Of course, that's there; that's in the sea. ...'
175 I quote Mr Parsons' response to highlight that when the unity of the relationship between indigenous people and the land and waters is fragmented, and the rights to control access to, and use of and activities in the land and waters are excluded, little may remain which is capable of being translated into rights and interests in relation to that land and waters capable of recognition and protection under the Act. What is left may amount to little more than non-exclusive rights to engage in specified activities in relation to the land and waters. Because the content of those rights or interests was fixed at sovereignty, no subsequent enlargement of these rights will be recognised under the Act: Yorta Yorta at [43 - 44].
176 The difficulties with pars 3.1 and 3.2 of the draft determination proposed by the applicants are not overcome by the proposed alternative clauses 3.1 and 3.2.
177 As expressed, the alternative par 3.1 is an emotional, as opposed to a practical, interest to exclude from the claim area anyone or anything which was inconsistent with the spiritual connection and responsibility for the land and waters. The right which I find existed at the time of sovereignty, which went with the duties in relation to and the responsibility for the land and waters, was the right to control access to, use of, and activities in parts of the claim area. There was no other 'interest' in the matters articulated in the alternative par 3.1 which was separate or apart from the right to control access, use, or activities in parts of the claim area.
178 The alternative par 3.2 does not relate to a traditional right or interest under the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants of the claim area in relation to the lands or waters claimed, as required by s 223(1) of the Act. The paragraph relates to a right of acknowledgment of the status of 'native title holders for the determination area', but the content and extent of native title interests held are not identified. Further, it purports to be a right to present day acknowledgement by persons who are indigenous persons bound by traditional laws and customs; or persons who require a consent from some unspecified authority to enter upon or use the land and waters of the determination area; or persons who propose to do a 'future act' as provided for under Div 3 Pt 2 and defined in Div 2 Pt 15 of the Act. In terms, this was not a right or interest which existed at or survived sovereignty.
179 The difficulties which confront the alternative par 3.1 of the applicant's draft determination also confront par 3.3. That those who inhabited the islands and the coastal part of the mainland within the claim area at sovereignty had access to seas that were free from the marine pollution that blights the oceans today, did not translate into a right or interest in relation to the land and waters at that time. It was merely a circumstance of the time in which they lived. The right or interest which they had at that time to control the amenity of the land and waters in the claim area, was the right to control access to, use of, and activities in, that area by members and non-members of the applicant group. That right did not survive sovereignty.
180 The land part of Country, together with the sea Country of those inhabiting the various Countries in each of the four traditional territories, sustained those persons physically and spiritually. The evidence establishes that the rights to harvest the land and the living resources of the sea Country were constrained by an obligation to husband those resources by taking only that which was sufficient to satisfy immediate needs. This is reflected in the evidence of Kenneth Jacobs, that one took only such fish as were needed and did not waste resources by taking more fish than could be eaten; also in the evidence of Robyrta Felton, that the present complaint is that the fishery was being depleted by people taking substantial quantities of fish and crab beyond their immediate needs and storing them in refrigerators, a post-sovereignty innovation. In order to harvest the land and living resources, the original Lardil peoples, the original Yangkaal peoples, the original Kaiadilt peoples and the original Gangalidda peoples had the right, in accordance with the traditional laws acknowledged by them and the traditional customs observed by them, to access the waters adjacent to the Countries to which they belonged.
181 There was no evidence that it was part of the traditional laws and customs to harvest either the plant or living resources for organised trade or commercial exploitation. I find that the plant and living resources taken from the inter-tidal zone and adjacent seas were for the purpose of personal and domestic consumption by the original indigenous peoples and not for the purposes of trade.
182 The right to take the living resources of sea Country included the right to hunt and take turtle and dugong in accordance with particular traditional laws and customs. Those laws and customs gave rights in such sea creatures to some or all of the persons who belonged to and inhabited the Country in which the turtle or dugong was caught.
183 There is no evidence that at the time of sovereignty any of the original Lardil peoples, the original Yangkaal peoples, the original Kaiadilt peoples or the original Gangalidda peoples took soil, shell, clay, sand, gravel or rock from the inter-tidal zones or the sea bed below the low water mark by virtue of any traditional law acknowledged or custom observed by them in relation to the land or waters. There is evidence of rock fishtraps in the inter-tidal zones, and it may be inferred that the rock and materials used in their construction or repair came from the immediate vicinity of them. There is also some evidence in the observations of Matthew Flinders at Sweers Island in 1802 that seashells were used to hold water when rafts were used. Such evidence of use as exists is as consistent with the incidental use for immediate daily needs of available materials as with there being a right or interest under traditional laws and customs to take such materials for such use. I am satisfied that the taking of white ochre or clay from particular sacred locations for ritual purposes was a right acknowledged by traditional laws and customs, however the evidence does not establish to my satisfaction that the Mundoowa site is in the inter-tidal zone below the high water mark and thus in the claim area.
184 I am satisfied that fresh water springs within the inter-tidal zone capable of being accessed by the indigenous peoples at the time of sovereignty were used by those persons as a source of drinking water. The evidence is that each of those groups lived on the coastal fringe of the land adjacent to the inter-tidal zone. It is self-evident that their need for fresh water would be satisfied from those resources. There is some evidence that, so far as the Kaiadilt peoples are concerned, access to and the taking of the water from such fresh water springs was by rights under traditional laws and customs (see the evidence of Robert Carruthers and Netta Loogatha). Generally the taking of such water was for consumption and, I infer, an incident of the rights held by persons who belonged to the Country and who inhabited it at the time of sovereignty.
185 I am satisfied that the indigenous peoples in each of the traditional territories at the time of sovereignty had rights pursuant to and governed by traditional laws and customs to have access to sites of spiritual or religious significance in the land and waters of the claim area, the location of which were known and which were then accessible to them, for the purposes of ritual or ceremony. I am also satisfied that at that time there existed a right to maintain and protect those sites which were otherwise accessible by controlling the access to such sites and the activities engaged in there. To the extent that the right to control access did not survive sovereignty, the rights with respect to spiritual sites within the inter-tidal zone and the adjacent seas, were to that extent diminished by the assertion of sovereignty.
186 The evidence does not establish a general right to construct structures in the inter-tidal zone or the adjacent seas. Nor does the evidence show that any structures other than fishtraps were in fact constructed in that area. The evidence establishes that at various locations there were fishtraps naturally formed by the rock structures or manmade structures, and that such structures were repaired and maintained. As the predecessors of the applicants were hunter/fishers, these patterns of living did not involve a use for any structures in the inter-tidal zone and adjacent seas beyond the fishtraps of which there was evidence.
187 The right to take fish from the traps and the right to repair and maintain the traps were recognised by traditional laws and customs and were rights recognised as being possessed, or capable of possession, by individuals or groups of individuals.
188 Each of the formulations of the rights claimed in pars 3.8, 3.9 and 3.10 of the applicant's draft determination involves an attempt to control access to and use of the land and waters in the claim area other than access or use by persons claiming to exercise the common law right to fish and navigate in those waters; claiming to exercise the right of innocent passage through those waters; or claiming to exercise a statutory right to do so. Those rights to control access etc did not survive sovereignty and this formulation to avoid the consequences of the exercise of sovereignty was rejected by the High Court in Yarmirr and Ward.
189 The assertion of sovereignty, which included the common law public rights of navigation and fishing as well as the right of innocent passage, was the assertion of rights which were fundamentally inconsistent with any asserted native title rights to control who had access to the inter-tidal zone and adjacent seas. As their Honours said in Yarmirr:
'[100]... At its root, the inconsistency lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights.'
190 The formulation of the residual rights in pars 3.8, 3.9 and 3.10 attempts to maintain the continued existence of exclusive rights in some form or other to grant or refuse access to the land and waters of the claim area, to grant or refuse permission to use such land and waters or to take or use the 'resources' (whatever that term may include beyond the taking of resources of the types identified in the evidence) of such land and waters. Such residual exclusive rights, to the extent that they existed at sovereignty, did not survive the original and any subsequent assertions of sovereignty with respect to the inter-tidal zones and/or the territory seas.
191 The right claimed in par 3.11 'to protect the resources of the waters and land by taking steps to prevent acts which are not consistent with the reasonable exercise of public or statutory rights and which may cause damage, spoliation or destruction of the habitat of fish, plants or animals in or on the waters or land' essentially faces the same problems as the claimed right to enjoy the amenity of the determination area claimed under par 3.3, which I have dealt with above. A further problem is that the claimed right to control the exercise of the public rights to fish and navigate and the international right of innocent free passage is inconsistent with the existence of those rights and the content of them. The content of the public right to fish was considered by Mansfield J in Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 at [48] - [51], [64], [87] - [92]. The content of the right revealed by that consideration was summarised by Callinan J in Risk v Northern Territory (2000) 210 CLR 392:
'[127]It is also important to bear in mind that the Act was enacted against the background of existing public rights, including of fishing and navigation, being public rights which qualify the Crown's rights in respect of the seabed and the space above it. (Commonwealth v Yarmirr 184 ALR 113) Necessarily, a right of fishing may involve not only the fishing of the seas, but also the use of the seabed, by standing on it, or anchoring in it to fish, placing nets in, below and on it, and the taking of some forms of sedentary aquatic life (not so attached to be considered a permanent part of the solum) from it. (cf Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1 at 14-15 [48]-[51], 16 [64], 22-3 [87]-[92] per Mansfield J).'
192 The nature of the public right to navigate in tidal waters and in the high seas was described by Beaumont and von Doussa JJ in the Full Court of this Court in Commonwealth of Australia v Yarmirr (2000) 101 FCR 171:
'[213]The common law principles which uphold a right in the public to navigate in tidal waters and in the high seas constitute another important contextual factor when considering the specific native title claim made here.
[214] In the British Columbia case, Viscount Haldane said (at 169):
" … the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the ocean, if, indeed, it did not in fact first take rise in them. The right into which this practice has crystallised resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway, and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity the Crown as parens patrić doubt regarded itself bound to protect the subject in exercising it, and the origin and extent of the right as legally cognisable are probably attributable to that protection, a protection which gradually came to be recognised as establishing a legal right enforceable in the Courts.
[215] In the SSLA case, Stephen J (at 421) noted that "the Crown's ownership of the foreshore, whilst proprietary, is subject to public right of navigation and of fishing".
[216] In this connection, Olney J said (at 593):
"The common law … recognises a public right of navigation which has been described as a right to pass and repass over the water and includes a right of anchorage, mooring and grounding where necessary in the ordinary course of navigation: Halsbury's Laws of England, 4th ed, 1977, vol 18, para 604. This right evolved before Magna Carta and is therefore a right distinct in its origin from the right of innocent passage in international law."
[217] We agree. Thus, in Gann v Whistable Free Fishers (1865) 11 HLC 192; 11 ER 1305, it was held that the grant of an oyster bed in an arm of the sea below low water mark was presumed to have been made before Magna Carta, but was nonetheless subject to the public right of navigation, as that public right also pre-dated Magna Carta. As that public right included the right to anchor, no toll could be charged by the owner of the oyster bed upon ships anchoring there. Lord Westbury LC said (at 209; 1312):
"Anterior to Magna Carta, by which such grants [of several or exclusive fishery] were prohibited, a several fishery in an arm of the sea or navigable river, might have been granted by the Crown to a subject. The present fishery of the respondents must be taken to have been so granted. And the grant might include a portion of the soil for the purpose of the fishery. But this, like every other grant, whenever made must have been subject to the public right of navigation …"
[218] Likewise, in Lord Fitzhardinge v Purcell, after holding that the bed of the sea, "so far as it is vested in the Crown, and a fortiori the beds of tidal navigable rivers can be granted by the Crown to the subject", Parker J said (at 167) that:
"It is true that no grant by the Crown of part of the bed of the sea or the bed of a tidal navigable river can or ever could operate to extinguish or curtail the public right of navigation and rights ancillary thereto, except possibly in connection with such rights as anchorage when there is some consideration moving from the grantee to the public. It is also true that no such grant can, since Magna Charta, [sic] operate to the detriment of the public right of fishing."'
193 The existence of a native title right to prevent the exercise of those rights on the ground that the exercise of them may cause damage, spoliation or destruction of the habitat of fish, plants or animals in or on the waters or land in the claim area, and was therefore an unreasonable and impermissible user is, in my view, inconsistent with the assertion of sovereignty. The content and control of the exercise of those rights given by the common law at the time of sovereignty thereafter fell to be determined in accordance with the common law and not in accordance with traditional laws and customs. The common law public rights were the product of a different legal system introduced into the claim area at the time of sovereignty. There is not, and never was, any native title right to control the exercise of such public rights imported with the common law at the time of sovereignty.
194 In respect of the original Lardil people, I am satisfied that at the time of sovereignty, the following rights and interests were possessed under traditional laws acknowledged and traditional customs observed, by them in relation to part of the land and waters of the area claimed as the traditional territory of the Lardil peoples, and that such rights survived the assertion of sovereignty:
1. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed by and under those traditional laws and customs.
2. The right to fish, hunt and gather, including the right to hunt and take turtle and dugong in the inter-tidal zone and the waters above and adjacent thereto for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.
3. The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under those traditional laws and customs.
4. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed under traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within the traditional territory of the Lardil peoples for the purposes of ritual or ceremony.
5. The right to construct, repair and maintain rock fishtraps in the inter-tidal zone and to take fish therefrom in accordance with such traditional laws and customs.
195 In respect of the original Yangkaal people, I am satisfied that at the time of sovereignty, the following rights and interests were possessed under traditional laws acknowledged, and traditional customs observed, by them in relation to part of the land and waters of the area claimed as the traditional territory of the Yangkaal peoples, and that such rights survived the assertion of sovereignty:
1. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed by and under those traditional laws and customs.
2. The right to fish, hunt and gather, including the right to hunt and take turtle and dugong in the inter-tidal zones and the waters above and adjacent thereto for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.
3. The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under those traditional laws and customs.
4. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed under traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within the traditional territory of the Yangkaal peoples for the purposes of ritual or ceremony.
5. The right to construct, repair and maintain rock fishtraps in the inter-tidal zone and to take fish therefrom in accordance with such traditional laws and customs.
196 In respect of the original Kaiadilt people, I am satisfied that at the time of sovereignty, the following rights and interests were possessed under traditional laws acknowledged and traditional customs observed, by them in relation to part of the land and waters of the area claimed as the traditional territory of the Kaiadilt peoples, and that such rights survived the assertion of sovereignty:
1. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed by and under those traditional laws and customs.
2. The right to fish, hunt and gather, including the right to hunt and take turtle and dugong in the inter-tidal zones and the waters above and adjacent thereto, for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.
3. The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under those traditional laws and customs.
4. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed under traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within the traditional territory of the Kaiadilt peoples for the purposes of ritual or ceremony.
5. The right to construct, repair and maintain rock fishtraps in the inter-tidal zone and to take fish therefrom in accordance with such traditional laws and customs.
197 In respect of the original Gangalidda people, I am satisfied that at the time of sovereignty, the following rights and interests were possessed under traditional laws acknowledged, and traditional customs observed, by them in relation to part of the land and waters of the area claimed as the traditional territory of the Gangalidda peoples, and that such rights survived the assertion of sovereignty:
1. The right to access the land and waters seaward of the high water mark in accordance with and for the purposes allowed by and under those traditional laws and customs.
2. The right to fish, hunt and gather, including the right to hunt and take turtle and dugong in the inter-tidal zones and the waters above and adjacent thereto, for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.
3. The right to take and consume fresh drinking water from fresh water springs in the inter-tidal zone in accordance with and for the purposes allowed by and under those traditional laws and customs.
4. The right to access the land and waters seaward of the high water mark, and so much of the waters of the Albert River as fall within the claim area, in accordance with and for the purposes allowed under traditional laws and customs for religious or spiritual purposes and to access sites of spiritual or religious significance in the land and waters within the traditional territory of the Gangalidda peoples for the purposes of ritual or ceremony.
5. The right to construct, repair and maintain rock fishtraps in the inter-tidal zone and to take fish therefrom in accordance with such traditional laws and customs.
6. The right to access so much of the waters of the Albert River as fall within the claim area for the purpose of hunting, fishing and foraging for living and plant resources for personal, domestic or non-commercial consumption in accordance with and for the purposes allowed by and under those traditional laws and customs.
198 A major part of the material filed, and of the examination and cross-examination of witnesses, was directed to the issue of whether or not there existed at the time of sovereignty a 'permission' system. That is, whether the original Lardil, the original Yangkaal, the original Kaiadilt and the original Gangalidda peoples had the right to control access to the land and waters of their respective traditional territories, and if so, whether that right continued to be acknowledged and observed by their successors up to the present time. In the view that I take that such a right did not survive sovereignty, it is unnecessary to make detailed findings as to the continued observance of it up to the present time. The remaining issue is whether such rights and interests in relation to the land and waters of the claim area, as I have found existed at sovereignty, continue to be possessed under traditional laws acknowledged and customs observed respectively by each of the Lardil peoples, the Yangkaal peoples, the Kaiadilt peoples and the Gangalidda peoples.
199 European contact with each of the constitute groups has, to a greater or lesser extent, brought about the physical dislocation of the applicant group from their traditional territories in that the majority of people who constitute the applicant group do not live on the Country to which they belong, and do not live a traditional lifestyle anywhere approaching that which existed at the time of sovereignty. The Lardil peoples and the Yangkaal peoples continue to have the closest physical connection to Country because the siting of the mission in Gunana on Mornington Island kept the Lardil and Yangkaal peoples in, or with access to, their traditional territories. The Kaiadilt peoples' physical connection with their traditional territory was severed when they were moved to Mornington Island in the mid-1940s. The Gangalidda peoples were physically isolated from their traditional territory by the granting of their traditional lands to pastoral interests and further as a result of the relocation of the mission from Old Doomadgee to new Doomadgee in 1936. The prohibition of travel by the indigenous peoples outside of the reserves managed by the missions also isolated the people from their Countries. I also find that during this period their native languages were lost by the majority of the members of the applicant group.
200 Notwithstanding such pressures, I am satisfied that none of the groups lost their identity or existence as a society. That is, none of the groups presently claiming for a determination is a new society, created or arising after sovereignty, seeking to adopt the traditional laws and customs of a former society, which has ceased to exist, as was the case in Yorta Yorta. Whether on Mornington Island or at Doomadgee, there were respectively core communities of Lardil, Yangkaal, Kaiadilt and Gangalidda peoples. The dormitory system trained up young men for the pastoral industry and young women for domestic service away from their traditional territories. Despite this relocation of trained men and women, some of that generation, upon retirement, returned to their traditional territories. During their time as stockman on Escott and the neighbouring pastoral properties, a number of the witnesses had the opportunity to visit the Country to which they belonged and in fact did so. The dormitories on Mornington Island closed in 1953.
201 At the commencement of the mission period on Mornington Island the communities continued to live on their Countries, with the children living in the dormitories as they were built having access to their parents and extended family and Country during holiday periods and other times. However, that changed over time. The change was neither sudden nor dynamic and during the war years the mission was not operated. I accept the evidence of Dr Memmott in his report dealing with the rate of change during the mission period. The area near the mission at Gunana developed as a village and people moved in, adopting a village lifestyle around the administrative centre represented by the mission. With the end of the mission period, the situation did not alter and the development of the area as a township with a local authority and the usual infrastructure that goes with a township (a store, hospital, school, governmental services, roads, power, reticulated water, subdivided building blocks and residential accommodation) has continued the aggregation of people at and around Gunana as consumers of those services. The same congregation around an administrative hub is also demonstrable at Doomadgee. The fact that some people continued to live on Country in Lardil and Yangkaal territories and that a number of out-stations have been established from the 1980s onwards, does not alter the fact that the majority of the members of the applicant group now live in or near to the administrative centres on Mornington Island and Doomadgee.
202 Notwithstanding the shift to the administrative centres, there is a wealth of recorded anthropological materials which chronicle the applicant peoples from the 1930s to the present time. That material in essential respects, supports the expert evidence given in these proceedings by Drs Memmott, Evans and Trigger. The anthropological material and the expert reports satisfy me that each of the applicant groups has maintained, through successive generations from their forebears at sovereignty, a normative system of traditional laws which are acknowledged and customs which are observed, by which persons are allocated to a Country and rights are allocated to those persons in respect of that Country. All the indigenous witnesses called to give oral evidence knew what Country they belonged to and knew that it gave them the right to live there and hunt and fish on the land and within the seas of that Country. They also knew their genealogy and that genealogical relationships could create derivative rights in respect of Country to which they did not belong. They also were aware of systems of Dulmadaship which carried rights, particularly in relation to entitlements to parts of dugong and turtle caught within their sea Country. The continuity of that knowledge is recorded over time in the published anthropological material. That some have chosen to return and live on Country in the outstations, satisfies me that each of the communities acknowledge that the right to return to one's Country, to visit it, to live there or to hunt and fish there, has never been lost or abandoned and has at all times remained an option to be exercised by those who have the right to do so.
203 With the present day availability of powered boats, particularly aluminium dinghies with outboard motors, access to sea Country for fishing and hunting is now more readily available than in times past. I accept the evidence of Dr Evans that seafood still constitutes a large part of the diet of indigenous people on Mornington Island, and more so in the diets of people living permanently in the outstations on Mornington and Bentinck Islands.
204 Dr Evans gave evidence as to the present continuity between the Kaiadilt peoples and the traditional rights and interests which I have found existed at the time of sovereignty. The contention put to Dr Evans in cross-examination was that the severance with the traditional territory of the Kaiadilt people had destroyed continuity between the past and the present conduct of the Kaiadilt peoples. Dr Evans said:
'... So far as hunting and fishing and gathering in the traditional way - and this might be a too general proposition to say in a traditional way, but you will be able to respond. Are they more weekend activities or leisure time activities than day-to-day subsistence activities? --- I think there's a different pattern when people are living on Bentinck Island to when they're living on Mornington Island.
Can we deal first with Mornington and move on to Bentinck? --- Yes. So at Mornington people go out on weekends in boats, or, you know, they'll take it - go to somewhere other than Gununa and, say, go fishing or whatever, or go out on a boat to get stuff. During the week - I mean, most people have some form of employment that commits them to, if not a 9 to 5, but you know, some regular daily regime, and when they knock off - I mean, there are some people who, you know, are keen and who might go out and spear fish, for example, or gather things. But others, for the reasons I was mentioning to do with alcoholism, wouldn't do that now. They'd go to the pub. If we go to Bentinck Island now, you've got people working the CDEP Program, say, you know, involved in building a road, or something like that. Again, it commits them to the use of their time for that purpose during the day, during the week. But there are other people living on the island - for example, there's women of various ages; sometimes in the grandmother age group, sometimes in the sort of older mother age group, sometimes younger women visiting. And often they will go off fishing, getting stuff out of fishtraps - I mean, not fully built fishtraps that are in that area - gathering shells and various things of that type. And then when the men get time off, which might mean after work or more typically on weekends, they'll go in the boat, typically dugong and turtle hunting and it's the sort of big thing to do to go out and get that. People do that pretty frequently. I mean, if you were a man - I mean, someone like Clayton or - Clayton Paul or Rodney Naranatjil, people we've seen as witnesses, I mean that's what gives you stature in the community as a man, and you go out hunting typically once, twice a week, I would say. I think people go out hunting for big animals and that, dugong and turtle, more often than they would have in traditional times because you can go out in a boat obviously. And we've talked about how often people would go out in walbus, and I said that it was regular in some sense but not all that frequent. I think now people go out more just because it's easier; you can go out further, and you bring in dugong and turtle. If you're asking about people's diets, you know, I mean people obviously get a lot of stuff from the store. And it's an interesting thing that if you look at the traditional diet from a nutritionist's point of view, you've got as much protein as you want, very easily, you know: you've got fish, you've got turtle, you've dugong, shellfish, it's all there for the gathering. If you want carbohydrate in your diet which you want for - and I should say, if you want fat you've got as much fat as you want from turtle and dugong, not so much from fish. If you want carbohydrate, the traditional availability of that in the South Wellesley and even the North Mornington area is pretty limited. You've got these tiny little yams. You've got some roots, things that are basically, you know, like that; long, thin roots. You've got berries in particular seasons. But it's not enough to fulfil the carbohydrate part of your diet very easily. And I think, again, if you look through Tindale's records, looking at the causes of death, it sounds like there was a lot of abdominal problems. I would guess that an unbalanced diet that was skewed towards protein rather than carbohydrate and roughage may have been a factor in that. So when people go to the shop, obviously there's been a change in people's diets. And getting flour, also getting sugar, tea, tobacco and stuff, rice, is something which, in a way, has filled a gap that wasn't filled in the traditional diet. And on Bentinck Island people didn't even have honey. I mean, you just didn't ever taste anything sweet, except for some fruits. When it comes so - you might see someone coming back from the shop having spent their fortnight's earnings, and to the extent that it includes the things I named, that's not substituting for part of the traditional diet. Now, on top of that there's the question, you know, how far do people get meat down the shop - - -
Down the store? --- - - - you know, buy steak, buy these other things. People buy them, obviously, and it depends very much on the weekly round. I would say that a typical thing is that on most days during the week, you either get something from the sea out of your fridge, if you are lucky enough to have a bit of frozen fish, or a bit of left-over dugong meat in your fridge, or, if you don't have that, you eat something from the shop. Maybe you've bought some steaks or lamb chops, or whatever, from the butcher. When the week-end comes, you go out hunting. You get fish, both for that day, and to an extent, for other days in the week, so there is that mix. On Bentinck, there is a greater proportion of the diet that comes from the sea, and there is a big freezer there, but it is pretty dodgy. I mean, it will be on for three days, off for three days. You wouldn't really want to take your chances much on the frozen meat that you get out of the tiny little store on Bentinck Island. So people go over to Tex Battle's resort and sometimes buy things there, but almost always people are eating what they take out of the sea in the protein domain on Bentinck, but they do have a store selling flour, rice, tea, and, of course, you don't need a freezer for that, so it is easy to get. So it is that sort of balance I would say was typical now.
All right. This is probably going to ask you to respond - and I suspect your answer might be it is a question of degree, but your report - you know, the quote from Tindale which describes the Kaiadilt as a strand dwellers; page 12 of your report. Is it no longer - it is not accurate any more to apply the Tindale description as to how people live. They don't live that sort of traditional life any more. It is affected by the considerations to which you've already adverted, namely, having to do a sort of a job to some extent and being able to do these sort of activities in the time frame that you've already described? --- Well, I mean, maybe it would be an interesting exercise for us to go through this paragraph and look at each activity and talk - if you don't mind - - -
No, I'm happy to do it? --- - - - because it will make it more concrete. So if we say "women's work is tied closely to the actic zone. At low tide they gather tjilangind (small rock oysters)." Well, that is still very common. And say a woman like Dawn Naranatjil, for example, who we saw in court. I mean, that would be a typical thing that she would do; go and get oysters, bring them back in a billy can, and that is something people eat. Cockles. Again, the same sort of thing. Denizens of mud holes and rock pools, and so on. Well, of course, people don't really have camps under the sheoak trees now, although when I - in the early '90s, before the outstation was properly established, before there were buildings, people were sleeping exactly there, under the casuarina trees when I went over in the '80s; that is what people were doing. Now they've got houses, they are sleeping in houses.
But it concentrated in the areas you've described? --- Yes.
"Or to inland areas of land to dig for roots." I don't think that is happening as much. For some of the reasons I mentioned - and you will see he puts the word "edible" in inverted commas, which is probably an appropriate comment - - -
There is better ways to get carbohydrate? --- Yes, yes. "Vines" - I mean, people do still get some things - bush berries, and occasionally roots, but grasshoppers - people don't eat those any more, as far as I know. "..glean a few varieties of seeds and fruits" yes, still happening. Then is talking about other activities which aren't food oriented, so we'll skip those. But actually people - of course they get wood for fire. "..dry grass for camps" - I would say when people are camping out, when they're at a place where there is not an outstation built, you make a very traditional shelter on the beach. Make a wind break rolling up a vine that Kaiadilt People call Timothy vine in English, so up to about this height around it, you move it according to where the prevailing winds are coming from, and you have a fire inside that and sleep around that. So people use that when they're away from the main built up outstation, but not every day. "Plant fibres for ropes and string" still happens a lot, and people still use that. I mean, of course, people use other types of ropes and string now. If men make either a three-pronged metal spear, or a harpoon, they'll use fishing line to tie it, but women still make those traditional bags and sell them to the craft shop. So going on. Well, we know people aren't using rafts of logs any more. Spearing fish: again that is a very common thing. In terms of cultural continuity, what has happened is that people now use a different sort of spear. They use a three-pronged spear made where you get three pieces of metal and file them down to a point and bind them around with fishing line. It is not traditional, but it is also not European either. It is a modern Aboriginal adaptation of an older style of spear where the points were made of carved hardwood. Yes, people still do that. I mean, they stand out on sandbanks, and what sometimes people refer to as roads. Big fish - quite big fish come up in the channels between the sandbanks, and people stand there and spear those, and it is a common thing for men to do after hours, and on Bentinck, people - younger men will still do that after work. "... in the hope of spearing a dugong, a turtle, or a shark" well - - -
What about stone fish traps? They're not used any more, are they? --- They still have a function in terms of - they are a bit run down, literally, and dilapidated, but people talk about rebuilding them and have started on rebuilding a couple of them, but they're not really - from a functional point of view, needed any more, because the traditional Kaiadilt way of catching fish - the Kaiadilt people didn't have fish hooks traditionally. So you had a line which you made from grass and then you tied a little bit of bait to the end of the line, threw it in, and then you gradually drew it towards you and the fish would sort of follow, but you didn't hook it into their mouth, and then you would spear it. You can imagine that fish traps are more useful in catching fish when you have that sort of line technology than when you have fish hooks. Now people have fish hooks. Fish traps, you know, they're good in basically getting fish into an area where you can catch them easily. They're not so important, but people do talk about rebuilding them. I'm not sure whether it will happen or not. Anyway, most of that "spearing of fish by men" I mean, people either wait around in the shallows or go out on to sand banks to do that. "Dugongs and turtles", people do it more using boats now, going out for them. So "women's work to repair the fish trap walls" well, they don't have to do that so much now. And "taking the small fry among the fish trapped when the traps are almost dry." Well, I would say now people are doing that with lines most of the time and sometimes with nets as well.
Where do they do this? I mean, do they fish in the fishtraps or do they fish just off the sandbanks? --- Off the beach but also in boats, offshore.
But the fishtraps don't really have any functional purpose for the process of fishing or taking - - -? --- No.
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- seafood from the sea, any more? --- No. I mean, they - every now and then, they are a good place to go look for fish because - I mean, the fishtraps haven't just gone to nothing; they're just not as high as they were. So, you might be lucky and see fish inside there. It happens from time to time. So, you might look around there but you're not totally reliant on that any more, certainly for getting fish.'
205 The second respondent submitted that there were serious questions as to whether a system of ownership of Countries or estates survived the physical loss of control of the traditional Gangalidda territory caused by European contact. The submission was based primarily on the evidence of Bill Westmoreland. His evidence was that nobody was 'boss' of the Country known as Dumbara. He said no-one lived there and that no-one now owns the Country at Dumbara. He concluded his evidence in this way:
'If you want to say something further, you say something? --- Nobody in that dulgarr, nothing. All that danggara been died.
DR TRIGGER: Nobody in that dulgarr, in that country? --- When white fella been take that country, well, they been take the country off the Aboriginal and black fella will say nothing more about it, you see.'
206 The evidence of Bill Westmoreland was put to Dr Trigger in cross-examination:
'What I suggest is that is as telling and frank a relation of a story of real loss as one could want? --- Well, I suppose what I'd say is that he is - okay, he is saying the Aboriginal people once in occupation have died. Their descendants don't live there any more. White fellows took the country off them. I don't interpret these sorts of comments - those sorts of comments from one individual like this to be - to be indicative that my conclusions based on a whole body of, you know, other sorts of statements from other people in other settings are wrong. I think if you - I don't - my honest opinion is I don't think that Bill Westmoreland wants to say that there are no Ganggalida people with any connections down into that coast country. I mean, his relatives wouldn't - he knows his relatives are not of that view. I don't believe he is of that view. I can't explain why these particular answers came in this way but I think the pressures of communication are significant.'
207 I am not prepared to hold, on the basis of that evidence alone, that the 'ownership' system of Countries in traditional Gangalidda territories had been lost to those peoples by the time of the trial. The Gangalidda people, as a society, did not cease to exist between sovereignty and the hearing of the application. The second respondent conceded that if there was an identifiable Gangalidda society at sovereignty, it continued to exist up to and in contemporary times. Further, Mr Westmoreland claimed that Dumbara is his Country by 'my granny, my father, Old Man Daylight, Mother Bessie, my mother's sister Norma, Lizzie, three sisters', and stated he was the only boss of that Country alive. As Dr Trigger said during cross-examination, there are other Gangalidda people who claim to belong to Dumbara or to have rights in that Country; Wadjulabinna and June Gilbert both claim to be traditional owners of Dumbara from their mother and grandmother. What Mr Westmoreland meant depends on what he meant by 'owned' and this he was not asked. If he meant no more than no-one was presently on the land physically controlling what happened there, then what he said is totally consistent with the evidence of other Gangalidda people. Further, if he did mean that the people belonging to the Dumbara Country had died out, I am satisfied that under Gangalidda traditional laws and customs, which existed at sovereignty and continue today, that Country would be allocated to others or merged with other estates. It would not be left without custodians or peoples to whom it belonged and who were responsible for its well-being.
208 Although there are no longer ten separate estate groups or clans living along the coastal strip of Gangalidda territory, there are four out-stations which each have a community. These communities are often transitory, but still in touch. Despite the relocation of the community from Doomadgee and the passing of much of the coastal strip into private ownership, the Gangalidda peoples have continued contact with their lands, albeit in an erratic way. Like the Lardil, Yangkaal and Kaiadilt peoples, they have retained the knowledge of the local Countries; the identity of the people who belonged to them and the basis of their right to belong; the rights which go with Country; the stories, the Dreaming and the obligations, and within their community people continue to acknowledge the existence of these rights in themselves and others.
209 I am satisfied that each of the constituent communities continues to hold religious and spiritual beliefs which are based in the Dreamings, each of which includes the Rainbow Serpent myth and each of which has sacred places located on the land and in the waters of the claim area and Dreaming paths, which traverse those land and waters. However, for reasons stated above, I find that these beliefs translate only into a non-exclusive right to access sacred sites for the purpose of ritual and ceremony which sites are known and accessible in the inter-tidal zone and adjacent waters, including sandbars and reefs.
210 With two qualifications, I am satisfied that each of the constituent groups continues to possess the same rights and interests in respect of the land and waters, the subject of the claim for determination, under the traditional laws acknowledged and the customs observed by them, as were possessed by their forebears under the same traditional laws and customs at sovereignty.
211 The first qualification relates to the hunting of turtle and dugong. Hunting of these animals has continued throughout the recorded history of each of these peoples and it continues today. Although the right to do so is not inconsistent with the right of government to pass laws for the conservation and management of wildlife, the native title right is capable of regulation subject to s 211 of the Act: Yanner v Eaton (1999) 201 CLR 351 at [37].
212 The second qualification is in relation to fishtraps. There is scant evidence that the fishtraps which physically remain are maintained, repaired or used. Although there was some knowledge of whose Country it was where the fishtraps were found and who held the traditional rights to the fishtraps, the balance of the evidence supports a finding that the maintenance and use of fishtraps, as such, has fallen into disuse and any continuing use is merely fortuitous.
213 The position as to the fishtraps on Bentinck Island is dealt with in the evidence of Dr Evans set out above.
214 As to the fishtraps in Gangalidda territory, Dr Trigger said:
'All right. Thank you. Now, fishtraps: you refer at page 114 of that article to fishtraps and you've referred to - elsewhere in some of your other documents that you've tendered - fishtraps and the like. In respect of the fishtraps within Ganggalida territory, are you aware of any of them having been used as a fishtrap, say, in the last 30 years? --- Well, as is shown on some of the photos that I think went in this morning during the early 80s and probably again in 1988 when I was down there with Richard Robbins, we visited the fishtraps and the Ganggalida people with us - oh, you know, collected crabs and oysters from the rock walls and speared some fish from within the traps at Bayley Point. The traps weren't maintained in the sense of they required some - you know, there were holes in them and gaps in them and so on. People commented on that, and at that stage hadn't been down there to maintain them in a - in a focused systematic way, but I've seen people using the traps in the sense of spearing stuff in them during those times.
Okay. All right, so that's - but - I shouldn't say but, but it's in the context of people going there perhaps with you or perhaps on an odd occasion to go fishing or whatever and to throw the spear in or drop the line in as they would throw a spear in or drop a line in off the beach or anywhere else for that matter. In other words, there hasn't been, as far as you're aware, a concentrated use of the fishtrap in the same way that fishtraps used to be used perhaps 50 or 100 years ago? --- Well, the - the times that I can say I've seen people using the traps were obviously the times that I was there.
Yes. Well, I'm also alluding to people telling you - - -? --- Oh, well, people - - -