Editors --- "The Lardil Peoples v State of Queensland - Case Summary" [2004] AUIndigLawRpr 9; (2004) 8(4) Australian Indigenous Law Reporter 41

• The Lardil Peoples V State Of Queensland
• Facts:
• Held, Determining That There Are No Exclusive Native Title Rights In The Claim Area:
• Evidence
• Transmission
• Sea Country
• Single Claim
• Ownership
• Recognition

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Court and Tribunal Decisions - Australia

The Lardil Peoples v State of Queensland

Federal Court of Australia (Cooper J)

23 March 2004

[2004] FCA 298

Native title — determination of land and waters in the Wellesley Islands region — claim to waters, bank and bed of river and seas — four applicant groups claiming native title over neighbouring ‘Countries’ — claim to shared native title by applicant groups over certain land and waters — boundaries between ‘Country’ of applicants — existence of sub-groups (estate groups) within identifiable community — whether traditional laws acknowledged and customs observed — rights and interests under traditional law and customs — concept of ‘ownership’

Extinguishment of native title — whether native title rights survived the assertion of British sovereignty — extinguishment of native title rights in relation to fishtraps

Facts:

The four applicants, the Lardil, Kaiadilt, Yangkaal and Gangalidda peoples, sought a determination of native title pursuant to s 61 of the Native Title Act 1993 (Cth) (‘the Act’) in respect of the land and waters below the high water mark in an area of sea in the Gulf of Carpentaria.

Held, determining that there are no exclusive native title rights in the claim area:

Evidence

1. The evidence of indigenous witnesses cannot be understood out of the context of their religious and spiritual beliefs [85].

2. Where written statements are not formulated in the terms of expression used by the deponent themselves (eg, by transforming ‘Aboriginal English’ or traditional languages into standard English) the witness’s own oral evidence given at trial will hold greater weight than the prior written submissions, in the event there is a discrepancy between the two [87].

3. Evidence is not discounted because a number of indigenous witnesses were present in the Court during the hearing of evidence. There is no suggestion that this occured for the purpose of fabricating a consistent story or to attempt to ensure that all witnesses gave a consistent story. It is accepted that according to Aboriginal culture, the occasions upon which the traditional laws and customs of each group are stated are public occasions and are to occur in the presence of others who can confirm or challenge the statement as a correct expression of the laws and customs [88].

4. Much of the anthropological material is sourced from field books and notes which predate the High Court decision in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 and the start of the major land rights movement in the 1980s. It was not ‘concocted’ for the purpose of the applicants’ claim. Where anthropological evidence is not accepted, this is on the basis of the judge’s own assessment of the body of both indigenous and non-indigenous evidence before the Court [90]–[91].

Transmission

5. At the time of sovereignty, the new legal order recognised the transmission of traditional rights and interests in relation to lands: Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 followed. As the Gangalidda peoples acquired their rights and interests in the lands and waters of the former Mingginda peoples according to traditional laws and customs, these rights and interests are capable of recognition and protection under s 223(1) of the Act [130]–[132].

Sea Country

6. The sea Country is an extension of the related land Country across the inter-tidal zone and out into the adjacent waters [109]. The Lardil peoples’ claim that their sea Country extended ‘as far as the eye can see’ is accepted [112]. However, this claim does not translate into identifiable rights and interests in relation to the area beyond that within which the Lardil peoples habitually hunted, fished and foraged. Specifically, it does not translate into a right to control access to the outer sea areas [113]. The Lardil peoples do not have a control of access to inaccessible, non-specific places at sea. Their connection with the deep waters is spiritual or religious [115].

7. Similar reasoning applies to the outer sea areas claimed by the Yangkaal peoples [119], the Kaiadilt peoples [125] and the Gangalidda peoples [139].

Single Claim

8. There was no communal system of traditional law at sovereignty. Any agreement made post-sovereignty by the four applicant groups to treat the determination area as a single communal area held jointly, with four internal areas held separately, is not one recognised by the Act [140]: Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 followed.

Ownership

9. The conception of ‘ownership’ of the seas held by the indigenous witnesses is not one based on common law concepts of property, but rather on spiritual factors [147]. However, for the purposes of ss 223(1), 225 of the Act, the ‘right to be asked’ indicates that the identifiable right with respect to the land and waters in the claimed area is the right to control access and conduct [151]–[152].

Recognition

10. Because the content of non-exclusive rights was fixed at sovereignty, no enlargement of these rights will be recognised under the Act: Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 [175].

11. At the time of sovereignty, indigenous peoples had rights to have access to sites of spiritual or religious significance in the land and waters of the claim area. As the right to control access did not survive sovereignty, the rights over religious sites were diminished to that extent [185].

12. There is no general right to construct structures in the inter-tidal zone or the adjacent seas. No structures other than fishtraps were constructed in that area [186].

13. Formulations of rights which attempt to control access to and use of the land and waters in the claim area (other than access to or use by persons claiming to exercise the common law right to fish and navigate in those waters; exercise the right of innocent passage through those waters; or exercise a statutory right to do so) did not survive sovereignty. Such formulations in order avoid the consequences of the exercise of sovereignty were rejected by the High court in Commonwealth of Australia v Yarmirr [1999] FCA 1668; (2000) 101 FCR 171 and Western Australia v Ward [1997] FCA 585; (1997) 76 FCR 492 [188]. Residual exclusive rights did not survive the original and any subsequent assertion(s) of sovereignty with respect to the inter-tidal zones and/or the territory seas [190].

14. There is not, and never was, any native title right to control the exercise of the public rights that were imported with the common law at the time of sovereignty [193].

15. Even though the applicant groups were physically dislocated from their land and the majority lost the use of their native languages, none of the applicant groups lost their identity or existence as a ‘society’ [200]. Each of the applicant groups has maintained a normative system of traditional laws and customs [202].

16. Subject to two qualifications, each of the applicant groups possesses the same rights and interests in respect of the land and waters that were possessed by their forebears under the same traditional laws and customs at sovereignty [210]. The first qualification relates to the hunting of turtle and dugong, which is a native title right capable of regulation subject to s 211 of the Act: Yanner v Eaton (1999) 201 CLR 351 [211]. The second qualification is in relation to fishtraps, the maintenance and use of which have fallen into disuse, with any continuing use merely fortuitous [212].

17. The location of the rock fishtraps in the inter-tidal zone means that any rights of ‘ownership’ did not survive the assertion of sovereignty [220]. If the right to ‘ownership’ of the fishtraps survived sovereignty, then it was not a right recognised by common law. The Crown title to the foreshore and the beds of tidal rivers was an absolute one [221].The common law position was given statutory expression in the Harbours Act 1955 (Qld) [222].