Banjima People v State of Western Australia [2015] FCAFC 84

Pilbara Region

The claim area (part of which is subject to the appeal in this case) is located in the north western part of Western Australia, south of Port Hedland. It is in the vicinity of Mulga Downs and Juna Downs, and includes areas of the Karinji and Millstream Chichester National Parks. 

Banjima People v State of Western Australia [2015] FCAFC 84

WAD 73 of 2014

Between: State of Western Australia (Appellant) and Alec Tucker on behalf of the Banjima People and others (Respondents) 

Judge: Mansfield, Kenny, Rares, Jagot and Mortimer JJ

Determination

Among other things, the Full Court held that the Banjima People's traditional practice of requiring their permission to be sought before entering their land will give rise to exclusive possession. This appeal was dismissed.

This proceeding was significant because the Court followed the precedent made in Griffiths v Northern Territory of Australia [2007] FCAFC 178 (22 November 2007) to decide that the Banjima People's evidenced traditional custom of expecting strangers to seek permission before entering their lands gave rise to their exclusive native title over the area.

It also recognised that an exploration license giving general permission to enter the land and explore for minerals without using mechanical tools does not amount to being a requirement to do so. Therefore, the permission is not sufficient to be for a 'particular purpose' under s 47B(1)(b)(ii) of NTA.

WAD 72 of 2014

Between: Alec Tucker on behalf of the Banjima People and others (Appellants) and State of Western Australia and others (Respondents)

Judge: Mansfield, Kenny, Rares, Jagot and Mortimer JJ

Determination

The Full Court determined that the Banjima People's evidence was not sufficient to prove that they had occupied particular UCL areas in accordance with section 47B(1)(c) of the Native Title Act 1993 (Cth) (NTA). This ground of the appeal was dismissed.

The Full Court also determined that native title had not been extinguished in two reserve areas as the buildings on the reserves had not been constructed with the authority of the Crown, and hence do not fall under the definition of 'public works' in s 253 of NTA. This ground of the appeal was allowed.

Background

In 1988, negotiations between the State of Western Australia and the Banjima People (the claimants) over native title rights and interests commenced. After thirteen years of negotiations, an agreement could not be reached.

In 2013, Justice Barker found reasons why the Banjima could claim native title. These reasons are outlined in Banjima People v State of Western Australia (No 2) [2013] FCA 868 and invited the claimants to submit a draft determination to the court.

'It doesn't make much sense when you've got companies wanting to participate with the traditional owners, yet their own state government wants to litigate hard and slow down the progress of native title in Western Australia', said chief executive of the Yamatji Marlpa Aboriginal Corporation, Simon Hawkins (ABC News, 2013). 'We've been waiting for so long, we know it's Banjima country', added Banjima elder Alec Tucker (ABC News, 2013).

Then, in 2014, through mediation, an agreement was reached based on the court's findings as to the existence of native title and extinguishment set out in 2013. This determination was made in Banjima People v State of Western Australia (No 3) [2014] FCA 201. The determination area, apart from five parcels of land to the north of Wittenoom Road, conferred non-exclusive rights. The five parcels of land conferred exclusive rights (the exclusive area).

Details of the Judgment

Two appeals were made against certain aspects of the determination of native title made in Banjima People v State of Western Australia (No 3) [2014] FCA 201.

WAD 73 of 2014

Exclusive area

The State's submissions contesting exclusive possession (grounds 1(a) and 1(c))

The State submitted that the primary judge had erred in deciding that the custom of strangers seeking the Banjima People's permission when entering their land was sufficient to establish exclusive possession. The State argued that there was evidence of European people entering the land without danger, or even knowing they needed permission [14].

The Court dismissed this appeal on the grounds that this custom was not a mere expectation, but a binding need for people to seek permission [18]. The Court held that the Banjima People didn't have any capacity to enforce their customs against European people as native title was not recognised [21]. The conduct of European people had no impact on the practice of customs by the Banjima People, as other Indigenous people did seek permission [22], [24]. They acknowledged that the requirement to seek permission in order to be protected from spiritual dangers was sufficient to demonstrate exclusive possession, despite it not being a western proprietary right [33].

The State's submission that the native title was shared (ground 1(b)

The State submitted that the primary judge should not have ruled that the Banjima People held exclusive rights over an area that is shared with another Aboriginal group (the Yindjibarndi People). 

The Court dismissed this appeal by holding that a previous claim by the Yindjibarndi people stopped well short of the Banjima claim area [50]. The Court also upheld the primary judge's findings that the Yindjibarndi People may have had traditional rights over part of the claim area, but the evidence was not sufficient to show that [51]. If the State did show that the two groups shared rights at British sovereignty, the Banjima People could still assert exclusive possession if those shared rights did not continue to exist [54].

Non-exclusive areas

The State's submission that too much weight was given to the Banjima's evidence (ground 3)

The State submitted that the primary judge gave too much weight to the evidence of the Banjima People rather than the state's evidence that the area north of the Hamersley Range's northern escarpment was occupied by other Aboriginal groups and that the Banjima People migrated there post-sovereignty [59].

The Court dismissed this appeal by holding that the primary judge was in the best position to determine the weight of all the evidence; the Court heard from witnesses on Country, and witnessed the performance of the anthropologists [57]. The Court upheld the primary judge's findings that there was no compelling evidence to suggest that the land could not have been Banjima Country [60]. The primary judge gave strong weight to the strength and consistency of the direct evidence of the Aboriginal witnesses [61], and gave more weight to the Banjima People's anthropologist as they had the benefit of extensive field work with Banjima People [62]. The Court also highlighted how the primary judge took into account the importance of ritual songs when ascertaining the extent of Country [73].

The State's submission that the exploration licenses should have fallen under section 47B(1)(b)(ii) of NTA (ground 4)

The State submitted that the primary judge should not have ruled that the exploration licenses under s 63 of the Mining Act 1978 (WA) did not fall under the exception in s 47B(1)(b)(ii) of the NTA. They submitted that the licenses were used for a 'particular purpose' under s 47B(1)(b)(ii) and thus should extinguish any native title rights over the UCL areas 7, 9 and 42 [87].

The Court held that the licenses did not impose a requirement, but gave a mere permission for licensees to enter the land to explore for minerals without using mechanical tools [107], [112]-[113]. This permission was not specific enough to be a particular purpose under s 47B(1)(b)(ii). Also the fact that the licenses prohibited the use of mechanical tools when exploring meant that there was no practical impact on the Banjima People's use of the land, and therefore did not interfere with the continued existence of their native title rights and interests [109], [116]. 

WAD 72 of 2014

The Banjima's submission that they occupied the land as per s 47B(1)(c) of NTA (ground 1)

The Banjima People submitted that the primary judge erred by ruling that native title was extinguished in UCL areas 1-6, 8, 10-41 and 43-173 because the evidence was not sufficient to satisfy the 'occupy' requirement under s 47B(1)(c).

The Court agreed with the primary judge's ruling that the evidence of the Banjima People's activities was too vague and imprecise to prove that they were established on, and occupied the land [129]-[130].

The Banjima's submission that the buildings did not fall under the definition of 'public works' in s 253(b) (ground 3)

The Banjima People submitted that the primary judge was incorrect in determining that native title was extinguished over two parts of the land (reserves 24849 and 25156) because the areas were used as reserves. They argued that their native title rights remained unaffected upon the cancellations of the reserves in 1995 [143]. The State agreed with this, but argued that native title should instead be extinguished because the buildings constructed on the reserves were 'public works' under s 253 of NTA. The Banjima People argued that the buildings were not constructed with the authority of the Crown and hence do not fall under the definition of 'public works'. The fact that the Crown created a reserve will not automatically mean they authorise the construction of all buildings on this reserve [148].

The Court upheld this appeal. The Court found that there was no evidence to suggest that the Crown authorised the construction of the buildings [150]. The primary judge was therefore in error by determining that in these areas native title was extinguished. 

Appeal allowed in part to deal with the fact that native title is not extinguished over reserves 24849 and 25156, but otherwise appeal is dismissed

Related Entries

References

Glossary