Ward, Ben & Ors on behalf of the Miriuwung Gajerrong People & Ors v State of Western Australia & Ors [1998] FCA 1478 - FCA 1998 case summary — Zoe

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Ward, Ben & Ors on behalf of the Miriuwung Gajerrong People & Ors v State of Western Australia & Ors [1998] FCA 1478

[1998] FCA 1478

Federal Court of Australia|1998-07-01

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Court

Federal Court of Australia

Decision date

1998-07-01

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Original judgment source is linked above.

Judgment (915 paragraphs)

[1]

The application The application was presented to the Tribunal in April 1994 by "Miriuwunga Gajerronga Ningguwung Yawurrung Inc (Miriuwung and Gajerrong Families and Heritage Land Council)". After the application had been accepted by the Tribunal, the description of the claim area was amended, and the name of the first applicants changed by substituting for the corporate applicant natural persons who bring the claim on behalf of the Miriuwung and Gajerrong people.

[2]

After notice of the claim was published, the Tribunal received notices from 127 persons with interests in the claim area said to be likely to be affected by a determination of native title. Pursuant to s 68 of the Act those persons became parties to the application. Two of those parties, the State and the Territory, commenced a proceeding in this Court seeking a declaration that the Registrar had erred in accepting the application. It was contended that the application did not comply with the requirements of the Act in that the application had been made by a body corporate. Further, it was submitted that replacement of the body corporate by the named applicants did not cure lack of competency in the application. In August 1995 those issues were determined by a Judge of this Court who held, inter alia, that the Registrar had neither erred in accepting the application nor in accepting an amendment to the description of the applicant. (See: Northern Territory v Lane (1996) 138 ALR 544.)

[46]

As Gummow J pointed out in Wik Peoples v Queensland (1996) 187 CLR 1 at 177, a communal interest in land, based on custom, was not an unknown concept for the common law. Incorporeal customary rights held communally, not severally, such as rights of pasturage over commons or wasteland, had been included in the law of property since the formation of the common law. (See also: Fejo v Northern Terrritory of Australia, (1998) 156 ALR 721 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 739.) In particular, customary rights not involving a profit , exercisable in respect of land by a local community but not the public at large, analogous to the character of some of the rights that arise under native title, were recognised at common law if they were ancient, certain, reasonable and continuous. They did not depend upon origin in grant, presumed grant or prescription and could not be lost by disuse or waiver. (A W B Simpson, "A History of The Land Law" (2nd Ed), (Oxford: Oxford University Press, 1986) at 107-108; R E Megarry & H W R Wade, "The Law of Real Property" (5th Ed), (London: Stevens & Sons Limited, 1984) at 849-850.) From the time sovereignty was asserted the radical title in the land of a colony thereby obtained by the Crown was burdened by any native title that existed prior to sovereignty. (See: Mabo (No 2) per Brennan J at 57-58; per Deane, Gaudron JJ at 87; per Toohey J at 182; Amodu Tijani at 403-404, 407; St Catherine's Milling and Lumber Company v R (1888) 14 App Cas 46 at 58.) Formal recognition or affirmative acceptance of native title by the Crown was not required. (See: Mabo (No 2) per Brennan J at 57; Western Australia v The Commonwealth per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 433; Calder per Hall J at 393.) Native title may be extinguished by the Crown but continues until the Crown takes such action by legislature or executive as reveals a clear and plain intention to extinguish it. (See: Mabo (No 2) per Brennan J at 64; per Deane, Gaudron JJ at 111; per Toohey J at 195; Calder per Hall J at 404; United States v Santa Fe Pacific Railroad Co 314 US 339 (1941) at 353, 354.) Such extinguishment of native title must be plain and unambiguous in the public record. (See: Calder per Hall J at 393.) Until extinguished native title provides a right of occupation that prevails against all but the Crown. (See: Mabo (No 2) per Mason CJ, McHugh J at 15-16; per Brennan J at 51, 75; per Dawson J at 131-138; Calder per Hall J at 352-353; Johnson v McIntosh (1823) 21 US 240 per Marshall CJ at 253-254; Admodu Tijani per Viscount Haldane at 409-410; A E W Park,"The Cession of Territory and Private Land Rights: A Reconsideration of the Tijani Case", Nigerian Law Journal 1(1964-65) 38 at 45-49; Geita Sebea v The Territory of Papua (1941) 67 CLR 544 per Williams J at 557; Guerin v the Queen [1984] 2 SCR 335 per Dickson J at 379-382; Delgamuukw per Lamer CJ at 245-246; J Gagne, "The Content of Aboriginal Title at Common Law: A Look at the Nishga Claim" (1982-83) 47 Sask Law Rev 309 at 337-339; B Slattery, "Understanding Aboriginal Rights" Can Bar Rev 64 (1987) 727 at 746-749; W Pentney, "The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982 Part II - Section 35: The Substantive Guarantee" (1988) 22 UBC Law Rev 207 at 221; K McNeil, "The Meaning of Aboriginal Title", (Ch 5), Aboriginal and Treaty Rights in Canada, Editor: M Asch (Vancouver: UBC Press, 1997) 135 at 150-154.)Of course, ancillary to a power to extinguish native title is a power to regulate the exercise of rights that flow from native title and regulation may involve curtailment or suspension of those rights but not extinguishment. (See: Mabo (No 2) per Brennan J at 64; R v Sparrow (1990) 1 SCR 1075 at 1097.) Except for formal surrender to the Crown, which has the effect of extinguishing the title, native title is inalienable. Because the rights and interests in respect of land able to be used and enjoyed by members of a community by virtue of native title are based on the traditional laws, customs and practices of the community, rights arising under native title cannot exist beyond the community which observes those traditions, customs and practices. (See: Mabo (No 2) per Brennan J at 60; per Deane, Gaudron JJ at 110.)

[48]

As explained by Professor K Maddock in "The Australian Aborigines - A Portrait of their Society" (2nd Ed), (Ringwood: Penguin, 1982) at 33-34: "Of course, Aborigines were nearly everywhere nomads, even after becoming closely associated with defined areas, but this did not mean random wandering. They may have been kept on the move by their need for food and water, but other factors too circumscribed their journeying. For example, there were rules or customs to govern the use of resources and access to places. ... In addition to the controls on movement and activity which these avoidances imposed, there were outer limits to people's journeying. But the extent and direction of their movements were largely affected by the nature of the activity in which they were engaged at the time. Obviously the area over which people moved in the course of a seasonal cycle had to be extensive enough to supply them with the food and water they needed, there being no trade worth speaking of in such items. But this basic requirement does not fully explain Aboriginal perspectives on territory, for on the occasion of major ceremonies people came from far and wide to take part. For the rest of the year they would be hunting and gathering in different areas. And, as all men and women married, their social universe had to be large enough for them to obtain spouses without too much trouble. Thus outer boundaries can be thought of as set by a number of factors - economic, religious and marital, for example - and as varying with the factor in question, so that the area from which men and women drew their spouses and the area from which they normally drew their sustenance would have been different but overlapping. ... The areas over which people moved in carrying out their various activities could not expand indefinitely, however, even when their haziness of outline is allowed for. On the one hand a limit was set by the practical advantages of staying in country with whose food and water resources and human population familiarity could be acquired. Here it is important to appreciate that Aborigines had to walk everywhere and to carry their possessions themselves. On the other hand each hazily defined territory shaded off into others having the same general character, the occupants of which would have been an obstacle to expansion by their neighbours."

[52]

I should also note that there is a strong possibility that the precise nature of occupation will have changed between the time of sovereignty and the present. I would like to make it clear that the fact that the nature of occupation has changed would not ordinarily preclude a claim for aboriginal title, as long as a substantial connection between the people and the land is maintained. The only limitation on this principle might be the internal limits on uses which land that is subject to aboriginal title may be put, i.e., uses which are inconsistent with continued use by future generations of aboriginals." The activities or practices may be a modern form of exercise of those laws and customs. (See: Mabo (No 2) per Deane, Gaudron JJ at 110; per Toohey J at 192; R v Van der Peet per Lamer CJ at 553.) There is universal acknowledgement of this fact where traditional rights and culture of minority indigenous and tribal people are recognized and respected by a supervening community. (Lansman et al v Finland, Communication of Human Rights Committee No 511/1992, UN DOC CCPR/C/52/D/511/1992 (1994) at par 9.3.) It will be immaterial that those laws and customs have undergone change since sovereignty, provided that the general nature of the connection between the indigenous people and the land remains. (See: Mabo (No 2) per Brennan J at 70.) The communal rights exercisable under native title, and the rules governing the exercise of those rights, may be varied from time to time according to the practices or customs now observed by the community based on traditional laws or customs. (See: Mabo (No 2) per Deane, Gaudron JJ at 110.) If native title has continued since the assertion of sovereignty the rights available under that title, and the persons who may exercise those rights, will be ascertained by reference to practices that are based on traditional laws and customs, not by enquiring whether the traditional practices observed today are in the same form as before as if frozen in time. Aboriginal, or native title, as recognized by the common law shares the capacity of the common law to evolve and mould as circumstances require. An indigenous society does not surrender native title by modifying its way of life. (See: Mabo (No 2) per Toohey J at 192.) The Aboriginal laws, customs and traditional practices on which native title is based have always been dynamic, not static.

[76]

"The acknowledgement that s. 35(1) has accorded constitutional status to common law aboriginal title raises a further question - the relationship of aboriginal title to the 'aboriginal rights' protected by s. 35(1). I addressed that question in Adams,…where the Court had been presented with two radically different conceptions of this relationship. The first conceived of aboriginal rights as being 'inherently based in aboriginal title to the land'…, or as fragments of a broader claim to aboriginal title. By implication, aboriginal rights must rest either in a claim to title or the unextinguished remnants of title. Taken to its logical extreme, this suggests that aboriginal title is merely the sum of a set of individual aboriginal rights, and that it therefore has no independent content. However, I rejected this position for another -- that aboriginal title is 'simply one manifestation of a broader-based conception of aboriginal rights'…Thus, although aboriginal title is a species of aboriginal right recognized and affirmed by s. 35(1), it is distinct from other aboriginal rights because it arises where the connection of a group with a piece of land 'was of a central significance to their distinctive culture'… The picture which emerges from Adams is that the aboriginal rights which are recognized and affirmed by s. 35(1) fall along a spectrum with respect to their degree of connection with the land. … At the other end of the spectrum, there is aboriginal title itself. As Adams makes clear, aboriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site-specific rights can be made out even if title cannot. What aboriginal title confers is the right to the land itself … (at 250-252) In addition to differing in the degree of connection with the land, aboriginal title differs from other aboriginal rights in another way. To date, the Court has defined aboriginal rights in terms of activities. As I said in Van der Peet…: …in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. Aboriginal title, however, is a right to the land itself. Subject to the limits I have laid down above, that land may be used for a variety of activities, none of which need be individually protected as aboriginal rights under s. 35(1). Those activities are parasitic on the underlying title." [Emphasis in original] (at 252) A determination that native title exists may depend upon a finding whether native title has been extinguished. That question will raise for determination whether the Crown has displayed a clear and plain intention to extinguish native title. If so, no native title right dependent upon that underlying title will remain.

[77]

Native title at common law is a communal "right to land" arising from the significant connection of an indigenous society with land under its customs and culture. It is not a mere "bundle of rights". (See: Delgamuukw per Lamer CJ at 240-241.) The right of occupation that is native title is an interest in land. (See: Mabo (No 2) per Brennan J at 51.) There is no concept at common law of "partial extinguishment" of native title by the several "extinguishment"of one or more components of a bundle of rights. It follows that there cannot be a determination under the Act that native title exists but that some, or all, "native title rights" have been "extinguished". Strict regulation of the rights parasitic upon native title by suspension, suppression, curtailment or control of those rights by legislation or by acts of the Crown which may thereby involve a grant of rights of use of Crown land to third parties may impair native title but strict regulation of the exercise of such rights of itself, will not mean that native title has been extinguished. As stated in Western Australia v The Commonwealth by Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 422): "After sovereignty is acquired, native title can be extinguished by a positive act which is expressed to achieve that purpose generally … provided the act is valid and its effect is not qualified by a law which prevails over it or over the law which authorises the act. Again, after sovereignty is acquired, native title to a particular parcel of land can be extinguished by the doing of an act that is inconsistent with the continued right of Aborigines to enjoy native title to that parcel - for example, a grant by the Crown of a parcel of land in fee simple - provided the act is valid and its effect is not qualifed by a law which prevails over it or over the law which authorises the act." Furthermore, extinguishment by inconsistent acts of the Crown may be said to be effected by the grant of tenures by the Crown that confer on third parties rights to use the land in a way inconsistent with the exercise of rights that attach to native title, and by the exercise of those rights. Such circumstances have been described as extinguishment by "adverse dominion". (See: United States v Santa Fe Pacific Railroad Co at 347.) In Delgamuukw v British Columbia per Lambert JA at 670-672 it was stated that for extinguishment to be effected in this manner three conditions were required to be satisfied. First, that there be a clear and plain expression of intention by Parliament to bring about extinguishment in that manner; second, that there be an act authorized by the legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation; and third, unless the legislation provides the extinguishment arises on the creation of the tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof. (See also: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 739.) A similar principle was set out in Mabo (No 2) by Brennan J (at 68, 70) in respect of the appropriation of Crown land, by reservation for a public purpose, and subsequent use of the land for a permanent public work. The following remarks by Gaudron and Gummow JJ in Wik (cf Kirby J at 238) may be read as consistent with the principles of "adverse dominion" described above: "And to the extent that there is any inconsistency between the satisfaction of conditions and the exercise of native title rights, it may be that satisfaction of the conditions would, as a matter of fact, but not as a matter of legal necessity, impair or prevent the exercise of native title rights and, to that extent, result in their extinguishment." (Gaudron J at 166) "It may be that the enjoyment of some or all native title rights with respect to particular portions of the … (pastoral lease) would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title." (Gummow J at 203)

[80]

At all times his Honour was speaking of extinguishment of native title and the nature of acts of the Crown from which an intent to extinguish native title may be inferred and the words "extinguish to the extent of the inconsistency" refer to the extinguishment of native title to the extent that there is land in respect of which inconsistent rights have been granted by the Crown with the intent of extinguishing native title. It is not a statement by his Honour that if the degree of inconsistency is not sufficient to show a clear and plain intention by the Crown to extinguish native title, native title continues in respect of that land but a specific aboriginal right which depends upon the existence of native title for its exercise nonetheless may be "extinguished". It is not impairment or regulation of the aboriginal rights that are derived from native title that is the touchstone of extinguishment but the express statement by the Crown that native title is extinguished or an act of the Crown, the nature of which makes it clear that it is intended by the Crown that native title is to be extinguished, the intention being demonstrated by the fact that continuation of native title, and, therefore, continued existence, enjoyment and exercise of rights dependent upon that title, is incompatible with the extent, or the exercise, of the rights created by the Crown. In Wik the questions put to the High Court for answer did not include the effect of the grant of a pastoral lease upon native title rights where native title had not been extinguished. Comments were made by Toohey J (at 108) and with the concurrence of Gaudron, Gummow and Kirby JJ (at 133) to the effect that if native title, and, therefore, the rights and interests available thereunder, had not been extinguished, the possibility arose of the existence of concurrent rights between a pastoral lessee and the holders of native title. It was noted that the form of the case put before the High Court precluded consideration of the question of the suspension of any native title rights during the currency of the grant of a pastoral lease.

[81]

The degree of inconsistency between the rights granted to third parties, and the rights exercisable by the common law holders of native title, is relevant, first, to the question whether the Crown has evinced a clear and plain intention to extinguish native title and second, to the question of the degree to which native title rights have been regulated by control or suspension in the event that native title has not been extinguished and the enforceability or protection of native title rights is in issue. Where native title is extinguished, rights that are parasitic or dependent upon that title fall with the extinguishment. No question of the "revival" of extinguished native title can arise. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 740.) If native title to land is not extinguished, the extent to which native title rights are regulated, curtailed, subordinated or suspended by rights or interests in land granted by the Crown to third parties may be required to be considered as a separate issue, but not as a question relevant to the determination of the existence of native title. That question may be determined in a proceeding to enforce actual, or claimed, native title rights undertaken in a court of competent jurisdiction. (See: Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 731.) Fundamental inconsistency between the exercise of rights granted to third parties by act of the Crown and the exercise of any right that attaches to native title may show an intention by the Crown to extinguish native title, but inconsistency with the exercise of some only of those rights will not. Native title will remain a right to the land under which other native title rights may be enjoyed. Coexistence of competing interests in land, whether recognized at common law or derived from statute, is accommodated under common law and in Australia land law. (M Tehan, "Co-existence of Interests in land: a dominant feature of the common law", Land Rights, Laws: Issues of Native Title (Canberra: Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Issues Paper No 12, January 1997) at 4.) It is not contrary to legal principle for two interests in land to coexist in respect of the one area of land and it is not a requirement of law in such circumstance that a concept of "extinguishment" or "partial extinguishment" be applied to defeat one of those interests despite the fact that there may be some inconsistency between incidents of the respective rights as exercised.

[104]

(a) Historical evidence Excavation of archeological sites has shown continuity of use of particular areas of land prior to, and after, European colonization, the latter being demonstrated by artefacts such as tools or trade items fashioned from materials introduced by Europeans. For example, metal and glass and have been found in the upper levels of the excavated soil. The archeological evidence so gathered, when coupled with ethnographic material, is able to identify sites as places of continuing ceremonial or mythological significance. For example, rock paintings at some sites have spiritual and mythological meanings that have been handed down through the generations. The knowledge of Aboriginal people of the significance of such sites, together with the archeological material, points to the observance or acknowledgement of traditional laws and customs by a community subsequent to settlement and of the maintenance of some form of connection with the land thereafter. Dr Gregory also noted that artefacts made from European materials and depictions of rock art demonstrated that the sites continued to be used during the "contact period". A matter of importance in such rock art records is that according to ethnographic material such art is only carried out in the "country" of the artist. Whether there was an identifiable society which observed traditional laws and customs in respect of the land of the society in occupation at the time of sovereignty will be a matter of inference from that and other material. Dr Gregory concluded that taking into account the ethnographic evidence provided by members of the Miriuwung and Gajerrong people who spoke of and identified the rock art in the Territory area, and taking into account the short time that has elapsed since 1880 when European settlement commenced in the region, it was "reasonably likely" that the archeological material found in the Territory area could be "largely attributed to the Miriuwung Gajerrong people". (Ex NT2 p 42)

[105]

Changes in the use of land after colonization were also noted by the archeological studies. For example, it can be shown that the quarrying and flaking of stone for spear points all but disappeared and that increased use of rock shelters and more intensive production of rock art indicated a change of pattern of use that occurred when the pastoral industry absorbed the Aboriginal inhabitants with the result that the former lifestyle of congregating in the "dry" season and dispersing in the "wet" was reversed by a pattern of employment and residence on pastoral properties in the "dry" and movement and congregation in the "wet". (P M Kaberry, "Aboriginal Woman: Sacred and Profane" (London: George Rutledge, 1939) (Ex 44 pp 8, 11, 30)).Formerly, the common pattern of land use in the region was that Aboriginal people split into small family groups for hunting, collecting and foraging for much of the year and that during the "dry" season large gatherings would occur for ceremonial ritual, social and trading purposes. There was seasonal movement between the coast, lowlands and plains in the "dry" season and the uplands were used for places of shelter in the "wet". There was evidence that the trading and exchange of artefacts being carried on between groups from within and outside the claim area continued at the time of European settlement and thereafter. (P M Kaberry, "The Forrest River and Lyne River Tribes of North-Western Australia. A Report on Fieldwork", Oceania 5, 4, (1935) at 408 (Ex 53 pp 412-413); Dr B Shaw, "Countrymen" (Canberra: Australian Institute of Aboriginal Studies, 1986) (Ex A18 pp 37, 83-84)). As noted earlier, settlement of the East Kimberley region and the claim area did not commence until the latter part of the nineteenth century, 100 years after the founding of the first Australian colony. As Dr Gregory stated "traditional Aboriginal societies in (the)...region were militant and mounted resistance against European intrusions in the form of raids on stations, cattle spearing and the physical retreat to less accessible locales such as the rugged sandstone country". (Ex NT2 p 17) It took fifty years between 1880 and 1930 before "pacification", or conquest, of Aboriginal people in the region was effected by the use of force by settlers and law enforcement officers of the colonies.

[108]

The introduction of cattle by pastoral enterprises deprived Aboriginal people of their usual sources of sustenance. The cattle ate out indigenous food, drove away native fauna, took over water holes, degraded the land and made it difficult for Aboriginal people to follow their nomadic way of life. The demand for labour by pastoral enterprises saw Aboriginal inhabitants of the region taken to pastoral homesteads where males were used as stockmen, or in similar duties, and females used in domestic service. The homestead became the source of food for both employed and unemployed Aboriginal people in the area. The following extract from a report submitted in 1909 by James Isdell, an Inspector of the Aborigines Department, referred to by Dr Green in his report "Historical Issues in the NE Kimberley 1882-1972"(Ex 18 p 59), stated the problem in clear terms: "In the early days before stocking, all the best pastoral country was full of game of all descriptions, numerous varieties of ground game, rats and bandicoots, opossums everywhere in the timber, emus in large mobs of 50 to 100, native companions in flocks, duck and flock pigeon in hundreds of thousands. In those days both Kimberleys were a paradise for natives all varieties of meat could be caught with little labour. I have personally seen all this, over 25 years ago, when there were only a few stations near the Derby coast, at that time I explored a good deal of the Kimberley, and crossed the Warburton Desert from Christmas Creek to head of Oakover in the Northwest. All this is now changed, stocking up the country has completely destroyed and hunted all the ground game. You can travel for weeks without seeing a sign of emus, native companions, or plain pigeons, opossums have totally disappeared. Only a few ducks and kangaroos can occasionally be seen. Natives have no meat, so is it any wonder that they have taken to cattle killing to feed their women and children. Years ago, during the wet season you could get hundreds of different varieties of herbs and vegetables, which were the yearly medicine for the aborigines that kept their bodily system in good health. Stock have eaten out and killed all the native vegetables." In more remote areas, for example, the coastal area between Wyndham and Keep River the effect of settlement occurred up to twenty years after the establishment of pastoral properties around the Ord River valleys. Up to the 1930s small groups of Aboriginal people maintained a nomadic lifestyle taking sustenance from the land and avoiding the "white man". Although in this period the majority of Aboriginal people in the region went to live and work at cattle stations, others "stayed away in the ranges and were visited by family and friends during the wet or holiday season". (Ex NT2 p 18) As late as 1935 spearing of cattle in the claim area was reported as continuing and by one account went on until at least the early 1970s. (T Rowse, "Were You Ever Savages?: Aboriginal Insiders and Pastoralists' Patronage", Oceania 58, 1, (1987) at 81.) One of the witnesses for the first applicants, Mignonette Djarmin, born in the early 1930s, said that as a young child she had lived in the Ningbingi area, "Gajerrong country", with her mother and her father and others in a group "in the bush". Another witness, Gypsy Nyirrmoi, believed to have been born around the turn of the century, said that she had been a small child in the bush with her mother and father near Bucket Springs (Binjen) when her father had been shot and killed by "gardia" (white men). As Dr Gregory noted the period between the commencement of the settlement of the region and the present day is relatively short. For a person now sixty years of age the period in which settlement took place was a time through which great grandparents and grandparents would have lived. It may be anticipated that connections of witnesses with people and events of that time could be spoken about with some confidence.

[135]

The absence of formal recognition of Aboriginal connection with the land of the claim area was but one aspect of the attitude of the European society to the interests of Aboriginal communities. In many respects acts of the Crown entrenched disadvantages suffered by Aboriginal people. For example, when the colonies federated as the Commonwealth of Australia in 1901 s 127 of the Constitution, which excluded "aboriginal natives" from the count of the Commonwealth's population, treated Aboriginal people, in effect, as non-persons. (B Fitzpatrick, "The Australian Commonwealth: A Picture of the Community 1901-1955" (Melbourne: Cheshire, 1956) at 2.) That discrimination continued until 1967 when a referendum authorized removal of the provision from the Constitution. Under the Natives (Citizenship Rights) Act 1944 (WA) numerous barriers were erected to deny Aboriginal people "acquisition of full rights of citizenship". (Ex A27(a) pp 39-40) For most of the period after settlement Aboriginal people employed on pastoral stations received little more than rations for their labour. They had no financial resources to use to assert their rights. Governments of the Crown declined to provide that wages be paid to Aboriginal employees on pastoral stations and used police resources to enforce the employment permits and indentures held by pastoralists, apprehending and returning Aborigines to the pastoral stations they had left. (Ex 18 p 75; Ex A59 pp 288-290, 294) Not until after 1942 were Aboriginal persons who had more than one-half of Aboriginal blood, entitled to receive pensions or allowances under Commonwealth legislation. Suffrage in federal elections was denied to Aboriginal people until 1962, and in State elections until 1971. Education of Aboriginal people was restricted. Until the 1950s Aboriginal children were regularly denied access to the State education system (Biskup, at 148-150, 191-192, 202-203, 241-242) and for Aboriginal children on Kimberley pastoral stations it was a matter of policy that they not be educated. (Ex A27(a) pp 69-70) These influences, added to matters already described, marginalized Aboriginal communities. However, by causing Aboriginal people to "retreat" and internalize their beliefs and opinions it also heightened their sense of Aboriginal identity and their desire to retain it. (Dr Shaw, "On the Historical Emergence of Race Relations In the Eastern Kimberleys: Change?", at 264.) In particular the isolation and sparse settlement of the East Kimberley region gave Aboriginal inhabitants the opportunity to retain their identity and their contact with the land with which they claimed connection, wherever they might be situated. Such claims to land had not been abandoned. After their rights as citizens were recognized in the late 1960s, claims for "living areas" in homelands were taken under notice and, eventually, acknowledged. In the words of Professor Berndt: "Many have, however, moved into various centres - which has meant expanding their socio-cultural horizons and/or has involved them in socio-cultural intermixing with members of groups previously different from themselves. Nevertheless, even though they have come into such settlements...they have not relinquished their emotional and hereditary ties with, or claims to their home lands." (R M Berndt, "Traditional Aboriginal Life in Western Australia: as it was and is", (Ch 1), Aborigines of the West. Their Past and Their Present, 3 at 5.) Aboriginal people formed as organized societies based on traditional customs and laws had a special relationship with land which Professor Berndt explained as follows: "In comparison with many others, and certainly in comparison with Europeans, the Aborigines were a deeply religious people. Religious feeling was manifested through ritual observance and through mythic expression - and, essentially, taken for granted. And an intrinsic part of it was a deep emotional attachment to the land, their own land. The whole countryside was full of signs and clues that were directly and indirectly relevant to their lives. It was made familiar and intimate to them through mythic beings who were believed to be manifested at specific sites, always present, and approachable through the medium of ritual. These were eternal or enduring elements, underlining continuity sustained through religious practice. At one conceptual level, everything was brought together into one expanded socio-cultural environment. The deities were manifested predominantly through man, and other living things and other features were selected as intermediaries or symbolic representations: all drew on the same life force. This particular relationship to the land and all within it was phrased as a total dependence upon it - or, rather, a total inter-dependence: and the way this was wrapped up in social-cultural [sic] terms provided an emotional assurance that helped people to cope with such natural crises as drought or floods, and the human crisis of physical death."

[262]

The evidence of Marjorie Brown given on Lake Argyle on a boat anchored above the site of the former Argyle homestead, being "country" with which she had connection through a conception totem and birth, exemplified the point: "Once you're a Miriuwung country, this whole country belongs to us, for Miriuwung people, not the Gija, not Ngarinyman. This Miriuwung. Counsel: Who told you this was Miriuwung country? My mother, my father, my ngajang, [paternal grandmother] my gagayi, [maternal grandmother] everybody. Counsel: How do you get a particular area? You have this particular area that you're interested in because you grew up here. Yes and our Dreaming is here, Ngalwirriwirri Dreaming and I was born here. My birth stone is underwater, just there on the other side there. My birth stone is there. Counsel: How do you get a country? Can you only be interested in the country that you were born in? That is to care for that particular country. We care for the place we're born in but we also care for the rest of the Miriuwung country. That my country too. Counsel: I thought you said that particular families, groups of families, I don't want to misquote you, but I think you said specific families have areas of some country. I'll say it again. There's about twenty Miriuwung families or maybe more, right. Every Miriuwung elders, there's old man Bulla, old man Bungledoon, this old man… All these people have little bits, part of the Miriuwung country. Us mob, we have this part of the Miriuwung country. The Dardi Jep mob, they have the Ivanhoe side of the country. Now, every part of the country is Yirralalem. Every part of the country has this group of Miriuwung people, they're families, right. They look after that area but they also look after the rest of the area. We all put in to look after our country. Counsel: But who says that they look after a particular area, like Yirralalem, who says that that country has to be looked after by some particular person or persons? Our old people. We have to follow our law. It's happened in the past and it's still happening today. We still look after our country. Everybody - every Miriuwung person has certain rights to this Miriuwung country and they looked after. They just don't look after the area that they - where they come from, where they were born, because our Miriuwung country is big, we look after every part of the Miriuwung country, you know, all the Dreamings. The Dreamings are not where we live, right where we live, where we actually live. They could be up in the hills. That might be too far away from those Miriuwung people so the closest Miriuwung people look after them so this is us. We can look after this Dreaming, we can look after that Dreaming, and the rest of the Miriuwung tribe will know that the top end Miriuwung people are looking after our country." The association of the community of Miriuwung and Gajerrong people with land in the East Kimberley region does not appear to have been in issue until this proceeding commenced. Public information signs erected by the Territory at the entrance to the Territory area inform tourists that the park falls within the "tribal lands" of the Miriuwung Aboriginal people whose long association with the area is evident in art sites, rock carvings, shell middens, bird traps, all being sites of cultural importance to the "traditional owners". The signs also state that Gajerrong people are "neighbouring" people regarded by Miriuwung as "countrymen" and that traditionally they met for ceremonies. Similarly, signs erected by the State in the Mirima National Park (Hidden Valley), near Kununurra, inform visitors that the park is a place that has been used by Aboriginal people for thousands of years as evidenced by rock paintings, engravings, grinding stones and stone tool-making sites. The signs state that Mirima is a special place for Miriuwung people containing sites of Dreaming stories which tell how the land was formed, and plants which provide them with food and medicines. The signs also acknowledge that cultural ceremonies continue to be performed there.

[278]

It was said by Sheba Dignari that Doolboong country was west of the claim area and included part of the claim area to the west of Goose Hill. The demarcation of territory was a creek line described by the witness. (Ex A8 - mark "J7") As stated earlier, according to Grant Ngabidj, Doolboong country was "below Goose Hill". (Ex A16 p 161) According to the evidence presented, Doolboong is extinct as a separate Aboriginal community. Some members of the Miriuwung and Gajerrong community have Doolboong links but it was not submitted that a Doolboong community remains extant as part of the Miriuwung and Gajerrong community.The "primary" evidence for the first applicants did not contend that Miriuwung country had been expanded to include the Doolboong country. That part of the claim area west of Goose Hill, being the area west of the line drawn by Sheba Dignari between Parry Lagoon and Muggs Lagoon must be excised. As to the southern part of the claim area, the evidence ofMr Akerman, Dr Palmer and Mr Barber based on recent heritage and site survey work suggested that the country may be identified as "Miriuwung-Gija mix" and that the persons holding rights and interests in this country included Gija-speaking people. There was "primary" evidence adduced by the fifth respondents as to rights and interests held by a family group identified as Gija-speaking people. Two of the members of that group, Joe Lissadell and Chocolate Thomas, are included in the first applicants as representatives of the Miriuwung and Gajerrong people. In that southern part of the claim area between the Ord and Bow Rivers south of the junction, there was conflicting evidence as to whether the Aboriginal persons acknowledged to have rights and interests in that area now identified as Miriuwung people. John Toby said it was Miriuwung country because those people were Miriuwung people and he was supported in this by Ms Kofod. Chocolate Thomas said it was Gija country. The fifth respondents adduced evidence from Maggie John and another witness that at least part of this area, extending to east of Lake Argyle and to north of the Behn River was Malngin country. Having regard to the whole of the evidence, I am satisfied that, historically, Miriuwung people were connected with the southern part of the claim area and that the connection has been maintained. The evidence also suggests, however, that in respect of that part of the claim area the right to use the area may have been shared and native title also held by Malngin and Gija communities. No determination to that effect can be made in this proceeding under the Act as amended. If communal title is asserted by communities claiming connection with the original Malngin and Gija communities, that may require an application for declaration of a common law right in a court of competent jurisdiction.

[321]

The foregoing exceptions and reservations were repeated in reg 61 of the Land Regulations 1887 (WA) and in the form of pastoral lease set out in the 9th Schedule (see: Moore and Scroope v State of Western Australia (1907) 3 CLR 334 at 336) and in s 107 of the Land Act 1898 (WA) and in the form of pastoral lease set out in the 24th Schedule thereof. Section 105 of the Land Act 1933 (WA), equivalent to reg 82 of the Land Regulations 1882 (WA), reg 59 of the Land Regulations 1887 (WA) and s 106 of the Land Act 1898 (WA) described the limited nature of the interest obtained by a lessee under a pastoral lease, the relevant parts of s 105 reading as follows: "105(1) Subject to subsection (2) a pastoral lease shall give no right to the soil, or to the timber, except as may be required for domestic purposes, for the construction of airstrips, roads, buildings, fences, stockyards, or other improvements on the lands so occupied." Under s 106(1) of the Land Act 1933 (WA) specified qualifications, described as reservations, on the grant of a pastoral lease included reservation of use of the land in the pastoral lease for the making of public roads; for the taking of any material for public purposes; for the passage of any person, with or withoutstock, over unenclosed or enclosed but otherwise unimproved land in the pastoral lease on all necessary occasions; and, up until 1982, the right to sell any part of the leased land with a right of immediate entry by the Crown upon exercise of their right. In addition, in s 109 of the Land Act 1933 (WA)the interests of the pastoral lessee were subject to the excision of any part of the land required by the Crown at any time for public purpose without compensation being payable other than for improvements. Land contained within a pastoral lease could be resumed and declared open for selection for homestead farms and working men's blocks and, until 1939, without compensation necessarily being paid for improvements. After 1963 land within pastoral leases could be resumed, declared open for selection and made subject to another pastoral lease to the "selector".

[330]

In its terms, s 106(2) does not create a right. It is a statement that nothing in an instrument granted under the Land Act 1933 (WA), namely, a pastoral lease, will prevent access by Aboriginal people to Crown land for the customary purpose of obtaining sustenance. In other words, the terms of a pastoral lease are not to be read as disposing of existing Aboriginal rights. Section 106(2) is to be read with the knowledge that rights granted to a pastoral lessee by the Crown under a pastoral lease may subordinate rights of Aboriginal people under native title if the exercise of those rights conflicts with the exercise of rights granted by the Crown under a pastoral lease. Accordingly, the purpose of s 106(2) is to make it clear that the right granted by the Crown to a pastoral lessee to make use of the fruits of the land of the pastoral lease is subject to and, therefore, cannot be in conflict with, an Aboriginal right to obtain sustenance from the same source. Although it may follow necessarily that the grant of a pastoral lease may involve regulation of aboriginal rights arising under native title, it does not follow that it is the intention of the Crown that the grant of such an interest effect extinguishment of native title, the root of aboriginal rights in respect of the land, usufructuary and otherwise. As explained earlier, the Supreme Court stated in R v Sparrow (at 1097) that regulation is not to be confused with extinguishment. That an aboriginalright is controlled stringently or in great detail does not mean that right and title is intended to be extinguished. Recognition by the Crown of an aboriginal right to enter and use land of a pastoral lease for usufructuary purposes, a right that is an incident of native title, and acknowledgement of the priority of that right over rights of a pastoral lessee created by the Crown, denies intention by the Crown to extinguish native title and with it such rights as are available thereunder, for example, rights to have access to the land for spiritual, ritual or ceremonial purposes, or to pass over, or through, the land as necessary according to traditional rights and practices.

[331]

The State submitted that the Western Australian land legislation, unlike the legislation considered in Wik, observed a remarkable degree of uniformity with, and adherence to, common law forms of tenure. However, the relevant legislation did not utilize a distinction between "leases" and "licenses" for pastoral purposes in the Kimberley District and it provided for numerous kinds of other leases (see: Pt 4 to the 1st Schedule of the amending Act) indicating that as in other States there was an invention of Australian tenures of new typesby land legislation in Western Australia. Further, at all relevant times the Regulations and legislation contained provisions equivalent to those discussed by the High Court in Wik which "effectually vested without the need for prior entry, the interest granted" (Wik per Gummow J at 189.) As Dr T P Fry states, the evolution of Crown leasehold tenures in Western Australia was destined to develop upon similar lines to colonies on the eastern seaboard. ("Land Tenures in Australian Law", Res Judicatae 3 (1947) 158 at 161.) Regulation 3 of the Land Regulations 1882 (WA) provided, in relevant respects, that: "The Governor is authorised,…to dispose of the Crown lands within the Colony in the manner and upon the conditions prescribed by these Regulations,...and all grants and other instruments disposing of any portion of Crown lands in fee simple or for any less estate made in accordance with such Regulations shall be valid and effectual in law to transfer to and vest in possession in the purchasers the land described in such grants or other instruments for the estate or interest therein mentioned." Equivalent provisions were contained in the Land Regulations 1887 (WA) (reg 3); the Land Act 1898 (WA) (s 4) and the Land Act 1933 (WA) (s 7). It can be seen that at all relevant times a fundamental requirement for the creation and alienation of a statutory interest in lands of the Crown was completion by the Crown of an appropriate formal grant of interest. After 1900 the Land Act 1898 (WA), (by s15 of Act No15 of 1900), provided that

[337]

Improvements were defined in similar terms in the Land Act 1898 (WA) (s 145) and the Land Act 1933 (WA) (s 140), however, after 1963 a dwelling house on a pastoral lease was not considered an improvement for the purposes of the Land Act 1933 (WA) (Land Act Amendment Act 1963 (s 24)). Of the improvements contemplated by the Act only dwelling houses, and possibly reservoirs and dams, are of sufficient permanence to indicate an intention to extinguish native title by adverse dominion. Erection of fencing cannot be considered an act giving effect to a Crown intention to extinguish native title. It must be associated with some other intensive use of the land that is contemplated before it could be said to reflect a clear intention to extinguish native title. (See: Wik per Gaudron J at 166; per Gummow J at 203.) The only dwelling houses in the claim area that were said to constitute improvements for the purpose of a pastoral lease were the homesteads of Argyle Downs, Goose Hill, Lissadell and Glen Hill. The Argyle Downs homestead was constructed on land held under freehold tenure discussed above and it is unnecessary to consider whether the construction of the homestead itself would have had an extinguishing effect. No evidence was submitted to show that the Goose Hill homestead was an improvement relied upon by a pastoral lessee to satisfy the requirements of a pastoral lease. Expenditure on the old homestead at Lissadell was included as expenditure on improvements on a pastoral lease. It is now part of Reserve 31165. Similarly, the expenditure on Glen Hill homestead was included as expenditure upon improvements by the pastoral lessee. The State did not contend that either homestead construction was, in itself, an act that extinguished native title. The Report on Improvements on Pastoral Leases within the claim area (Ex 24) does not report any substantial dams or reservoirs constructed as improvements on pastoral leases. There was no evidence in respect of permanent improvements in the way of dwellings or dams or reservoirs constructed by reason of requirements in pastoral leases issued in respect of the Territory area. Apart from the stocking requirements it was not submitted that there were any conditions added to the pastoral leases issued in the claim area requiring improvements to be made to the lease.

[345]

With respect to the form of Territory pastoral leases, for the reasons already given in respect of State pastoral leases, limitation of the statutory interest granted by the colony of South Australia, and later by the Territory by statutory reservation, was an acknowledgement by the Crown of rights of the type attaching to a subsisting native title. The form of statutory interest described as a pastoral lease was moulded to coexist with the exercise of the existing rights of Aboriginal people. No intention to extinguish native title is manifested in the actions of the Crown and, to the contrary, it is made plain that the Crown had no intention so to act. The Territory further submitted that the provision described as a reservation constituted the substitution of statutory rights for rights obtained under native title and demonstrated an intention by the Crown to extinguish native title. The Territory referred to Mayor of New Windsor v Taylor [1899] AC 41 in support of its submission. In that case a prescriptive right to exact tolls was replaced by authority provided by statute. It was held that the original prescriptive right no longer existed. Those circumstances have nothing in common with the facts of this case. Here the Crown reserves, or excepts, from the interest that it grants, an interest sufficient to preserve continued exercise of pre-existing rights of third parties. No new rights are conferred in replacement of existing rights. It was submitted that words used in the exception clauses of the first leases, namely, "as they would have been entitled to do if the lease had not been made" were words which acknowledged that the effect of the lease was to destroy a pre-existing right and to provide for replacement of that right. Those words must be read with the terms and purpose of the exception to the grant made by the Crown. The exception is an acknowledgement by the Crown that the Crown's interest in the land is subject to rights of Aboriginal inhabitants. By reason of the exception the interest granted to a lessee cannot be said to reflect a Crown intention to extinguish native title which, therefore, continues notwithstanding the grant of a pastoral lease. In effect, the words amount to a statement that such an entitlement of Aboriginal inhabitants would not be in issue if a lease were not granted, and the effect of the exception will be that the entitlement will continue as if the lease had not been made. By reason of the exception, or reservation, to the interest granted by the Crown to a pastoral lessee, the interest of a pastoral lessee is also burdened by the native title which burdens the title of the Crown. Under the grant of a lease the pastoral lessee does not receive an interest that is free of that burden, although rights granted by the Crown to the pastoral lessee will be concurrent with rights exercisable under native title and in some circumstances may be intended by the Crown to have priority over the latter when exercised.

[351]

The Crown grant of freehold land to Binjen Ningguwung Aboriginal Corporation in 1990 was land surrendered to the Territory by the Corporation from the Crown lease adjacent to the Park. The land granted by the Crown to Dumbral Aboriginal Community Association was land contiguous with that Crown lease surrendered to the Territory by the pastoral lessee of the Newry pastoral lease. The leases granted to the Corporation in perpetuity under the Special Purposes Leases Act 1953 (NT) and the Crown Lands Act 1978 (NT) were instruments used by the Crown for the better management of Crown land for the purpose of the Territory Parks and Wildlife Conservation Act (NT). Leases in perpetuity are unknown to the common law. (Wik per Gummow J at 201.) The Corporation is a body corporate under s 27 of the Parks and Wildlife Commission Act (NT). Section 29 provides that the Corporation is not an authority or instrumentality of the Crown and is not subject to the control and direction of the Minister of the Crown. The function of the Corporation, as set out in s 39, is to acquire, hold and dispose of real property (including any estate or interest in real property) in accordance with the Parks and Wildlife Commission Act (NT). It provides further that the Commission has the care, control and management of all land acquired by the Corporation. The functions and powers of the Commission in respect of promotion and conservation or management of land are set out in ss 19 and 20 of the Parks and Wildlife Commission Act (NT). Section 21 provides that the Commission shall not acquire or hold any estate or interest in real property and under s 22 the Commission is subject to the direction of the Minister both in the performance of its functions and the exercise of its powers. The effect of the leases was little different from a reservation of Crown land for a prescribed public purpose or the vesting of reserved land in a body to manage and control Crown land for the public purpose of the reservation. The interests in leases granted to the Corporation were interests prescribed by statute granted for statutory purposes. The interest obtained by the Corporation in the land was solely for the purposes of the Parks and Wildlife Commission Act (NT) and the Territory Parks and Wildlife Conservation Act (NT), in particular, to enable the Commission to carry out its functions in respect of the management of land and the protection and conservation of wildlife. Section 122 of the Territory Parks and Wildlife Conservation Act (NT) provides as follows: "122(1) Subject to sub-section (2), nothing in this Act prevents Aboriginals who have traditionally used an area of land or water from continuing to use the area of land or water for hunting, for food gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes. (2) The operation of sub-section (1) is subject to regulations made for the purposes of conserving wildlife in any area and expressly affecting the traditional use of the area by Aboriginals." The statutory powers and functions of the Corporation, and the Commission, are governed by the terms of s 122 and it follows that the statutory leases granted to the Corporation for the purpose of carrying out the functions of the Commission under that Act cannot be read as intended to create an interest free of an aboriginal right at law to make traditional use of any part of the leased land for hunting, food gathering, ceremonial or religious purposes.

[359]

If it were the intention of the legislature that the words "land leased by the Corporation as lessee" be restricted to land leased to the Corporation by a lessor other than the Crown or emanation of the Crown, one would expect to find appropriate words of limitation. The provisions appear to accept that a lease of land to the Corporation by the Crown creates a sufficient interest in the land for the Corporation for the purposes of the Act. However, even if a "reversionary interest" in land leased in perpetuity to the Corporation is to be taken to be vested in the Corporation as a statutory interest, the statutory interest enjoyed by the Corporation is a limited interest determinable at will upon revocation by the Crown of the declaration of the Park. It falls well short of equivalence to an interest in fee simple in the land. The Corporation is a public body created to perform a limited function for a public purpose. The only function of the Corporation is that set out in s 39(1) of the Parks and Wildlife Commission Act (NT), namely, "to acquire, hold and dispose of real property (including any estate or interest in real property) in accordance with this Act..." By s 39(6) the Commission has the care, control and management of all land acquired by the Corporation. It may be assumed that that function of the Commission extends to land acquired on lease by the Corporation. The Commission is the body that carries out all functions in giving effect to the purpose of the Parks and Wildlife Commission Act (NT) which, according to the long title thereof, at the relevant time, was "to establish a Conservation Commission to assist in the conservation and protection of the environment and for related purposes". That the Corporation, under the Parks and Wildlife Commission Act (NT), is a person other than the Crown is irrelevant to the nature of any statutory interest "vested" in the Corporation by s 12(7) of the Territory Parks and Wildlife Conservation Act (NT). (cf The Queen v Kearney; Ex parte Japanangka (1984) 158 CLR 395.) The only capacity the Corporation has to deal with real property is to acquire, hold and dispose of it in accordance with the Parks and Wildlife Commission Act (NT), in other words, to meet the requirements of, and as directed by, the Commission.

[421]

Lake Argyle Road The land on which this sealed road is situated (formerly known as Parker Road) was "set apart, taken or resumed" under s 17 of the Public Works Act 1902 (WA) by declarations published in the Government Gazette (WA) in April and August of 1977. It is not apparent on the material presented to the Court how it is said a road became dedicated as a public street under s 288 of the Local Government Act 1960 (WA) (now repealed and replaced by the Local Government Act 1996 (WA)). Section 288 of the Local Government Act 1960 (WA) provided that the Governor, on the request of a local authority, may declare land to be a public street and from the date of publication of that order the land is dedicated to the public as a public street. In Ex 34r (p 5,850) the area is depicted as "Dedicated Road (Sec 288 LGA)". No issue was raised as to the fact of dedication. In any event, the permanent public work for which the land was set aside was effected. It is to be concluded that the principles set out in Fourmile apply and that native title has been extinguished in that part of the claim area occupied by Lake Argyle Road. If that act of extinguishment by the Crown was invalid and a "past act", it was "validated" by s 5 of the Titles Validation Act 1995 (WA). Long Michael Plain Road and Durack's Folly Road The Governor, in a notice published in the Government Gazette (WA) in September 1977 pursuant to s 288 of the Local Government Act 1960 (WA), declared the above roads to be public streets and thereupon the land specified therein became dedicated to the public as public streets. Both are unsealed roads used by the public. According to the reasons set out in Fourmile, native title has been extinguished in that part of the claim area occupied by these roads. If that act of extinguishment by the Crown was invalid and a "past act", it was "validated" by s 5 of the Titles Validation Act 1995 (WA). Cycas Court, Livistona Street and Celtis Street Each of these roadways is a bitumen road constructed as part of the "Lakeside Stage 4" subdivision in 1993 and used by the public thereafter. The roadways were part of the survey of subdivision of Crown land into lots in the plan certified as correct in September 1994 by an authorized officer of the Department of Lands and Surveys. Under s 294A of the Local Government Act 1960 (WA) where Crown lands in the district of a municipality are surveyed into lots by direction of the Minister under s 17 of the Land Act 1933 (WA) and the plan of such a survey is certified as correct by the Surveyor-General, or by an "officer duly authorized", then from the date of that certification any land delineated in the survey as a new street is dedicated as a street. If the certification of the plan of subdivision was a "past act" in that it completed a public work under way before 1 January 1994 (see: ss 228, 229(4) and 253 ("public work") of the Act), s 5 of the Titles Validation Act 1995 (WA) applied to give effect to the extinguishment of native title that would have been effected had the acts not been invalid. Ibis Road The only evidence in respect of this "road", depicted as a short side street intersecting with Packsaddle Road at the southern end of the irrigated lands, is a diagram of survey certified as correct in August 1994 by an authorized officer of the Department of Lands and Surveys. Whether the survey was pursuant to a direction of the Minister that Crown lands in the Shire be surveyed into lots pursuant to s 294A of the Local Government Act 1960 (WA) is unknown but on the face of the diagram its purpose seems to have been to provide a survey of Lot 780 to create Reserve 43002 and a survey of Ibis Road. The diagram was prepared in November 1993. Under s 294A of the Local Government Act 1960 (WA), the land delineated as Ibis Road was dedicated as a street upon certification of the diagram and native title was extinguished. If certification was a "past act", in that it completed a public work under way before 1 January 1994, it was "validated" by s 5 of the Titles Validation Act 1995 (WA). Martin's Gap Road The only evidence in respect of this "road", depicted as being in vacant Crown land to the north-east of developed irrigated land, is a diagram of survey made in 1969. (Ex 34r p 5,852) According to a map prepared by the State (Ex 34r p 5,848), a portion of land is said to be a "Dedicated Road (Sec 294A LGA)". The segment said to be a dedicated road is not the part shown as Martin's Gap Road in the diagram of survey. Section 294A was not inserted in the Local Government Act 1960 (WA) until December 1975. There is no evidence that native title has been extinguished in respect of any land described as Martin's Gap Road. Portion of Victoria Highway This portion of Victoria Highway is on the State side of the State/Territory border. The State Quarantine Inspection Station is situated on land set aside for the road. The road was sealed before 1975 and at all times has been used as a public road. A diagram of survey of the road reserve and the adjoining Lot 771 set aside as Reserve 42710 ("Quarantine Checkpoint") was certified as correct in February 1994 by an authorized officer of the Department of Lands and Surveys. The Reserve was created in June 1993 and the diagram prepared in February 1993. If it is assumed that the diagram was prepared as a result of a direction by the Minister that Lot 771 be created by survey and the portion shown on the diagram was a new survey of the road area for the highway, then, upon certification of the diagram, that area was dedicated as a street and native title extinguished. It would be a "past act" under ss 228 and 229(4) of the Act either, because certification of the plan of survey completed a public work under way before 1 January 1994, or because the road was a public work constructed before 1 January 1994. Therefore, s 5 of the Titles Validation Act 1995 (WA) would apply to "validate" the act and extinguish native title. (e) Creation of reserves The reserved Crown land in the claim area is land reserved under the Land Regulations 1882 (WA), the Land Act 1898 (WA) or the Land Act 1933 (WA). Under the Land Regulations 1882 (WA) the Governor, by reg 29, was provided with the power to except from sale and reserve Crown land for specified purposes including, inter alia, "any purpose of…public utility...or for otherwise facilitating the improvement and settlement of the Colony". Under reg 33 the Governor may direct by order published in the Government Gazette (WA) that a reserve vest in, and be held by, any corporation "in trust" for like or other public purposes specified in the vesting order. Under s 39 of the Land Act 1898 (WA) the Governor was authorized, subject to such conditions and limitations he may think fit, to except from sale and either, to reserve to Her Majesty, or to dispose of in such other manner as for the public interest may seem best, any lands vested in the Crown that may be required for specified purposes including the general purpose described above in the Land Regulations 1882 (WA). As in the Land Regulations 1882 (WA), s 41 provided the Governor with an unfettered power to amend, cancel or change the specified purpose of a reserve provided notice was published in the Government Gazette (WA). Under s 42 of the Land Act 1898 (WA) the Governor could direct that any reserve "vest in and be held by" a municipality or other person "in trust" for like or other public purposes specified in the vesting order and was also empowered to lease, in a form prescribed by Schedule to that Act, or to "grant the fee simple" of any reserve to secure the use thereof for the purpose for which the reserve was made. Under s 29 of the Land Act 1933 (WA), as it stood prior to 1982, the Governor may, subject to such conditions and limitations as he thought fit, reserve to Her Majesty, or dispose of in such a manner as for the public interest may seem fit, any lands vested in the Crown. The power of disposition appears to have been broadened in that it was not a requirement that the land disposed of be land that had been excepted from sale. Section 31 of the Land Act 1933 (WA) allowed the Governor, prior to 1949 by notice and thereafter by proclamation, to declare reserves for certain purposes to be Class A Reserves by which classifications land so reserved remained dedicated to that purpose until an Act of Parliament provided otherwise. A reserve declared to be a Class B Reserve was reserved from alienation, or otherwise being dealt with, subject to cancellation of the reserve by the Governor by notice in the Government Gazette (WA) after presentation to both Houses of Parliament of a special report giving reasons for the cancellation. All other reserves are classified as Class C. Pursuant to s 37 of the Land Act 1933 (WA) there was otherwise an unfettered power to cancel and amend the boundaries, or change the purpose, of any reserve not classified as a Class A or Class B reserve. In 1982 s 29 was amended to allow land to be reserved for a specified purpose without the requirement that the purpose be a purpose specified in the Act. Section 31 was amended to allow lands reserved for that purpose to be classified as a Class A or Class B reserve. Section 32 of the Land Act 1933 (WA) provided power for the Crown to lease a reserve for any purpose if the land is not immediately required for the purpose for which it is reserved, the term of the lease not to exceed ten years. In 1960 provisions were added to this section allowing the Crown to grant a lease, or licence, for a term of one year for the purpose of depasturing stock over land reserved for the purpose of parks or recreation or amusement of inhabitants notwithstanding that the land is being used for the purpose for which it was reserved. Clearly, it was intended that the land remain available for use for the specified purposes notwithstanding the grant of a lease, or licence, to depasture stock thereon. Section 33 of the Land Act 1933 (WA), in similar terms to s 42 of the Land Act 1898 (WA), empowered the Crown to direct that a reserve vest in a municipality, body corporate or other person but did not authorize the Governor to "grant the fee simple" in reserved land. In 1949, s 33 was repealed and a provision substituted which authorized the Governor to direct that reserved land be vested in a municipality, body corporate or other person for the purpose for which the land is reserved with power to lease the land for that purpose. Further, the Governor was empowered to direct that any reserved land be leased or "granted in fee simple" to any person subject to such conditions and limitations as the Governor deemed necessary to ensure that the land is reserved for the reserved purpose. In 1987 s 33 was expanded to include in the reserved purpose "any purpose ancillary, and beneficial" to that purpose. Under s 34B of the Land Act 1933 (WA), inserted in 1982, the Governor has power to revoke any vesting order in respect of reserved land. Leases granted by a person in whom the reserve had been vested prior to revocation were to continue as if the Crown were the lessor. The State submitted that the creation of reserves for a purpose had the effect of withdrawing the lawfulness of the use of the land for any other purpose. If by this submission it is contended that the use of the land by native title holders was rendered unlawful, the contention cannot be accepted. An offence of unlawful occupation of Crown lands applied equally to vacant Crown land and land withdrawn, reserved or excepted from sale, for a public purpose including reserved land leased or vested for the purpose. (See: Land Act 1898 (WA) s 135; Land Act 1933 (WA) s 164; Mabo (No 2) per Brennan J at 66, per Deane, Gaudron JJ at 114; Wik per Gummow J at 190-194.) The effect of a reservation of land was to enable the Crown to hold back from alienation areas of land which it deemed necessary to retain for use for a public purpose. Upon reservation, the land did not pass from the control of the Crown and something more formal than mere reservation by the Crown was required to create a right in members of the public or a section of the public. (See: Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 per Windeyer J at 74.) In addition the State submitted that pursuant to the ordinary meaning of the word "vest" the vesting of reserved Crown land in any person had the effect of a conveyance of an estate in the land with the right to exclude others thus evidencing a clear and plain intention to extinguish native title. Such a submission may elevate the concept of "vesting" of land reserved for public purposes beyond the effect thereof hitherto applied or understood. As was stated by the Privy Council in Attorney-General for the Province of Quebec v Attorney-General for the Dominion of Canada at 409: "…a declaration that lands are 'vested' in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively: Tunbridge Wells Corporation v. Baird [1896] A.C. 434, an interest which may become devested when these functions are transferred to another body. In their Lordships' opinion, the words quoted from s.1 are not inconsistent with an intention that the Commissioner should possess such limited interest only as might be necessary to enable him effectually to execute the powers and duties of control and management, of suing and being sued, committed to him by the Act." In Tunbridge Wells Corporation v Baird [1896] AC 434 the issue before the Judicial Committee was the vesting of a streetin an urban authority under the Public Health Act 1875 (UK) and at p 442 Lord Herschell stated: "the vesting of [a] street vests in the urban authority such property and such property only as is necessary for the control, protection, and maintenance of the street as a highway for public use."

[434]

It was not the intention of the legislature to extinguish in general all pre-existing interests in that land. Under s 9 of the ratifying Act the interests extinguished were, inter alia, those held under, and for the purpose of, the Mining Act 1904 (WA). The "exclusive possession" of the land over which the Argyle mining lease was to be granted, declared by s 8 to be held by one of the Joint Venturers until the lease was granted, was possession for the purposes of the Mining Act 1904 (WA) and the Mining Act 1978 (WA). That provision was directed to putting beyond question that the Joint Venturer which held the mining tenements under challenge, had possession of the land at all material times, thereby validating the acquisition of any property by the Joint Venturer in diamonds that may have been recovered by it on the tenements after October 1979. It is confirmed by s 85 of the Mining Act 1978 (WA) that a mining lessee is given possession of land (which may include freehold land) for mining purposes, namely, to extract from that land minerals vested in the Crown. Under par 82(1)(b) of the Mining Act 1978 (WA) a mining lease is granted subject to the condition that the lessee, inter alia, use the land in respect of which the lease is granted only for mining purposes in accordance with the Act. The right to mine is exclusive in respect of the land to which it is granted. The possession granted to a lessee under a mining lease is limited, both in time and in purpose. It remains a mining tenement for the extraction of minerals, by definition a finite operation, requiring removal of the mining equipment and rehabilitation of the land at the completion of the mining project. The grant of such an interest does not display an intention by the Crown to extinguish native title. Just as the rights of the owner of a freehold interest in land subject to a mining lease may be impaired, rights exercisable by the holders of native title over Crown land may be impaired or suspended. Whatever degree of impairment it may cause, the lack of permanence in purpose and duration of a mining operation precludes the conclusion that by the grant of a lease for mining purposes the Crown has intended to extinguish native title. The grant of such a tenement is consistent with an intention of the Crown that there be full resumption and utilization of rights under native title upon completion of a mining operation.

[437]

The terms of cl 15(4) of the Agreement acknowledge, in effect, the reservation of existing rights of access to, and passage over, the land subject to the exercise of those rights not unduly prejudicing or interfering with the operations of the Joint Venturers. In its terms, cl 15(4) of the Agreement qualified the interest to be granted as the Argyle mining lease and amounted to a reservation by the State from the interest granted. The reservation is consistent with the exercise of a right of access to the land by the holders of native title. It was submitted that in so far as cl 15(4) of the Agreement refers to third parties who have the consent of the State to pass over the mining lease, the lessee retains the right to refuse permission to persons who do not obtain that consent. Whether that is so is not a material issue. The consent may be express or implied and would include a consent the Crown is unable to refuse, for example, by reason of the rights granted to the holders of the miscellaneous licence, the area of which was excised from the mining lease. There would be implied consent from the Crown for the holders of that licence to have access to the licensed area and to pass and re-pass over the Argyle mining lease for that purpose. Similarly, the holders of native title whose interest burdens the title of the Crown, would have an implied consent from the Crown to exercise rights of entry and passage under that title until such time as the title is extinguished by the Crown. In this case, that conclusion is reinforced by the declaration of "protected sites" under the Aboriginal Heritage Act 1972 (WA) within the area of the mining lease and the imposition of conditions prohibiting the carrying on of mining operations on any of those sites. The declaration of such sites is consistent with the Crown intention that a right of access to those sites attached to a subsisting native title would continue subject to the exercise of the right of access not unduly prejudicing or interfering with the operations of the Joint Venturers under the Argyle mining lease. If any of the "protected sites" were within a declared "designated area", the opportunity to exercise a right of access to the sites may be severely curtailed, or even suspended, but it would not follow that it was the intention of the Crown that native title, and a right of access to the site arising thereunder, be extinguished.

[445]

Under s 88 of the Mining Act 1978 (WA) a general purpose lease may be granted for twenty-one years and renewed for a further term of twenty-one years. Under s 86 of the Act the maximum area of a general purpose lease is ten hectares. For the reasons relied upon for the conclusion that the grant of a mining lease does not extinguish native title, the grant of a general purpose lease will not be a declaration of Crown intention to extinguish native title. A general purpose lease is a statutory interestancillary to the statutory tenement of a mining lease, and has no particular characteristic that demonstrates a Crown intention to extinguish native title upon grant of that interest. The reasons given for concluding that the grant of tenements for the extraction of minerals under the Mining Act 1978 (WA) is not an act of the Crown intended to extinguish native title apply equally to the grant of tenements under the Mining Act 1904 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA) for the use of land or waters for the purpose of exploring for and recovering petroleum. (g) Limitation Act 1935 (WA) In the course of its submissions the State put an argument that a limitation period under the Limitation Act 1935 (WA) could be applied to an application to enforce native title and that upon expiration of such a period the title could be said to be extinguished. The submission, in part, was based upon the remarks of Deane and Gaudron JJ in Mabo (No 2) (at 90) in which their Honours stated that where the actual occupation or use of the native title holders was terminated "an ultimate lack of effective challenge" would found either an assumption of acquiescence in the extinguishment of the title or a defence based on laches or some statute of limitations. In this proceeding the Court is concerned only with the determination of the existence of native title under federal legislation providing machinery for that purpose. The legislation is predicated upon the assumption that the rights are rights of antiquity and, as far as the common law is concerned, date at least from the time of sovereignty. The Court is not concerned with curial ascertainment of the enforceability of rights that arise under native title. (See Fejo per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 731.) As stated earlier, native title existing at sovereignty is a burden on the radical title of the Crown. If extinguished by the Crown it ceases to exist. It will cease to exist also if it has been abandoned. It will not be shown to exist if a claimant for native title is unable to show that, as far as is practicable, connection with the land has been maintained and traditional laws and customs observed. It is not necessary for proof of the existence of native title to show that it has been asserted against the Crown. It is a "sui generis" interest, inalienable to third parties, and is not an estate in land capable of being lost to the Crown by prescription. (h) Proclamation of the Ord Irrigation District Under s 28 of the Rights in Water and Irrigation Act 1914 (WA) any defined part of the State may be constituted an "Irrigation District" by Order in Council. Pursuant to s 29 of that Act the District may be extended by adding further land thereto. In 1962 the Ord Irrigation District ("the District") was constituted by proclamation. Prior to that, by proclamation made in 1960 pursuant to s 27(3) of that Act (as it then stood), it was declared that Pt III of the Rights in Water and Irrigation Act 1914 (WA), which provided for the vesting of rights in the Crown for the use and flow, and to the control, of water in any watercourse, applied to the Ord River and its tributaries. The District was extended by two further proclamations made in 1965 and 1973. As now constituted, the District is an area of land which covers all the potentially irrigable land in the East Kimberley region (a minor part of the District), the whole of the area of the Argyle Downs pastoral lease and the catchment area of the Ord River, a vast area which includes numerous pastoral leases that extend hundreds of kilometres to the south of Lake Argyle beyond Halls Creek.

[480]

(iii) Acquisition of land under the Public Works Act 1902 (WA) and under the Rights in Water and Irrigation Act 1914 (WA) In 1972 and 1975 further land was obtained by the State for the Project by resumption of land from the Ivanhoe pastoral lease. The notices of resumption published in the Government Gazette (WA) were ambiguous. They were expressed to be pursuant to the Rights in Water and Irrigation Act 1914 (WA) and the Public Works Act 1902 (WA). Separate powers for compulsory acquisition of land, including freehold land, were provided in s 62 of the Rights in Water and Irrigation Act 1914 (WA) and s 10 of the Public Works Act 1902 (WA). Pursuant to s 62(3)(a) of the Rights in Water and Irrigation Act 1914 (WA), upon publication of notices of land being acquired by compulsory process for the purpose of that Act, the land, by force of the publication, is "vested" in the Crown. Under s 18 of the Public Works Act 1902 (WA), upon publication of notice that land has been set apart, taken or resumed under that Act, the land referred to, by force of that Act and as the Governor may direct, is "vested in the Crown for an estate in fee simple in possession or such lesser estate for the public work expressed in such notice". In each case the statutes provide that the vesting of the land frees and discharges the land from the interests of third parties. Although the published notices were drawn in terms appropriate for the exercise of the power of resumption under the Public Works Act 1902 (WA), by directing that the land set apart, taken or resumed vest in the Crown "for an estate in fee simple in possession for the public work",the public work expressed in the notice of resumption, "Ord River Irrigation Project - Packsaddle Plains area - Extension", indicated that the provisions of s 3 of the Rights in Water and Irrigation Act 1914 would apply to simply "vest" the land in the Minister on behalf of the Crown. The character and purpose of such a resumption of Crown land from a pastoral lease was indistinguishable from a resumption under s 109 of the Land Act 1933 (WA). The land was recovered by the Crown to be used for a public purpose. Vesting of the land in the Crown, even including a vesting in fee simple for a public work, is effected by statute to assist carrying out the declared public purpose and is a vesting qualified by that purpose. As stated earlier in these reasons, the act of the Crown in recovering Crown land from a pastoral lease does not, in itself, enhance the interest of the Crown in the land granted as a pastoral lease, and upon resumption the land stands as vacant Crown land until otherwise dedicated, reserved, or used for the purpose for which it was taken. Statutory provisions which merely "vest" in the Crown such resumed Crown land for an estate in fee simple for the carrying out of a public work will not, in itself, be an act which elevates the interest of the Crown to a full beneficial interest with the intention of extinguishing native title, for there is no grant or alienation by the Crown of an estate in fee simple in the land creating rights in third parties and no act undertaken by the Crown inconsistent with the continued preservation of native title. (See: Pareroultja v Tickner per Lockhart J at 218) Of course, freehold land resumed from a third party and vested in the Crown is land in which native title has been extinguished. Whether use of the resumed land for the purpose for which it was acquired affected native title is considered later in these reasons.

[820]

"...a lease that: a) permits the lessee to use the land or waters covered by the lease solely or primarily for: (i) maintaining or breeding sheep, cattle or other animals; or (ii) any other pastoral purpose; or b) contains a statement to the effect that it is solely or primarily a pastoral lease or that it is granted solely or primarily for pastoral purposes." A lease is defined in s 242 of the Act as, inter alia, "anything that…is, for any purpose, by a law of…a State…declared to be or described as a lease". The seventh respondents submit that the lease to Crosswalk Pty Ltd of portions of Reserves 1061 and 18810 in July 1992 and the lease to Baines River Cattle Co Pty Ltd of part of Reserve 31165 in January 1985 were, assuming that native title existed in respect of the land leased, invalid by reason of the grants being in contravention of s 9 of the Racial Discrimination Act 1975 (Cth). The basis for contending that the grants contravened that Act was that such a lease constituted an interference with all or some of the rights subsisting under the incidents of native title and no compensation was proffered to the holders of native title in relation to that grant. (See: D Gal, "Implications Arising from the Operation of the Native Title Act for the Existence of Native Title on Pastoral Leases" (1997) 71 ALJ 487 at 488-489.) The submission is predicated upon the assumption that interference, control or impairment of native title by introduction of the concurrent rights of a pastoral lessee is sufficient to attract the operation of the "past act" provisions of the Act, notwithstanding extinguishment of native title at common law may not have been effected. That is a construction of the Act that must be rejected as stated earlier in these reasons. Furthermore, the question may arise of the extent to which the Titles Validation Act 1995 (WA) may extinguish native title by force of that Act alone and not as a consequence at common law of the validation of a pastoral lease. (See: Western Australia v The Commonwealth per Mason CJ, Brennan, Deane, Gaudron and McHugh JJ at 453.) The object of the Act invalidating "past acts" is to preserve the effect of the common law as it would have applied but for the operation of the Racial Discrimination Act 1975 (Cth).

Legislation Cited (89)

Native Title Act 1993(Cth)

Titles Validation Act 1995(WA)ss 4, 5, 6, 7, 10, 19

Telecommunications Act 1975(Cth)s 16(2)

Acts Interpretation Act 1901(Cth)ss 8, 8A

Racial Discrimination Act 1975(Cth)s 9

Western Australia Agreement (Ord River Irrigation) Act 1968(Cth)

Mining Act 1978(WA)ss 8, 82(1)(b), 85, 86, 87, 88

Petroleum Act 1967(WA)s 5

Jetties Act 1926(WA)

Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981(WA)

State Trading Concerns Act 1916(WA)s 6

Agriculture and Related Resources Protection Act 1976(WA)s 105(ia)

Petroleum Act 1936(WA)s 4

Conservation and Land Management Act 1984(WA)s 11

Special Purposes Leases Act 1953(NT)

Public Works Act 1902(WA)ss 10, 17, 18

Local Government Act 1960(WA)ss 266, 267, 288, 294A

Aboriginal Heritage Act 1972(WA)

Limitation Act 1935(WA)

Rights in Water and Irrigation Act 1914(WA)

Soil Conservation Act 1945(WA)

Land Acquisition and Public Works Act 1902(WA)s 32

Interpretation Act 1984(WA)s 16(3)

Fish Resources Management Act 1994(WA)

Transport Co-ordination Act 1966(WA)

Crown Lands Act 1992(NT)

Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989(NT)

Lands Acquisition Act 1955(Cth)

Native Title Act 1933(Cth)

Native Title Amendment Act 1998(Cth)

(UK) Native Title Act 1993(Cth)

Aboriginal Affairs Planning Authority Act 1972(Cth)

Pt IV Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978(NT)

Land Act 1933(WA)s 164

Natives (Citizenship Rights) Act 1944(WA)

Aboriginal Land Rights (Northern Territory) Act 1976(NT)

Land Act 1898(WA)ss 3, 4, 9, 12, 13, 16, 39, 41, 41a, 42, 55(4), s 135

Amendment Act 1934(WA)

Mining Act 1904(WA)s 3

Land Drainage Act 1925(WA)s 6

Wildlife Conservation Act 1950(WA)ss 6, 23, 32C

Amendment Act 1917(WA)s 33(3), s 33

Amendment Act 1963(WA)s 24

Northern Territory Crown Lands Act 1890(NT)

Crown Lands Ordinance 1927(NT)s 21

Crown Lands Ordinance 1931(NT)

Crown Lands Act 1978(NT)

Validation of Titles and Actions Act 1994(NT)s 7

Transfer of Land Act 1893(WA)ss 18, 52, 68

Wyndham Freezing, Canning and Meat Export Works Act 1918(WA)

National Parks Authority Act 1976(WA)ss 18, 22, 41

Fauna Protection Act 1950(WA)ss 6, 14, 15, 16, 22, 23

Native Administration Act 1905(WA)

Fauna Conservation Act 1974(Qld)

Fisheries Act 1905(WA)

Aborigines Act 1905(WA)s 39

Agriculture and Related Resources (Property Quarantine) Regulations 1981(WA)reg 10

Land Regulations 1851(WA)

Land Regulations 1882(WA)

Land Regulations 1887(WA)

Land Acquisition Act 1978(NT)

Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978(NT)

Under the Natives (Citizenship Rights) Act 1944(WA)

Under the Land Act 1933(WA)

(WA), the Land Regulations 1887(WA)

(WA), the Land Act 1898(WA)

(Land Act 1898(WA)

135); Land Act 1933(WA)

3); Mining Act 1978(WA)

8); Petroleum Act 1936(WA)

4); Petroleum Act 1967(WA)

5); Land Drainage Act 1925(WA)

6); Wildlife Conservation Act 1950(WA)

6); Conservation and Land Management Act 1984(WA)

(WA), Land Regulations 1887(WA)

(WA), Land Act 1898(WA)

Under the Land Regulations 1887(WA)

Northern Territory Crown Lands Act 1890(SA)

Conservation Commission Act 1980(NT)

Local Government Act 1996(WA)

Under the Land Regulations 1882(WA)

Under the Mining Act 1978(WA)

(WA), the Petroleum Act 1936(WA)

(WA), the Public Works Act 1902(WA)

Agriculture and Related Resources Protection (Property Quaratine) Regulations 1981(WA)

Amendment Act 1906(WA)

Public Works Land Acquisition Act 1902(WA)

6). The Titles Validation Act 1995(WA)

"Western Australia Agreement (Ord River Irrigation) Act 1968(Cth)

Cases Cited (36)

Northern Territory v Lane (1996) 138 ALR 544, referred to Ward v State of Western Australia (1995) 40 ALD 250, referred to State of Western Australia v Ward (1997) 145 ALR 512, referred to Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, referred to Delgamuukw v British Columbia (1997) 153 DLR (4th) 193, applied Monarch Steamship Co Ltd v A/B Karlshamns Oljefabriker [1949] AC 196, referred to Reid et al v Lincoln [1892] AC 644, referred to Calder v Attorney-General (British Columbia) [1973] SCR 313, applied R v Van der Peet [1996] 2 SCR 507, applied Mabo v The State of Queensland (No 2) (1992) 175 CLR 1, applied Western Australia v The Commonwealth (1995) 183 CLR 373, applied Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399, applied Guerin v The Queen [1984] 2 SCR 335, applied R v Symonds [1847] NZPCC 387, applied Wik Peoples v Queensland (1996) 187 CLR 1, applied Fejo v Northern Territory of Australia (1998) 156 ALR 721, applied St Catherine's Milling and Lumber Company v R (1888) 14 App Cas 46, applied United States v Santa Fe Pacific Railroad Co 314 US 339 (1941), applied Johnson v McIntosh (1823) 21 US 240, applied Geita Sebea v The Territory of Papua (1941) 67 CLR 544, applied R v Sparrow [1990] 1 SCR 1075, applied Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513, applied Delgamuukw v British Columbia (1991) 79 DLR (4th) 185, applied Delgamuukw v British Columbia (1993) 104 DLR (4th) 470, referred to Fourmile v Selpan Pty Ltd; Fourmile v State of Queensland (1998) 152 ALR 294, applied Yarmirr v Northern Territory of Australia (1998) 156 ALR 370, referred to R v Adams [1996] 3 SCR 101, applied Coe v Commonwealth of Australia (1993) 118 ALR 193, considered Wik Peoples v State of Queensland (1996) 63 FCR 450, referred to Moore and Scroope v State of Western Australia (1907) 3 CLR 334, referred to Wade v New South Wales Rutile Mining Company Pty Ltd (1969) 121 CLR 177, referred to The Yandama Pastoral Company v The Mundi Pastoral Company Limited (1925) 36 CLR 340, referred to Mayor of New Windsor v Taylor [1899] AC 41, distinguished Rye v Rye [1962] AC 496, referred to The Queen v Kearney; Ex parte Japananga (1984) 158 CLR 395, referred to Attorney-General for the Province of Quebec v Attorney-General for the Dominion of Canada [1921] 1 AC 401, applied Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879, referred to Pareroultja v Tickner (1993) 117 ALR 206, applied Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54, referred to Tunbridge Wells Corporation v Baird [1896] AC 434, applied The City of Perth v Crystal Park Limited (1940) 64 CLR 153, referred to Port of London Authority v Canvey Island Commissioners [1932] 1 Ch 446, referred to Sheffield City Council v Yorkshire Water Services Ltd [1991] 1 WLR 58, considered Thorpes Ltd v Grant Pastoral Co Pty Ltd (1995) 92 CLR 317, applied Rapoff v Velios [1974] WAR 27, referred to Mason v Tritton (1994) 34 NSWLR 572, applied Williams v The Attorney-General of New South Wales (1913) 16 CLR 404, referred to Bathurst City Council v PWC Properties Pty Ltd (1998) 157 ALR 414, referred to R v Sioui [1990] 1 SCR 1025, applied R v NTC Smokehouse Ltd [1996] 2 SCR 672, applied R v Gladstone [1996] 2 SCR 723, applied R v Alphonse [1993] 4 CNLR 19, applied Eaton v Yanner; ex parte Eaton (Queensland Court of Appeal, 27 February 1998, unreported), distinguished Walden v Hensler (1987) 163 CLR 561, considered