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Editors --- "Members Of The Yorta Yorta Aboriginal Community V The State Of Victoria & Ors - Case Summary" [1998] AUIndigLawRpr 33; (1998) 3(3) Australian Indigenous Law Reporter 401

Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors

29 October 1997

Native title determination -- Evidence by non-Aboriginal people about their affinity to the claimed land and waters -- Admissibility.

Applicants sought a determination of native title in relation to certain lands and waters in Victoria and New South Wales. Some non-Aboriginal witnesses for the respondents gave evidence that they, too, had strong affinity with and attachment to the land and waters.

After inviting formal submissions as to whether such evidence was admissible, Olney J ruled that is was irrelevant to the question for determination. Similar evidence by the Aboriginal applicants was admissible in establishing their traditional laws and customs dating from the time before European settlement, and the continuation of such laws and customs, as required by the common law and the Native Title Act 1993 (Cth). It was irrelevant to such a determination that non-Aboriginal people in the area observed the same or similar practices as the applicants or experienced the same or similar affinity to the land and waters.

^{Olney J:}

Introduction

In this proceeding the applicants seek a determination of native title in relation to certain land and waters in Victoria and New South Wales. The application is brought pursuant to the provisions of the Native Title Act 1993 (Cth). In the course of the trial a question arose as to the admissibility of certain evidence sought to be tendered by a witness called by New South Wales. After hearing brief submissions I ruled that the evidence was not admissible on the ground that it was not relevant to any issue in the proceeding. However, the same issue arose subsequently on several occasions and as my initial ruling affected parties other than New South Wales I invited all parties to make written submissions with a view, if appropriate, to reviewing my earlier ruling.

Some Relevant Provisions of the Native Title Act

It is appropriate, before entering upon a consideration of the specific issue under consideration, to make reference to some of the key concepts of the Native Title Act and to other provisions which have a bearing upon the conduct of the proceeding.

Sections 223, 225 and 253 respectively contain definitions of the terms "na tive title", "determination of native title" and "interest in relation to land or waters". To the extent presently relevant those sections are set out below:

223. (1) The expression "native title" or "native title rights and interests" means the communal, group or individual rights and

interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

(2) Without limiting subsection (1), "rights and interests" in that subsection includes hunting, gathering, or fishing, rights

and interests.

...

225. A "determination of native title" is a determination of the following:

(a) whether native title exists in relation to a particular area of land or waters;

(b) if it exists:

(i) who holds it; and

(ii) whether the native title rights and interests confer possession, occupation, use and enjoyment (iii) of the land or waters on its holders to the exclusion of all others; and

(iii) those native title rights and interests that the maker of the determination considers to be of importance; and

(iv) in any case the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests.

253. Unless the contrary intention appears: ... "interest", in relation to land or waters, means:

(a) a legal or equitable estate or interest in the land or waters; or

(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i) the land or waters; or

(ii) an estate or interest in the land or waters; or

(c) a restriction on the use of the land or waters, whether or not annexed to other land or waters;

The following provisions of s. 82 have a bearing upon the conduct of a proceeding under the Native Title Act:

82. (1) The Federal Court must pursue the objective of providing a mechanism of determination that is fair, just, economical, informal

and prompt.

(2) ...

(3) The Court, in conducting proceedings, is not bound by technicalities, legal forms or rules of evidence.

One of the mechanisms which the Court has adopted, consistent with its obligation under s. 82(1), is to permit the parties to tender the evidence-in-chief of their witnesses in the form of a written statement which may either be verified by the witness in Court, or by consent of the other parties, and tendered without formal proof.

It should perhaps be observed at this point that since this matter was first raised in Court I have had the opportunity to read an article written by Mr Anthony Neal (who happens to be one of the counsel appearing in this proceeding) entitled "Dispensing with the Rules of Evidence -- s. 82(3) of the Native Title Act -- Welcome the Rules of Rafferty?" published in (1997-98) 3 NTN 54 in which the author observes in relation to s. 83(3) (at p 56):

It is not to be expected that the Court will lapse into whimsical regulation of the evidence it admits. Requirements of procedural fairness and the requirement of s. 82(1) of the Native Title Act that the Court must pursue the objective of providing a mechanism that is fair, just, economical, informal and prompt should ensure this.

The point is well made but in addition to the special statutory regime under which the Court is required to perform its functions under the Native Title Act there is the more fundamental requirement that in arriving at its findings of fact the Court may have regard only to evidence which is relevant, probative and cogent. Section 82(3) is not a licence for the Court (to adopt a form of expression I once heard used in the Supreme Court of Western Australia) to abandon the rules of the Marquis of Queensberry for those of the Marquis of Rafferty.

Background

The applicants' case is supported by the evidence of some 62 witnesses, 57 of whom are members of the applicant group. Extensive evidence has been given by those witnesses concerning what are said to be the traditional laws and customs by which they have a connection with the land and waters claimed. The evidence has included references to the right to live within the claim area and to exclude others therefrom, the right to hunt, fish and gather native plants both for food and for medicine, the nature of burial practices and of other practices tending to conserve the natural resources of the country to which they lay claim.

On 22 September 1997, Mr Hughston of counsel tendered on behalf of New South Wales a written statement made by

Mr Peter Brennan. The statement included the following paragraphs to which the applicants' counsel (Mr Howie) objected:

35. I think forestry people are not made, they are born. I do not enjoy being away from the Mulwala area and I just cannot imagine

not going into the forests any more. My family have lived here for generations and we feel very strongly about the forests.

36. I want to be buried in Mulwala.

37. After spending most of my 56 years living in the bush I believe I have the right to camp, hunt and fish in the forests.

38. No one has the right to stop me doing these things.

39. My father taught me how to live and work in the bush.

40. My father taught me to hunt only enough to survive.

In support of the objection Mr Howie said:

The objection I take to what is said here and in a number of the later statements is that it is evidence that people have about attachment to place, things like love of the bush, love of the forest, love of nature, a desire to be buried in a particular place, that sort of thing, and I suppose here the sense of a right to do that. And of course, your Honour, that is not challenged, that non-Aboriginal people have attachment to place and a love of nature and all those sort of things, a desire to be buried in particular places. But in my submission, your Honour, that is not an issue that your Honour has to form a view on or make any determination of.

That is not a matter that is relevant to the issues that arise under the Native Title Act. That is not to say they are unimportant. It is not to say they are not real. But it is not something, in my submission, that the Act provides for, and your Honour does not have to make some sort of comparative assessment of Aboriginal people's and non-Aboriginal people's attachment to place. That is a very difficult thing to do, and it is not an issue upon which your Honour has to form some view, and it is for those reasons, your Honour, in my submission, statements of the kind in the paragraphs to which I have referred are irrelevant.

In response Mr Hughston said:

Your Honour, the statements which Mr Brennan makes basically mirror the evidence that has been given by many of the applicants in this case, and again we do not challenge that evidence either, that many of the applicants do also have strong attachment to the place, a love of the bush and the forest, and their attachment to particular places, and that it gives them a desire to be buried in the area and the like.

But the importance of leading the evidence from people who are not applicants, your Honour, is, in our respectful submission, that we will be submitting that these attachments to place, this love of the forest, this desire to be buried in the area, are not matters which are distinctive of or even relevant in terms of Native Title, that there are other explanations as to why the applicants may have the genuine attachments that they do to a particular place, and to the forest, and to being buried in particular places, and that really the genesis of that attachment has got nothing to do with Native Title.

It is simply the fact that as with the non-Aboriginal people who wish to express the same sentiments, that they too have been born and bred and grown up in this area; this is the area that they live in, that they love, that their family lives in, that their families are buried in, and the like. Now it seems, your Honour, that Mr Howie is not challenging our evidence on this aspect; we are not challenging his evidence. But I think, in terms of your Honour being able to put some meaning to the evidence that the applicants have given, that your Honour should have before you similar evidence from non-Aboriginal people of the type that Mr Brennan has given. If your Honour pleases.

Mr Howie made the following brief reply:

Well, in my submission, your Honour, that really illustrates what, in my submission, is missing the point, and that is that your Honour is not required to make any assessment concerning the non-Aboriginal dimension to it; your Honour is asked to determine whether there is traditional law acknowledged and traditional custom observed, and whether that gives rights and interests in land. And the assessment that your Honour is asked to make is that, insofar as Aboriginal people have given evidence about attachment to place, whether that fits within or constitutes such a system as what the Act requires.

Following these submissions in ruling on the objection I said:

I think the point is well taken by Mr Howie. The Court is here dealing with native title and native title rights and interests which are defined in s. 223(1), of the Act. And it talks about rights and interests of Aboriginal people in relation to land or waters where the rights and interests are possessed under traditional laws acknowledged and the traditional customs observed by the Aboriginal people, and the Aboriginal peoples by those laws and customs have a connection with the land or waters, and the rights and interests are recognised by the common law of Australia.

It seems to me that this type of evidence given by the Aboriginal applicants is relevant to those issues. The fact that non-Aboriginal people may have similar feelings towards the land does not go anywhere to attack the evidence that has been given by the applicants, and to me it does not appear to involve an issue of fact that arises in these proceedings. The Court has in the end to determine whether the claimed rights and interests are such that, by the traditional laws and customs of the applicants, give them a connection with the land and waters. No such claim is made by the non-Aboriginal witnesses, and even if it was it would seem to me quite irrelevant to any issues that the Court must deal with.

There has been a considerable amount of evidence from time to time in the way of cross-examination which suggests that non-Aboriginal behave, particularly with respect to the forests and the river in much the same way as the applicant group. I have had some doubts throughout as to the relevance of that type of evidence, but now that the point has been taken I propose to uphold the objection to paras. 35 to 40.

Some further discussion followed during which I indicated that I would in the course of my judgment deal in more detail with the matter so that my reasoning might be more adequately exposed and tested if need be. In the events which have happened the question is being considered in advance of my final judgment.

The same question arose on several subsequent occasions on 22 September 1997. With one exception (being that relating to Mr Dudley to which reference is made below) I upheld the objections of the applicants' counsel. I set out below the names of the witnesses, the relevant exhibit number and the text of the paragraphs to which objection was made.

1. JOHN BRIGHT (Ex NSW 6 WS 1.2)

16. I would like to be buried on top of the highest sandhill in Milawa State Forest so I can watch over the forest operations.

17. My father taught me to take only what we needed when we were hunting.

18. I feel that I have a right to camp, hunt and fish in the forest and no one has the right to stop me when I am doing

these activities legally.

2. DANIEL JOSEPH McGRATH (Ex NSW 6 WS 1.4)

17. I would like to be buried in Mathoura because I have lived here all of my life.

18. I think I have the right to camp and fish in the forest. I think nobody has the right to stop me from fishing in the forest as long

as I am doing the right thing.

3. RON WATSON (Ex NSW 6 WS 3.1)

30. Friends, and people who work for us, come onto our property and fish in the Murray River. I believe my friends and I have the right to fish and undertake other recreational activities on the River.

31. I would like to be buried on Perricoota Station.

4. GEOFFREY THOMAS BACKHOUSE (Ex NSW 6 WS 1.11)

15. Living so close to the forest I do have a very strong connection to the land and would like to be buried in the area some day.

5. BRIAN CHARLES DUDLEY (Ex HAR 2 WS 1)

9. The forests and the rivers are important to me, not only as an essential part of my farming practices, but also for

recreation. The area is what I call home and is very much part of me.

6. JACK FALAHEY (NSW 6 WS 1.17)

23. I would like to be buried at Mathoura because I have spent all of my working life here.

24. I think I have the right to camp, hunt and fish in the forests as I have always done.

25. I do not believe anyone has the right to stop me doing these things in the State forests.

26. My father taught me most things about the bush.

27. My father taught me only to catch enough to eat. There was no refrigeration in those days.

Mr Dudley attested to two separate statements, one as a witness for New South Wales and the other as a witness for the group of respondents represented by Mr Curtis-Smith (known as the Hargraves respondents). As it would not have been appropriate for the witness to be called twice, the second statement was tendered by Mr Curtis-Smith somewhat in advance of the other evidence to be called on behalf of his clients. In these circumstances the applicants had been taken by surprise and had not given notice of their objection prior to the hearing as directed by the Court. For this reason I reserved ruling on the objection (and another unrelated objection) to give Mr Curtis-Smith the opportunity to consider his position.

At the time Mr Backhouse's statement was tendered counsel for the applicants also objected to the following paragraphs in addition to the paragraphs referred to above.

4. When I was young we swam at the beach every night in summer. I did a lot of fishing and general roaming around the bush. I can remember many non Aboriginal people who lived on the Forest over the years. Old Lorry had a hut next to our pump where he lived and grew vegetables up until the 1930s. Bill Bower later moved into the hut and lived there from 1935-1955. He even stayed there during times of flood as the hut was located on high ground. His father was a barge captain. We assumed Bill was a professional fisherman as he used to sell fish in Barooga on Fridays. He used springers and nets to catch all different types of native fish and would tether them with cord in the water until Friday. He carted the fish into town on a horse cart and got the horse to bring him home after a drunken night in the town. Bill also worked at Seppelt's vineyard. He probably left the forest when he was getting too old.

5. In 1936 the Walshe family with six children lived near the old pepper tree. Mr Walshe carted sand from the beach with a tip truck for the Water Commission. Another big family lived near the Backhouse beach in 1935, the Johnson's. Mr Johnson was a shearer but he also went rabbiting in the forest and sold the skins.

6. From 1941 the McAuliffe family lived in the forest for at least two years during the war. Mr McAuliffe was known as a legendary sleeper cutter. Mr Rosenow was another man cutting sleepers and living in the forest during the war. The Ackland family with five children lived in the forest for twelve months in 1938 while Mr Ackland built the escape channel with a team of horses. I think the family used to come and get milk from my mother. One fruit picker I employed recently camped in the forest for 2-3 months a year for 4 years.

7. The remains of what I think is the Stillard mill can be found near the Island (see map attached). It could be a mill from the days that the forest was private property. Mr Willis Lee operated a Cypress Pine mill in the forest for 6-12 months during the war. He supplied timber to the Tocumwal Aerodrome and also burnt charcoal.

8. Various other people cut sleepers in the forest. Most of them were locals. The sawmills tend to come to the forest every 10 years. From the 1940s to the 1960s we used to see the Smithers mill from Cobram, then the Mulwala mill and most recently the Echuca (Murray River) mill. The locals have always come here to get firewood, and I see someone in the State forest nearly every day during winter collecting firewood.

The applicants' objection to these paragraphs was based upon the same argument as had been advanced in relation to the other matters upon which I had previously ruled but I took the contrary view. In overruling this aspect of the objection I said:

... it seems to me that para. 4 (sic, paras. 4-8) has possibly some marginal relevance in that it may go to the question of whether there has been a cessation of use. There is a phrase that Brennan J, as he then was, used in Mabo about the tide of change, or something, has washed away the native title -- it is the sort of thing that, with other evidence, may suggest that there has been some cessation of use or abandonment, and I think in those circumstances, whilst the relevance is probably fairly marginal, I would not uphold the objection. Paragraph 12 is not pressed, and for the same reasons as I have indicated earlier today, I would uphold the objection to para. 15.

At the commencement of proceedings on 23 September 1997 I adverted to this last ruling and said:

Yesterday, when Mr Howie raised an objection to paras. 4 to 8 of the statement of Mr Backhouse, I overruled his objection and made some reference to a comment made by Brennan J in Mabo. The part that I had in mind is at 175 CLR at p. 60, where his Honour said:

The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.

The view I took -- and which I take is that evidence of non-Aboriginal activity and use of the country under claim and the surrounding country may be evidence which tends towards the establishment of the tide of history washing away any real acknowledgment of traditional law etcetera. At the time I indicated I felt the paragraphs in question may marginally go to that end, and that is why I allowed them.

Later that day Mr Howie objected to paras. 16 to 20 of the statement of Mr Alan Barker which was tendered by New South Wales. The objection related to evidence similar to that in respect of which I had upheld objections on the previous day. Being aware both of the importance that all parties attached to the issue and of the fact that none had had the opportunity to address the issue in any depth, I made this response:

What I propose doing is this: I have already ruled on this issue on a number of occasions, and it may well come up again, and Mr Wright suggested yesterday it may come up in the evidence of other respondents. I propose to reserve this question as I did with objections raised to Mr Curtis-Smith's client, because at that time he said that he had not had notice of the objection and that appeared to be so. I am going to give the respondents the opportunity to make a written submission if they wish to do so supporting this type of material.

It should be done over the next 2 weeks when the Court is not sitting, so that the matter can be properly considered, and the applicants can -- we have already heard Mr Howie's oral submission; I do not know that they would wish to advance their response any further. But it seems to me that it is an important issue, it is one which is continually arising and may arise again, and I am prepared to have the matter properly ventilated. So that what I will do at this stage is simply reserve on the objection to paragraphs 16 to 20, and I will rule on it when we resume here on whatever date it is in a couple of weeks time.

...

If any of the respondents wish to make written submissions, I think they should do so, say within the next 10 days, by filing and serving on the applicants, and on each other if they wish to do so, any submission supporting evidence of this type, and if the applicants wish to make any submission additional to what has been put orally by Mr Howie yesterday, I would ask that their submission be filed and served by, say, Friday 10 October. Ten days from now would be say 3 October. And any other similar objections that are taken from here on today and the rest of this week I will deal with in the same way.

The names of the witnesses in respect of whose statements I subsequently reserved my decision, the relevant exhibit numbers and the text of the paragraphs to which objection was made are as follows:

(a) ALAN BARKER (Ex NSW 6 WS 1.5)

16. I would like to be buried at Deniliquin because I have spent 52 years working in the forests.

17. I feel I have as much right as anyone else to camp, hunt and fish in the forests.

18. No-one has the right to stop me camping, hunting or fishing in the forests provided its within the law.

19. I learnt to hunt and fish as a child from my own experiences.

20. I enjoy hunting and fishing and often provide game and fish to friends and family but I am never wasteful.

(b) MICK DUNN (Ex NSW 6 WS 1.10)

18. I've worked in the forest the best part of my life and I was born here so I definitely have a pretty close relationship with the river

and the forest. I would like to be buried just over the hill near my place.

(c) TREVOR ALEXANDER GALLAWAY (Ex VIC 62 WS 3.2)

41. I have a real love for the forest. ... I would be very upset if I were not able to continue to do that in years to come.

In relation to the discussion that surrounded the tendering of Mr Gallaway's statement and my decision to reserve on the objection, Mr Wright QC (for Victoria) offered the following observation:

There is perhaps one additional factor in relation to this particular objection that I would just briefly go to, and it is this. The Court, as has been mentioned on many occasions, is required to carry out its functions under the Native Title Act in a way that is just and equitable and fair. Having regard to this particular witness's long involvement with and obvious feeling for the forest, it may well be that there are at least perceptions of inequity if he is not permitted to say what the applicants or those on the other side of the record have been seen to say, quite apart from the legal nuances of which the lawyers involved in a case may be aware, your Honour.

We would simply ask your Honour to take that into account in deciding whether the material should be admitted.

The Submissions

Pursuant to the invitation offered on 23 September 1997, written submissions were filed on behalf of New South Wales, Victoria, Victorian Field and Game Association Inc and the applicants.

The New South Wales submission asserts (at para. 5) that the type of evidence tendered in the witness statements to which the applicants have objected on the grounds of relevance goes to demonstrate that long term non-Aboriginal residents of the broader rural region which encompasses the land under claim have the same practices and beliefs as the applicants have spoken of, in terms of beliefs about the importance of the forests and waterways to them, their concern to protect the environment, their desire to be buried in the country where they were raised and the practice (taught by their parents) of never taking from the forest or the waters more than was needed for one's own personal needs. It is said that such evidence is relevant to the issue of whether the practices and beliefs which the applicants assert to be a continuation of traditional practices and beliefs are, in reality, no more than part of the wider practices and beliefs of the regional rural population of which the applicants are a part. It is further said (at para. 7) that the only possible relevance which the evidence of the Aboriginal witnesses concerning such matters as never killing/hunting/taking more than is needed, of people wishing to be buried at particular places on the original lands, and of their subjective attachments to and concern for the land and waters under claim could have is if the applicants intend to submit that the practices and beliefs so described are distinctively Yorta Yorta practices and beliefs which represent a continuation of the acknowledgment of traditional laws and of the observance of traditional customs, from some pre-European past. It is submitted that evidence from long-term non-Aboriginal residents of the region which tends to show that such beliefs and practices are not limited to the applicants, and are widely held throughout the larger regional population, is relevant both to the distinctiveness and to the alleged continuity of, those beliefs and practices from a pre-European past.

And (at para. 8) the submission asserts:

It cannot be assumed because the non-Aboriginal population share the same practices, concerns and beliefs about land and its resources as the Aboriginal population, that the non-Aboriginal population have adopted those concerns from the Aboriginal population. In the absence of any other evidence, it could as well be assumed that it is the Aboriginal population who have adopted the concerns of the non-Aboriginal population. Indeed, this latter assumption appears to be the more likely of the two when one considers the widespread adoption by the applicants of "many" (all?) of the aspects of the dominant (non-Aboriginal) culture (see Mr Hagen's original report Ex A17, at p. 4.20 and see too the earlier references herein to external influences such as Christianity and environmentalism explaining the applicants' contemporary views on many matters). Note also in this regard that there is nothing in Edward Curr's detailed writings about the Bangerang, their customs and their laws (see Recollections of Squatting in Victoria: Exhibit Vic 35) which would support the existence amongst the Aboriginal population in this region, or some part of them, of practices, concerns and beliefs of the type referred to by the applicants in their evidence and which are also referred to in the respondents' witness statements.

The Victorian submission identifies three matters to which the evidence in question is said to relate, namely:

(a) the observance and pursuit of certain practices, or "customs", by non-indigenous persons eg taking from the land only what one needs to eat and use;

(b) experience in the forests and the bush of non-indigenous persons and their feelings of affinity to the land the subject of claim;

(c) non-indigenous persons' rights of access to the land, and to hunt on the land and fish in the waters.

It is said that the evidence is or may be, of relevance for the following 5 reasons:

1. The respondents may wish to argue that for an indigenous custom or practice to be characterized as "traditional" it must be integral to the distinctive culture of the particular indigenous group rather than simply a practice which is observed by the wider community, or significant elements of that community, both indigenous and non-indigenous, in which case some comparison is required between the current practices of the indigenous group and the current practices of the wider community, or the relevant part of that community eg people living in the claim area or with long experience of that area.

2. Although it may be said that the adoption of traditional Aboriginal customs by non-Aboriginal people does not make those customs any less traditional, the converse proposition does not logically follow, namely, that the observance by Aboriginal people of practices that are widespread in the general community makes those practices "traditional customs" of the Aboriginal people.

3. If the Court is ultimately disposed to make a determination of native title it must at the same time determine:

whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others. (s. 225(b)(ii) Native Title Act 1993)

The existence of other rights in respect of the land or waters ie non-native title rights, must bear directly upon the Court's task under this provision.

4. A determination of native title would also require the Court to determine:

the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests.

(s. 255(b)(iv))

Evidence which asserts rights in or over the land or waters cannot be excluded at the outset as irrelevant.

5. Evidence of long experience in the forests and the bush, and of an affinity to and concern for the land, lends weight to what the witness says about these things.

The submission concludes:

Finally, it is submitted that at the very least, and having regard to the relatively pristine and decidedly uncertain area of law which this case is exploring, a considered decision as to the relevance of the evidence in question cannot or should not, be made until the final submissions of all parties have been put. Moreover, the Commonwealth Government's stated intention to amend the Native Title Act raises the prospect that what is now irrelevant may be relevant by the time the Court comes to consider its decision.

Victorian Field and Game Association Inc has expressly adopted the submissions made by Victoria.

The applicants join issue with each of the matters raised in the New South Wales and Victorian submissions. Their case is essentially the same as advanced by Mr Howie on 22 September 1997.

What the Applicants Seek to Prove

The particular issues which arise in the present context and to which the applicants' evidence has been directed include (but are not necessarily limited to) the following questions:

1. are the applicants the descendants of the indigenous inhabitants of the claimed land and waters?;

2. are the rights and interests which the applicants claim, possessed and observed under their traditional laws and customs?;

3. do the applicants by such laws and customs have a connection with the claimed land or waters?;

4. have the applicants or their ancestors since European settlement abandoned the observance of the traditional laws and customs of their pre-settlement ancestors?;

5. has the "tide of history" washed away any real acknowledgment of the traditional laws and any real observance of the traditional customs of the applicants' ancestors?

Reference has been made in each of the submissions to the decision of the Supreme Court of Canada in Van der Peet v The Queen (1996) 137 DLR (4th) 289 and in particular to various passages from the judgment of Lamer CJ at pp. 314, 315, 316 and 319. Whilst what is said in Van der Peet must obviously command the greatest respect (especially as relevant portions to which reference has been made appear to have been based upon the learned Chief Justice's understanding of Mabo (No 2)) it is unnecessary in the present context to explore the decision in detail as in my opinion the answer to the matter under consideration involves a question of the construction and application of relevant provisions of the Native Title Act.

The Question of Relevance

The applicants have sought to establish the elements of their claimed native title rights and interests by adducing evidence as to what they say are the traditional laws acknowledged and the traditional customs observed by them and by their ancestors back to the time before European settlement. In the course of that evidence they have spoken of practices which may suggest that by those laws and customs they and their ancestors have, or had, a connection with the land and waters claimed. It is an essential part of the applicants' case that the laws and customs which they assert have not been abandoned at any time since European settlement. The common law and the Native Title Act place the descendants of the indigenous inhabitants in a special position which they enjoy by reason of the prior occupation of the land and waters by their ancestors. The common law does not give to non-indigenous people the same rights. Any native title rights and interests which may presently be enjoyed by the applicants exist by reason of the existence of those rights prior to European settlement and by the continuous acknowledgment and observance of such rights since that time. Any evidence that may suggest that the claimed traditional laws and customs were not acknowledged or observed by the applicants' pre-settlement ancestors or which may suggest that the pre-settlement laws and customs have ceased to be acknowledged or observed is clearly relevant. And there has been a considerable amount of such evidence. But it is irrelevant that non-Aboriginal people may observe the same or similar practices as are said to be a manifestation of the applicants' traditional laws and customs nor is it relevant that such people experience the same or similar affinity to the land and waters as that claimed by the applicants. Nothing in Mabo (No 2) or in the Native Title Act lends support to the proposition that the laws and customs of the Aboriginal peoples must be acknowledged and observed exclusively by those peoples and not by others.

Having reviewed each of the statements which have been objected to, including those on which I have previously ruled, I am of the opinion that none has any relevance to the several issues identified earlier in these reasons. None of the challenged evidence says anything about the pre-settlement laws and customs of the indigenous people, nor about the continued observance of those laws and customs. Nor does it bear upon any question of abandonment or the washing away of observance of pre-settlement laws and customs by the tide of history. To the extent that witnesses have described the use of land and waters within the claim area, as distinct from their sentiments in relation thereto, I have consistently taken the view that such evidence may be relevant on the basis that it may bear upon questions such as whether there has been extinguishment by reason of the abandonment of traditional practices or by reason of the tide of history.

Other Matters

I reject the suggestion that the Court's response to any issue raised in this proceeding should be influenced by the fact that the Australian Parliament presently has under consideration a bill to amend the Native Title Act. It would be entirely improper for the Court to attempt to anticipate either the fate of the proposed amendments or the likely content of any amendments that may eventually pass into legislation.

I also reject the suggestion that s. 82(1) should be applied in a manner which would permit the admission of otherwise irrelevant evidence in order to avoid offending the sensitivities of a witness.

Conclusion

Each objection upon which I have reserved my decision is upheld and the paragraphs in question will not form part of the tender of the relevant statements.