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Court and Tribunal Decisions – Australia
Federal Court of Australia (Black CJ, Branson and Katz JJ)
8 February 2001
(2001) 180 ALR 655; [2001] FCA 45
Aboriginal and Torres Strait Islanders — native title — expiration of native title claim — statutory definition of native title — objective test to determine traditional laws and customs of a claimant group — ability of traditional laws and customs to adapt — burden of proof
An application was made to the Federal Court under the Native Title Act 1993 (Cth) by representatives of the Yorta Yorta Aboriginal Community. The native title claim covered land and waters located in northern Victoria and southern New South Wales and involved approximately 200 public sites.
The trial judge rejected the application and made a determination that native title did not exist over the land and waters claimed. The trial judge acknowledged that some, although not all, of the claimant group were descendants of people living in the area in 1788 when Crown sovereignty was declared. The application failed as the trial judge concluded that by the late nineteenth century the claimant group ‘were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim’. Once so lost, the native title could not be revived.
The applicants appealed to the full Federal Court.
1. Per Branson and Katz JJ: The term ‘recognised by the common law’ in s 223(1)(c) of the Native Title Act incorporates into the statutory definition of native title the requirement that in the case of a claimed communal title, the holders are members of a community identified as such (by its members) who have continuously since the acquisition of sovereignty by the Crown possessed interests in the relevant land under its traditional laws observed and traditional customs practised, and that there has been no extinguishment by inconsistent act of the Crown or loss of connection by the community. Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 at [58]–[61] not followed; Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 61 referred to: [108], [150].
2. Per Branson and Katz JJ, Black CJ concurring: Section 223(1)(a) is expressed in the present tense and is clearly intended to refer to rights and interests currently possessed under traditional laws currently acknowledged and traditional customs currently observed. The content of native title is not ‘frozen in time’ — it is to be ascertained having regard to the current observance of those laws and customs. The rights and interests may not be identical to those existing as at the date of sovereignty. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 considered; Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483 approved; Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 at [65] considered: [67], [140], [141].
3. Per Branson and Katz JJ, Black CJ concurring: When determining what, at common law, amounts to the ‘traditional laws’ and ‘traditional customs’ observed by native title claimants, an objective test is to be used. The question to be asked is ‘whether the law or custom has in substance been handed down from generation to generation’. Per Branson and Katz JJ: The changed laws and customs will not be traditional in character if they reflect a breaking with the past rather than the maintenance of the ways of the past in changed circumstances. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 192 referred to; Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483 at 502 considered; Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 at [64] considered: [34], [127], [122].
4. Per Branson and Katz JJ: If the primary judge had proceeded on the basis that the appellant’s claim could only succeed if they could demonstrate that laws and customs extant in 1788 had continued to be observed until the present time that would have been an error, as also would have been an approach that required evidence that the current modes of occupation reflect those in existence in 1788. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 applied; Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 not followed: [172], [182].
5. Per Branson and Katz JJ: Where an indigenous community is prevented from occupying traditional lands it will be a question of fact whether this results in its ceasing to acknowledge traditional laws and customs. Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159 at [244], [682] considered: [195], [196].
6. Per Branson and Katz JJ: While a party asserting extinguishment on any basis carries the burden of adducing evidence sufficient to raise the issue for determination, the claimant asserting native title has the ultimate burden of establishing that native title persists. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 considered; Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193 considered; Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483 considered; Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159 considered: [159].
7. Per Black CJ: In determining issues concerning the existence and content of native title rights and interests, the considerations to be borne in mind include the following:
(a) the definition of native title in s 233 of the Native Title Act directs attention to the present;
(b) the laws presently acknowledged and the customs presently observed must be shown to be ‘traditional’ but laws and customs that are adapted or evolved may still be ‘traditional’ — they will be ‘traditional’ if, in their essence, they still reflect a continuity of tradition and are rooted in the laws and customs that provided the foundation for the native title that burdened the radical title acquired by the Crown;
(c) native title rights and interests may continue to exist notwithstanding profound impacts upon and changes to Aboriginal society or to a particular community;
(d) native title rights and interests may continue to exist notwithstanding the dispossession of traditional lands;
(e) native title rights and interests may persist despite the cessation of a traditional — in the sense of pre-contact — lifestyle [at 49].
The primary judge had failed to give proper recognition to the relevance of adaptation and change in the traditional laws and customs in the 19th century: [71], [84].
1. An application was made to the Court under the Native Title Act 1993 (Cth) by eight applicants on behalf of the Yorta Yorta Aboriginal Community for a determination that native title exists over areas of land and waters in northern Victoria and southern New South Wales. After a lengthy hearing, the trial judge rejected the application and made a determination that native title did not exist over the areas claimed. This is an appeal against that determination.
...
4. This was the first application for a determination of native title to come on for trial after the enactment of the Native Title Act. The hearing of the application, which was completed before the 1996 amendments to the Act came into force, was necessarily lengthy and complex. ...
...
8. ... The claim failed ... because the judge concluded that before the end of the nineteenth century those through whom the claimant group sought to establish native title ‘were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim’.
9. His Honour held that, traditional native title having expired, the Crown’s radical title expanded to a full beneficial title and native title, once extinguished, could not be revived. It was thus unnecessary for his Honour to rule on other issues in the case, but he added that it was ‘appropriate that some mention be made of the evidence concerning the current beliefs and practices of the claimant group’.
...
11. The judge’s finding that by the end of the 19th century native title had expired assumed central importance on the hearing of the appeal. The appellants contended that this finding was a manifestation of the ‘frozen in time’ approach. They said that the judge had wrongly equated the existence of native title with the existence of a ‘traditional society’ or a ‘traditional lifestyle’. They also contended that the finding was flawed in other fundamental respects. Specifically, they contended that in making the finding his Honour had ignored historical evidence of a continuing connection with the land and the evidence of living witnesses bearing upon the situation in the late 19th century. ...
12. A related issue on the appeal concerned what was said to be the failure of the trial judge to make necessary findings of fact, particularly in relation to the traditional laws presently acknowledged and the traditional customs presently observed by the members of the Yorta Yorta community. ... It was submitted that the terms of the Native Title Act itself revealed that an assessment of the present laws and customs of the claimant group was the correct starting point. It was also said that a failure to adhere to that process, by beginning instead with an analysis of the situation as at 1788, would result in a court placing undue and potentially misleading reliance on historical documents, and was liable to lead it to overlook permissible adaptations in behaviours and practices. In other words, it was argued, the nature of an inquiry that begins in the past and traces forward is, in itself, likely to result in an erroneous ‘frozen in time’ approach being adopted.
...
16. The judge observed that a substantial portion of the oral testimony of the senior members of the claimant group was directed towards establishing their genealogical links with earlier generations. He described the depth of knowledge of these witnesses as most impressive and noted that for the most part, with only minor exceptions, they proved to be accurate. ...
18. His Honour wrote of the difficulties inherent in proving facts about a time when, for the most part, the only record of events was oral tradition, but he concluded that the inference that ‘indigenous people occupied the claim area in and prior to 1788 is compelling’. ...
...
20. The judge considered historical evidence about traditional laws and customs. Counsel for the appellants were very critical of aspects of this part of his Honour’s reasons and it is necessary that I refer to them in some detail. The judge held that the most credible source of information about traditional laws and customs was to be found in the writings of the pastoralist Curr. ... His Honour considered that Curr’s record of his own observations should be accorded considerable weight. ... The judge then set out extracts from Curr’s work ‘selected with a view to providing an indication of what Curr observed in relation to a number of aspects of Bangerang life and culture that may have some bearing upon the traditional laws and customs of the ancestors of the claimant group which are said to have constituted a burden on the radical title of the British Crown at the time it claimed sovereignty in respect of the colony of New South Wales’. His Honour concluded that by the 1860s the disturbance of the way of life of the Aboriginal people to which Curr had referred was further advanced and that when the missionary, Daniel Matthews, settled in Echuca in 1864 he found people of many different tribal groups living in the area. Matthews himself, the judge noted, was the architect of further disruption of traditional life and his Honour referred to suppression of the use of indigenous languages and of the observance of traditional practices.
21. There follows a paragraph, which because of its importance in the submissions made on behalf of the appellants, it is desirable that I set out in full. ...
[118] The evidence is silent concerning the continued observance in Matthews’ time of those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr. Whether the former territorial areas of the various tribal groups were still recognised and protected as described by Curr is not something upon which there is any evidence. What the evidence does demonstrate is that the land on either side of the Murray had been taken up for pastoral purposes and that there had been both severe dislocation of the indigenous population and a considerable reduction in its numbers due to disease. Furthermore, there is no evidence to suggest that either Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forebears in relation to land.
[119] Apart from any conclusions, which may be drawn from the absence of evidence of continued observance of traditional laws and customs in the period after the establishment of Maloga, there is positive evidence emanating from the Aboriginals themselves to the same effect.
22. The positive evidence to which his Honour referred, and to which he gave substantial weight, was a petition to the Governor of New South Wales signed in 1881 by 42 Aboriginal people, many of whom were known to have been resident at, or otherwise connected with, Maloga. The petition sought a grant of land. It is set out in full in his Honour’s reasons and I reproduce here only the recitals, which are as follows:
1. That all the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are used for sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious, and often reducing us and our wives and children to beggary.
2. We, the men of our several tribes, are desirous of honestly maintaining our young and infirm, who are in many cases the subjects of extreme want and semi-starvation, and we believe we could, in a few years support ourselves by our own industry, were a sufficient area of land granted to us to cultivate and raise stock.
3. We have been under training for some years and feel that our old mode of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry, that we may form homes for our families.
23. His Honour said that whilst there could be little doubt that Matthews, the missionary, would have played a part in the composition and presentation of the petition, it had not been suggested that the general thrust of the statements attributed to the petitioners was factually inaccurate or in any way misrepresented their views or aspirations. It was at this point that the judge made the factual finding that was determinative of the appellants’ claim:
It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time. Although many of the claimant group reside within the claim area, many do not. No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. The claimant group clearly fails Toohey J’s test of occupation by a traditional society now and at the time of annexation Mabo (No 2), p 192) a state of affairs, which has existed for over a century. Notwithstanding the genuine efforts of members of the claimant group to revive the lost culture of their ancestors, native title rights and interests once lost are not capable of revival. Traditional native title having expired, the Crown’s radical title expanded to a full beneficial title Mabo (No 2) per Brennan J at p 60).
24. Having made this finding, the judge concluded that section of his reasons for judgment by stating that it was appropriate that ‘some mention should be made of the evidence concerning the current beliefs and practices of the Yorta Yorta people’. ...
25. His Honour found that the ‘main thrust of contemporary activity by members of the claimant group has to do with the protection of what are regarded as sacred sites and the proper management of the land’. ...
26. His Honour concluded, at [129]:
The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to land of their forebears. The facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs. The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival. This conclusion effectively resolves the application for a determination of native title.
27. This appeal raises questions about the impact of European settlement, dispossession and the consequent abandonment of a traditional lifestyle, upon native title rights and interests. It also raises questions about the way in which evidence should be approached in a native title case when it is said that, over a century ago, the foundation for native title disappeared by reason of the cessation of any real acknowledgment of traditional laws and any real observance of traditional customs: see Mabo (No 2), at 60, per Brennan J; Wik Peoples v Queensland (1996) 187 CLR 1 at 182–184, per Gummow J. How should the evidence be approached in a case in which a determination of native title is sought and it is said that the rights and interests that are claimed to be enjoyed currently are not traditionally based but, rather, to the extent that they exist at all, are really no more than a revival in a modern form of customs or rights lost long ago when the ancestors of the Aboriginal people asserting those rights were dispossessed of their traditional lands and when their traditional lives on those lands came to an end?
...
29. The practicability of observing, in the face of change, customs based upon tradition was acknowledged as a relevant matter by Brennan J in an earlier passage in his judgment in Mabo (No 2), where his Honour said (at 59–60):
Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. 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.
30. ... Later, in stating in summary form what he held to be the common law of Australia with reference to native title, Brennan J said (at 70):
It is immaterial that the laws and custom have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains.
31. Other members of the Court in Mabo (No 2) referred to changes in traditional laws and customs in terms that suggest that even substantial changes will not necessarily bring native title to an end. ...
32. Nothing in section 223 of the Native Title Act casts doubt upon the potential for native title, as now defined for the purposes of the Act, to survive change, and cases decided since the enactment of the Act have demonstrated that native title may continue to exist notwithstanding that profound changes have impacted upon those by whom the relevant native title rights and interests are possessed.
33. Section 223 relevantly provides:
Common law rights and interests
(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.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. ...
...
34. The definition is in the language of the present, and so in applying the statutory definition of native title the question is whether the claimed rights and interests are possessed under the traditional laws acknowledged — that is to say now acknowledged — and the traditional customs observed — now observed — by the Aboriginal peoples. A critical question, of course, in the application of the definition is whether the relevant laws and customs are ‘traditional’. ...
35. It is wrong, however, to see ‘traditional’ as, of its nature, a concept concerned with what is dead, frozen or otherwise incapable of change. As Beaumont and von Doussa JJ observed in Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 at [65], citing The Macquarie Dictionary, 3rd ed, the meaning of ‘traditional’ is that which is:
‘handed down by tradition’ and ‘tradition’ is ‘the handing down of statements, beliefs, legends, customs etc., from generation to generation, especially by word of mouth or by practice’. ...
36. Given the historical and legal context of s 223 of the Native Title Act, the relevant ‘tradition’ for the purposes of s 223 must, however, at least have had its roots in the laws and customs that provided the foundation for the native title that burdened the radical title acquired by the Crown. Nevertheless, the nature of the concept of ‘traditional’ in the context of s 223 implies that adapted and evolved laws and customs which, in their essence, still reflect the continuity of tradition, will fall within the concept of ‘traditional’ for the purposes of a determination of native title. The recent cases support this view.
...
38. In Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 the High Court considered whether a magistrate was right in acquitting the appellant on a charge of keeping fauna without a permit, contrary to the Fauna Conservation Act 1974 (Qld), on the ground that the appellant was exercising native title rights and interests protected by the Native Title Act. The magistrate found that it was a traditional custom of the appellant’s clan to hunt juvenile crocodiles for food and that the evidence suggested that the taking of juvenile rather than adult crocodiles had ‘tribal totemic significance and [was based on] spiritual belief’.
39. The case provides an example of the survival of a native title right in the face of legislative regulation of an activity, and profound changes in the circumstances in which the traditional activity was carried out. ...
40. The other feature of the case that illustrates the continued existence of native title rights in the face of change was the method used to hunt the crocodiles. As appears from the reasons for judgment of Gummow J, at [68], Mr Yanner hunted the estuarine crocodiles with a traditional harpoon-type weapon, known as a ‘wock’, but using a dinghy powered by an outboard motor. ...
43. It can readily be appreciated how hunting with the use of an outboard motor ... is an adaptation of a traditional right to hunt and thus can be seen as a form of the exercise of a traditional right. Once this is recognised, however, it can also be readily appreciated how less physical or tangible manifestations of traditional laws and customs can be seen to be rooted in the past and to be traditional customs in the adapted form currently observed. ...
45. Questions of change and its effects were considered by a Full Court (constituted by Beaumont, von Doussa and North JJ) in Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (‘Ward’). ...Essentially, von Doussa and Beaumont JJ allowed the appeals in part because of the view they took about the issues of extinguishment. ...
46. ... Ward shows that the requisite connection may be maintained despite massive changes impacting upon the Aboriginal people who occupied the claim area at the time of settlement, and their descendants: see Ward at [126]. Beaumont and von Doussa JJ ... in their joint reasons ... said at [241]:
... The evidence paints a clear picture of it being impracticable after European settlement for members of the indigenous population to maintain a traditional presence on substantial parts of the determination area. However, it does not follow that the surviving members of the indigenous population have not substantially maintained their connection with the land. (Emphasis added)
47. ... Referring, at [244], to the observations of Toohey J in Mabo (No 2) at 188, their Honours observed that Toohey J was not to be ‘understood as laying down the requirement of actual physical presence as essential to the maintenance of a connection by traditional laws and customs, in circumstances where that physical presence is no longer practicable in circumstances where access to traditional lands is restricted or prevented by the activities of European settlers’. They pointed out that whether or not a spiritual and cultural connection with the land had been maintained in other ways was a question of fact, involving matters of degree, to be assessed in all the circumstances of a particular case.
48. Consistent with this view, their Honours rejected the challenge to the finding of the trial judge that there was a relevant continuing connection with the areas now covered by Lake Kununurra and Lake Argyle and held that by continuing to acknowledge and observe traditional laws and customs involving ritual knowledge, ceremony and customary practices, the spiritual relationship with the land could be maintained. ...
49. It can be seen, therefore, that in determining issues concerning the existence and content of native title rights and interests, the considerations to be borne in mind include the following:
50. The points set out in the preceding paragraph are of particular relevance to the present case... Their primary present relevance is that they identify features that suggest, particularly in combination, that the correct approach to an application for the determination of native title will, ordinarily, involve the making of comprehensive findings of fact about what are claimed to be the traditional laws presently acknowledged and the traditional customs presently observed that provide the foundation for the asserted native title rights and interests. Such an approach will, obviously, involve an inquiry as to whether the laws and customs in question — which may very well be adapted or evolved laws and customs — are in fact ‘traditional’ in the sense in which that concept is to be understood in this area of the law. A process that begins, however, with an assessment of what is claimed at the present time has the fundamental advantage of allowing adaptations and evolution to be seen for what they are and, in some instances, to be recognised at all. ...
51. The approach taken by the judge in this case was quite different. It was, in substance, an approach that involved making findings about the past and then progressing forward from that point. Because, in the course of that process, his Honour reached a conclusion that native title had expired over 100 years ago, it did not become necessary for him to make findings about what the appellants contended were fundamental aspects of their case concerning what they said are the traditional laws currently acknowledged and the traditional customs currently observed. His Honour did discuss current beliefs and practices, but he did so after he had already made a finding that native title had expired and he prefaced his remarks by saying that it was appropriate ‘that some mention’ should be made of the evidence concerning current beliefs and practices. The earlier finding was determinative of the claim adversely to the appellants.
...
54. A conclusion, soundly based, that at some point in the past there has ceased to be any real acknowledgment and observance of laws and customs based on tradition may relieve a court of the necessity to make findings about what are claimed to be contemporary laws and customs based on tradition. To be soundly based, however, such an approach will need to overcome difficulties of a formidable nature.
55. For one thing, the use of historical material to answer a claim based substantially upon an orally transmitted tradition needs to take fully into account the potential richness and strength of orally based traditions as well as the inherent difficulties to which the learned judge adverted. It is necessary too, to bear in mind the particular difficulties and limitations of historical assessments, not least those made by untrained observers, writing from their own cultural viewpoint and with their own cultural preconceptions and for their own purposes.
...
58. The diaries and notes of casual observers of Aboriginal people in mid-colonial times need to be looked at with these qualifications and criticisms very much in mind. The external and casual viewer of another culture may see very little because the people observed may intend to reveal very little to an outsider, or because the observer may be looking at the wrong time, or because the observer may not know what to look for, or for any one of numerous other reasons. ...
59. The problems that have been encountered can be greater still when the object of a later inquiry involves a process of adaptation which, whilst it was occurring, may well have been misunderstood or even not appreciated at all. ...Recognition of the extent to which adaptation and evolution can take place without laws and customs ceasing to be ‘traditional’ is of critical importance when any comparison is made between the situation at two widely separated points of time.
...
61. Another difficulty lies in determining that there is a point in time at which acknowledgment and observance has ceased to the extent that the foundation for any native title rights or interests has disappeared. If each of the factors that I have already identified as difficulties is held up against the task of determining whether the foundation for any native title rights or interest has disappeared, a compelling case emerges against reaching any conclusion about expiry without considering a very substantial time frame. Ordinarily, the question of expiry will need to be viewed within a substantial time frame if the real likelihood of a false conclusion is to be avoided. The difficulties of this nature may arise in a acute form where the issue is whether a particular practice is in truth ‘traditional’ or whether, properly characterised, it is no more than a ‘revival’.
62. The remaining matter to be mentioned at this point was not the subject of argument on the hearing of the appeal, but it is convenient to note it here as one of the issues likely to arise when expiry is being considered. It should not be assumed that the removal of the foundation for native title rights and interests by expiry is an all or nothing affair. If native title is seen as a bundle of rights as to which there may be the extinction of some, but not others, it may well be that the expiry of laws and customs that provide the foundation for, say, a right of exclusive possession, may nevertheless not involve the expiry of traditionally-based laws and customs that provide a sufficient foundation for other rights, such as a usufructuary right. ...
...
67. I do not accept the submission that the trial judge adopted the very strict and rigid ‘frozen in time’ approach suggested by the appellants. ... The principal obstacle in the way of the appellants’ argument that a very ‘strict’ or ‘rigid’ approach was adopted is that the language used by the learned judge is in this respect equivocal and, having regard to the fact that such an approach was apparently not put forward by any of the respondents at the trial, a submission that the judge fell into an error of this nature needs more than equivocal language to support it.
68. There is, however, substantial support for the broader argument of the appellants and the New South Wales Aboriginal Land Council that his Honour adopted an approach that did not give appropriate recognition to the extent to which ‘traditional’ laws and customs can adapt and evolve and still have the character of ‘traditional laws and customs’, capable of providing a continuing foundation for native title rights and interests. The reference by Brennan J to ‘traditional laws and customs’ in the passage from his judgment in Mabo (No 2) at 60 in which he discussed the expiry of native title must be a taken to be reference to what is ‘traditional’ in the sense in which I have been discussing it. Otherwise the notion of expiry would be inconsistent with the whole framework of native title as recognised and defined by the Native Title Act itself.
69. It emerges from paras [105] and [106] of his reasons that his Honour set out to determine the content of the traditional laws and customs observed by the ancestors of the claimants in 1788 and that this was to be wholly or primarily achieved by drawing inferences from ‘known facts concerning traditional laws and customs observed in the 1840s’. It was in this connection that his Honour said that the most credible source of information concerning the traditional laws and customs of the relevant area was to be found in the writings of Edward Curr and that this was to be accorded greater weight than the oral evidence of the witnesses from the claimant group.
70. This approach carries with it, however, the danger of producing what is in effect a ‘frozen in time’ approach to traditional laws and customs by giving paramountcy to historical observations made about a period in time long ago (a period of, perhaps, no more than a decade) over an oral tradition that was of its very nature likely to be reflective — and indeed expository — of changes in laws and customs that occurred over time. His Honour’s conclusion that Curr’s observations, based upon him having ‘some understanding of the laws and customs in relation to the land of the indigenous people’ would provide a ‘useful basis’ from which to proceed illustrates the danger.
71. The danger was, to my mind, realised when his Honour commented later in his reasons that the evidence is silent concerning the continued observance in Matthews time of ‘those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr’. His Honour contrasted this with the evidence of dislocation at this time. The passage that follows, that there is ‘no evidence to suggest that either Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forbearers in the land’ does support, in my view, the conclusion that even if a very strict or rigid ‘frozen in time’ approach was not in fact adopted, the approach nevertheless failed to give proper recognition to the relevance of adaptation and change in the traditional laws and customs of the claimants’ ancestors at about this time. The time in question was a time at which change was to be most expected since it was the time at which European settlement was having its most direct and invasive impact.
72. If due recognition is to be given to the capacity of native title to survive transition from its existence within a fully traditional lifestyle to its existence within a lifestyle changed by contact with a very different culture, any consideration of a period in which changes were taking place consequent upon the impact of European settlement must take full account of the possibility of adaptation to the changing circumstances of the time. If it is correct to recognise adapted and evolved laws and customs as they exist at the present time, it must surely be correct to acknowledge the importance of such matters at an earlier time in history when contact with non-indigenous people was undoubtedly bringing about massive changes. ...
74. ... The recognition at that time by some Aboriginal people that their land had been ‘taken possession of by the Government and white settlers’ and their hunting grounds used for pastoral purposes, may be accepted as evidence of the abandonment of a traditional lifestyle by some Aboriginal people, but that state of affairs, and a desire to change ‘our old mode of life’ in favour of ‘settling down’ does not deny the continuance, in adapted or evolved form, of an acknowledgment of laws and an observance of customs that can properly be characterised as ‘traditional’. There are other problems associated with the use of the petition — essentially a political document — as evidence, but the fundamental point is the one that I have just mentioned. ...
75. I am persuaded therefore that the learned judge was in error in that he applied too restrictive an approach to the concept of ‘traditional’ when making his determinative finding that native title expired before the end of the 19th century.
...
77. The appellants’ submission that the determinative finding of expiry was in any event flawed by a failure to take into account, and to make findings about, various parts of the evidence — including the evidence of living witnesses — that were said to be relevant to that question was, as I have noted, put in the alternative. ...
83. It is vitally important to place this evidence in the context of the case that was being put by the appellants. That case, at trial and on appeal, involved an acceptance that important elements of their traditional laws and customs had indeed been lost, but also an assertion that significant elements remained. ...
84. The evidence upon which the appellants relied varied in particularity, and some of the respondents were very critical of its generality and, to a large extent, its cogency. But whatever may be said about the generality and cogency of the evidence of the living witnesses concerning the continuance of traditional laws and customs, it was, in my view, evidence that, in the context of the case put by the appellants, needed to be dealt with before a finding could be made that native title had come to an end. ...
88. Whilst, in these circumstances, it is not necessary to deal with the arguments about descent not pressed by counsel for the appellants, I should mention that the Full Court in Ward rejected the contention that passages in the judgment of Brennan J in Mabo (No 2) at 70 are to be read as laying down a requirement of strict ‘biological descent’. Beaumont and von Doussa JJ (with whose judgment North J agreed on this point) held that the trial judge in Ward had not erred in rejecting the State of Western Australia’s contention that a narrow and exclusive test of biological descent was required. Although they considered that ‘a substantial degree of ancestral connection’ between the original native title holders and the present community would be necessary, they observed, at [234], that the identity of those people presently entitled to enjoy native title rights was to be ascertained by reference to traditional laws and customs as currently acknowledged and observed. They noted that the evidence in the case was to the effect that under traditional laws and customs, a whole range of relationships might lead to membership of the claimant community.
89. It follows that a failure to recognise the extent to which laws and customs can adapt to changes in circumstances and yet remain ‘traditional’ will affect the assessment of other important elements of a native title claim. Traditional laws and customs determine not only the content of native title, but also the framework within which it can be held. As the majority noted in Ward, it is the traditional laws and customs of a particular indigenous community that dictate the criteria for membership of that community.
...
91. I agree with the submissions on behalf of the appellants that the determinative finding of expiry before the end of the 19th century was erroneous. The test applied was too restrictive in its approach to what is ‘traditional’ and the conclusion of expiry that was reached was flawed as a result. A second and related error is demonstrated by the learned judge’s failure to deal with aspects of the evidence. In these circumstances this is not a case in which the trial judge’s finding can be upheld on the footing that it was a finding of fact that should not be disturbed by an appellate court.
92. It follows that I consider that the appeal should be allowed and that the matter should be remitted to the trial judge for further hearing.
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95. This is an appeal against a determination by a judge of the Court that native title does not exist in relation to certain areas of land and waters in northern Victoria and southern New South Wales.
96. The crucial finding made by the judge at para [129] of his judgment was as follows:
The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to land of their forebears. The facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs. The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival.
97. In our view the appeal from his Honour’s determination must be dismissed for the reasons given below.
...
100. Section 225 of the NTA provides that ‘a determination of native title is a determination whether or not native title exists in relation to a particular area ... of land or waters’, and if it does exist, a determination of certain ancillary matters.
101. Section 223 of the NTA defines ‘native title’ in the following way:
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. ...
102. ... The Explanatory Memorandum Part B which accompanied the Native Title Bill 1993 (Cth) at 76 stated:
Subclause 1 of the definition uses terms similar to those used by the High Court of Australia in Mabo in defining native title. This definition is not a codification of the common law.
103. The significance of the definition contained in s 223(1) not being a codification of the common law is that the common law position as to the content of native title described by Gummow J in Wik Peoples v State of Queensland (1996) 187 CLR 1 at 169 remains unchanged under the NTA. His Honour there observed:
The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein. In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence. (References omitted)
104. As Beaumont and von Doussa JJ observed in Commonwealth of Australia v Mary Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 (‘Yarmirr’) at para [53]:
The construction of s 223 itself is not without difficulty. Expressions used in paras 223(1)(a), (b) and (c) have close similarity to passages appearing in the judgment of Brennan J in Mabo (No 2) at 57–59, but to understand the meaning and content of those passages it is necessary to go beyond those pages in the judgment. ...The imprecision of the described characteristics of native title in paras 223(1)(a), (b) and (c) adds to the difficulty of understanding of s 223(1).
105. The intended scope of para 223(1)(c) is an issue of difficulty. The learned primary judge found in s 223(1)(c) statutory recognition of the common law’s refusal to recognise native title that has been extinguished. His Honour said at para [5]:
The common law does not recognise native title, which has been extinguished Mabo (No 2) per Mason CJ and McHugh J, at p 15). As it is an element of the statutory definition of native title that the rights and interests in question are recognised by the common law of Australia (s 223(1)(c)) it necessarily follows that it is fatal to a claim for a determination of native title under the Native Title Act if the native title rights and interests claimed have been extinguished.
...
108. The preferable view, in our opinion, is that para 223(1)(c) is not concerned only with the kinds of rights and interests which may found a determination of native title under s 225 of the NTA. Rather, it seems to us, para 223(1)(c) incorporates into the statutory definition of native title the requirement that, in the case of a claimed communal title, the holders of the native title are members of an identifiable community ‘the members of whom are identified by one another as members of that community living under its laws and customs’ (Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 ‘Mabo (No 2)’ per Brennan J at 61) and that that community has continuously since the acquisition of sovereignty by the Crown been an identifiable community the members of which, under its traditional laws observed and traditional customs practised, possessed interests in the relevant land. The paragraph also, in our view, incorporates into the statutory definition of native title refusal of the common law to recognise rights and interests fundamentally inconsistent with its basic precepts by reason of being repugnant to natural justice, equity and good conscience. In addition, in our view, the paragraph incorporates the notion of extinguishment — whether by a positive exercise of sovereign power appropriate to achieve that result or by reason of the native title having expired so as to allow the Crown’s radical title to expand to a full beneficial title (see Mabo (No 2) per Brennan J at 59–60). Under the common law, the native title to any area of land or waters will have so expired if, at any time since the Crown acquired the radical title to the land, the traditional laws and customs, the acknowledgment and observance of which provided the foundation of native title, ceased to be acknowledged and observed, or (which may factually amount to the same thing) the Aboriginal people or Torres Strait Islanders who by those laws and customs had a connection with the land or waters, whether as a community, a group or as individuals, ceased to have that connection.
...
110. A further issue of difficulty in the construction of s 223(1) of the NTA is the intended meaning of the word ‘traditional’ in the phrase ‘the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders’ appearing in para 223(1)(a) of the NTA. The appellants contend that the learned judge at first instance adopted too narrow a view of the word ‘traditional’ as used in s 223(1) of the NTA.
...
114. In Mabo (No 2) at 61 Brennan J said:
The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws and customs are not so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld. Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed. (Footnotes omitted, emphasis added)
115. In his Honour’s statement in summary form of what he held to be the common law of Australia with reference to native land titles, his Honour said at 70:
It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains.
116. In the above passages Brennan J expressly acknowledges that traditional laws and customs change over time. It may be accepted that it is because of the evolving nature of traditional laws and customs that his Honour spoke of ‘traditionally based laws and customs, as currently acknowledged and observed’. (Emphasis added)
117. In Mabo (No 2) members of the High Court in addition to Brennan J acknowledged that the changing nature of traditional laws and customs would not necessarily extinguish an existing native title. ...
118. Toohey J at 192 said:
But modification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life.’ (Footnotes omitted, emphasis added)
119. Lee J at first instance in Ward v State of Western Australia [1998] FCA 1478; (1998) 159 ALR 483 (‘Ward’) also gave consideration to the significance of change in traditional laws and customs. His Honour at 502 said:
The communal rights exercisable under native title, and the rules governing the exercise of those rights, may be varied from time to time according to the practices or customs now observed by the community based on traditional laws or customs: see Mabo (No 2) per Deane, Gaudron JJ at CLR 110. If native title has continued since the assertion of sovereignty the rights available under that title, and the persons who may exercise those rights, will be ascertained by reference to practices that are based on traditional laws and customs, not by inquiring whether the traditional practices observed today are in the same form as before as if frozen in time. Aboriginal, or native title, as recognised by the common law shares the capacity of the common law to evolve and mould as circumstances require. An indigenous society does not surrender native title by modifying its way of life: see Mabo (No 2) per Toohey J at CLR 192. The Aboriginal laws, customs and traditional practices on which native title is based have always been dynamic, not static.
120. We do not understand the Full Court, which determined the appeal from his Honour’s judgment to have criticized the above passage in any way (see State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316).
...
122. In our view, it is plain that at common law native title can survive modification of the traditionally based laws and customs pursuant to which the native rights and interests which together comprise the native title are enjoyed. However, the laws and customs must remain properly characterised as traditional. The changed laws and customs will not be traditional in character if they reflect a breaking with the past rather than the maintenance of the ways of the past in changed circumstances.
123. Section 223(1) of the NTA speaks not of traditionally based laws and customs but rather of ‘the traditional laws acknowledged, and traditional customs observed’. However, reference to the extrinsic materials referred to above demonstrates that the legislature did not intend the words ‘the traditional laws acknowledged, and traditional customs observed’ in para 223(1)(a) to narrow the common law concept of native title.
124. The language of s 223(1) of the NTA is consistent, in our view, with the common law in this regard. ...
...
127. The test of whether a law acknowledged, or a custom observed, is a traditional law or custom is, in our view, principally an objective test. The primary issue is whether the law or custom has in substance been handed down from generation to generation; that is, whether it can be shown to have its roots in the tradition of the relevant community. However, for the reasons so persuasively articulated by Toohey J in Mabo (No 2) at 192 (see para [118] above), it cannot be accepted that the fact that an indigenous society has adopted certain aspects of the now dominant culture means that the society has necessarily abandoned its traditional connection with land or waters.
...
131. To use the terminology of Wallace JA in Delgamuukw cited in para [122] above, can a native title right itself evolve or modernise or is it only the manner of exercising the right that can evolve and modernise? If native title rights and interests cannot themselves evolve and change over time, it would seem to follow that the native title rights and interests possessed by the occupants of land or waters as at the date that the Crown acquired sovereignty will constitute the maximum native title capable of being found to exist in relation to such land or waters. On this approach it would seem necessary to any determination of native title that evidence be available from which inferences may be drawn as to the extent of the native title rights and interests in the land or waters as at the date of the acquisition of Crown sovereignty.
132. It may be to ask the same question as that posed in the preceding paragraph to ask whether the radical title of the Crown at the time of the acquisition of sovereignty was burdened by the native title rights and interests then existing, or whether the radical title was burdened by the fact of the existence of a native title — the precise nature and incidents of which were capable of changing over time.
133. We turn below to a consideration of whether his Honour’s judgment properly understood does adopt the ‘frozen in time’ approach. ...
...
139. ... [W]e are not able to see anything in Mabo (No 2) which suggests that the present day content of a native title founded upon the maintenance of a traditional connection with a particular area of land will necessarily comprise precisely those rights and interests in land which burdened the Crown’s radical title at the time of the acquisition of sovereignty. We incline to the view that the preferable approach under the NTA is that adopted by Lee J at first instance in Ward in the passage set out above in para [119]. The adoption of this view does not, in our view, have the consequence that the nature of the burden on the Crown’s radical title at the time of the acquisition of sovereignty is not identifiable: the burden on the Crown’s radical title is the fact of a traditional native title — the nature and incidents of which may evolve and modify over time provided that they remain based on traditional laws and customs.
140. In our view, the wording of the s 223(1) definition of native title supports the view that under the NTA the present day content of a native title is to be ascertained by reference to the traditional laws and customs, as currently acknowledged and observed, by which the relevant indigenous people have a connection with the land or waters.
141. Paragraph 223(1)(a) requires that the relevant rights and interests of Aboriginal peoples or Torres Strait Islanders be ‘rights and interests ... possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders...’. The paragraph is expressed in the present tense and seems clearly intended to refer to rights and interests currently possessed under the traditional laws currently acknowledged and the traditional customs currently observed (Yarmirr per Beaumont and von Doussa JJ at para [64]). As is discussed above, traditional laws currently acknowledged, and traditional customs currently observed, are likely to have evolved over time in response to changing circumstances. For this reason, the rights and interests possessed there under may not be identical to the rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the relevant community at the time of the acquisition by the Crown of sovereignty (see Ward, per Lee J at 502).
142. Paragraph 223(1)(b) is similarly drawn in the present tense. It is concerned with a current connection with land or waters. The reference in the paragraph to ‘those laws and customs’ is a reference to ‘the traditional laws acknowledged, and the traditional customs observed’ of which para 223(1)(a) speaks. That is, to currently acknowledged and observed traditional laws and customs.
...
144. We conclude that it is probable that on the proper construction of s 223(1) of the NTA the precise nature of the rights and interests that constitute a native title may evolve and change over time. Putting to one side issues which, in our view, arise under para 223(1)(c) (see para [108] above), what is crucial on this view of the proper construction of the subsection is that such rights and interests are possessed under traditional laws acknowledged and traditional customs observed. For this reason, while it may be helpful to be able to establish by evidence the precise nature of the traditional laws and customs acknowledged and observed by the indigenous people who had a connection with the relevant land or waters at the time of the acquisition of sovereignty by the Crown, it will not be fatal to a claim for native title that such evidence is not available, or is not accepted, if the traditional character of currently observed laws and customs can be established by other means.
145. To the extent that the learned primary judge acted on the basis that the appellants’ claim for native title would necessarily fail unless they were able to prove the traditional laws and customs of those who inhabited the claimed lands and waters in 1788, we conclude that he was probably in error. However, for the reasons given below, we do not think that this error, assuming it to have been made, has any significance for the outcome of this appeal.
146. In Mabo [No 2] at 59–60, Brennan J said:
The common law can, by reference to the traditional laws and customs of the 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. A native title that has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. ... Once traditional native title expires, the Crown’s radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.
147. It was to the above passage from the judgment of Brennan J in Mabo [No 2] that the learned primary judge made reference in the crucial passage from his judgment set out in para [96] above. ...
...
149. ... [I]t seems to us that the legislature in enacting s 223(1) of the NTA has adopted the approach of Brennan J to the issue of the abandonment of traditional laws and customs. In paras [141] and [142] above, we discuss the construction of paras 223(1)(a) and (b) of the NTA. As there indicated, we consider that the reference in para 223(1)(a) to ‘the traditional laws acknowledged, and the traditional customs observed’ is a reference to the traditional laws and customs as currently acknowledged and observed. So construed, it seems to us that para 223(1)(a) imports into the statutory definition of native title the requirement that the relevant rights and interests be possessed under traditional laws and customs currently acknowledged and observed. Consequently, we conclude that under the NTA, native title is dependent upon the present existence of traditional laws and customs which support the native title rights and interests claimed. Moreover, by reason of the terms of para 223(1)(b), it is necessary that the Aboriginal peoples or Torres Strait Islanders who claim native title have a connection, whether as a community, a group, or as individuals, with the land or waters in respect of which they claim native title by their currently acknowledged and observed traditional laws and customs.
150. In addition, in our view, para 223(1)(c) incorporates into the statutory definition of native title the requirement, in the case of a claimed community title, that the relevant community has continuously, since the acquisition of sovereignty by the Crown, been an identifiable community the members of which, under its traditional laws observed and traditional customs practised, possessed communal interests in the relevant land (see para [108] above).
151. No question arose before his Honour concerning any evidentiary burden: the respondent parties had asserted extinguishment by expiration and had adduced evidence, which raised for determination the issue of expiration.
...
159. We conclude that under the NTA, while a party asserting extinguishment on any basis carries a burden of adducing evidence sufficient to raise the issue for determination, the claimants will carry the ultimate or legal burden of establishing that their title has not been extinguished.
160. At para [4] of his judgment the learned primary judge identified four distinct avenues of inquiry necessitated by the claim before him. His Honour observed:
First, it is necessary to prove that the members of the claimant group (whether it be described as a clan, a community or otherwise) are descendants of the indigenous people who occupied (in the relevant sense) the claimed area prior to the assertion of Crown sovereignty; second, the nature and content of the traditional laws acknowledged, and the traditional customs observed by the indigenous people, in relation to their traditional land must be established; third, it must be demonstrated that the traditional connexion with the land of the ancestors of the claimant group has been substantially maintained since the time that sovereignty was asserted; and the claimed rights and interests must be rights and interests recognised by the common law of Australia. Leaving aside for the moment any question of extinguishment, it is not until each of those elements has been proved that it will be possible to determine whether the laws acknowledged and the customs observed by a contemporary clan, group or community should be afforded the protection of Australian law.
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163. When his Honour turned to consider the question of extinguishment, he rightly pointed out that it is fatal to a claim for a determination of native title under the NTA if the native title rights and interests have been extinguished. His Honour observed, again with respect rightly, that if extinguishment is established nothing more need be considered.
164. His Honour’s determination that native title does not exist in relation to the claimed areas of land and waters was based on his finding that the native title in the land and waters had been extinguished. Extinguishment, his Honour concluded, was the necessary consequence of the loss, before the end of the 19th century, of the connection of the Aboriginal ancestors of the claimants with the claimed land and waters, and of the abandonment by those ancestors of acknowledgment and observance of the traditional laws and customs under which they had possessed rights and interests in the land and waters.
165. Unless the appellants can successfully challenge his Honour’s finding that native title in respect of the claimed areas of land and waters has been extinguished, his determination must stand.
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168. As has already been mentioned, the appellants claim a communal native title interest in the claimed land and waters. In paras [146–150] above, consideration is given to the question of whether native title is extinguished by a loss of connection with the claimed land or waters. As is there set out, the better view seems to us to be that on the proper construction of s 223(1) of the NTA, a communal native title can exist only where —
(a) the native title rights and interests are possessed under traditional laws currently acknowledged and traditional customs currently observed by the community;
(b) the indigenous claimants by those laws and customs have, as members of the community, a current connection with the land or waters;
(c) the native title rights and interests are not inconsistent with the basic precepts of the common law (ie by reason of their repugnancy to natural justice, equity and good conscience — Mabo [No 2] per Brennan J at 61);
(d) the native title claimed has not at any time since the acquisition of sovereignty by the Crown been extinguished whether by —(i) positive exercise of sovereign power appropriate to achieve that result;
(ii) by the cessation of the acknowledgment and observance by the community of the traditional laws and customs upon which the native title had been founded; or
(iii) by a loss of connection with the land or waters by the relevant community. Such a loss of connection will be the necessary result of the disappearance of the community as a traditional indigenous community.
169. We therefore reject the appellants’ contention that the NTA ‘does not require proof that the connection to the land and waters has been substantially maintained by the appellants and their ancestors from 1788 to the present ...’ Where such connection has not been maintained by the community from the time of the acquisition by the Crown of sovereignty to the date of the application to the Court, the relevant native title will have been extinguished at common law and the statutory definition contained in s 223(1) of the NTA will not be satisfied (s 223(1)(c)).
170. The crucial finding made by the learned primary judge is set out in para [96] above.
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172. The passage from his Honour’s judgment in which his Honour identified four avenues of inquiry necessitated by the claim is set out in para [160] above. The second avenue of inquiry identified by his Honour was ‘the nature and content of the traditional laws acknowledged, and the traditional customs observed by the indigenous people’. The appellants contend that the second avenue of inquiry identified by his Honour was an inquiry into the traditional laws acknowledged and the traditional customs observed by the ancestors of the claimant group. Whether this contention is accurate can only be determined by reference to the whole of his Honour’s judgment.
173. His Honour plainly gave consideration to whether it was possible to infer from the evidence before him that the claim area was occupied by indigenous people at 1788 (see para [25] of his Honour’s reasons). It was crucial to the appellants’ claim that the claim area was occupied by indigenous people at 1788 in such a way as to give rise to native title. ... His Honour’s observations concerning the occupation of the land at 1788 are not to be understood as showing the adoption by his Honour of a ‘frozen in time’ approach.
174. At para [59] of his judgment the learned judge at first instance said:
What ultimately must concern the Court is whether members of the claimant group can trace descent from those inhabitants who at or before the earliest contact with Europeans occupied the claim area, or a part of it, and in relation to that area or part possessed what is now known as ‘native title’ in the sense described by Brennan J in Mabo No 2 at p 57. If that connection is made it will be necessary to identify the nature and extent of the native title rights of those ancestors.
175. The appellants argue that it was not necessary for his Honour ‘to identify the nature and extent of the native title rights of those ancestors’. A difficulty in the way of consideration of this argument is that his Honour did not indicate the purpose for which he regarded it as necessary to identify the nature and extent of the native title rights of the claimants’ ancestors. We see no reason to conclude that his Honour meant by the above passage that it was necessary for him to identify the laws and customs acknowledged and observed in 1788 for the purpose of considering whether the claimants acknowledge and observe the same laws and customs. We think it more likely that his Honour was concerned with establishing the nature and content of the native title interests which became a burden on the Crown’s radical title as at 1788.
176. As is mentioned above, in our opinion the better view is that the Crown’s radical title was burdened at the time of acquisition of sovereignty, not with the particular native title interests then enjoyed by the indigenous inhabitants, but rather by the fact of the existence of native title (see para [139] above). However, that issue may be left aside for present purposes. We do not consider that anything said by his Honour in para [59] of his judgment shows that his Honour adopted a ‘frozen in time’ approach.
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182. The uncertainty as to precisely what his Honour intended to convey in paras [105], [106] and [109] of his judgment means that it is appropriate to give consideration to the significance for the outcome of this appeal of the possibility that his Honour did proceed on the basis that the appellants’ claim could only succeed if they were able to demonstrate that the laws and customs acknowledged and observed by the occupants of the claimed lands and waters in 1788 had continued thereafter to be observed until the present time. If his Honour did proceed on this basis, he was, in our view, wrong to do so (see paras [122] and [127] above). However, we conclude for the reasons set out below that, even if it be assumed that his Honour was in error in this regard, the error does not affect the outcome of this appeal.
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185. In para [119] of his judgment, the learned trial judge identified certain ‘positive evidence emanating from the Aboriginals themselves’ to the effect that in the period after the establishment of the Maloga school and mission station on the claimed lands in 1874 traditional laws and customs ceased to be acknowledged and observed. His Honour referred particularly to a copy of a petition to the Governor of New South Wales signed in 1881 by 42 Aboriginals, many of whom are known to have been resident at or otherwise connected with Maloga [see para 22 above]. ...
186. The evidentiary weight to be given to the contents of a petition, almost certainly drawn with European help, in an endeavour to obtain a land grant, and not signed by all, or possibly even the majority, of the asserted Aboriginal community or group, will be limited ... However ... [i]t tends to suggest, or at least to be consistent with a finding, that the petitioners had lost their traditional means of support and were turning away from traditional ways. It may also, of course, reflect an appreciation that the Governor and his advisers might place little positive value on adherence to traditional Aboriginal laws and customs.
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188. His Honour’s ultimate conclusion concerning the issue of abandonment of acknowledgment and observance of traditional laws and customs concerning the claimed land and waters is set out in para [96] above.
189. Criticisms may be made concerning certain aspects of his Honour’s approach to the question of extinguishment of native title to the claimed lands and waters. However, unless his Honour’s finding that the Aboriginal community to which the appellants could establish genealogical links via Edward Walker and Kitty Atkinson/Cooper had, at some time later than 1788, ceased any real acknowledgment of its traditional laws and any real observance of its traditional customs, and had ceased to exist as a traditional indigenous community, can be successfully challenged, the finding is fatal to the appellants’ case.
190. ... [T]he appellants’ claim is in respect of asserted communal interests in land and waters. In para [114] above, reference is made to a passage from the judgment of Brennan J in Mabo (No 2) at 61 which stresses that a communal native title will survive only so long as ‘the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs ...’. In our view, it is plain that s 223(1) is intended to reflect his Honour’s view in this regard.
191. A reading of the whole of the learned primary judge’s judgment, and of para [129] (which is set out in para [96] above) in particular, makes it plain that his Honour was not satisfied that it had been shown that, throughout the entire period of time between 1788 and the date of the appellants’ claim, the relevant indigenous community had maintained its character as an identifiable community the members of which lived under its laws and customs. Indeed, his Honour, as we read his judgment, was positively satisfied that the relevant community had, before the end of the 19th century, abandoned its traditional way of life and its traditional culture and thus ceased to exist as a traditional indigenous community. ...
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195. We interpolate that it may be that his Honour took the view that, before the appellants could succeed at trial, they had to show not only that they were members of an identifiable Aboriginal community the members of which had continuously since the acquisition of sovereignty by the Crown acknowledged and observed traditional laws and customs upon which their native title was founded, but also that they presently occupy the land in the sense that the original inhabitants can be said to have occupied it (see paras [121] and [129] of his Honour’s judgment). If his Honour did take this view, we consider that he applied too stringent a test. The correct position in respect of occupation, in our opinion, was expressed (after the date of his Honour’s decision) by Beaumont and von Doussa JJ in State of Western Australia v Ward at para [244], with whom North J agreed at para [682], where their Honours said:
In circumstances where it is impracticable for the descendant community to continue a physical presence, it may nevertheless maintain its spiritual and cultural connection with the land in other ways. Whether it has done so will be a question of fact, involving matters of degree, to be assessed in all the circumstances of the particular case.
196. That is, in our view, where an indigenous community is effectively prevented from occupying its traditional lands this may result, either immediately or with the passage of time, in its ceasing to acknowledge its traditional laws and observe its traditional customs. In this case, the learned primary judge found that dispossession together with a drastic reduction in numbers consequent upon disease and conflict did have this result. However, dispossession will not inevitably lead to a community ceasing to acknowledge its traditional laws and observe its traditional customs and thereby losing its connection with the land. Whether in any case it has done so will be, as Beaumont and von Doussa JJ have pointed out, a question of fact to be assessed having regard to all of the circumstances of the particular case.
...
202. His Honour’s finding that there was a period of time between 1788 and the date of the appellants’ claim during which the relevant community lost its character as a traditional Aboriginal community is not to be lightly disturbed on appeal to this Court. A finding that an indigenous community has lost its character as a traditional indigenous community involves the making of a judgment based on evidence touching on a multitude of factors. The hearing before his Honour was long and complex. ...
203. It is not to be expected that, following a hearing of the length of the trial of this matter, the judge at first instance will make reference in his or her judgment to every matter which influenced his or her findings on a complex issue such as the maintenance of a traditional indigenous community. We see no reason to conclude from the failure of his Honour expressly to refer to, or evaluate, particular aspects of the evidence, that he did not take them into account.
...
206. In our view, the appeal from his Honour’s determination must be dismissed.
Counsel for the Appellants:
Mr A R Castan QC
Mr K R Howie
Solicitor for the Appellants:
Arnold Bloch Liebler
Counsel for the State of Victoria,
Goulburn Valley Region Water Authority,
Goulburn-Murray Rural Water Authority, and
North-East Region Water Authority:
Mr M Wright QC
Ms M Sloss
Mr S G E McLeish
Solicitors for the State of Victoria,
Goulburn Valley Region Water Authority,
Goulburn-Murray Rural Water Authority, and
North-East Region Water Authority:
Victorian Government Solicitor
Counsel for the State of New South Wales:
Mr V B Hughston
Mr J A Waters
Mr G E Hiley QC
Solicitors for the State of New South Wales:
Crown Solicitor for the State of New South Wales
Counsel for Murray Irrigation Limited,
Field and Game Australia Inc,
Graeme Ross McPherson,
Greater Shepparton City Council,
Campaspe Shire Council,
Moira Shire Council,
Estate of Christopher Stephen Ryan dec’d and C R and K R Moorse:
Mr G J Moloney
Solicitors for Murray Irrigation Limited,
Field and Game Australia Inc,
Graeme Ross McPherson,
Greater Shepparton City Council,
Campaspe Shire Council, Moira Shire Council,
Estate of Christopher Stephen Ryan dec’d and C R and K R Moorse:
Suzanna Sheed & Associates
Counsel for Emat Industries Pty Ltd, V Grima and K Lord:
Mr A C Neal
Solicitors for Emat Industries Pty Ltd, V Grima and K Lord:
J G Thompson Solicitor
Counsel for Barmah Forest Cattlemen’s Association,
NSW Forest Products Association Limited,
Rowan Swamp Landholders Group,
Victorian Association of Forest Industries & Ors:
Mr G B Carolan
Solicitors for Barmah Forest Cattlemen’s Association,
NSW Forest Products Association Limited,
Rowan Swamp Landholders Group,
Victorian Association of Forest Industries & Ors:
Corrs Chambers Westgarth
Counsel for Mulwala & District Services Club Limited,
Mulwala Water Ski Club Limited,
Yarrawonga Border Golf Club Limited, Berrigan Shire Council,
Corowa Shire Council, Murray Shire Council, and J B and G A Gorman:
Mr J E Curtis-Smith
Solicitors for Mulwala & District Services Club Limited,
Mulwala Water Ski Club Limited, Yarrawonga Border Golf Club Limited,
Berrigan Shire Council, Corowa Shire Council,
Murray Shire Council, and J B and G A Gorman:
Hargraves
Solicitors for Murray Darling Basin Commission:
Blake Dawson Waldron
Solicitors for Telstra Corporation Ltd:
Blake Dawson Waldron
Solicitors for State of South Australia:
Crown Solicitor for the State of South Australia
Counsel for New South Wales Aboriginal Land Council:
Mr J Basten QC
Mr R W Blowes
Solicitors for New South Wales Aboriginal Land Council:
Chalk & Fitzgerald
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2001/16.html