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Federal Court of Australia (Wilcox J)
19 September 2006
Native title — Native Title Act 1993 (Cth) — whether single Noongar community existed in whole of south-west Western Australia at sovereignty — whether Noongar community continued to acknowledge traditional laws and customs — identification of persons entitled to native title rights and interests
On 10 September 2003, the Single Noongar application for determination of a native title claim over the whole of the south-west of Western Australia was instituted by 80 applicants ‘on behalf of all Noongar people’. The applicants claimed the right to occupy, use and enjoy lands and waters in accordance with their traditional laws and customs; and in relation to certain areas the applicants claimed that these rights should vest in exclusive possession. The Court determined to first deal solely with a claimed area in and around Perth.
While it was common ground that the claim area was inhabited by Aboriginal people in 1829, there were several points of contention between the parties. Firstly, the applicants contended that in 1829 there was a single community of people referred to as ‘Noongars’ who were bound together by a body of laws and customs, including in relation to land. However, the respondents argued that common acknowledgement of laws and customs existed only with respect to a number of smaller, disparate groups in the area.
Secondly, the applicants claimed that the community has continued to define itself as Noongar, to share a body of beliefs and to acknowledge and observe some traditional laws and customs, including in relation to land and waters. On the contrary, while accepting that many Aboriginal people describe themselves as Noongar, the respondents contended that the degree of departure from traditional laws and customs has been so great that it is not possible to identify a continuing community today.
In the event that the applicants were successful, the parties made submissions in regard to whether any identified surviving rights and interests could be recognised pursuant to s 223(1)(c) of the Native Title Act 1993 (Cth).
1. In 1829 the people of south-west Western Australia shared a common language, normative rules such as those relating to descent and inheritance; and common practices, such as circumcision and kangaroo skinning, which differed from practices of people outside the area: [280], [350], [452].
2. Although there was no evidence that individuals throughout the south-west were aware of the existence of all the other people in the south-west, it is not necessary that the ‘society’ required by s 223(1) of the Native Title Act 1993 (Cth) constitute a community, in the sense of all its members knowing each other and living together: [437], De Rose v State of South Australia [2002] FCA 1342. The test laid down in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422 (‘Yorta Yorta’), that regarded common acknowledgement and observance of a body of laws and customs as a sufficient unifying factor, was followed: [453]–[454].
Held, determining that there had been continuity of Noongar laws and customs from 1829 until today:
3. Despite European settlement and the breaking up of families, members of families continue to remain in contact with each other and with members of other Aboriginal families, especially from their traditional areas. There is a present-day ‘Noongar network’, linking families throughout the claim area: [600].
2. Although some differences existed, there was a high degree of consistency in relation to the most widespread beliefs amongst the Aboriginal witnesses, despite their variation in ages and the fact that they came from widely-scattered parts of the claim area: [604]–[606].
3. The test in Yorta Yorta asks whether the normative system revealed by the evidence is ‘the normative system of the society which came under a new sovereign order’ in 1829, or ‘a normative system rooted in some other, different society’. The current normative system is that of the Noongar society that existed in 1829, and which continues to be a body united, amongst other ways, by its acknowledgement and observance of some of its traditional laws and customs: [791], Yorta Yorta referred to.
4. Some native title rights and interests have survived throughout the entire claim area, including the Perth Metropolitan Area. However the off-shore islands and the land and water below low-water mark constitute the limit of any area subject to surviving native title rights and interests: [801]–[805].
2. The native title rights of the Noongar people are the rights to occupy, use and enjoy lands and waters in the following ways:
(a) to live on and access the area;
(b) to use and conserve the natural resources of the area;
(c) to maintain and protect sites within the area that are significant to the native title holders and other Aboriginal people;
(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;
(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;
(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;
(g) to use the area for the purpose of teaching, and passing on knowledge about the area, and the traditional laws and customs pertaining to it; and
(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it: [841].
3. The question of whether the Applicants are entitled to a determination of exclusive possession over lands and waters is left open and should be examined on a case-by-case basis: [840].
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596. I have set out the identification evidence of all the Aboriginal witnesses because I think that evidence is critically important to the issue of continuity of a single Noongar society. There were, of course, some differences in witnesses’ perceptions, but there was unanimity about the existence of such a society. There was also substantial agreement about the location of Noongar land. The witnesses’ boundary descriptions did not much vary, and were generally consistent with both the early writings and the anthropological evidence in this case. Most witnesses gave clear evidence of differences between Noongars, on the one hand, and Yamatjis and Wongais on the other; being differences they thought to be unlike those existing between Noongar tribes.
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599. As I previously noted, European settlement had a profound effect upon the Aboriginal people of south-west Western Australia. However, as Dr Host pointed out, the culture of those people persisted. Unlike the Yorta Yorta people, for example, the south-west community did not suffer a cataclysmic event that totally removed them from their traditional country. Families were pushed around, and broken up by removal of children and other events. However, people continued to identify with their Aboriginal heritage. I was impressed, for example, with the extent to which witnesses were able to trace their line of descent back for many generations, and to identify their contemporary relatives, despite the paucity of written records. I was also impressed by the extent to which they were able to speak about Aboriginal customs, beliefs and codes of conduct.
600. It is apparent that, despite the factors favouring fragmentation, members of families continued to remain in contact with each other, and with members of other Aboriginal families, especially those from their traditional areas. There is clearly a present-day ‘Noongar network’, linking families throughout the claim area.
601. It is possible that not all eligible people are part of that network. Some people may prefer to reject, or be uninterested in, their Noongar heritage. There is no evidence about the matter, but such attitudes can be found in any community. Rejection, or lack of interest, by some individuals does not itself negative the existence of a community. The question whether the members of the ‘Noongar network’ may properly be called a ‘community’, for the purposes of s 223(1) of the Act, depends upon the extent to which its members have continued to observe and acknowledge their traditional laws and customs; a matter to which I now turn.
602. Each of the 29 witnesses called by counsel for the Applicants gave extensive evidence about spiritual beliefs. On a few occasions, I wondered whether a witness personally held a particular belief, which he or she nonetheless described. Overwhelmingly, however, the witnesses conveyed to me they did share the particular belief; however unlikely that belief might seem to a non-Aboriginal person.
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(These beliefs included:)
A Feeling good (or being safe) on boodja, because of the presence of familiar or friendly spirits…
B Description of spirits that do good things…
C Adverse effects of unfriendly spirits [sometimes not unfriendly – just ensuring correct behaviour]…
D Smoking an area to clear away bad spirits…
E Need to leave food for spirits after hunting or fishing…
F Propitiating unfriendly spirits, by speaking to them, and/or throwing sand on water, or on tracks, especially before fishing or hunting…
G Places to avoid, regardless of cleansing, because of bad spirits…
H The chitty chitty bird (wagtail)…
I Messenger birds…
J Creation snake story…
K Wagyls (waugals, warkarls)…
L Wudatji or mamari (little people who cause mischief and take possessions)…
M Mabarn man…
N Creation stories for particular country…
O Spiritual totems…
604. As this summary indicates, some beliefs were held by virtually all the witnesses, despite their variation in ages and the fact that they came from widely-scattered parts of the claim area. In combination, they ‘illustrate a rich and active spiritual universe and one that admitted of mysteries’…
606. …There was a high degree of consistency in relation to the most widespread beliefs (the need to appease the spirits, wirrnitjs, the creation snake story, wagyls, wudatji, mabarn). This says something about both the unity of the people across the claim area and their adherence to traditional ways.
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685. The continuing importance attached to land will, I believe, be apparent from the identification evidence I set out above ... Each one of the 30 Aboriginal witnesses identified his or her boodja, or ‘country’. This was an area, special to the witness, in which he or she felt at home and could move about freely without need of anybody’s permission. There is a striking resemblance between the situation described by those witnesses and the picture conveyed by early writers such as Barker (paras 134-135 above), Nind (para 143), Lyon (para 153), Armstrong (para 160), Moore (para 170), Salvado (para 174) and Bates (para 185). I have the impression that the typical contemporary boodja is more extensive than in 1829. That is only to be expected. It is the logical result of the interaction of a rule (or, at least, a practice) that a man should seek a wife from a tribe far away from his own, with the greater mobility brought to (indeed, forced upon) the Noongar people by white settlement and practices.
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686. During the trial, considerable attention was devoted to the rules that dictated how a person acquired rights over particular land and waters. The witnesses answered in various ways, but each of them gave evidence that, in substance, may be summarised as follows:
(i) there must be a connection, by birth or family, with the particular area; (ii) the person must seek to associate himself or herself with that area, by living within, or frequently visiting, that area and learning about it; and (iii) the person must be recognised by other Noongars as being connected with it.
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700. …Although each Aboriginal witness expressed the matter in his or her own way, overwhelmingly they claimed the existence of a rule about seeking ‘permission’ to visit another’s country, the importance of that rule and the tradition that, if permission is asked, it is not usually refused. [The word ‘permission’ was not always used. Some witnesses used language such as having a ‘yarn’ about coming.] Of course, the rule has had to accommodate the realities of modern life; for example, the witnesses agreed that a person would not need to seek permission if merely driving through another’s country on the way to somewhere else, or if visiting Perth on business or for medical treatment. However, it is apparent that the rule is regarded as extant and its breach strongly disapproved.
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760.
(a) the Aboriginal witnesses did not regard themselves as free to hunt, fish and gather food wherever they wished, as a non-Aboriginal person would do; they thought those activities to be immediately acceptable only within one’s own boodja; elsewhere, only by permission of the local senior elders;
(b) the animals hunted by the witnesses, and the foods gathered by them, extended far beyond those that would ordinarily be taken by a non-Aboriginal person;
(c) unlike a non-Aboriginal person, the witnesses employed traditional Aboriginal techniques, skills and weapons in carrying out these activities;
(d) in carrying out these activities, the witnesses abided by restrictions (for example, about the size of the catch) that they perceived to be imposed upon them by Noongar laws and customs, but which may not be observed by a non-Aboriginal person; and
(e) the Aboriginal witnesses saw their activities as having both a spiritual dimension, requiring them to observe some rules that would not be known to, or observed by, a non-Aboriginal person (for example, the need to leave a gift for the spirits), and a cultural dimension, requiring them to pass on their knowledge to younger people.
761. In the light of this evidence, it seems to me the activities described by the witnesses must be regarded as being different in kind to whatever fishing, hunting and food-gathering activities are carried out by non-Aboriginal people in the claim area.
762. The critical question is whether the State and the Commonwealth are correct in arguing there is no longer a normative system for allocating rights and interests in land, within the Noongar community, or, if there is, that system is not a continuation of the normative system that existed at date of sovereignty.
…
774. At paras 68 and 69 above, I noted statements in Mabo and Yorta Yorta about the effect of a change in laws and customs relating to land. Perhaps the critical point is the recognition by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta, ‘that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement’. That is certainly true of the south-west, the place of earliest European settlement in Western Australia and the location of one of Australia’s largest cities and most intensively farmed rural areas. Moreover, the Aboriginal people in this part of Australia have been personally affected, in a profound way, by European actions. Every one of the 30 Aboriginal witnesses has at least one white male ancestor. If a rule of patrilineal descent had been strictly applied, all these witnesses would have lost their entitlements to country. I have no reason to doubt this would have also been the position of everybody else within the Noongar community. In such a situation, it is only to be expected that members of the community would have widened the application of the exception, so as to allow a claim to country to be made through the mother, equally with the father, and even, skipping a generation, through a grandparent.
775. Further, the evidence shows the disruption inflicted on families by their expulsion from their traditional country and, particularly, by children being taken away from their parents. It is not surprising that many people are ‘mixed-up’, in terms of identification with particular country. For the normative system to have survived, it was obviously necessary to allow a degree of choice of country exceeding what would have been necessary in more ordered, pre-settlement times.
776. In assessing how much change is tolerable, before it must be said the pre-settlement normative system no longer exists, guidance is to be taken from para [89] in Yorta Yorta:
it is necessary to demonstrate that [despite the changes] the normative system out of which the claimed rights and interests arise is the normative system of the society [at sovereignty] ... not a normative system rooted in some other, different, society ... it must be shown that the society ... has continued to exist throughout that period as a body united by its acknowledgement and observance of the laws and customs.
In other words, one should look for evidence of the continuity of the society, rather than require unchanged laws and customs. No doubt changes in laws and customs can be an indication of lack of continuity in the society; they may show that the current normative system is ‘rooted in some other, different, society’. Whether or not that conclusion should be drawn must depend upon all the circumstances of the case, including the importance of the relevant laws and customs and whether the changes seem to be the outcome of factors forced upon the community from outside its ranks.
777. The descent rules are undoubtedly of great importance. However, changes to them must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices…
…
781. ...Counsel for the State (submits) that there appears to be no mechanism for resolving disputes over access to land; no action has been taken to resist, or protest against, ingress to Perth by Aborigines from other areas.
782. This submission seems to overlook the point made by Gleeson CJ, Gaudron, Gummow and Hayne JJ in Yarmirr at [16] about it not being necessary ‘to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders’: see para 70 above. In any event, some regard must be paid to the realities of post-settlement life. In pre-settlement times, it seems, intruders were sanctioned by being speared, sometimes fatally. That practice became illegal under European law; so the most effective method of enforcement disappeared. The only remaining method was disapproval, perhaps involving social ostracism. The evidence suggests this still occurs, if somebody comes to another’s land without permission; in particular, if he or she without permission exploits the land, for example by hunting, or purports to speak for it.
783. The submission concerning ingress to Perth, with respect, is unreal. As early as 1836, Armstrong commented upon the unwillingness of Perth Aborigines to ‘drive away or prevent stranger tribes from visiting Perth’: see para 168 above. This was not because there was no relevant norm. The reason was economic necessity; having lost control of their own land, the Perth Aborigines were dependent on the strangers for essential goods. Economic dependence on strangers could only have increased as the Perth urban area expanded.
784. Finally, counsel rightly say the claims made by the witnesses in these cases do not distinguish between ‘home areas’, inhabited by estate groups, and ‘runs’, larger areas to which they have access without the need for permission. Each of the witnesses only identified a relatively large area of land, his or her boodja, or country, to which he or she had access (as a matter of Noongar law, although often not under wajala law) without the need for permission.
785. It seems to me that ‘home areas’ have effectively disappeared. Today’s boodjas are similar in concept to – although probably larger in area than – the ‘runs’ of pre-settlement times. I agree this is a significant change. However, it is readily understandable. It was forced upon the Aboriginal people by white settlement. As white settlers took over, and fenced, the land, Aborigines were forced off their home areas; the ‘bands’ or ‘tribes’, comprising several related families, were broken up. Surprisingly, the social links between those families seem to have survived, but the related families ceased to be residence groups, together occupying a relatively small area of land. The ability to maintain the ‘home area’ element of the pre-settlement normative system was lost.
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786. It is worth recalling the comment of Beaumont and von Doussa JJ, in Ward [FC1] at [241], about the effect of European settlement on Aboriginal presence on land. In a comment which would certainly apply as much to the south-west of Western Australia as to the Kimberley, their Honours said:
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.
787. Finally, counsel argue the permission rules have changed. I do not think they have. Certainly, today, there are more convenient ways of seeking permission than there were in 1829. But it is still the rule that permission must be obtained. Not everybody obeys the rule. However, a law is not abrogated by the disregard of some. Of course, remedies for breach of the rule are today extremely limited. But that does not mean the community has discarded the rule.
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790. It follows from the above reflections that I accept Dr Palmer’s opinion that there is, today, a Noongar normative system relating to land.
791. The changes mentioned by counsel for the State, and counsel for the Commonwealth, raise important issues. There is no doubt that enormous forces have assailed Noongar society since 1829, making it impossible for many of the traditional laws and customs to be maintained. However, when I come back to the test stated in Yorta Yorta, and ask myself whether the normative system revealed by the evidence is ‘the normative system of the society which came under a new sovereign order’ in 1829, or ‘a normative system rooted in some other, different society’, there can only be one answer. The current normative system is that of the Noongar society that existed in 1829, and which continues to be a body united, amongst other ways, by its acknowledgement and observance of some of its traditional laws and customs’. It is a normative system much affected by European settlement; but it is not a normative system of a new, different society.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2006/66.html