FEDERAL COURT OF AUSTRALIA Daniel v State of Western Australia [2003] FCA 1425 ABORIGINALS – native title to land – extinguishment – whether inconsistency such as to effect extinguishment – pastoral leases – mining tenements – reserves for cemeteries – Country Areas Water Supply Act by-laws – nature reserves and wildlife sanctuaries – jetty licences Native Title Act 1993 (Cth) ss 23G(1)(a), 23G(1)(b) Daniel v State of Western Australia [2003] FCA 666 considered Western Australia v Ward (2000) 99 FCR 316 considered Western Australia v Ward (2002) 191 ALR 1 applied DANIEL & OTHERS ON BEHALF OF THE NGARLUMA PEOPLE & MONADEE & OTHERS ON BEHALF OF THE YINDJIBARNDI PEOPLE and HOLBOROW (NEE COSMOS) & OTHERS ON BEHALF OF THE YABURARA & MARDUDHUNERA PEOPLE and DALE & OTHERS v THE STATE OF WESTERN AUSTRALIA & OTHERS WAG 6017 of 1996 and part of WAG 127 of 1997 and part of WAG 6256 of 1998 R D NICHOLSON J 5 DECEMBER 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA DISTRICT REGISTRY WAG 6017 of 1996 and part of WAG 127 of 1997 and part of WAG 6256 of 1998 BETWEEN: DAVID DANIEL, DAISY MOSES, ROGER BARKER, JILL CHURNSIDE, TREVOR SOLOMON AND LES HICKS ON BEHALF OF THE NGARLUMA PEOPLE AND BRUCE MONADEE, KENNY JERROLD, MARY WALKER, BRUCE WOODLEY, MICHELLE ADAMS, JIMMY HORACE, LINDA RYDER AND JUDY ALBERT ON BEHALF OF THE YINDJIBARNDI PEOPLE AND: FIRST APPLICANTS AND: VALERIE HOLBOROW (NEE COSMOS), KEVIN COSMOS AND ROBERT BOONA ON BEHALF THE YABURARA & MARDUDHUNERA PEOPLE SECOND APPLICANTS BETTY DALE, TIM DOUGLAS, WILFRED HICKS, DALLAS HICKS, ERNIE RAMIREZ AND CANE HICKS THIRD APPLICANTS AND: THE STATE OF WESTERN AUSTRALIA, PREMIER OF WESTERN AUSTRALIA, ABORIGINAL LANDS TRUST, AGRICULTURE PROTECTION BOARD, COMMISSIONER OF MAIN ROADS, DAMPIER PORT AUTHORITY, ELECTRICITY CORPORATION, GAS CORPORATION, HERITAGE COUNCIL OF WESTERN AUSTRALIA, MINISTER FOR ABORIGINAL AFFAIRS, MINISTER FOR ENVIRONMENT, MINISTER FOR FISHERIES, MINISTER FOR HEALTH, MINISTER FOR HOUSING, MINISTER FOR JUSTICE, MINISTER FOR LANDS, MINISTER FOR MINES, MINISTER FOR PRIMARY INDUSTRY, MINISTER FOR RESOURCES DEVELOPMENT, MINISTER FOR TRANSPORT, MINISTER FOR WATER RESOURCES, MINISTER FOR WORKS, NATIONAL PARKS & NATURE CONSERVATION AUTHORITY, WATER CORPORATION, WATERS & RIVERS COMMISSION AND WESTERN AUSTRALIAN MUSEUM AND: FIRST RESPONDENTS AND: COMMONWEALTH OF AUSTRALIA AND AUSTRALIAN MARITIME SAFETY AUTHORITY AND: RESPONDENTS 2A AND: TELSTRA CORPORATION LIMITED AND: THIRD RESPONDENTS (FORMER RESPONDENTS 2B) AND: SHIRE OF ROEBOURNE AND: FOURTH RESPONDENTS AND: P & D COOK, PETER COOK, COOLAWANYAH PASTORAL CO PTY LTD (COOLAWANYAH STATION), MALLINA STATION, MOUNT FLORENCE STATION, PEDO PTY LTD (MALLINA STATION), TONY RICHARDSON, DM & JA SAMBELL (WARAMBIE STATION) AND DM, JA & NL SAMBELL AND: FIFTH RESPONDENTS AND: BHP MINERALS PTY LTD, BHP PETROLEUM PTY LTD, DUKE ENERGY WA POWER PTY LTD AND: SIXTH RESPONDENTS AND: CAPE LAMBERT IRON ASSOCIATES, MITSUI IRON ORE DEVELOPMENT PTY LTD, NORTH MINING LTD, PANNAWONICA IRON ASSOCIATES ROBE RIVER AND MINING COMPANY PTY LTD AND: EIGHTH RESPONDENTS AND: DAMPIER SALT LTD AND: NINTH RESPONDENT AND: HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD AND: TENTH RESPONDENTS AND: NORTH WEST SHELF JOINT VENTURERS & WOODSIDE OFFSHORE PETROLEUM PTY LTD AND: ELEVENTH RESPONDENTS AND: MINERALOGY PTY LTD AND: RESPONDENT 12A AND: BORAL CONTRACTING PTY LTD, CSR LTD, PIONEER CONCRETE (WA) PTY LTD AND THE READYMIX GROUP AND: RESPONDENTS 12B AND: ANVIL MINING NL, AUSTRALIAN NICKEL MINES NL, BGC CONTRACTING PTY LTD, DALRYMPLE RESOURCES NL, DOMINION MINING LTD, DRAGON MINING NL, EAST COAST MINERALS NL, EVERTON NOMINEES PTY LTD, GOLDRIM MINING AUSTRALIA LTD, HUNTER RESOURCES LTD, KARRATHA PROPERTY SERVICES, KARRATHA STONE PTY LTD, LEGEND MINING NL, MT KEITH GOLD MINES PTY LTD, OPTIMUM RESOURCES PTY LTD, PILBARA MINES NL, PLUTONIC RESOURCES LTD, STARMOSS HOLDINGS PTY LTD AND TAP OIL NL THIRTEENTH RESPONDENTS RON BRAND, ALLAN J CLARK, RW & DM GODLONTON, MICHELE & PETER HEYMANS, JOHN PHILLIP KIRKWOOD, DONALD EDWARD NORTH, DONALD KIMBERLEY NORTH, VP O'CONNOR, J & P ROCCA AND JAMES EDWARD TELFER RESPONDENTS 14A MG CREASY RESPONDENT 14B RAYMOND JOHN THOMAS BUTLER AND VT & PA ROBERTS RESPONDENTS 14C GH ALEXANDER, ROBERT LEWIS ALEXANDER, DZINTRA BRAUN, JOHANNES BRAUN, IVAN J DAWE, DIRECTION FISHERIES PTY LTD, PETER JOHN FULLARTON, HUGH COLIN GILBERT, RJ GOODLAD, JAMES LAWRENCE HENRY, HIGGINS POWER & MARINE SERVICES, KR & PIEFRE K HODGES, KRAOS FISHING COMPANY, MICHAEL NICHOLAS & LYNN JANENE MANIFIS, McBOATS, MG KAILIS GULF FISHERIES PTY LTD, EDIN & BRANSBY SUSAN MORRISON, PL NASH, MF O'BYRNE, WH OTT, REDLAND BAY PTY LTD, DA RETTAY, JOE RINKENS, NELL RINKENS, GE & BJ SELL, ARTHUR BRIAN TOUSSAINT AND WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (Inc) FIFTEENTH RESPONDENTS COSSACK PEARLS PTY LTD, DAMPIER PEARLING COMPANY, EXMOUTH PEARLS PTY LTD, NORWEST PEARLS PTY LTD AND PILBARA PEARLS/DAMPIER SEVENTEENTH RESPONDENTS YATHALLA ABORIGINAL CORP EIGHTEENTH RESPONDENT MINGULLATHARNDO ASSOCIATION INC NINETEENTH RESPONDENT HORACE PARKER AND OTHERS ON BEHALF OF THE BUNJIMA, NIAPAILI AND INNAWONGA PEOPLES RESPONDENTS 19B TEDDY ROBERTS, CYRIL GORDON, DONNY WILSON AND BRIDIE ALEC ON BEHALF OF THEMSELVES AND THE 89 KARRIYARRA PEOPLE RESPONDENTS 19D GEOFFREY & MICHAEL TOZER TWENTIETH RESPONDENTS GRAYSON HOLDINGS PTY LTD, WR JEFFERIES, KARUNDA PTY LTD AND VILMA ROSE PARKER TWENTY-FIRST RESPONDENTS AUSI IRON NL TWENTY-THIRD RESPONDENTS JUDGE: RD NICHOLSON J DATE: 5 DECEMBER 2003 PLACE: PERTH REASONS FOR JUDGMENT 1 Reasons for decision in this matter were handed down on 3 July 2003: Daniel v State of Western Australia [2003] FCA 666 ('the 2003 Daniel decision'). In accordance with those reasons, directions were made to provide a limited opportunity to the parties to make further submissions 'in relation to the preliminary views expressed in the reasons on inconsistency between extinguishing interests and the non-exclusive native title rights and interests as found'. These supplementary reasons address the submissions filed on those issues in response to that direction. 2 Directions made on the same day provide a mechanism for further submissions in relation to the settlement of the form of the Determination. To some extent it is submitted on behalf of both the applicants and some of the respondents that some of the submissions made in connection with the limited opportunity may be repeated in relation to the settlement of the form of the Determination. To the extent that the views expressed in these supplementary reasons settle the issue of inconsistency for the purpose of the reasons, it will obviously not be appropriate for them to be further agitated in relation to the form of the Determination. NATIVE TITLE RIGHTS AND INTERESTS FOUND 3 The findings of the reasons in relation to the claim for native title rights and interests is reflected in the draft terms of the Determination as set out at [1163] of the reasons. These are: 'Subject to pars 10, 11, 12 and 13, the non-exclusive native title rights and interests held by the Ngarluma and Yindjibarndi peoples in relation to the Determination Area in this manner are: (a) Access 'A right to access (including to enter, to travel over and remain)' (b) Ritual and ceremony 'A right to engage in ritual and ceremony (including … to carry out and participate in initiation practices …)' (c) Camping 'A right to camp, build shelters (including boughsheds, mias and humpies) …or to live on the area.': - in the case of the Yindjibarndi people limited to the Millstream-Fortescue area. - in the case of the Ngarluma people limited to the proximity of river courses. (d) Hunting and foraging 'A right to hunt and forage.': - limited in the case of the Yindjibarndi people to the Millstream-Fortescue area and the upper reaches of the Sherlock River. (e) Fishing 'A right to fish and take fauna from the waters.' - limited to the case of the Yindjibarndi people to the Millstream-Fortescue area. - limited in the case of the Ngarluma people to the coastal areas above low water mark and inland water courses. (f) Bush medicine and tucker 'A right to collect and forage for bush medicine and (bush) food.': - limited in the case of the Yindjibarndi people to the Millstream-Fortescue area. - limited in the case of the Ngarluma people to the rivers and water courses. (g) Take fauna 'A right to take fauna (including fish, shellfish, crab, oysters, sea turtle, dugong, goanna, Kangaroo emu, turkey, echidna, porcupine, witchetty grub, turkey, swan)': - limited in the case of the Yindjibarndi people to the Millstream-Fortescue area. - limited in the case of the Ngarluma people [in the case of] the taking of water fauna to the coastal areas and inland water courses but otherwise unlimited within the Ngarluma claim area above low water mark. (h) Take flora 'A right to take flora (including timber logs, branches,…, bark and leaves, gum, wax…, Aboriginal tobacco, fruit, peas, …., pods melons, bush cucumber, …, seeds, nuts, grasses, potatoes, wild onion…, honey)' - limited in the case of the Yindjibarndi people to the Millstream-Fortescue area. - limited in the case of the Ngarluma people to the rivers and water courses. (i) Take ochre 'A right to take black, yellow, white and red ochre.': - limited in the case of the Yindjibarndi people to the Millstream-Fortescue area. (j) Take and use water – [(k) in claim] 'A right to take water for drinking and domestic use.' (k) Cook and light fires – [(l) in claim] 'A right to cook on the land including light a fire for this purpose.': - in the case of the Yindjibarndi people limited to the Millstream-Fortescue area. - in the case of the Ngarluma people limited to the proximity of river courses. (l) Protect and care for sites and objects – [(n) in claim] 'A right to protect and care for sites and objects of significance in the area (including a right to impart traditional knowledge concerning the area, while on the area, and otherwise, to succeeding generations and others so as to perpetuate the benefits of the area and warn against behaviour which may result in harm).' The following are not established as rights but are established as duties incidental to claim (l). 'A right to maintain, conserve and/or protect sites and objects of significance by preventing by all reasonable means any activity occurring on the area which may injure, desecrate, damage, destroy, alter or misuse any such place or object.' 'A right to maintain, conserve and/or protect by all reasonable lawful means places and objects located within the area of social, …ceremonial, ritual … significance to the native title holders from use or activities which are unauthorised or inappropriate use or activities, in accordance with the traditional laws and customs of the native title holders'' 4 Paragraph 10 expresses certain qualifications, namely: '10. Notwithstanding anything in this determination: (a) the native title rights and interests (in accordance with the decision of the High Court in Ward v Western Australia)include ochre but do not include other minerals and petroleum as defined in the Mining Act 1904 (WA), the Mining Act 1978 (WA), the Petroleum Act 1936 (WA) and the Petroleum Act 1967 (WA); and (b) the native title rights and interests only confer on the Ngarluma and Yindjibarndi peoples such rights in relation to flowing and subterranean waters as exist at law; (c) nothing in this paragraph is intended to affect the rights of the Ngarluma and Yindjibarndi peoples (including any registered native title body corporate) under subsections 13(1) and 13(5) and the item 'Revised native title determination application' in the table in subsection 61(1) of the Native Title Act.' Paragraphs 11, 12 and 13 relate to the non-exclusive native title rights and interests being subject to law, subject to certain interests and subject to extinguishment. None of the pars 10, 11, 12 and 13 play any further part in these reasons in that nothing is raised in relation to them in the submissions concerning inconsistency. PASTORAL LEASES RIGHTS TO ACCESS AND TO CAMP 5 It is submitted for the first respondents that any native title right (pursuant to the right to access) to 'remain' or (pursuant to the right to camp) to 'live' on an area of a pastoral lease is inconsistent with the rights a pastoralist to run stock, maintain pasture and construct or establish improvements on any part of the lease area. It is submitted that to 'remain' or 'live' has about it an element of permanent residence or occupation to be distinguished from transient access or camping. It is said that remaining or living in that way would result in it not being possible, in a practical sense, for a pastoralist's right to 'prevail' over the exercise of native title holders of such right. In contrast, it is said, there may be no inconsistency between the pastoralist's rights and the right of native title holders to access or camp from time to time on parts of the lease area where the exercise of that right may be ceased or relocated to another place when it comes into conflict with the rights of the pastoralist to, for example, depasture stock. It is therefore submitted that the right to remain forming part of native title right (a) above and the right to live on the area, forming part of native title right (c) above, have been extinguished by the grant of pastoral leases. 6 These submissions are supported on behalf of the fifth, eighth, ninth and tenth respondents. 7 The third respondent submits, in respect of the right to access, that a right to 'remain' on the land on which its cabling is located is inconsistent with its right to access that cabling to maintain it so that this right is extinguished in relation to the land on which Telstra's cabling has been installed. It is submitted the third respondent's right to access and maintain its cabling cannot, in a practical sense, 'prevail' over a right to 'remain' on the land but is rather inconsistent with such a right. Similarly, the third respondent submits that its customer terminal sites and the Mount Fraser Optical Fibre Regeneration site is inconsistent with a right to 'remain' on the land on which such facilities are located so that the right of access to the extent it includes the right to remain is therefore extinguished. 8 For the fifth respondents it is additionally submitted that an unqualified right of access is inconsistent with the rights of a pastoralist to use the pastoral property for pastoral purposes. It is submitted that the right of access should be limited to access for particular purposes being those identified in the Determination and relating the exercise of the right to access to the purposes of exercising the native title rights otherwise found. In addition to the submissions for the first respondent on the right to camp, it is submitted for the fifth respondent that a right to 'build shelters' is inconsistent with the pastoralist's right to conduct his or her operations, namely, to run stock, maintain pasture and construct or establish improvements, permanent or temporary, on any part of the lease area. It is therefore said that the right should be expressed as 'a right to camp temporarily on the area'. 9 Similarly, for the third respondent it is submitted that the right to camp, so far as it includes the right to 'live' on the land on which the third respondent's cabling is located, is inconsistent with its right to access its cabling to maintain it so that the right to that extent is extinguished. Further, it is said that the third respondent's right to occupy the land on which its facilities are installed free from interference and to access the facilities in order to maintain them is inconsistent with the first applicants' right to camp and build shelters. Therefore, it is submitted that the right to camp is extinguished in relation to land on which the third respondent's customer terminal sites and the Mount Fraser Optical Fibre Regeneration site are installed. 10 In the light of the reasons of the Court published in the 2003 Daniel decision at [586] the first applicants submit that the only right which is extinguished by the pastoral lease is the right to control such access and use of the land and that all the other native title rights found by the Court are not inconsistent with the rights arising from a pastoral lease and therefore have not been extinguished by such leases. It is said that the extinguishment of any native title rights only occurs when the rights are inconsistent with the rights under any valid grant of tenure. It is said the rights are not to be taken away unless there is a 'clear and plain intention to do so'. It is for this reason that the law has drawn a distinction between the grant of rights that are inconsistent with an extinguished native title on the one hand and rights which merely prevail over native title rights on the other: cf Native Title Act 1993 (Cth) s 23G(1)(a) and s 23G(1)(b). It is submitted that where the rights can coexist, they will not be extinguished. The submission is that there is nothing inconsistent with the first applicants living or remaining on areas within a pastoral lease on the basis that the interests of the pastoralist are protected by the fact that the rights of the pastoralist prevail over those of the native title holders. It is contended that to accept the submission for the first respondents will result in native title right to live on the land being completely extinguished by all pastoral leases because of a remote possibility that a pastoralist might one day want to carry out pastoral activities where the native title holders may be living. The first applicants therefore support the present formulation of the right to access and the right to camp. 11 As stated in the reasons delivered in the 2003 Daniel decision the High Court has held that the grant of a pastoral lease is a 'previous non-exclusive possession act' and has the immediate effect of extinguishing the exclusivity of any native title right to possess, occupy, use and enjoy the subject land: Western Australia v Ward (2002) 191 ALR 1 ('Ward HC') at 68, at [192] and at 122, at [422]. In Ward HC, the majority in the High Court (at 69, at [194]) expressed the possible extinguishing effect of pastoral leases beyond the issue of extinguishing control of access to the land the subject of the grants in the following terms: 'The right to control access apart, many other native title rights to use the land the subject of the pastoral leases probably continued unaffected. For example, the native title right to hunt or to gather traditional food on the land would not be inconsistent with the rights of the pastoral leaseholder although, as stated in para (a) of s 12M(l), the rights of the pastoral leaseholder would "prevail over" the native title rights and interests in question. On the other hand, for the native title holders to burn off the land probably would have been inconsistent with the rights granted to the pastoral leaseholder, so as to bring about extinguishment as identified in para (b)(i) of s 12M(l).' The majority stated at [195] that it was necessary to use terms such as 'many' and 'probably' because in that particular case there had been limited findings by the primary judge and by the Full Court as to the relevant content of the native title rights and interests so that it was not possible to say whether there was inconsistency. They were issues which were to be taken up on the remittal of the matters to the Full Court. 12 This reasoning is also to be considered in the context of the example given by the majority later in their reasoning at 97, at [308] of the erection by a pastoral leaseholder of some shed or other structure on the land that may prevent native title holders gathering certain foods in that place. The majority said that such prevention did not necessarily result in an inconsistency with all native title. Further, the majority said at 132, at [468] point 10, that 'native title rights and interests, other than [the right to control access to or the use to be made of the land], probably continued unaffected by the grant [of a pastoral lease], but to what extent we cannot say from the present findings of fact.' The majority added, 'to the extent that the rights and interests granted by the pastoral lease were not inconsistent with native title rights and interests, the rights and interests under the lease prevailed over, but did not extinguish, native title rights.' 13 I read these passages as indicating that where it is possible for the rights of a pastoral lessee to prevail over the exercise of the native title rights, those rights are not extinguished. I therefore accept the submission for the first applicants that a native title right is not to be considered as inconsistent or as extinguishing native title only because the tenure holder may want to exercise rights at the same location as a native title holder thus preventing the native title holder from exercising those rights at that location at that time. The true test is whether at that location at that time the exercise of the native title rights and interests would prevent the rights of the tenure holder prevailing. 14 Doubtless the High Court's reliance on the notion of 'prevailing' carries within it the seeds of possible conflict between the holder of the pastoral lease and the holders of the native title rights and interests. Clearly it may be desirable in policy to limit the occasions when it may be necessary to test the prevalence of the rights of the holder of the pastoral lease. However, the law as expressed by the High Court requires this Court to make a judgment on whether the rights of the holder of the pastoral lease can prevail as against the relevant portions of the native title rights and interests put in issue by the submissions, that is, in relation to living and remaining. Furthermore, in considering these issues of inconsistency I consider that it is appropriate to have regard to the 'reasonable user' test propounded by Beaumont and von Doussa JJ in Western Australia v Ward (2000) 99 FCR 316 at 403, at [329] and at 478, at [641]; considered by Kirby J in Ward HC at 165, at [590] to be useful in the context. 15 My views are: (1) it cannot be said that the right to 'remain' in right (a) would prevent the rights of the tenure holder prevailing: the right to remain cannot be exercised in such a way as would prevent the pastoral lease tenure holder's rights prevailing. (2) The right to live in right (c) is potentially more difficult because a right to live read alone conveys some sense of permanency. However, the use of the word 'live' falls to be understood in the terms of right (c). It is effectively limited by the terms of right (c) read as a whole. The right is confined geographically. It is not a right giving or claimed as giving a right to live on an area independently of a right to camp. In the way the right was claimed and pressed, 'camping' does not have about it the character intended to encompass permanent living. So understood, it cannot prevail against the reasonable needs of the pastoral lease tenure holder. (3) In relation to the third respondents' particular submissions concerning right (a): (a) it is not correct that the native title holder's rights to remain could not yield to the third respondent's right to access and maintain its cabling. (b) understanding 'living' in right (c) as explained above relating to a right to live temporarily on the areas as part of camping and for the purpose to 'build shelters', there is no inconsistency between that right and the third respondent's to service its cabling. The nature of any shelter built pursuant to the right is conditioned by the character of the right so that the shelter must be one against which the rights of the third respondent, reasonably exercised, can prevail. (c) In the case of the customer terminal sites and the Mount Fraser Optical Fibre Regenerator site it is the case that there is inconsistency between the native title right to remain and the right to camp and the rights of the holders of the tenements containing those sites such that the right to 'remain', as part of right (a), and the right to camp (right (c)), are extinguished. (4) In relation to the submissions for the fifth respondents: (a) There is no basis in the evidence for redefining right (a) as previously found to be one limited to particular purposes to be identified in the Determination. (b) Understanding right (c) as explained above, there is no basis for finding that right is inconsistent with the right of the pastoral leaseholder to conduct operations. RIGHT TO TAKE FLORA (INCLUDING TIMBER LOGS … GRASSES …) 16 For the first respondents it is submitted that the right to take grasses, part of native title right (h), is inconsistent with the right of the pastoralist to depasture stock, which right necessarily involves the maintenance of grasses on the pastoral lease. It is submitted that it is not enough to say that the rights of the pastoralist to use the grass for depasturing stock will prevail, because it must be assumed that the pastoralist's interest is always to have as much pasture growing on the lease as possible regardless of which paddock the pastoralist intends to use to depasture stock at any particular point in time. 17 For the fifth respondents it is urged that in addition to deleting the word 'grasses' the words 'timber logs' should be removed. It is submitted that a right to take timber logs of any kind is inconsistent with the pastoralist's right to use timber logs for pastoral purposes, for example, to construct a fence or yards. 18 For the first applicants it is submitted that given the size and extent of a pastoral lease there is ample scope for coexistence in the taking of grasses. It is said that the rights of the pastoralist prevail so that if there is a competition between the pastoralists and the native title holders in relation to any particular patch of grass, the pastoralist will have the prevailing right to that. 19 It must be borne in mind that the exercise of native title rights is to be approached on the basis of reasonable user. The taking of grasses and logs pursuant to right (h) is to be understood in that light. There was no evidence before the Court of any exercise of the right to take grasses or logs in any way which would have negated or had any significant impact on the right of the pastoral lease tenure holder to use grasses and logs. There is no basis for finding inconsistency resulting in extinguishment on these issues. RIGHT TO TAKE OCHRE 20 For the third respondent it is submitted that to the extent the right to take ochre involves digging beneath the surface of the ground, it is inconsistent with Telstra's right for its cabling to be free from interference. It is therefore submitted that the first applicants' native title right in that respect is extinguished to the extent that it involves digging beneath the surface of the areas of land under which Telstra's cabling is located. I agree with this submission for the third respondent to the extent such digging would be reasonably likely to interfere with such cabling. MINING TENEMENTS RIGHT TO ACCESS AND RIGHT TO CAMP 21 The first respondents again submit that in respect of land currently or historically the subject of a relevant mining tenement, right (a) would be inconsistent so far as it contains reference to 'a right to remain' and that the right to camp would be inconsistent so far as it includes the right to 'live on the area'. 22 Aside from submissions in relation to particular forms of mining tenement which will subsequently be addressed, the eighth, ninth and tenth respondents rely on submissions to the same effect. 23 For the first applicants it is submitted that for the reasons set out in relation to the pastoral leases, there is no reason why mining tenements should extinguish the native title to remain and live in the two rights in question. This is the case, it is submitted, because it is quite possible that mining activities may only occur over a small proportion of the entire tenement. When mining works need to be carried out, the rights of the mining tenement holder can prevail. Therefore, it is submitted, there is nothing necessarily inconsistent between those rights and no reason why extinguishment is a necessary consequence. These submissions again make germane what was said by the majority in Ward HC at 97, at [308] to the effect that 'the use of land for mining purposes may prevent the exercise of native title rights and interests on some part (even, in some cases, perhaps the whole) of the leased area' but 'that is not to say, however, that the grant of a mining lease is necessarily inconsistent with all native title'. Similarly, in Ward HC at 133, at [468] point 17, the majority said that whether other native title rights and interests in relation to land were inconsistent with the rights granted under a mining lease was a question that could not be answered on the findings of fact then made in that case. 24 Here, it is submitted, for the first applicants that none of the other rights found to exist are extinguished. 25 Having previously examined the evidence in this case relating to mining tenements, I consider the submissions for the first applicants factually accord with that evidence and are also correct in law. Consequently, I do not agree extinguishment results from the matters relied on here for the respondents so far as the exercise of the native title rights in issue do not interfere with the mining activities, that is, that they are exercised reasonably, there is no necessary inconsistency and therefore no extinguishment. RIGHT TO ENGAGE IN CEREMONY AND RITUAL … 26 It is submitted for the first respondents that this native title right (b) is wholly extinguished. This is supported on behalf of the eighth, ninth and tenth respondents. 27 For the first applicants it is submitted that the same principles as applied to the issues concerning the issue of inconsistency of a mining tenement to a right to remain or to live on an area should apply in the case of the right to perform ritual and ceremony. It is said this is particularly the case as the performance of ritual and ceremony might be quite intermittent and more confined in area and less frequent than access generally. 28 I consider the submissions for the first applicants accord with what was disclosed by the evidence and are correct. a right to cook … 29 For the first respondents it is submitted that this native title right (k) is wholly extinguished. That submission is supported on behalf of the eight, ninth and tenth respondents. 30 For the first applicants it is submitted that the right to cook and light fires should be viewed similarly to rights to remain and live on the land and is not inconsistent in any way with mining activity being carried out on the mining tenement. 31 Again having in mind that this aspect of the native title right is to be reasonably exercised, I agree with the submissions for the first applicants. reserves for CEMETERIES ALL RIGHTS 32 In the reasons for decision delivered in the 2003 Daniel decision at [693] it was stated that reserves 5698, 6625, 6626 and 41146 created for the purpose of a cemetery 'effect extinguishment of all rights found other than the right of access …'. The first respondents submit that this does not include the right to remain being part of native title right (a). This submission is again supported on behalf of the eighth, ninth and tenth respondents. 33 For the first applicants it is submitted that reserves for cemeteries should not be construed as extinguishing all rights other than the right of access. It is said that the other rights listed in the draft Determination are not inconsistent with there being a reserve for a cemetery. With particular reference to the right to perform ritual and ceremony, reference is made to the context of a burial and the submission made that the right is not only consistent but is expected to be carried out in a cemetery. 34 A 'cemetery' is defined as a 'place used for burials, esp a usually large are of public ground … laid out for the interment of the dead': The New Shorter Oxford English Dictionary (Oxford, 1993), p 360. The Macquarie Dictionary, 2nd edn, p 292 adds the notion that a cemetery is especially 'one not attached to a church'. A reserve for a cemetery is to be understood in that sense. Hence such a reserve is not connected to the beliefs of any one religion concerning the significance of a place of burial for the dead. It is, however, right to accept that the place for the burial of the dead is likely to be a place given respect by all peoples of any belief behaving reasonably. 35 The other significance of the definitions are that they make apparent a reserve for a cemetery may or may not contain the dead or it may contain some dead and some land reserved for the burial of the dead. 36 It is necessary to examine each of the rights as found against that background. (a) Access A right to enter and travel over is not inconsistent with the purposes of the reserves. A right to remain is not necessarily inconsistent given that it must be reasonably exercised and must yield to actual usage in that the purposes of the reserves would prevail. (b) Ritual and Ceremony I accept the submission for the first applicants that a right to engage in ritual and ceremony for the dead is not inconsistent with the purposes of the reserves. Otherwise such right is inconsistent so that extinguishment of the right occurs save to the extent it relates to ritual and ceremony for the dead. (c) Camping I consider the exercise of this right would be inconsistent with the purpose of the reserves. (d) Hunting and foraging ) (f) Bush medicine and tucker ) (g) Take fauna ) (h) Take flora ) (i) Take and use water ) On the basis that these rights are exercised reasonably and yield to the right to provide for burial for the dead, I accept the submission for the first applicants that the creation of the cemetery reserves in itself does not result in extinguishment of these rights. (e) Fishing This relates to waters and is inapplicable to cemeteries. (j) Take ochre ) (k) Cook and light fires) I consider these are wholly inconsistent with the reserves and are extinguished in relation to them if they exist within the geographic limitations of the right. (l) Protect and care for sites and objects This would appear to be inapplicable in respect of cemetery reserves. COUNTRY AREAS WATER SUPPLY ACT BY-LAWS RIGHT TO ACCESS INCLUDING A RIGHT TO REMAIN A RIGHT TO CAMP A RIGHT TO COLLECT AND FORAGE FOR BUSH MEDICINE AND FOOD A RIGHT TO TAKE FLORA … 37 The reasons for decision at [858] conclude that native title is extinguished by the Country Areas Water Supply Act by-laws 36 and 40. 38 By-law 36(1) provides that: 'No person, body corporate or association or group of persons shall at any time camp or picnic within 300 yards of the high-water mark or of any well or bore or any reservoir or feeder thereto.' 39 'High water mark' is defined as being 'the level of full supply of a reservoir or a feeder'. A feeder is defined as 'a watercourse, creek, stream or other channel with permanent or intermittent flow whereby water is or can be conveyed to a reservoir'. 40 The first respondents contend that this by-law has extinguished the following native title rights within the area covered by the by-law, i.e. within 300 yards of the high-water mark or of any well or bore or any reservoir or feeder thereto within the Millstream and Roebourne borefields water reserves, and the Harding Dam water reserve and catchment area: First, a right to remain (part of native title right (a)). It is said to follow that in respect of the relevant land, right (a) should be expressed as 'A right to access (including to enter and to travel over)'. Secondly, all of right (c) is said to be extinguished. 41 By-law 40 provides that: 'The removal, plucking, or damaging or any wild flower, shrub, bush, tree, or other plant, growing on any land or reserve vested in the Minister, within half a mile of any reservoir or bore is prohibited.' 42 The first respondents contend that this by-law has extinguished native title rights (f) and (h) within the area covered by the by-law, i.e. within half a mile of the Millstream and Roebourne borefields and the Harding Dam reservoir. 43 For the first applicants it is stated, given the decision of the Court at [858] that native title is partially extinguished by the by-laws within their terms, any extinguishment must be strictly limited to the terms of the prohibition. 44 By-laws 36 and 40 extinguish native title within their terms. I consider: (1) By-law 36(1) extinguishes the right to 'remain' in right (a) and the right to camp in right (c) within the terms of the by-law. (2) By-law 40 extinguishes rights (f) and (h) within the terms of the by-law nature reserves and wildlife sanctuaries A RIGHT TO HUNT AND FORAGE A RIGHT TO FISH AND TAKE FAUNA FROM THE WATERS A RIGHT TO TAKE FAUNA … 45 In the reasons for decision given in the 2003 Daniel decision at [879] subpara (b) concludes that native title rights to take fauna are extinguished in nature reserves and wildlife sanctuaries created under the Wildlife Conservation Act prior to the Racial Discrimination Act. For the first respondents it is submitted that native title rights (d), (e) and (g) are therefore extinguished in those areas. 46 In the light of the reasons for decision at [897] it is submitted for the first applicants that any rights that are extinguished should be restricted to rights to take fauna so that the general right (d) of hunting and foraging should not be extinguished altogether but only the right to hunt fauna should be extinguished within these areas. Alternatively, it is submitted, that if the Court should find that the general right to hunt and forage is extinguished, there should still be the right to take flora and the right to collect and forage for bush medicine and bush food as there is nothing in the reserves extinguishing those rights. 47 I find: (1) native title right (d) – hunting and foraging – is extinguished so far as it affects fauna. (2) native title right (e) – fishing – is extinguished so far as it relates to fauna. (3) native title right (g) – take fauna – is extinguished where inconsistent. This follows from the 2003 Daniel decision at [879]. jetty licences A RIGHT OF ACCESS TO REMAIN … A RIGHT TO CAMP AND BUILD SHELTERS 48 In the reasons for decision in the 2003 Daniel decision at [901] it was concluded that inconsistent native title rights were extinguished by the grant of a jetty licence except where the rights under the jetty licence were in the form of regulation. For the first respondents it is submitted that the grant of each jetty licence extinguished native title right (c) because a right to camp and build shelters would be inconsistent with the right of the licence holder to construct and operate a jetty. For the same reason, it is said, that the native title right to remain as part of native right (a) has been extinguished. 49 The submission for the first applicants is that none of the native title rights listed in the draft Determination are necessarily inconsistent with the rights under jetty licences. It is said that if a jetty licence area is not being used, there is nothing inconsistent with native title holders exercising their rights, including the right to camp or remain on the area. However, if the area is being used the rights under the jetty licence prevail while those activities are being carried out. 50 I agree with the submissions for the first applicants because I consider they correctly reflect the effect of the law declared by the High Court in Ward HC. MATTERS RESERVED FOR DETERMINATION SUBMISSIONS 51 All parties who make written submissions in respect of the limited opportunity to address the issue of inconsistency have reserved the right to make submissions concerning the form of the Determination and if necessary to repeat some submissions made in the written submissions presently under consideration. To the extent that those matters do not address an issue of inconsistency and are best dealt with in relation to the formulation of the Determination they are not dealt with in these reasons. In that respect no decision is therefore reached here on the submissions culminating at [10] of the submissions for the first respondents or those expressed at [11] and [16] for the fifth respondents. It is anticipated they will be repeated where necessary in the submissions on the issue of the formulation of the Determination so that reference back to the prior submissions will not be necessary. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 5 December 2003 Mr M Barker QC with Mr W de Mars and Ms A Murphy Counsel for the First Applicants: Mr G McIntyre SC with Ms CL Tan Mr M Dell Solicitor for the First Applicants: Yamatji Land & Sea Council (from 14 August 2002) Aboriginal Legal Service of Western Australia (Inc) (from 9 December 1997 until 14 August 2002) Dwyer Durack (until 20 November 1997) Counsel for the Second Applicants: Mr E Ng Mr PT Williams Solicitor for the Second Applicants McDonald Rudder (until 3 September 1999) Williams & Co (limited appearance from 3 September 1999) Counsel for the Third Applicants: Mr RI Viner AO QC Mr J Kitto Solicitor for the Third Applicants: Kitto & Kitto Counsel for the First Respondents: Mr KM Pettit SC with Mr S Wright Solicitor for the First Respondents: Crown Solicitor's Office Counsel for the Respondent Group 2A: Mr JB Allanson with Ms S Nash Solicitor for the Respondent Group 2A: Australian Government Solicitor Counsel for the Respondent Group 2B later became Third Respondent: Mr A Beech Solicitor for the Respondent Group 2B later became Third Respondent: Holding Redlich Blake Dawson Waldron Counsel for the Fourth Respondents: Mr M Gregory Solicitor for the Fourth Respondents: Minter Ellison Counsel for the Fifth Respondents: Mr D Martino Mr G Hiley QC Mr E Fethers Solicitor for the Fifth Respondents: Jackson McDonald Counsel for the Sixth and part Seventh Respondents: Mr M McKenna Ms K White Solicitor for the Sixth and part Seventh Respondents: Hunt & Humphry Counsel for the Eighth and Twelfth Respondents: Mr CP Stevenson Solicitor for the Eighth and Twelfth Respondents: Mallesons Stephen Jaques Counsel for the Ninth and Tenth Respondents: Mr G Gishubl Ms S King Solicitors for the Ninth and Tenth Respondents: Blake Dawson Waldron (from 18 September 2001) Jackson McDonald (until 18 September 2001) Counsel for the Eleventh Respondents Mr C Pullin QC and the West Australian Fishing Industry Council: Mr MT McKenna Solicitor for the Eleventh respondents and the West Australian Fishing Industry Council: Hunt & Humphry Counsel for the part Fourteenth Respondent: Mr R Butler Counsel for the Eleventh, part Sixteenth and part Seventeenth Respondents: Mr M McKenna Ms K White Solicitors for the Eleventh, part Sixteenth and part Seventeenth Respondents: Hunt & Humphry No appearance for the Thirteenth and Fifteenth Respondents No appearance for the Respondents 19B No appearance for Respondents 19D Counsel for Twenty-Second Respondent: Mr R Chappell (withdrew on 2 December 2002) Dates of Hearing: 20, 21, 22, 23, 24, 28, 29, 30 September 1999 1, 4, 5, 6, 8, 11, 12, 13, 14, 25, 26, 27, 28, 29 October 1999 27, 28, 29, 30, 31 March 2000 3, 4, 5, 6, 7 April 2000 12, 13, 14, 15, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30 June 2000 3, 4, 5, 6, 7 July 2000 28, 29, 30, 31 August 2000 1, 4, 5, 6, 7 September 2000 16, 17, 18, 19, 20 October 2000 11, 12, 13, 14 December 2000 3 October 2002 and 25 February 2003 Date of last written submissions 12 August 2003 Date of Judgment: 5 December 2003