Judgment Delivery - Transcript of Video
Stanley Mervyn, Adrian Young, and Livingston West and Ors, on behalf of the Peoples of the Ngaanyatjarra Lands v The State of Western Australia and Ors [2005] FCA 831
BLACK CJ
29 JUNE 2005
PARNTIRRPI OUTSTATION IN THE CENTRAL RANGES
[Chief Justice Black sitting at table outside under canopy, cars and a few trees in the background, several people sitting either side of him.]
Chief Justice Black: … judgment of the Court please.
Court officer: Ladies and gentlemen, if I could have your attention please. The Federal Court of Australia is now in session. Thank you.
Chief Justice Black: [inaudible] … could you announce the case please.
Black CJ’s associate: People of the Ngaanyatjarra Lands and the State of Western Australia and Others.
Chief Justice Black: … the appearances.
Counsel: … counsel for the members of the native title claim group, namely, the people of the Ngaanyatjarra Lands. Those people have been represented at the proceedings by the main applicants who are: Stanley Mervyn, Adrian Young, Livingston West, Andrew Watson, [inaudible] Ward, Grant Fraser and Phillip West.
Chief Justice Black: Thank you.
Mr O’Halloran, Counsel: May it please the Court I appear for the State.
Chief Justice Black: Thank you very much. Ladies and gentlemen [pause] … I am sorry there is another appearance.
Mr Donovan, Counsel: May it please the Court I appear for WMC Resources.
Chief Justice Black: Thank you very much. Thank you for your involvement in this case too.
[Chief Justice Black briefly speaks to those sitting beside him]
Chief Justice Black: Yes. Does any party wish to say anything before I make the determination the parties seek by consent?
Counsel for the people of the Ngaanyatjarra Lands: I would like to inform the Court that there are some parties to the proceedings who aren’t present. They have been informed about the proceedings here today and are content for the matter to proceed in their absence. They are Telstra Limited, the Commonwealth of Australia, the Shire of Laverton and Airservices Australia.
Chief Justice Black: Thank you.
Counsel for the people of the Ngaanyatjarra Lands: I am pleased to be able to announce that the Court will be asked to make the native title claims by consent. The Court will today be asked to deal with seven claims, six by being discontinued and the last claim in the terms of the consent determination. The proceedings in the six claims that have been discontinued were commenced in 1998. As has been explained … [cuts out].
[View of audience – roughly 30-40 people sitting on the ground and standing behind them.]
[Aboriginal man speaks Aboriginal language (10 seconds)]
[View of Aboriginal children sitting on ground]
Unidentified counsel: … is yet to be resolved. In respect of part of the claim area being the Gippsland Desert nature reserve, there must be found that native title has been extinguished there because it’s the subject of a vested reserve. Though because it has been accepted in the proceedings by … [cuts out].
[View of people in audience standing]
Unidentified counsel continues: … so that over a vast majority of what is the approximately 200,000 square kilometre claim area, native title will be recognised at the highest level. Through the Native Title Act, the system of traditional laws and customs is recognised. That is a reason for the celebration for the Aboriginal people concerned in a mark of growing maturity of the Australian nation …
[View of Chief Justice Black at desk]
Chief Justice Black: Mr O’Halloran, do you wish to say anything?
Mr O’Halloran: Your Honour, other than to consent to the Orders sought which are set out in the Minute of Consent Determination for the making of a determination of native title by consent. That’s all I wish to say.
Chief Justice Black: Thank you, Mr O’Halloran. Mr Donovan for WMC Resources Limited do you wish to say anything?
Mr Donovan: Nothing to add.
Chief Justice Black: Yes, thank you, Mr Donovan.
Ladies and gentlemen the first thing I must do is to ask if Mr Ward would be good enough to interpret some of what I am about to say. I understand that he has agreed to do so. Thank you Mr Ward.
The second thing I must do is to thank the elders and the Council for their welcome to country, and thank you for inviting the Court to sit here, on your land to hear this final part of your case.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: Thank you. The Court must first be satisfied that the agreement between the parties is appropriate to make an order of native title, and so I am here today to hear the case to make sure the Court is satisfied, to make the order.
Chief Justice Black [To Mr Ward]: Just very simply. The Court has to be sure the Order is alright.
[Mr Ward speaks to counsel sitting either side of him and stands].
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: Now, I can tell you straight away that the Court is satisfied that the Order is alright.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: But I have to give reasons for saying that, and those reasons will be in writing and will be available for everyone in Australia to read if they want to.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: And a copy of the Reasons in writing will be available, of course, to your legal people and to the Council.
Mr Ward, you don’t need to stand.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: The first thing is that all the parties have good lawyers to help them and have been free in entering into their agreement.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: And the agreement that recognises your law, which has always existed, is a good agreement under Australian law, the law of all Australia.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: In my written reasons I explain how helpful your lawyers have been in explaining the case to the Court.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: And I now want to read two parts of my written reasons, which talk about the laws of your people. One, it says, is this: the laws and customs of the Ngaanyatjarra people cover all aspects of their lives as they have done since the peoples first came to these vast lands, long, long ago.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: It tells us that in the Dreaming, beings travelled …
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: And made songs and dances for the people to perform, which they still do.
[Wide view of audience]
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: And we saw one last night … in this very place that the Court is at today.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: There are only two more things I want to say. The first thing is that I congratulate the parties for coming together and making this agreement. Is it a very, very good thing that they did, all of them.
[Applause in audience]
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: It took a lot of work and a lot of good faith and trust, and that is a good thing.
Mr Ward: [translates in Aboriginal language]
[Applause in audience]
Chief Justice Black: And so we should thank the elders, the lawyers, the government people, the mining people, and the Native Title Tribunal, and the anthropologists, all working together to make this happen. It’s a very good thing.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: The final thing I want to say is that the Court does not grant you native title, the native title has always been there. It is now that the law of Australia, of all Australia, recognises your native title. And that is what I am about to do by making the Court order in a minute.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: So now because the Court is satisfied that everything is proper and in order, I will read out the short part of the Court order. There will be no need to translate it, but because this is a public matter, it’s for all Australians this order, it is for you but it is part of the law of Australia.
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: So, the Order of the Court is:
One, that there be a determination of native title in this application and that it be made in the terms of the Minute of the Consent Order dated the 29th of June and attached to these Orders. There will be a determination of native title. Secondly, that the Yarnangu Ngaanyatjarraku Parna Aboriginal Corporation shall hold the native title in trust for the native title holders pursuant to section 56(2) of the Native Title Act. Next, that there be liberty to any party to apply on seven days’ notice. Finally, that there be no orders as to costs.
Ladies and gentlemen, I now will sign the Court’s Order which recognises in the law of Australia your native title according to your law and customs.
[Applause in audience]
Mr Ward: [translates in Aboriginal language]
Chief Justice Black: The Court’s Order has been written out in this way so that if you want to keep it as a special piece of paper it’s there for you.
Mr Ward: [translates in Aboriginal language]
[Applause in audience]
[Chief Justice Black walks to Aboriginal elder and hands piece of paper to him. They shake hands. Applause in audience. Several people take photographs. Court order held up for audience, and for photographs of it to be taken. Applause in audience.
