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Court and Tribunal Decisions - Australia
High Court of Australia (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ)
12 December 2002
Native title — native title rights and interests in s 223(1) Native Title Act (1993) (Cth) — possessed under traditional laws acknowledged and traditional customs observed in s 223(1) — whether traditional laws and customs must originate in pre-sovereignty laws and customs — whether traditional laws and customs need only be presently acknowledged and observed — whether there are common law requirements of native title
Hearing at first instance: In February 1994, an application was made under the Native Title Act (1993) (Cth) (the ‘Act’) to the Native Title Registrar for a determination of native title to land and waters in northern Victoria and southern New South Wales by eight named persons on behalf of the Yorta Yorta Aboriginal community.
The primary judge held that native title did not exist in relation to the claimed area, on the grounds that the current beliefs and practices of the claimants merely constituted an effort ‘to revive the lost culture of their ancestors’. The requirement that the claimed native title interest should be possessed under the traditional laws and customs of the claimant community was thus not made out. (The Members of the Yorta Yorta Aboriginal Community v The State of Victoria [1998] FCA 1606)
Appeal to the Federal Court: The claimants appealed to the Full Court of the Federal Court contending that the primary judge had adopted a ‘frozen in time approach’, which permitted no alteration of or development in the Aboriginal traditional law or custom in which the native title was said to be based.
The majority of the Court held, however, that the finding by the primary judge that there was a period of time between 1788 and the date of the claim made by the claimants during which the relevant community lost its character as a traditional Aboriginal community should not be disturbed and that, in consequence of that change, native title had ‘expired’.
Moreover, the majority argued that par (c) of the definition of ‘native title’ in s 223(1) of the Act incorporated the common law requirements of native title, among them the notion of extinguishment, by which native title is said to have ‘expired’ when the relevant traditional laws and customs ceased to be acknowledged or observed by the relevant people. (Yorta Yorta v Victoria [2001] FCA 45; (2001) 110 FCR 244)
Appeal to the High Court: The claimants appealed on the basis that the Act does not require positive proof of continuous acknowledgment and observance of traditional laws and customs, but rather attention should be directed to the rights and interests presently possessed under traditional laws presently acknowledged and customs presently observed.
1. Per Gleeson CJ, Gummow and Hayne JJ (McHugh J dissenting): To speak of the ‘common law requirements’ of native title is to invite fundamental error. Native title is not a creature of the common law, but is what is defined and described in s 223(1) of the Act. It follows that the reference in par (c) of s 223(1) to the rights or interests being recognised by the common law of Australia cannot be understood as a form of drafting by incorporation, by which some pre-existing body of the common law of Australia defining the rights or interests known as native title is brought into the Act: [74], [77].
2. Per Gleeson CJ, Gummow and Hayne JJ (McHugh J dissenting): The reference to recognition by the common law serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests, which, in some way, are antithetical to fundamental tenets of the common law. Secondly, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty: [77].
3. Per Gleeson CJ, Gummow and Hayne JJ (Gaudron and Kirby JJ concurring): It follows that the majority of the Full Court of the Federal Court were wrong to locate questions about continuity of acknowledgment and observance of traditional law and custom in par (c) of the definition of native title. It also follows that it is wrong to read par (c) of that definition as incorporating notions of extinguishment by expiry of native title into the definition of native title: [92], [111].
4. Per Gleeson CJ, Gummow and Hayne JJ: The references in pars (a) and (b) of the definition of native title, to ‘traditional’ law or custom must be understood to carry two elements other than the notion of transmission from generation to generation of society. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. Secondly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty: [46]-[47].
5. Per Gleeson CJ, Gummow and Hayne JJ (Gaudron and Kirby JJ dissenting): To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. It would therefore be wrong to confine an inquiry about native title to an examination of the laws and customs now observed in an indigenous society, or to divorce that inquiry from an inquiry into the society in which the laws and customs in question operate: [49]-[57].
6. Per Gleeson CJ, Gummow and Hayne JJ (McHugh J concurring): The primary judge’s findings were findings about interruption in observance of traditional law and custom, not about the content of or changes in that law or custom. They were findings that the society which had once observed traditional laws and customs had ceased to do so and, by ceasing to do so, no longer constituted the society out of which the traditional laws and customs sprang. Those findings of fact stand unaffected by error of law, the claimants' claim to native title fails and their appeal should be dismissed: [93]-[96], [135].
7. Per Callinan J: In order for native title to survive (absent extinguishment), and be the subject of a determination under the Act, there must have been, in 1788, a recognisable group exercising identifiable relevant traditional laws and customs, themselves reasonably certain, on and relating to defined land, involving physical presence on it, and continuity of these, until, and at the time of the determination. Continuity, over that period, or periods, was the issue upon which the parties joined. It was the issue that the trial judge and the Full Court of the Federal Court were asked to decide. The appellants failed on this issue: [174]-[191].
8. Per Gaudron and Kirby JJ: The primary judge was not concerned with the acknowledgement of traditional laws and observance of traditional customs pursuant to which the claimant group might establish a connection with land or waters in the claim area, as required by the Act, but with laws and customs specifically relating to the utilisation or occupation of the land and waters claimed. His Honour's erroneous view that a ‘traditional connection with the land ... [be] substantially maintained’ was an error of law affecting the reasoning process which led to the findings of fact: [120]-[124].
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46. That being so, the references, in pars (a) and (b) of the definition of native title, to ‘traditional’ law or custom must be understood in the light of the considerations that have been mentioned. As the claimants submitted, ‘traditional’ is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, ‘traditional’ carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are ‘traditional’ laws and customs.
47. Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.
48. To explain why this is so requires consideration of fundamental aspects of what is meant by a body of norms (laws and customs) that give rise to rights or interests in relation to land or waters, and what is meant by saying that the body of norms has a continuous existence and vitality.
49. Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone's words, ‘socially derivative and non-autonomous’[28]. As Professor Honoré has pointed out [29], it is axiomatic that ‘all laws are laws of a society or group’. Or as was said earlier, in Paton's Jurisprudence [30], ‘law is but a result of all the forces that go to make society’. Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs [31]. Some of these issues were considered in Milirrpum v Nabalco Pty Ltd [32] where there appears to have been detailed evidence about the social organisation of the Aboriginal peoples concerned. Some were touched on by Toohey J in Mabo [No 2] [33] where his Honour referred to North American decisions about similar questions [34]. They appear not to be issues that were addressed directly in argument in this matter in the courts below, whether for want of evidence about them or for some other reason does not matter.
50. To speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise.
51. What is the position if, as is said to be the case here, the content of the laws and customs is passed on from individual to individual, despite the dispersal of the society which once acknowledged and observed them, and the descendants of those who used to acknowledge and observe these laws and customs take them up again? Are the laws and customs which those descendants acknowledge and observe ‘traditional laws’ and ‘traditional customs’ as those expressions are used in the Native Title Act, and are the rights and interests in land to which those laws and customs give rise possessed under traditional laws acknowledged and traditional customs observed?
52. Again, it is necessary to consider the several elements of the issues that thus arise. Has the society ceased to exist? Does not the survival of knowledge of the traditional ways suggest that it has not? Or is it shown that, although there is knowledge, there has been or is no observance or acknowledgment? These may be very difficult questions to resolve. Identifying a society that can be said to continue to acknowledge and observe customs will, in many cases, be very difficult. In the end, however, because laws and customs do not exist in a vacuum, because they are socially derivative and non-autonomous, if the society (the body of persons united in and by its observance and acknowledgment of a body of law and customs) ceases to acknowledge and observe them, the questions posed earlier must be answered, no.
53. When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society.
54. In so far as it is useful to analyse the problem in the jurisprudential terms of the legal positivist, the relevant rule of recognition of a traditional law or custom is a rule of recognition found in the social structures of the relevant indigenous society as those structures existed at sovereignty. It is not some later created rule of recognition rooted in the social structures of a society, even an indigenous society, if those structures were structures newly created after, or even because of, the change in sovereignty. So much necessarily follows as a consequence of the assertion of sovereignty and it finds reflection in the definition of native title and its reference to possession of rights and interests under traditional law and custom.
55. The caveat we have entered about the utility of jurisprudential analysis is not unimportant. Leaving aside the questions of choice between different schools of analytical thought, any analysis of the traditional laws and customs of societies having no well-developed written language by using analytical tools developed in connection with very differently organised societies is fraught with evident difficulty. The difficulty of that analytical task should not be understood, however, as denying the importance of recognising two cardinal facts. First, laws and customs and the society which acknowledges and observes them are inextricably interlinked. Secondly, one of the uncontestable consequences of the change in sovereignty was that the only native title rights or interests in relation to land or waters which the new sovereign order recognised were those that existed at the time of change in sovereignty. Although those rights survived the change in sovereignty, if new rights or interests were to arise, those new rights and interests must find their roots in the legal order of the new sovereign power.
56. For these reasons, it would be wrong to confine an inquiry about native title to an examination of the laws and customs now observed in an indigenous society, or to divorce that inquiry from an inquiry into the society in which the laws and customs in question operate. Further, for the same reasons, it would be wrong to confine the inquiry for connection between claimants and the land or waters concerned to an inquiry about the connection said to be demonstrated by the laws and customs which are shown now to be acknowledged and observed by the peoples concerned. Rather, it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs.
57. Against this lengthy introduction it is convenient now to turn to the specific criticisms that the claimants made of the reasoning in the courts below and, for that purpose, to say more about the reasons both of the primary judge and of the majority in the Full Court.
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74. The claimants contended that both the primary judge, and the majority of the Full Court, wrongly held that the claimants' claim to native title failed without positive proof of continuous acknowledgment and observance of the traditional laws and customs in relation to land of the original inhabitants of the claimed land. The claimants submitted that the primary judge proceeded from the erroneous premise that ss 223(1) and 225 of the Native Title Act required proof of native title according to all common law requirements of which positive proof of the kind described was one. They contended that the majority of the Full Court wrongly found this requirement in an erroneous construction of s 223(1)(c).
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77. The reference to recognition by the common law serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law [45]. No such case was said to arise in this matter and it may be put aside. Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are ‘recognised’ in the common law.
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92. It follows from what has been said, that the majority of the Full Court were wrong to locate questions about continuity of acknowledgment and observance of traditional law and custom in par (c) of the definition of native title. It also follows that it is wrong to read par (c) of that definition as incorporating notions of extinguishment by expiry of native title into the definition of native title. Rather, as these reasons have sought to demonstrate, questions of the kind presented for decision in this matter focus more upon the requirements of par (a) of that definition than they do on the requirements of par (c).
93. The claimants contended that, the primary judge and the Full Court having misdirected themselves as to applicable legal principle, the findings of fact made at trial, and endorsed on appeal, were misdirected. At first the claimants submitted that the matter should be remitted for retrial, a course which would have imposed very large burdens on all parties to the proceeding and could properly be said to be ‘a most deplorable result’[49]. Having regard to those, and perhaps other considerations, the claimants, supported by some respondents, reformulated the relief sought in this Court and submitted that the matter should be remitted for further hearing, albeit on terms that no further evidence be adduced except by leave of the Federal Court.
94. The critical question is whether the errors of law which were made at trial bore, in any relevant way, upon the primary judge's critical findings of fact that the evidence did not demonstrate that the claimants and their ancestors had continued to acknowledge and observe, throughout the period from the assertion of sovereignty in 1788 to the date of their claim, the traditional laws and customs in relation to land of their forebears, and 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’. If those findings of fact stand unaffected by error of law, the claimants' claim to native title fails and their appeal should be dismissed.
95. These findings were findings about interruption in observance of traditional law and custom not about the content of or changes in that law or custom. They were findings rejecting one of the key elements of the case which the claimants sought to make at trial, namely, that they continued to observe laws and customs which they, and their ancestors, had continuously observed since sovereignty. More fundamentally than that, they were findings that the society which had once observed traditional laws and customs had ceased to do so and, by ceasing to do so, no longer constituted the society out of which the traditional laws and customs sprang.
96. In the Full Court, the claimants submitted that the primary judge's conclusions reflected a search for absolute identity between the laws and customs now observed with those that were observed at sovereignty. This attack failed, and was not renewed in this Court. In any event, however, the findings we have identified are more radical than is acknowledged by arguments about the particular content of laws and traditions at particular times. They are findings that the forebears of the claimants had ceased to occupy their lands in accordance with traditional laws and customs and that there was no evidence that they continued to acknowledge and observe those laws and customs. Upon those findings, the claimants must fail.
97. The appeal should be dismissed with costs.
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111. The majority in the Full Court erred in holding that s 223(1)(c) requires continuity of traditional community as a prerequisite to a determination that native title exists. However, to say that continuity of a traditional community is not mandated by s 223(1)(c) is not to say that it is irrelevant to the existence of native title. Continuity, including continuity of community, is a matter that bears directly on the question whether present day belief and practices can be said to constitute acknowledgement of traditional laws and observance of traditional customs.
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120. Relevant to the definition of ‘native title’ and ‘native title rights and interests’ in s 223(1) of the Act, Olney J found that ‘[t]he tide of history [had] ... washed away any real acknowledgement [by the Yorta Yorta people] of their traditional laws and any real observance of their traditional customs.’ That is a finding of fact and, although expressed in terms of a metaphor, unless it involves an error of law, that finding must lead to the conclusion that par (a) of the definition in s 223(1) of the Act has not been satisfied and, thus, that native title does not exist in the claim area.
121. Although the conclusion of Olney J that history had ‘washed away any real acknowledgement of ... traditional laws and any real observance of ... traditional customs’ is expressed in terms which closely follow the wording of s 223(1)(a) of the Act, it is clear from its context that his Honour was not concerned with the acknowledgement of traditional laws and observance of traditional customs pursuant to which the claimant group might establish a connection with land or waters in the claim area but with laws and customs specifically relating to the utilisation or occupation of the land and waters claimed. Thus, his Honour's conclusion was prefaced by the statement that the evidence did not ‘support a finding that the descendants of the original inhabitants ... 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’.
122. There are other indications that his Honour was concerned solely to identify acknowledgement of laws and observance of customs with respect to the utilisation or occupation of land. Thus, for example, his Honour observed that ‘[n]o 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.’ But of greater significance is his Honour's earlier statement that, for the native title claim of the Yorta Yorta people to succeed, ‘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 sovereignty was asserted’.
123. What is required by ss 223(1)(a) and (b) of the Act is the acknowledgement of traditional laws and the observance of traditional customs by which particular Aboriginal or Torres Strait Islanders have a connection to the land and that they possess rights and interests in relation to that land under those laws and customs. There is nothing in that paragraph or any other part of the definition of ‘native title’ or ‘native title rights and interests’ which that ‘traditional connexion with the land ... [be] substantially maintained’. His Honour's erroneous view that that was required was an error of law affecting the reasoning process which led to the finding that ‘the tide of history ha[d] washed away any real acknowledgement [by the Yorta Yorta people] of their traditional laws and any real observance of their traditional customs’.
124. It may be that the error which we have identified above occurred because the appellants assumed the burden of establishing a continuing and substantial traditional connection with the land through their direct forebears, including Edward Walker and Kitty Atkinston/Cooper. However, the source of the error is immaterial. The relevant issue under ss 223(1)(a) and (b) of the Act is simply whether the Yorta Yorta people now acknowledge and observe traditional laws and customs by which they have a connection with the land and waters claimed by them.
125. The appeal should be allowed with costs, the order of the Full Court should be set aside and, in lieu thereof, the appeal to that Court should be allowed with costs and the matter remitted to Olney J to be determined in accordance with these reasons. The costs of the proceedings at first instance should abide the outcome of the further determination by Olney J of the appellants' claim.
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135. Nevertheless, as the judgment of Gleeson CJ, Gummow and Hayne JJ shows [69], the trial judge found that ‘the forebears of the claimants had ceased to occupy their lands in accordance with traditional laws and customs and that there was no evidence that they continued to acknowledge and observe those laws and customs.’ Those findings were not influenced by any error of law. Because that is so, the claimants must fail.
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174. ‘Native title’ in s 223(1) is used interchangeably with ‘native title rights and interests’. Each and all of these must relate to land or waters because the words ‘in relation to land or waters’ qualify them. ‘Where’ probably means, in context, ‘if and only if’. Claimants, to succeed, must therefore prove that there are rights and interests, that is to say, current rights and interests currently acknowledged and observed, by an identifiable group, or an individual or individuals. That does not mean that different interests may not be held by different indigenous peoples, or that interests and rights may not be shared. The unfortunate point for the appellants is, however, that the rights and interests and the personal entitlement to them each needs to be identified. That, it seems to me, is exactly what the claimants strived, but ultimately failed to do. The group or individuals concerned must hold or own the rights under, that is, pursuant to, traditional laws or traditional customs. The repetition of the reference to the ‘laws and customs’ and the use of the word ‘connection’ contemplates at least a degree of continuity either of acknowledgment or observance, and possession, except arguably perhaps in exceptional cases, of which this does not appear to be one, of laws or customs which themselves contemplate discontinuity of acknowledgment or observance, or absence or departure from the land. I say that this is not such a case for the reason that no-one, and certainly not the claimants suggested otherwise. Their whole case involved a search for continuity, of occupation of the region, of families, of practices and laws, and the possession of rights and interests under traditional laws and traditional customs.
175. Paragraph (b) of s 223(1) further requires that there must be a connexion not just with the land in question, but by the laws and customs, with that land.
176. Paragraph (c) of s 223(1) means that the rights and interests, if and where established, to be the subject of a determination, must be recognisable by the common law. For rights and interests to be recognised by the common law they must be reasonably precise. In this context common law includes equity and contemplates the availability of all possible remedies in both branches of the law. Orders of courts, whether made in equity or in common law, to be enforceable need to be framed with clarity [86]. Parties placed under curial obligations to do, or abstain from doing acts need to know with certainty what their obligations are. Declarations require similar certainty. Lord Upjohn in Morris v Redland Bricks Ltd [87] said that such a principle was well established in the case of mandatory injunctions but there is no reason why its application should be restricted to such cases. Furthermore, a defendant will ordinarily not be in contempt for failure to comply with an ambiguous and imprecise undertaking, and by analogy, order [88]. It follows from all of s 223(1) that if there is not precision, as to the boundaries, the persons entitled, the traditional laws and customs, and the rights and interests to which they give rise, then the common law will be unable to enforce or give effect to them just as it will not recognise and enforce traditional laws that are repugnant to it [89]. The need for precision is reinforced by the provisions of s 225 which direct attention to the identification of, and therefore certainty with respect to, each of the matters to which I have referred, and s 185 which refers to the Register of Native Title Claims is also indicative of a need for some precision, for example, with respect to the beneficiaries of the trust upon which a body corporate is to hold the relevant rights and interests.
177. The evidence at trial in this case dwelt heavily upon ancestral history. As Black CJ in the Full Court said [90]:
... it was not in controversy on the hearing of the appeal that native title will no longer exist once its foundation has disappeared by reason of the disappearance of any real acknowledgment of traditional law and real observance of traditional customs. Where such circumstances exist, the claimed rights and interests will no longer be possessed under what are truly 'traditional' laws acknowledged and customs observed.
178. Those who were said to be the contemporary acknowledgers and observers (of the traditional laws and customs) in this case were the descendants of indigenous occupiers at 1788 of the land, and issue was joined on their ancestry at trial. That was a correct approach. The Crown's radical title was acquired in 1788. Only what then existed could burden it at that time. It was not argued by the appellants, and rightly so in my opinion, that native title could come into existence on and after the Crown's radical title was acquired.
179. Some obscurities contained within s 223 do however need revelation, for example: what is required to satisfy the description, ‘traditional’; must the ‘tradition’ be uninterrupted; what is the complete role of par (c) of s 223(1); may the common law recognise a traditional law or custom with respect to the exercise of, or entitlement to native title rights and interests which does not contain within it a means of enforcement that is itself acceptable to the common law? [91] The appellants' notice of appeal implicitly accepted the need for a means of effective assertion (not repugnant to the common law) in their complaint that the primary judge did not find that the appellants had ‘a traditionally based authority structure’. In this context Brennan J asked in Mabo [No 2], whether there is an ability to assert native title effectively [92]. Other questions for which the section provides no ready answer are: is there a relevant starting point for the ascertainment of the law or custom; is actual presence, continuous or otherwise on the land necessary; may the traditional law or custom evolve; and, if it may, to what extent may it do so without losing its traditional character; and, what connexion by the laws and customs between the people and the land will suffice to satisfy the requirements of s 223(1)(b)?
180. Not all of the questions that I have posed need to be answered definitively in this appeal. It is as well, however, before moving to those of the questions that do require answers for its disposition, to restate some propositions which may bear upon some of those answers. The purposes of the Act which appear from its objects and the overview of it contained in ss 3 and 4, are to provide for the recognition and protection of native title, and, prospectively, its non-extinguishment. The judgments in Mabo [No 2] made no claim to create native title. The holding is that native title existed before, and at the time of first non-indigenous settlement. It was simply that, until 1992, the courts had neither recognised nor given effect to it. The result of that decision was effectively to make native title a foster child of the common law notwithstanding its fragility, elusiveness and other marked differences from its foster parent. The existence of these weaknesses was certainly one of the main reasons for the enactment of the Act. Neither the statute nor the common law (to which it must be acceptable to gain recognition, and therefore access to the panoply of legal remedies for the obtaining, keeping and vindication of it) supplements, explains, enlarges or clarifies the relevant native title law or custom, or cures deficiencies in it. Native title is not an institution of the common law [93]. It must stand on its own foundations: it is sui generis [94]. The role of the Act and the common law is only to protect and give effect to it.
181. Apart from the special provisions of ss 47A and 47B [95], the Act makes no provision for non-extinguishment, or revival of native title, although there are numerous sections which do provide for its extinguishment [96]. This is an indication of a need for continuity.
182. I return to the questions that I earlier posed. The concept of ‘tradition’ is central to the meaning and effect of s 223. It was at the forefront of the Prime Minister's second reading speech on the Bill on 16 November 1993. He said ‘native title is derived from the traditional laws and customs of indigenous people.’ [97] The word ‘traditional’ appears in several sections of the Act. No doubt the provisions for registration of ‘body corporate agreements’ in Pt 2 Div 3 of the Act which, among other matters, contemplates the specification of ‘the manner of exercise of any native title rights and interests’ [98] were drawn with an eye to the deliberation to attend any departures from tradition [99]. Some grants of mining tenements are conditioned upon the protection and avoidance of any area ‘...of particular significance to the persons holding native title in accordance with their traditional laws and customs.’ [100] There is also a reference to ‘traditional activities’ in s 44B.
183. The Act, unusually, rather than by regulation, sets out as part of it, the form of application for a determination of native title, including who may make an application, being a (current) holder or holders of the rights ‘according to their traditional laws and customs’. Paragraph 1 of the form of application states [101]:
A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group...
184. It is important to notice that, before the Registrar of Native Title Claims may register a claim, the Registrar must be satisfied that at least one member of a native title group currently has, or previously had a traditional physical connection with particular land or water [102], which strongly suggests the need for an actual presence on land.
185. Meanings relevant to customs and practices given by the Oxford English Dictionary [103] of ‘tradition’ are: ‘a long established and generally accepted custom or method of procedure having almost the force of law; an immemorial usage; the body (or any one) of the experiences and usages of any branch or school of art or literature, handed down by predecessors and generally followed ... an embodiment of old established custom or institution’. Tradition, myth and legend are often indistinguishable, but the mere existence of either of the latter, in the sense of a fictitious narrative, or an unauthentic or non-historical story, however venerated by repetition, will not suffice of itself to establish native title rights and interests possessed under traditional laws or customs by people claiming a relevant connection with the land. All of the statutory criteria contained in s 223 read in the context of the Act as a whole must be satisfied.
186. It seems to me that the critical elements of traditional laws and customs and ‘rights and interests’ in the sense and context in which the words are used in s 223 are these. The rights and interests must be definable with sufficient certainty to enable them to be enforced by the common law [104]. They must, for the same reason, be held in relation to defined land. For their enjoyment a physical presence is essential. This is so, because, if physical presence were not a necessary component of the right or interest, then the right or interest could be enjoyed elsewhere: physical occupation, presence or possession of the land would not then be essential for the observance, participation in, or enjoyment of the right in question. The Act is concerned with title, that is title to land, and the bundle of rights and interests attaching to, or arising out of that title. The definition of the rights must be found in the traditional laws or customs. Tradition requires a high degree of continuity. It also involves intergenerational transmission, acknowledgment and observance. The traditional laws and customs to which the rights and interests owe their existence must be ones which were in existence on first non-indigenous settlement, in 1788, because it was at that time that the sovereign radical title was assumed, and upon which the native title became a burden. And it is those traditional laws and customs which must have continued (albeit that they may have evolved, a matter which I will discuss later) in order to give real content to the rights and interests currently asserted. It follows that in order for native title to survive (absent extinguishment), and be the subject of a determination under the Act, there must have been, in 1788, a recognisable group exercising identifiable relevant traditional laws and customs, themselves reasonably certain, on and relating to defined land, involving physical presence on it, and continuity of these, until, and at the time of the determination.
187. The extent to which longstanding law and custom may evolve without ceasing to be traditional may raise difficult questions. The matter went uncontested in Yanner v Eaton [105], although for myself I might have questioned whether the use of a motor boat powered by mined and processed liquid fuel, and a steel tomahawk, remained in accordance with a traditional law or custom, particularly one of alleged totemic significance.
188. It is helpful however to contrast the evidence in that case with this one. The appellant there, without contradiction, indeed without any challenge, gave and called evidence capable of demonstrating between 140 and 1,300 or so years of unbroken and generally traditional enjoyment of and the undertaking of traditional activities in a particular area, an endeavour of the kind upon which the appellants here embarked but failed to achieve [106].
189. In this case, the appellants specifically, as appears from many indicators in the judgments in the Courts below, set out to satisfy the requirements of certainty that the Act demands, by proof of ownership of the rights and interests in 1788 and, or, about 1840, by certain named persons, and biological succession to them by other identified persons. Continuity, over that period, or periods, was the issue upon which the parties joined. It was the issue that the trial judge and the Full Court of the Federal Court were asked to decide. The appellants failed on this issue. On the evidence and proper meaning of the Act no other result was in my opinion likely.
190. It follows that I would reject the approach of Black CJ, in dissent, in the Full Court. In a native title case, because of the statutory emphasis upon ‘tradition’, and because, so far as the colony of New South Wales is concerned, radical title came into existence or was acquired in 1788, any judicial inquiry will generally start with the situation then, and trace its development until now, with due regard to the evolution of the traditions in question. To do so would not be to adopt a ‘frozen in time’ approach. Sometimes it may well be possible to start with the present and look backwards to see whether the former is in truth a current manifestation of the latter. No matter which starting point is chosen, the relevant relationship between past, present and the land must still be established. As six Justices of this Court said in Fejo v Northern Territory [107] ‘[t]he underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.’ (original emphasis) The trial judge did not, as Black CJ said, fail to give appropriate weight to orally transmitted accounts. If, in a particular case, they have, as Black CJ said, ‘potential richness and strength’ [108] then those qualities will no doubt serve to meet, and if appropriate, refute contemporaneous written records to the contrary. The primary judge did not think they did so here, and, in my opinion, paying due deference to his advantages as the trial judge in assessing the oral and oral based evidence, I think he was right in holding as he did. Olney J was alive to the possibility of evolution of tradition. It was only to be expected, however, that he would be influenced by the absence of evidence of any or any substantial degree of continuity. The onus was upon the appellants, and only they could speak of their contemporary and recent observance. His Honour fell into no error at the trial of the kind which Black CJ attributed to him. Nor was his Honour the primary judge in error in regarding quite intensive husbandry and agriculture on both sides of the Murray River as being incompatible with the traditional way of life of the early Aboriginal inhabitants, or any evolution of it.
191. I would also, with respect, hold that his Honour's criticism of the fact-finding exercise performed by the primary judge was not well-founded. His Honour was confronted with more than 11,600 pages of transcript. In excess of 201 persons gave evidence before him. It would have been neither possible nor helpful for him to refer to all of the evidence upon which any of the parties relied. Correctly, sufficiently and orthodoxly his Honour referred to such of the evidence as was relevant or necessary for his decision.
Counsel for the Appellant:
NJ Young QC with KR Howie SC and TP Keely
Solicitor for the Appellant:
Arnold Bloch Liebler
Counsel for the first Respondents:
G Griffith QC with HM Wright QC, M Sloss and SGE McLeish
Solicitor for the first Respondents:
Victorian Government Solicitor
Counsel for the second Respondent:
VB Hughston SC with JA Waters
Solicitor for the second Respondent:
Crown Solicitor for the State of New South Wales
Counsel for the first, third and fourth named third Respondent:
GE Hiley QC with GJ Moloney
Solicitor for the first, third and fourth named third Respondent:
Suzanna Sheed & Associates
No appearance for the second, fifth, sixth, seventh and eighth named third Respondents.
Counsel for the fourth and fifth Respondents:
AC Neal with PG Willis
Solicitor for the fourth and fifth Respondents:
JG Thompson and Williams Love Lawyers
Counsel for sixth Respondent:
JE Curtis-Smith
Solicitor for sixth Respondent:
Hargraves
No appearance for the seventh and eighth Respondents.
Counsel for the ninth Respondent:
BM Selway QC with JH Dnistrianski
Solicitor for the ninth Respondent:
Crown Solicitor for the State of South Australia
Counsel for the tenth Respondent:
J Basten QC with RW Blowes
Solicitor for the tenth Respondent:
Chalk & Fitzgerald
Counsel for the Attorney General of the Commonwealth of Australia:
DMJ Bennet QC with MA Perry
Solicitor for the Attorney General of the Commonwealth of Australia:
Australian Government Solicitor
Counsel for the Human Rights and Equal Opportunity Commission:
BW Walker SC with SE Pritchard
Solicitor for the Human Rights and Equal Opportunity Commission:
The Human Rights and Equal Opportunity Commission
Counsel for the South West Aboriginal Land and Sea Council Aboriginal Corporation:
MF Rynne
Solicitor for the South West Aboriginal Land and Sea Council Aboriginal Corporation:
South West Aboriginal Land and Sea Council Aboriginal Corporation
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2003/7.html