High Court of Australia Transcripts
Members of the Yorta Yorta Aboriginal Community v
State of Victoria & Ors M128/2001 (23 May 2002)
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M128 of 2001
BetweenMEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY
Appellant
and
STATE OF VICTORIA; NORTH-EAST REGION WATER AUTHORITY;
GOULBURN VALLEY REGION WATER AUTHORITY; GOULBURN-MURRAY
RURAL WATER AUTHORITY
First Respondents
STATE OF NEW SOUTH WALES
Second Respondent
MURRAY IRRIGATION LTD; CAMPASPE SHIRE COUNCIL; GRAEME ROSS
McPHERSON; FIELD AND GAME AUSTRALIA INC; MOIRA SHIRE COUNCIL;
COLIN RAYMOND AND KATHLEEN MOORSE; ESTATE CHRISTOPHER
STEPHEN RYAN DECEASED; GREATER SHEPPARTON CITY COUNCIL (THE
SHEED RESPONDENTS)
Third Respondents
EMAT INDUSTRIES PTY LTD; VINCENT GRIMA; KENNETH LORD
Fourth Respondents
GEOFF BACKHOUSE; KEVIN AND JOY BARNES; GRAEME BARWICK; BOBBIE
BURNS PTY LTD (RUTHERGLEN WINES); BONUM SAWMILLS PTY LTD;
MICHAEL BOOTHBY; DAVID BOURCHIER; STAN BROWN; M.J. AND H.P.
CALDWELL; KEFINA AND HELEN CAMPBELL; MICHAEL AND CHRISTINE
CHAMBEYRON; A.J. & S.M. CHAMPION de CRESPIGNY; J.T. AND B.M.
CLEMENT; COHUNA CLAY TARGET CLUB INC; GARY AND KIM COLMAN;
L.G. COLMAN; MORVA & MAX COLMAN; COULTHARD CONSOLIDATED PTY
LTD; GRAHAM AND GAIL COUTTS; DISCOVERY TOURIST CO PTY LTD:
WILLIAM AND GLENYS VICKERS; D.F. AND C.J. EDGE; W.S. & B.L. FORD;
KEITH FYFFE; LYNNE MAREE GEMMILL; MR G. GILMOUR; I.E. & E.S.
GUYATT; IAN & SUE HARRISON; JOH H. HAY; SIR DAVID HAY; L.M.
HEPWELL; C. & G.J. JENSEN; WILLIAM JOHNSON; KIERAN KLEMM; JOHN
KILLMISTER; WILLIAM JOHN LAFFAN; E.W. & H.M. LAMBERT; MAXWELL
AND FAY MOOR; SHAYNE MOOR; MURRAY SHIRE LICENSED WATER USERS
ASSOCIATION; GREG NEWMAN; GRAEME NORMAN; SIMON NOBLE;
DOREEN A. NOTT; J.P. AND K.E. O'KEEFE; R. ORMOND; R. & M. PATERSON;
NINA AND KEVIN PELL; MICK PELLIGRINO; C.A. & L.J. PETZKE;
CHRISTOPHER PFEIFFER; QUANLEY PTY LTD; I.V., J.J. AND D.F. RALEIGH; N.
& B.M. RENSHAW; J. ROSS-SODEN & SON; WILLIAM & MARGARET ROSSSODEN; BRUCE SCHIER; KEITH SCHIER; DOUGLAS HAMILTON SCOTT; ANNE
TIMM; B.J. & J.M. TREBILCOCK; ENOCH, NEIL AND ROBYN TRICKEY;
KELVIN AND ELAINE TRICKEY; STUART ANDREW TRICKEY; STANLEY
JOHN VALE; DEAN VINNICOMBE - KATANA ANNA NOMINEES PTY LTD;
PETER WALLIS: WEST CORURGAN PRIVATE IRRIGATION DISTRICT; G.M. &
M.S.WASER; P.M., M.E. & G.W. WEBB; JOHN WEST; MEMBERS OF THE
BARMAH FOREST CATTLEMEN'S ASSOCIATION: G.F. & HEATHER FROSTICK,
ROD POWER; GRAEME LAVIS; JOHN LINDSAY; ALAN, EUNICE & LESLIE
LUBKE; M.E. & R.E. LUMBY PTY LTD; W.R. & P.J. MAHNCKE; TIM MANNION;
BARRY J. MARTIN; MATHOURA JOINT WATER SUPPLY ASSOCIATION; D.J. &
K.M. McCORMACK; J.M. & A.J. McDONALD; JOHN & JENNIFER McINNES;
MOIRA BOARD OF MANAGEMENT, MOIRA PRIVATE IRRIGATORS DISTRICT;
A.R. & A.M. MONTROSE; COLIN & HEATHER SPENCER; NORMAN C.
STANTON: CARLYLE IRRIGATORS CO-OPERATIVE SOCIETY LTD; FRANK
STORER; KEVIN JOHN STORER; KEVIN SWAN; ROBERT SWAN; G.W. & B.A.
THORNTON; MEMBERS OF THE ROWAN SWAMP LANDHOLDERS GROUP:
JOHN ALEXANDER, BRUCE BINNIE, C.W. CHARLSTROM, T.J. CHARLSTROM,
K.J. COOPER, R.M. DERBYSHIRE, BRIAN DOWLING, R.J. HUMPHRIES, B.J.
MARTIN; MEMBERS OF THE NEW SOUTH WALES FOREST PRODUCE
ASSOCIATION LTD: ARBUTHNOTS PTY LTD, BONUM SAWMILLS PTY LTD,
GRANTS SAWMILL PTY LTD, MURRAY RIVER SAWMILLS (ECHUCA) PTY
LTD; MEMBERS OF VICTORIAN ASSOCIATION FOREST INDUSTRIES:
ARBUTHNOT SAWMILLS (ECHUCA) PTY LTD, RYAN & McNULTY PTY LTD,
H.J. & B.M. SWAN (THE CORRS RESPONDENTS)
Fifth Respondents
MULWALA & DISTRICT SERVICES CLUB LIMITED; MULWALA WATER SKI
CLUB LIMITED; YARRAWONGA BORDER GOLF CLUB LIMITED; BERRIGAN
SHIRE COUNCIL; COROWA SHIRE COUNCIL; MURRAY SHIRE COUNCIL;
JOHN BRIAN GORMAN; CATHERINE ANNE GORMAN (HARGRAVES
RESPONDENTS)
Sixth Respondents
MURRAY DARLING BASIN COMMISION
Seventh Respondent
TELSTRA CORPORATION LIMITED
Eighth Respondent
STATE OF SOUTH AUSTRALIA
Ninth Respondent
NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Tenth Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 23 MAY 2002, AT 10.19 AM
Copyright in the High Court of Australia
__________________
MR N.J. YOUNG, QC: May it please the Court, I appear with my learned friends, MR
K.R. HOWIE, SC and MR T.P. KEELY for the appellant. (instructed by Arnold Bloch
Leibler)
MR J. BASTEN, QC: If the Court pleases, I appear with MR R.W. BLOWES for the
tenth respondent, in the same interest as the appellant. (instructed by Chalk & Fitzgerald)
MR G. GRIFFITH, QC: If the Court pleases, I appear with my learned friends, MR
H.M. WRIGHT, QC, MS M. SLOSS and MR S.G.E. McLEISH, for Victoria.
(instructed by the Victorian Government Solicitor)
MR V.B. HUGHSTON, SC: May it please the Court, I appear with my learned friend,
MR J.A. WATERS, for the second respondent, the State of New South Wales.
(instructed by the Crown Solicitor for the State of New South Wales)
MR G.E. HILEY, QC: May it please the Court, I appear with my learned friend, MR
G.J. MOLONEY, for the third respondents. (instructed by Suzanna Sheed & Associates)
MR A.C. NEAL: May it please the Court, I appear with my learned friend, MR P.G.
WILLIS, for the fourth and fifth-named respondents. (instructed by J.G. Thompson and
Williams Love Lawyers)
MR J.E. CURTIS-SMITH: May it please the Court, I appear for the sixth respondents.
(instructed by Hargraves)
MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: If it please
the Court, I appear with my learned friend, MS J.H. DNISTRIANSKI, for the State of
South Australia, the ninth respondent. (instructed by the Crown Solicitor for the State of
South Australia)
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: May
it please the Court, I appear with my learned friend, MS M.A. PERRY, for the AttorneyGeneral of the Commonwealth seeking leave to intervene. (instructed by the Australian
Government Solicitor)
GLEESON CJ: Is that application opposed?
MR YOUNG: No, your Honour.
GLEESON CJ: You have that leave.
MR B.W. WALKER, SC: May it please the Court, I appear with MS S.E.
PRITCHARD for the Human Rights and Equal Opportunity Commission, seeking leave
to intervene. (instructed by Human Rights and Equal Opportunity Commission)
GLEESON CJ: Is that application opposed? You have that leave.
MR M.F. RYNNE: May it please the Court, I appear for the South West Aboriginal
Land and Sea Council Aboriginal Corporation, seeking leave to intervene. (instructed by
South West Aboriginal Land and Sea Council Aboriginal Corporation)
GLEESON CJ: Yes, Mr Rynne, you have that leave.
MR HILEY: May it please the Court, if I could just be heard in relation to the last
application for leave to intervene.
GLEESON CJ: Yes.
MR HILEY: We do not oppose the application. However, we submit that the reliance
upon evidentiary materials not already before the Court should not be permitted because
this particular applicant is seeking to place before the Court a lot of other materials,
particularly anthropological materials, and we would submit that the terms of leave
should be limited so that the terms are similar to those applying to the special leave
application in this case, namely any evidence referred to should be that in the judgments
below.
GLEESON CJ: Yes, the leave that you are given, Mr Rynne, will be on the same terms
as special leave was granted in the first place.
MR HILEY: If the Court pleases.
GLEESON CJ: Mr Young, have you made an agreement with the other counsel as to a
division of time?
MR YOUNG: Yes, we have, your Honour. The agreement is that those on our side of the
Bar table appearing in the same interests will put their submissions for today. The
respondents will submit tomorrow, save for 20 minutes allocated for a reply by me.
GLEESON CJ: Just before you proceed with your submissions, Mr Young, I should say
that there is a certificate from the Senior Registrar that she has been informed by the
solicitors for the third respondents that the second, fifth, sixth, seventh and eighth-named
third respondents will submit to the orders of the Court save as to costs. The Senior
Registrar has also been informed by the solicitors for the seventh and eighth respondents
that their clients will abide by the decision of the Court save as to costs. Yes, Mr Young.
MR YOUNG: Your Honour, before I commence, might I make an inquiry with some
hesitation? To ensure that no difficulties occur with time, tomorrow being a Friday,
would the Court contemplate shortening the lunch hour today by 15 minutes?
GLEESON CJ: Today?
MR YOUNG: Yes, Your Honour.
GLEESON CJ: Yes, we will do that. We will adjourn at 12.45 pm and will resume at
2.00 pm.
MR YOUNG: Thank you. May I commence by taking the Court to the passages in the
majority judgment in the Full Court.
KIRBY J: Where do we find a map that illustrates - - MR YOUNG: It is in volume 1, Your Honour, of the appeal book. There is a plastic
folder containing a map at page AB 121. The easiest way to orient oneself looking at the
map is to locate Cummeragunja which is on the New South Wales side of the Murray, the
middle of the map, slightly left of centre. Just north of Cummeragunja is the area of
Moira Lakes and the Barmah Forest to which reference will have been seen in the
judgments.
Other areas of significance include the area of Mooroopna and Shepparton on the
Goulburn River, centre of the map but south of its mid-point. Whilst the map is open can
I make one observation by way of submission; that is, that the evidence was that the
Yorta Yorta Community had never been dispossessed from and had continuously
occupied areas in the vicinity of the Cummeragunja and the Barmah Forest for the whole
of the time since 1788.
KIRBY J: This is the claim area - - MR YOUNG: The claim area is - - KIRBY J: But the claim related - of course in Shepparton there would be a lot of fee
simple, and no doubt elsewhere.
MR YOUNG: Of course. The green areas are the public land areas which would be the
principal areas that would not be the subject of extinguishing Acts. That is indicated in
the legend at the top of the map. That is effectively the land claimed within the broader
area.
KIRBY J: Yes, thank you.
MR YOUNG: I was about to take the Court to volume 2 of the appeal book, to those
passages in the judgments of the majority, Justices Branson and Katz, in which they
imposed the critical requirements which they held had not been met by the appellant. The
requirements were requirements that their Honours extracted via section 223(1)(c) from a
view of the common law. Paragraph 108 is the first paragraph, it is at page 343. The
paragraph runs from 343 across to the following page. From section 223(1)(c), if I may
paraphrase the paragraph, their Honours extracted several requirements. The first was that
paragraph (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"
an extract from the judgment of Justice Brennan in Mabo. They continued:
and that the 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.
No source is given for the second aspect of that supposed common law requirement. The
next requirement extracted and applied via paragraph - - HAYNE J: Do you say that their Honours are there describing that as a common law
requirement or are their Honours gleaning that, you say wrongly, from 223(1)(c)?
MR YOUNG: In context, your Honour, we say the former, that they are gleaning that
from 223(1)(c) but by virtue of the fact that that described requirement is viewed by their
Honours as a requirement of the common law.
KIRBY J: But they do start in the correct place. Unlike the primary judge, they start with
the Native Title Act 1993 .
MR YOUNG: They start with the Native Title Act.
KIRBY J: That was common in the Full Court.
MR YOUNG: That is so.
KIRBY J: And it was common that the primary judge had erred by, as it were, going
straight to the common law.
MR YOUNG: Effectively so, yes, your Honour. They have accessed the common law in
its full ambit, as they perceived it, via paragraph (c) and only via paragraph (c). The
second requirement that they have incorporated in that fashion begins with the last
sentence at page 343, namely, incorporation of the repugnancy or inconsistency
principles referred to by Justice Brennan in Mabo. They next incorporate, via paragraph
(c), what is described as "the notion of extinguishment", but their Honours attribute to it
two elements, the first being "a positive exercise of sovereign power" to extinguish,
which is the sense in which extinguishment has usually been used in cases in this Court.
Secondly, they incorporate a distinct element of expiry, which they go on to explain as
effectively abandonment. They explain that:
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) but they postulate it as a different legal requirement 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.
Now, those requirements are articulated in other later passages within their Honours'
judgment that I will go to immediately. First, in paragraph 150 at page 357 of the appeal
book. That appears to be a restatement of the identifiable community requirement being
the first of the requirements derived via paragraph (c) from the common law that were
referred to in paragraph 108, expressed in similar terms.
Next, their Honours return to the supposed requirements at paragraph 168, pages 361 to
362 of the appeal book. This time their Honours deal with all of the subparagraphs of
223(1). That is apparent from the last sentence of paragraph 168 on page 361. Over the
page, at 362, the first subparagraph refers to what their Honours decided to be the
meaning of subparagraph (a) of the section.
KIRBY J: Which paragraph?
MR YOUNG: I am at paragraph 168, paragraph (a), at the top of page 362, your Honour.
Paragraph (a) reflects their Honours' construction of the first subparagraph of section
223(1). Likewise, paragraph (b) reflects their Honours' construction of the second
subparagraph of section 223(1), namely, paragraph (b). The third paragraph, (c), reflects
an aspect of their Honours' construction of section 223(1)(c), namely, that the reference
to "recognised by the common law" in that subsection paragraph brings in principles of
inconsistency and/or repugnancy by which the common law would refuse to enforce a
native title that otherwise satisfied the requirements of section 223(1)(a) and (b).
But then, additionally to those elements derived from the construction of the section, their
Honours add something else derived from the common law. It is very similar to their
statement at paragraph 108 that I first read, but it amplifies and explains it somewhat
further and brings out some of the repercussions of that requirement. They say that:
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 -
Then (iii), which may possibly be a further requirement, or an elaboration of the earlier
references to identifiable community, their Honours say, extinguished:
(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.
Now, the concept described of "the disappearance of the community as a traditional
indigenous community" is then expanded upon by their Honours at paragraphs 191 and
194, the first of which is at page 368 of the appeal book. I will not read the entirety of
paragraph 191. The first sentence indicates that their Honours are addressing the
"identifiable community" requirement as a requirement that must exist:
throughout the entire period of time between 1788 and the present. Then they expand upon it in the next sentence by saying this:
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.
Their Honours then say - and it does not necessarily seem to us to follow from what has
just been said:
That is, that the continuity of community acknowledgment and observance of laws and
customs providing a connection with the claimed lands and waters necessary to establish
native title, whether or not such laws and customs have evolved and changed over time,
had not been demonstrated.
Finally, can I take the Court on this issue to paragraph 194 at page 370. There their
Honours say:
There was more than adequate evidence before his Honour to support his honour's
finding that there was a period of time between 1788 and the date of the appellants' claim
during which the relevant indigenous community lost its character as a traditional
community. This loss of traditional character resulted, as his Honour found, from
physical separation from traditional lands following European settlement and from drastic
reduction in numbers consequent upon disease and conflict.
I said, finally, but I should also draw the Court's attention to paragraph 196 in this
context, at the foot of page 370. Their Honours move in 195 and 196 to address
occupation, as distinct from loss of character as a traditional community, but in 196 their
Honours say, four lines from the end of the page:
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.
Contrast, though, paragraph 168(d) at 362 where, not speaking about occupation, but
speaking about loss of status as an identifiable community or loss of character as a
traditional community, their Honours say in subparagraph (d)(iii):
A loss of connection with the land or waters by the relevant community . . . will be the
necessary result of the disappearance of the community as a traditional indigenous
community.
KIRBY J: As a textual matter, do you understand that their Honours are incorporating
these added (d) elements as an aspect of the word "traditional" in the section or as
inherent in paragraph (c) in the incorporation of - - MR YOUNG: Inherent in paragraph (c), your Honour. It is clear, we would say - - GLEESON CJ: Why cannot it be both?
MR YOUNG: We would say it cannot be both on the proper construction of (a) and (b),
but beyond that, your Honour, the way in which the majority derived these requirements
was from the common law and via (c). That is apparent from their earlier discussion that
immediately preceded paragraph 108 and from the discussion in paragraph 108 itself.
GLEESON CJ: So could a tradition of a kind referred to in paragraph (a) be one that
grew up after the First World War?
MR YOUNG: We would say not because it is has to be truly traditional and has to be
possessed under Aboriginal laws and customs.
GLEESON CJ: But what makes a tradition truly traditional or not truly traditional?
MR YOUNG: It is truly traditional if it has been handed down to the current generation
in accordance with the inherited beliefs, customs and traditions.
HAYNE J: And are those inherited customs necessarily pre-sovereignty?
MR YOUNG: No, they can change and evolve, of course.
HAYNE J: I understand that there is a separate area for debate about change and
evolution, but must they in any sense be rooted?
MR YOUNG: We would say not necessarily so, your Honour. Can I give the Ward
example where two communities that had separate origins pre-sovereignty after the
intervention of the settlers in the East Kimberley came together and effectively formed a
single community, and from that point of time developed a new common set of traditional
laws and customs.
GLEESON CJ: So could a traditional custom involving the observance of Anzac Day be
within paragraph (a)?
MR YOUNG: We would say no to your Honour's example but in terms of the section,
within paragraphs (a) and (b) that would not be reflective of a right or interest of
Aboriginal people in relation to land where those "rights and interests are possessed
under the traditional laws acknowledged, and the traditional customs observed, by the
Aboriginal peoples", nor would it display the requisite "connection with the land".
GLEESON CJ: Even if it involved a war memorial?
MR YOUNG: Even if it involved a war memorial to Anzac Day.
KIRBY J: In the end I suppose we have to say what the section in its entirety means and
whether some work is to be done by "traditional", but some support for your proposition
that the majority thought they were only dealing with (c) is the fact that all of this appears
under section 223(1)(c) - that is just above 105 - and they get straight into, if I can say so,
with respect, correctly, the Native Title Act instead of tarrying over what the pre-existing
common law - we are in a new legal regime: the Act.
MR YOUNG: That is so, your Honour. I have taken the Court through those paragraphs
because they are the crucial paragraphs in the reasoning of the Full Court by which they
utilised paragraph (c) to recognise and stipulate these requirements. It is those
requirements that they said were not satisfied and that the trial judge found had not been
satisfied. They are right, we would say, in thinking that the trial judge erected similar
requirements. They are wrong, in our submission, in forming the view that any such
requirements arise under the Native Title Act as properly construed or even, leaving aside
the Native Title Act, that any such requirements form any part of the common law.
So even if one makes the assumption against our case that the full ambit of the common
law, whatever that may encompass, is incorporated via paragraph (c), it does not found
properly these requirements that were imposed both by the trial judge and by the Full
Court. There are two key aspects of the requirements. One is that there be no cessation of
observance of traditional laws and customs at any time since 1788. Secondly, and quite
separately, there be no disappearance of the community as one having the character of a
traditional indigenous community. The trial judge found that both requirements were not
satisfied and so did the majority in the Full Court. The Chief Justice's views in the Full
Court were quite different.
I also make this observation. The passages seem to indicate that their Honours, Justices
Branson and Katz, have used interchangeably two terms: one "identifiable community"
and the other "traditional indigenous community". They seem to interpret the latter
expression, "traditional indigenous community", as one, as they say in 168(d)(iii) - I am
sorry, where that expression is used. They then in paragraph 191 and 194 seem to suggest
that a community will lose its character as a traditional indigenous community by
abandoning "its traditional way of life and its traditional culture". That would seem to be
something akin to adopting modern ways of life and employment, et cetera.
KIRBY J: Chief Justice Black acknowledged that you have to give work to be done to
the word "traditionally" in (a).
MR YOUNG: Yes absolutely, your Honour, and so do we.
KIRBY J: It cannot simply be an Aboriginal claimant making a claim. It has to be based
by the statute on traditional law and acknowledged by it.
MR YOUNG: Yes, your Honour. I was about to immediately take the Court to the Chief
Justice's relevant views about these matters in dissent in the Full Court. Can I ask the
Court to go to page 321, paragraph 49.
HAYNE J: Are these views that you will embrace and say are correct?
MR YOUNG: The Chief Justice's views?
HAYNE J: Yes.
MR YOUNG: Yes, your Honour.
HAYNE J: And do they sufficiently encapsulate the essence of the argument that you
advance to us?
MR YOUNG: Not all of it, your Honour, but a significant portion. The paragraph in fact
commences at the previous page, 320, the last few lines:
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 and before going through the identified points, can I say that this paragraph is a summary
of his Honour's reasoning that has preceded paragraph 49. In this paragraph, his Honour
is summing up views that he has elaborated in the earlier paragraphs about the operation
of section 223.
KIRBY J: The first dot point is not entirely - it is only one of the points, but taken in
isolation it would not be correct to say it directs attention to the present. It does direct
attention to the present but not only the present. "Traditional" itself directs attention to the
past.
MR YOUNG: Yes, and his Honour acknowledges that in the next point in a way, your
Honour, but this summary needs to be read, as I have said, in the light of the earlier
passages where his Honour acknowledges that to be truly traditional something has to be
rooted in the past. His Honour adopts a similar view of the first two subparagraphs of
section 223(1), as did Justices Branson and Katz. The third bullet point seems to be a
matter where his Honour differs from Justices Branson and Katz and the trial judge,
namely the view that:
Native Title Rights and interests may continue notwithstanding profound impacts upon
and changes to Aboriginal society or to a particular community.
The essence of the view of the trial judge was that that was not so and the contrary was
the case. Likewise, the next point. His Honour differs from the view of Justice Olney in
the majority, which is that dispossession will be, if not a cause of the abandonment of
native title, a very substantial element in abandonment. Finally, Justice Black's view is
that:
Native title rights and interests may persist despite the cessation of the traditional - in the
sense of pre-contact - lifestyle.
And he seems to differ on that matter from the trial judge and the majority in the Full
Court.
GLEESON CJ: Did Chief Justice Black differ from the majority on their approach to the
question of whether section 223(1)(c) refers to rights and interests of a kind or whether it
refers to the rights and interests claimed?
MR YOUNG: The answer is this, your Honour, that Chief Justice Black did not analyse
subparagraph (c) in that fashion. It would seem, without any direct analysis of
subparagraph (c), that he did not regard subparagraph (c) as the source of the sorts of
requirements that the majority extracted from that provision. He went, rather, to these
particular conclusions that I have taken the Court to at paragraph 49.
First, his Honour started with a section. He then went to the whole of the section and, in
particular, paragraphs (a) and (b) and the concept of "traditional". That appears at page
315 paragraphs 33 to 36. It is fair to say that his Honour said that the definition is directed
to traditional laws now acknowledged and traditional customs now observed and that his
Honour then addressed the work to be done by the statutory expression "traditional".
KIRBY J: Where is that, I am sorry?
MR YOUNG: That appears at paragraph 34 for the first time about four lines from the
end of page 315, your Honour. His Honour then expands on the work to be done by
"traditional" on the next page. At the very top of the page, there is the reference to "truly
traditional" and his Honour further expands on the work to be done by the statutory
expression "traditional" in paragraphs 35 and 36. My reference to having roots was a
reference to what the Chief Justice said in paragraph 36. Also, 37 is relevant to that
discussion of the role to be played by the statutory requirement of traditional observation.
GUMMOW J: Yes, I do not think the focus of Chief Justice Black's judgment is on
paragraph (c) at all.
MR YOUNG: I agree with you, your Honour.
GUMMOW J: Rightly, to my mind. It starts on (a).
MR YOUNG: I agree with your Honour. He mentions (c) as part of the definition but
then the analysis focuses on (a) and (b) and on the concept of "traditional".
GUMMOW J: Yes.
KIRBY J: Everybody want to get back to what Justice Brennan said in Mabo and I think
I made that mistake myself in Mason v Tritton, but under the new regime of the Act you
will really just have to work your way through the statute.
MR YOUNG: That is our submission, your Honour, and I will elaborate the elements in
it. Can I just for completeness refer the Court to several other passages in Chief Justice
Black's judgment. His Honour deals with the argument advanced against my clients of
abandonment. After referring to Justice Brennan's well-known passage about real
acknowledgment and real observance in the tide of history - that is at paragraph 53, page
322 - at paragraph 53 at the foot of 322, his Honour stressed the important references to
practicability that Justice Brennan had made. His Honour then quotes the passage and
then expresses a view which is far from conclusive about whether there is any
abandonment principle. In paragraph 54 he says:
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 not that it will, but it may 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.
GLEESON CJ: Now, in what circumstances will such a conclusion relieve a court of
that necessity?
MR YOUNG: In our submission, it will not unless there is a failure to satisfy (a) or (b)
of section 223(1). So to the extent his Honour is expressing a view that it will relieve, we
disagree with his Honour, but his Honour is not expressing a concluded view, in our
submission, read in the whole context of the difficulties his Honour explains in the next
passages down to page 326 in paragraph 63. It is clear that his Honour is very dubious
about the view that it is possible to say that at some point in time there has been an
abandonment and that the safer course is to fasten onto the statutory language that
focuses on current acknowledgment and observance of laws and customs that are truly
traditional.
The difficulties his Honour articulates are very important because they demonstrate many
of the problems with the approach of the trial judge and the Full Court, to put it as
neutrally as we can.
HAYNE J: Now, it is more than acknowledgment and observance, is it not?
MR YOUNG: In the section, your Honour?
HAYNE J: Yes.
MR YOUNG: Yes, it is, because you need to have - - HAYNE J: It is possession under - - MR YOUNG: Plus a connection under (b).
HAYNE J: I understand that, but focusing for the moment on (a), and confining our
attention to (a), what work is "possessed" doing in (a)? You have:
possessed under the traditional laws acknowledged, and the traditional customs observed
Let us leave aside traditions, evolving, changing, and the like. What is "possessed"
referring to?
MR YOUNG: "Possessed" is referring to the fact that the traditional laws and customs
recognise the relevant rights and interests of the Aboriginal people in relation to the land
that is the subject of the claim, and that their entitlement - and I use "entitlement" in the
sense of the Aboriginal concept of their country - is something that is derived from, or
recognised by, their own laws and customs. If I possess something under a particular
right or transaction or contract, that is the source of my rights and my rights are
recognised by the requisite thing, be it a contract, a charter, and so forth.
HAYNE J: The point with which I am struggling - and it may be that I am straining at a
gnat - Mr Young, is this. Leave aside the facts of this case. Hypothesise a case in which it
can be said of a group of Aboriginal people that at some point in history, they ceased
entirely to acknowledge or observe traditional law and custom. Let it be assumed that
after that cessation, a group of Aboriginal persons who would have been the successors to
those who ceased to acknowledge and observe began again to acknowledge and observe.
Can it be said that by their acknowledgment and observance they thereby become
possessed of the rights and interests which traditional law and custom would give them?
MR YOUNG: Well, your Honour, we would approach it in this fashion: you cannot
reach a conclusion such as your Honour's postulate "There has been a complete
cessation" without addressing the current laws and customs currently observed of the
group, to ascertain whether there has truly been some break. If their customs and laws are
truly traditional, that will put an end to the argument that there has been some such break.
You cannot say, in relation to - - HAYNE J: Notwithstanding there may have been one or two generations in the
intervening period which neither acknowledged nor observed. As I say, come away from
the facts of this case. It is the theoretical point that I want to - - MR YOUNG: Well, we would say, your Honour, that the difficulties that Justice Black
indicates would indicate that that would be an inappropriate way of approaching the
Native Title Act. Implicit in your Honour's question is the assumption that it can be
demonstrated that there has been a cessation, for one generation or so, in observance of
traditional laws or customs.
GLEESON CJ: Now, are you saying that can never be demonstrated?
MR YOUNG: To put it into the context of our case - and I know I have not been asked
to do that, your Honour - but the negative of that can never be demonstrated. That is, you
cannot positively prove that at no time, year by year, or decade by decade, that has not
happened.
GLEESON CJ: But you seem to want to resist the assumption of fact you are being
invited to make. Is that because it is an impossible assumption?
MR YOUNG: In practical terms, your Honour, it is an assumption that the Native Title
Act says, "Don't address it that way because of the impossibilities or formidable
difficulties associated with it. Address it by going to the present and establishing whether
the laws and customs are truly traditional." Of course, that may mean an inquiry into the
matters that Justice Hayne postulates, and if you determine there has been such a break,
you may well decide the laws and customs are not truly traditional, in which case
paragraphs (a) and (b) would not be satisfied. So, I am not resisting the hypothesis. I am
resisting the approach, that you approach that issue other than by the route designated by
Parliament in section 223(1)(a) and (b).
Can I just mention the difficulties that his Honour the Chief Justice in the Federal Court
mentioned because they are important. I will not read them all but the first is addressed in
paragraph 55 and then explained right through the next page. It is concerned with:
the use of historical material to answer a claim based substantially upon an orallytransmitted tradition -
and draws attention to the importance of observance being only so far as practicable, a
matter mentioned in both Mabo by Justice Brennan and in the context of the Act by
Justice Merkel in Yarmirr. Then his Honour refers to another difficulty in paragraph 58,
an "external and casual viewer . . . may see very little" of the true Aboriginal culture
because they do not intend to reveal it. The third factor in paragraph 59 is that all you risk
getting is a "snapshot of adventitious content" when you are considering laws and
customs that are necessarily undergoing significant change and adaptation because of the
impact of European settlement and culture. Then you have the time period. To conclude
that somebody has abandoned native title within a period of a few years, as Justice Olney
did, is an extraordinary thing to do.
GUMMOW J: But you are assuming an onus of proof in that, are you not?
MR YOUNG: Whether the onus is on the person alleging abandonment or the person
resisting it, your Honour.
GUMMOW J: I do not know. Someone has made a claim.
MR YOUNG: Yes, but my answer to your Honour is even if the onus is on the claimant
to establish native title and to do so it must negative abandonment at any point of time,
year by year, or decade by decade. That is not the point that his Honour is addressing.
The point is that you cannot conclude abandonment of an entire peoples' laws and
customs over a period of time of a few years - the difference between the 1870s and
1881, as Justice Olney did - by reference to a few sketchy records of a settler.
If we can contrast the common law, non-user of an easement does not lead to any
inference of an intention to abandon, even if non-user has persisted for 20 or 30 years.
The cases are clear. You need to have a very, very long period of time over which to
assess the existence of an intention to abandon an entire people's laws and customs and
you certainly cannot do it without addressing what the people say today are the traditional
laws and customs passed down to them by their parents, their grandparents or the old
people who were alive and witnessing things and engaging in cultural and customary
activities at the turn of the century.
His Honour makes in paragraph 61 the further point that what is really being inferred is
abandonment by the whole people, all members of the community, of all their rights and
customs. At paragraph 62 his Honour says there is no reason to assume that
abandonments were an all or nothing affair either. The last point, paragraph 63, page 326,
is it should not lightly be inferred because of the irreversible consequences for an
indigenous people. I have gone to those because of your Honour Justice Hayne's question
to me that postulates a break of a short period of time is a postulate that in the light of the
sorts of difficulties that Chief Justice Black addresses is really not a postulate that, in our
submission, the common law has ever made or should make.
GLEESON CJ: What if you related it to one of the concrete examples of rights given by
section 223(2)? It refers to three particular rights and interests: "hunting, gathering, or
fishing". Suppose you found that nobody hunted for a 100 years. What would be the
significance of that?
MR YOUNG: Your Honour, that may have significance in that what might be found is
that the alleged right - and it may be an individual right or a communal right that is
alleged - is not currently possessed in relation to land under the laws and customs
currently acknowledged and observed traditionally.
GLEESON CJ: So we can test Justice Hayne's question by reference to that concrete
example?
MR YOUNG: Yes, your Honour, but that would not really assist in the context of this
case because there is, as Justice Toohey pointed out in Mabo and as the Canadian cases
point out, the very fundamental distinction between a people's right to their country and
individual usufructuary rights of this kind. There is a very fundamental difference. It is a
right to the land in the sense in which the Aboriginal people would understand that. It is
their country, it is a perception of socially constituted fact, that it reflects their perception
of their spiritual and customary connection with their country. When you are speaking
about that, it does not really assist, we would say, to translate the discourse into the area
of particular rights.
GUMMOW J: Well, it has to, really, because you have to get a determination, and the
determination has to spell these things out, and you seek a determination. What was the
text of the determination sought here?
MR YOUNG: It is involving one of the appeal books, Your Honour. It is at - in its final
form it is in 116, I think; yes, 115 to 116. The principal claim was for communal native
title in relation to land and waters, but there were no claims in the nature of - - HAYNE J: Well, there were, at 116, were not there?
MR YOUNG: I was going to say, at 116 to 117, but particularly at paragraph (f) towards
the top of 117.
HAYNE J: But you start from 116, do not you, in paragraph 85(a), a claim to, "rights to
possession, occupation use and enjoyment"?
MR YOUNG: Yes.
HAYNE J: You then have a succession of derivative or lesser rights that would
ordinarily be encompassed within that?
MR YOUNG: Yes, Your Honour, we accept that but why I made the distinction in
answer to the Chief Justice is that to infer abandonment of the community's right or
interest under Aboriginal law and custom to their country is much more profound and farreaching thing than to address some particular element of usage.
HAYNE J: But is not the point made sharp at 117(e), "the right to access and occupy the
determination area", that the case I hypothesise to you, again regardless of whether it
finds analogy in this case or not, is where a group for one, two, three generations neither
access nor occupy any part of the determination area?
MR YOUNG: Well, that ends up being an inquiry into the facts of the case concerning
the traditional laws and customs currently observed in that regard and the areas to which
they apply and whether they are truly traditional.
HAYNE J: And can generation four say, "We now acknowledge what our old people
told us that we can access and we can occupy this particular area"?
MR YOUNG: If that has been passed down from the old people, in a sense which meets
the tests of 223(1)(a) and (b), yes. Just to take Your Honour's point, and I know I come
nearer to the facts of this case, you have a wider claim area but you have the area of the
Barmah Forest, the Moira Lakes, Cummeragunja, which have always been occupied and
used by this Aboriginal community.
KIRBY J: Are they regulated by State Forest Acts?
MR YOUNG: Yes, Your Honour, they are, and certainly in Victoria they are and in New
South Wales and within that area there is the Cummeragunja Aboriginal settlement as
well which has its own legislation, I think.
KIRBY J: Is there a provision in the Act that exempts Aboriginal people or gives them
special status or are they not mentioned?
MR YOUNG: No. I can speak for Victoria, your Honour. They are not mentioned in the
Victorian legislation.
KIRBY J: Does that purport to restrict access to the State forest?
MR YOUNG: No, I think the answer is no, your Honour.
GLEESON CJ: Does it purport to restrict people lighting fires?
MR YOUNG: I do not think the legislation does but there may be other legislation
concerned with fire hazards in terms of high fire risk and so forth. There was one other
passage of Chief Justice Black that I wanted to take the Court to, to complete informing
the Court about his approach. It is paragraph 90, which is at 336. This addresses the
second element, the separate element about losing your character as a traditional
indigenous community. In paragraph 90 his Honour observes that that approach involves
"a further potential for error" in the trial judge's approach, in particular:
the finding that by the end of the 19th century the claimaints' forbears had ceased to
follow their traditional lifestyle does not necessarily mean that those forbears ceased to
represent an identifiable community capable of possessing native title.
In our submission, that must be so and the contrary view is an erroneous one. The
contrary view, I might say, is founded by Justice Olney upon a misreading of Justice
Toohey's judgment in Mabo.
Now, can I turn to the Act, which all members of this Court, as we read Yarmirr, accept
as the relevant starting point. A number of the judgments say that explicitly, but it seems
to be implicit in the judgments of the dissentients as well.
GUMMOW J: Now, the Act at what date?
MR YOUNG: It is a date in 1994, I think. It is Native Title Act but I think the effective
date is a date in 1994.
GUMMOW J: No. The date for this case.
MR YOUNG: The date of - - GUMMOW J: The date of the Act for this case. It has been amended from time to time.
The Act in what form?
GLEESON CJ: Reprint number what? We just have to have the right book, that is all.
MR YOUNG: I am sorry, your Honour. I am not sure if I can answer in relation to the
right reprint because I have been working off a service.
GAUDRON J: I am not entirely sure that it is relevant only to us having the right book,
because there are provisions following the amendments that say native title shall be
extinguished by these processes, which may tell you something about the meaning of
paragraph (c).
MR YOUNG: Yes. We have considered the 1998 amendments, your Honour, and it is
our submission that none of them really shed real light upon section 223.
KIRBY J: Chief Justice Black says this was the first claim and it was made before the
amendments in 1998 were introduced.
MR YOUNG: Yes, your Honour.
KIRBY J: Did the Full Court deal with it on the basis of the pre-1998 amendment state
of the Act, or not?
MR YOUNG: All I can answer is this, your Honour, that the Full Court did not suggest
anywhere in their judgments that anything turned on the difference between the pre-1998
Act and the post-1998 Act.
KIRBY J: What is the correct principle? These were changes in the substantive rights of
parties in 1998 and therefore presumably they would not affect a claim which was
already made in the courts being determined according to the law as it stood at the time,
presumably of the first determination, that is to say, Justice Olney's decision. Is that
correct or not?
MR YOUNG: Yes, no, we say that is correct, your Honour.
GLEESON CJ: Unless a contrary intention appears?
MR YOUNG: Yes.
KIRBY J: Do you understand that to be common ground before this Court or not?
MR YOUNG: I had assumed it to be, your Honour.
CALLINAN J: No parties submitted in the Full Court that any different approach should
be taken to the - - MR YOUNG: No, your Honour, but no party submitted that the rights of the claimants
were affected in any way by any of the amendments.
GAUDRON J: Well, I do not know that you should proceed on that assumption, Mr
Young, at least for my part.
HAYNE J: Or mine.
GAUDRON J: I think there is an argument that the amendments apply to any
determination and that in consequence the law to be applied is the law as it stands when
the determination is made. So far you have not had a determination.
MR YOUNG: We have had a determination that native title does not exist, by Justice
Olney.
GAUDRON J: Yes.
KIRBY J: You are asking this Court to make an order that would go back for a
determination by a judge of the Federal Court and it would be odd, to say the least, that
that judge would be determining the matter on the pre-1998 statute.
HAYNE J: Well it may be odd, but I need to know at some point what you say is the
relevant law?
MR YOUNG: Justice Olney, your Honour, at page 216, addressed the amendment to
section 225 and said he would make a determination in accordance with the amended
section 225. The first questions asked of me were about the date of the claim which
preceded the amendments. At paragraph 16 at 216, after discussing the 1998 amendments
to section 82, his Honour turned to the amendment to section 225. His Honour applied - GUMMOW J: His Honour, correctly I would have thought, was applying the new 225 to
make his determination.
MR YOUNG: Yes, he did; he applied the new 225.
GUMMOW J: Yes.
MR YOUNG: And there is a transitional provision in table A of the - - GUMMOW J: Well do you say his Honour erred in doing that?
MR YOUNG: No, I was answering a different question, as I understood it, which is, in
terms of the rights that we claimed, whether there was any impact upon those rights by
virtue of the amendments that would affect the proper interpretation of section 223, and
our submission is no.
KIRBY J: Well I think we have asked you this question and you have dealt with it on the
run, but it may be that there will be a need for a little more thought to the answer on all
sides.
MR YOUNG: If your Honour please, I will give the matter some thought. Now, not only
is it our submission that the Act is the starting point but that it, by section 223, for the
purposes of the Act, sets out a comprehensive definition of "native title".
KIRBY J: It is not entirely comprehensive, because (c) does have an external referent.
MR YOUNG: Yes, your Honour, and one of the issues is: what does that external
reference bring in? But the point we make is that if anything is brought in, it is only
brought in by force of (c). There is no recourse to the common law for the purposes of
adjudicating whether native title exists or does not exist under section 225 other than to
the extent to which the common law is made relevant by 223(1)(c), because what is being
done under section 225 is to determine whether the native title, as defined, exists.
It is our submission that paragraphs (a) and (b) have been drawn from the common law
by Parliament and in that sense they reflect a view of the essence of the common law
concept of native title - Parliament's view of that essence - and Parliament's view, having
a regard to the matters mentioned in the preamble, of what it is appropriate to lay down as
the elements that must be proved to establish the existence of native title.
KIRBY J: I wonder why you say that. Again, you are yearning to go back to the
common law and Justice Brennan, whereas I would have thought a strength of the point
that Chief Justice Black made was: you start with the statute; you go to 223; in
paragraphs (a) and (b) it is in the present tense. And that is where a court should start, in
the present tense, not back to 1788, and seeing what has happened since then.
MR YOUNG: I may have expressed myself badly, your Honour. By saying they reflect
the common law, I was not suggesting that you do anything other than construe (a) and
(b). I was simply noting that Parliament, in paragraphs (a) and (b), has stipulated what it
considers to be the essence of the matters that must be proved to establish native title, and
I was simply drawing attention to a matter of history - that is to say, that those words,
historically speaking, seem to be reflective of certain words used in Mabo. But it is no
more than an historical observation that we were making.
Can I turn to 223(1)(a) and (b) immediately. Those two paragraphs are, as all members of
the court said in Yorta Yorta, expressed in the present tense. They are concerned with the
rights and interests presently possessed, presently acknowledged and presently observed.
In (b), they are concerned with a present connection by those laws and customs with the
relevant land.
Now, in Yorta Yorta, I have pointed the Court to the passage where Chief Justice Black
expressed that view. Can I point to the passage where the majority expressed that view at
page 354, paragraphs 140 to 142.
KIRBY J: Those provisions in the present tense are a considerable check on extravagant
or unsubstantiatable claims.
MR YOUNG: Yes, your Honour.
KIRBY J: You have never had a determination that resolves your entitlement to the quite
considerable area that you claim and it may be that in the factual determination, if ever it
is reached, that you will lose on the evidence in respect of parts of the claim or all of the
claim. But your complaint before us is that you were knocked out without getting a
determination on the merits.
MR YOUNG: We had no determination, nor any evaluation of the evidence of present
possession, present acknowledgment of laws and customs, present connection at all, nor
any assessment or evaluation by any court as to whether the evidence that was given
about laws and customs being observed was truly traditional. That was put to one side
because the trial judge took the view that if it could be ascertained from historical records
that there had been a hiatus of a few years in about 1881, that was fatal.
Now, this view of paragraphs (a) and (b) is not only a view that has been expressed in
Yorta Yorta, it was the view expressed by all members of the Full Court in Ward. I will
not take the Court to the case because I assume the Court is very familiar with it. I will
give the passages: by Justices Beaumont and von Doussa at paragraphs 77 and 114 and
by Justice North agreeing at paragraph 682. It was also the view of paragraphs (a) and (b)
expressed by two members of the Full Court in Yarmirr, Justices Beaumont and von
Doussa, at paragraph 57.
HAYNE J: Now, the expression in the present tense is inevitable, is it not, given the
work that the Act as a whole and 225 in particular requires? Section 225 requires a
determination which is the fulcrum of the Act for present purposes to determine "whether
or not native title exists" at the time of determination, that is, presently.
MR YOUNG: Yes, but, your Honour, that, with respect, is simply avoiding the issue.
Both the common law and the Act will only ever address the question in the context of a
native title claim whether it exists today and the - - HAYNE J: The only point I invite your comment on is whether that does not have the
inevitable consequence that native title rights relevantly are defined in the present tense.
MR YOUNG: But if native title rights exist today, that is all that is necessary. If they
exist today, it means they have not been abandoned, they have not been lost, they have
not been extinguished, and so forth.
KIRBY J: It would have been open to the Parliament to enact that a claimant for native
title shall establish phrenetic aboriginality and continuous occupation of the land and
observance of native traditions, but it did not express it in those terms.
MR YOUNG: No, your Honour, far from it. When one has regard to the preamble, we
would say it is a sensible construction of the Act to say that Parliament has taken the view
that they will simplify the requirements for proof of native title and will render the
common law certain - that is the wrong expression - and will ensure that there is certainty
about the concept of native title for the purposes of the Act and that we will not have
continual disputes debating the ins and outs of what may or may not be the unfolding
common law definition of "native title".
HAYNE J: Again, remaining with questions of tense for the moment, which is where I
understand you are, what do you do with 223(3) and its reference to rights and interests
that are "or have been at any time in the past, compulsorily converted"? Is there any
significance to be attached to that use of tenses or do we simply put it aside?
MR YOUNG: In our respectful submission, it does not alter the construction to be given
to 223(1). It is effectively a statutory deeming provision. It does not alter the fact that you
must establish rights and interests which are possessed and have the relevant connection
in terms of subsection (1). It simply deems something else to be brought within the
statutory definition. So it does not alter the scope of the proofs required in the ordinary
case where the deeming provision does not operate.
KIRBY J: In a sense 223(3) reinforces the significance of the present tense in (1)
because where the Parliament has intended to deal with what might "have been at any
time in the past", it has said so in terms.
MR YOUNG: Yes, we would agree with that, your Honour. We would say the majority
in the Full Court, having adopted that construction of (a) and (b) and, relevantly, other
Full Courts having done so in the Federal Court, it is helpful to the analysis to juxtapose
their construction of (a) and (b) of the section with the requirements they say ought to be
incorporated as common law requirements via (c). There is a real tension or contradiction
between the two because they are effectively inconsistent and conflicting ways of
addressing the same issue. Paragraphs (a) and (b) say prove these matters in the terms set
out - current possession, observance, current connection in relation to land - yet they
import via (c) as common law requirements a different set of requirements going to the
very same matters, including connection with the land and including the role of laws and
customs.
Now, in our respectful submission, that is an indication that such matters, even if they
were, as we deny, relevant common law requirements, were not intended to be
incorporated via (c) because then to read section 223, as the Full Court would have it, you
have (a) and (b) as stated by Parliament and via (c) you effectively have new
requirements (d), (e) and (f) addressing the same matters in a conflicting way.
McHUGH J: But why should they be regarded as conflicting? Why is not a simple way
to read it that (a) and (b) look at the present, as you maintain? Those traditional rights and
interests may have arisen, let us say, in 1855. Then, you have to ask yourself, "Are those
rights and interests which are now possessed rights and interests which are recognised by
the common law of Australia?" That means that you then have to examine those rights
against the whole history of the common law and say, "Would the common law have
recognised those rights?"
MR YOUNG: Your Honour, we say there is a fallacy in that contention or that approach.
The fallacy is this, if the whole of the common law in its unfolding content is
incorporated via (c), the common law itself will address the need for present possession,
observance and connection.
McHUGH J: That is true, but there is no conflict.
MR YOUNG: Therefore, your Honour, if that is so, and those very same matters, the
need for present connection, et cetera, would be fulfilled by the whole of the common law
if incorporated in that fashion, (a) and (b) were totally unnecessary. They performed no
function over and above that which the common law would perform. That would
effectively mean reading out (a) and (b) from the Act and denuding them of any valid
operation and effect. All their work would be done by the common law.
McHUGH J: Not necessarily. Once you have proven under (a) and (b), then for the
purpose of the common law it is accepted by the common law, then you look backwards.
Paragraphs (a) and (b) look at the present. Paragraph (c) requires you to look backward. It
has to be recognised now by the common law and the common law requires you to look
backward. Where do you get your theory of extinguishment from if you do not get it from
(c)?
MR YOUNG: Our case is that you get extinguishment from (c).
McHUGH J: Yes.
MR YOUNG: Our case is the case we understand was accepted by the majority of this
Court in Yarmirr. Paragraph (c) incorporates and is there to incorporate a requirement
that the rights and interests that satisfy (a) and (b) are not inconsistent with the common
law in the sense that the common law would not withhold enforcement from rights and
interests of the kind described in (a) and (b) for the reason that they are repugnant to the
common law or inconsistent with a recognised common law principle such as that
described in Yarmirr concerning international rights of passage on the high seas, or
extinguished. Now, that is where extinguishment comes in via (c) and that is, in a sense,
the principle function of (c), to bring within the definition of "native title", around which
the whole Act swings, the concept of extinguishment.
McHUGH J: You are assuming a case where native title is made out within the
definition. Assume a case where it is not made out, where there are rights and interests
which are possessed since, let us say, the middle of the last century, so (a) and (b) are
satisfied but (c) then says they are not relevant rights and interests because they are not
rights and interests which the common law would recognise.
MR YOUNG: That is exactly the case I am assuming, your Honour. I have not assumed
that they are established. I am simply saying that the function of (c), additionally to (a)
and (b) which have to be given some work, is to allow (c) to operate, to bring in the
extinguishment principle and the repugnancy/inconsistency principle. That gives full and
sensible operation to (c) consistently with the majority of this Court's views in Yarmirr. It
does not overwhelm (a) and (b) and denude them of meaning. It allows extinguishment to
form a vital part of the definition of "native title" for the purpose of the Act which it
otherwise would not.
McHUGH J: So on this theory you do not worry about what happened in 1788?
MR YOUNG: Well, except to the extent that you have to prove laws and customs
currently observed that are truly traditional.
McHUGH J: Well, yes, but they need not go back to 1788. They might be traditional
laws and customs that started in 1789.
MR YOUNG: Yes, we say it is not necessary to prove the content of laws and customs
as at 1788. For one thing, that is an impossible task which Parliament rightly - - -
McHUGH J: That means, does not it, that you do not have to prove that you had native
title in 1788?
MR YOUNG: No, it does not, your Honour. No, I am addressing a different matter. My
submission was that you do not need to prove the content of laws and customs as at 1788.
Parliament rightly took the view that that would be an impossible task to impose on
native title claimants, particularly if you are going to add to it a right to trace, or an
obligation to trace, those laws and customs decade by decade since 1788 down to the
following time.
KIRBY J: Especially in writing. It would be a self-destruct.
MR YOUNG: Yes, your Honour.
GLEESON CJ: Now, what about laws and customs that actually developed as a
response to European settlement?
MR YOUNG: Well, there is no reason why they should be excluded by reason of that
fact alone from the concept of traditional laws and customs. Laws and customs will adapt
and change as a result of the impact. So, in our submission, the construction we give to
paragraph (c) and to the whole section is overall a sensible construction for these reasons.
First, we start with the proposition that all parts of the section are to be given an operation
in accordance with the language used by Parliament. Moreover, the section is to be given
a beneficial construction, as members of this Court said in Yarmirr and as the Full Court
has said on a number of occasions. A construction that imports via (c) the whole of the
common law renders (a) and (b) redundant. They do not do any work that would not be
done by the common law.
Now, your Honour Justice McHugh says that is so, but at least you have the additional
virtue that the common law looks backwards. It does not answer the point that (a) and (b)
are rendered redundant.
McHUGH J: But (c) directs you to the system. You see (a) and (b) are talking about
rights and interests. It is not talking about native title. Native title is the conclusion which
the common law and which this Act puts on rights and interests which are possessed
under the traditional law. Paragraph (a) and (b) deal with a question of fact. Anyway, I
have put my views in Yarmirr. There is no point in debating it with you, Mr Young.
MR YOUNG: Yes.
GLEESON CJ: What would you say, Mr Young, about the situation in which, as a result
of dispossession from the lands that they were occupying in 1788 - subsequent
dispossession - a group of Aboriginal people in 1820 moved to another locality and took
up possession in that other locality and then developed laws and customs relating to their
occupation of that locality? How would that relate to section 223?
MR YOUNG: Well, it would raise, in our submission, the same question.
GUMMOW J: Well, there is some baggage involved in this expression "traditional law",
is there not? When does a law become traditional?
MR YOUNG: Yes.
GUMMOW J: What has to transpire before it becomes more than a law but becomes a
traditional law?
MR YOUNG: Well, we would urge the approach of Chief Justice Black; that is to say,
"tradition" means passed down generation to generation - - GUMMOW J: Yes, but how many?
MR YOUNG: How many?
GUMMOW J: Yes, Australians always talk about traditions when they mean habits. I
am talking about Australian Anglo-Saxon culture. They are always talking about
tradition; they just mean habits. When does it become a tradition in this expression,
"traditional law"?
MR YOUNG: Well, your Honour, we would accept the view of Chief Justice Black, that
it needs to have roots, in other words, passed down generation by generation, but not in
terms of proving the actual content of the laws - - GUMMOW J: Yes, but how many generations? Does one ever quantify it that way? Is
that the right way of going about it?
HAYNE J: Must it be rooted pre-settlement or not?
MR YOUNG: Not in a tracing sense, your Honour, but in a sense that you take it back to
what can be presumed to be the traditional rights of the relevant Aboriginal community.
Let me give you an example that, if you have alive members of an Aboriginal community
who can give evidence of what was passed down to them by their forebears or the old
people, and that might take you back at this stage to the early decades of the 20th century,
but through that sort of evidence you cannot go back much further than that, but if there
are live traditions being observed and customs acknowledged and followed at that period
of time, why would it not be presumed, as the New South Wales Court of Appeal
suggested in Mason v Tritton, that these are traditional laws and customs?
HAYNE J: Well, this is to confuse, is it not, the difficulty of proof with the subject
matter that is to be proved? Let us for a moment ignore the immense forensic difficulties
that are presented by, "How do I go about proving these facts?". Can I focus your
attention on what it is that you say has to be proved, not how you prove it.
MR YOUNG: What has to be proved is only what section 223(1)(a) and (b) requires.
That is - - HAYNE J: I am with you so far, Mr Young, yes.
MR YOUNG: Yes, but if your Honour is asking me whether you have to prove the
content of laws and customs as of 1875, we would say no.
GAUDRON J: Well, I do not see why you have to prove it at all in one sense. I would
have thought that what you have to prove is a body of laws and customs, the existence of
such a body of laws and customs, and that what you have to then prove are the particular
rights and interests which you assert constitute your native title, and that they derive from
that body of laws and customs which might have changed - - MR YOUNG: You have to prove, we would say - we agree with your Honour Justice
Gaudron - no more than that there is a body of traditional laws and customs currently
observed and that that body of laws and customs, albeit radically changed through the
impact of settlement and European customs over the years, that, nonetheless, has its roots
in a body of custom that may be in content different, but a body of content from the past.
GLEESON CJ: But it has to relate to land.
MR YOUNG: It has to relate to land.
GLEESON CJ: It has to relate to the land the subject of the claim. Now, what if you
know for a fact, what if it is part of the oral history, that the group came to the land in
1820?
MR YOUNG: Your Honour, as we understand the Full Court findings in Ward, they
accepted that some time in the past a group could move territory, could amalgamate with
another group, and they could continue laws and customs that may have been adjusted
through the process of amalgamation, but that would not disqualify them from claiming
native title to their joint territory, as it were, within section 223.
GAUDRON J: They may well have had a law of conquest.
MR YOUNG: Yes, they may well have.
KIRBY J: All of their own.
MR YOUNG: Yes, your Honour. Can I just conclude what I want to say about the
section, in this fashion. If one has regards to the preamble of the Act and its obviously
remedial purposes, and its consciousness that there are uncertainties in the common law
and a need to provide a just and proper way of ascertaining the existence of native title, it
is consistent with those objectives to regard paragraphs (a) and (b) as elements of native
title that provide certainty and simply proof and that, subject to what I am about to say
about (c) in a moment, define what has to be proved to establish native title for the
purposes of the Act. The functions - and in that fashion by having a simplified statement
of what native title is, rendering unnecessary the need to go back and debate the
uncertainties of the common law, that construction would advance the purposes that are
discernible on the face of the statute. It gives sensible meaning and operation to (a) and
(b). Then we turn to (c).
Sensible meaning and operation can be given to (c) by construing it as a provision aimed
at circumstances in which the common law would say that native title is so defined, is not
going to be enforced either because of repugnancy to a skeletal principle of the common
law or because of inconsistency with some principle such as international rights of
passage on the high seas or some other principle recognised by the common law or
because of extinguishment. Now, unless extinguishment is brought in through (c) in that -GUMMOW J: Extinguishment as a legal Act, as it were.
MR YOUNG: As an exercise of sovereign power, that is how I use it, your Honour.
GUMMOW J: Yes.
MR YOUNG: In our submission, that is all that (c) does. That constructions gives
meaning and effect to paragraph (c) but avoids the mockery of the Act that would occur if
all common law requirements brought in, with all their uncertainties, via (c). Not only
would it overwhelm (a) and (b) and render them pointless, it would provoke unending
debate about whether there were rights in relation to waters and what happened when
statutory rights replaced native title rights.
GAUDRON J: And as to their content at any particular time.
MR YOUNG: Exactly, your Honour.
GAUDRON J: In the same way as you have the problem with traditional laws and
customs, as it were.
MR YOUNG: Yes. Now, this approach gives the Native Title Act a sensible operation
but also one that is beneficial and remedial, as intended. In our submission, the contrary
view just simply takes us back to where we were the day after Mabo was decided.
Can I turn then to another part of our case, because our case is that if section 223 is
construed as we have contended, the Full Court and the trial judge erred. It is plain they
did not address the section in accordance with its requirements, as we have articulated
them. The alternative case is this: even assuming against ourselves that the common law
remains relevant in all its requirements, it does not contain or lay down any such
requirements as those imposed by Justice Olney or by the Full Court. To impose such a
requirement, to quote Justice Kirby from Mason v Tritton, would be to create or impose
an unrealistic and unreasonable principle which the common law would strive to avoid.
There is nothing, in our submission, in any of the decided common law cases, including
"the tide of history" passage in Mabo, that would support the onerous requirements
extracted - - GUMMOW J: I would not think we would want to get into tides of history.
MR YOUNG: - - - by the majority in the Full Court or by Justice Olney. Now, I do not
want to take the Court back to Mabo because I am sure that has happened on countless
occasions, but can I make these points. The requirements of common law do not include
every sentence in every judgment in Mabo, or even every sentence in the judgment of
Justice Brennan. Whatever was said about abandonment and proof of continuous
observance of a particular body of laws and customs was plainly obiter; that matter did
not arise for decision in Mabo.
Secondly, Justice Toohey rightly drew a distinction between the existence of title and its
nature and content. That is an important distinction. Thirdly, Justice Brennan in "the tide
of history" passage was addressing, and addressing only, the need for the current
community - that is, the claimant community at the present time - to establish real
observance and real acknowledgment of law and customs.
GUMMOW J: Well, that is just reflected in the use of the present tense in the definition.
GAUDRON J: And I do not know what "real" means. It is observance or it is not
observance.
MR YOUNG: Yes.
GUMMOW J: So "tides of history" does not help you in construing 223(1). It itself is
part of the tide of history, as far as I am concerned.
MR YOUNG: Well, that is our submission, your Honour, but it is - - KIRBY J: "Tide of history" has not been put to help you, it has been put to hinder your
claim, to say that that tide has come in and out have gone all your rights.
MR YOUNG: Absolutely, your Honour, and we say that even if you are looking at the
common law, the view that you have to prove decade by decade observance of a
particular body of laws and customs is a distortion of what Justice Brennan said in Mabo.
In Ward Justice Lee held that there was no need to establish an unbroken chain of
continuity between present and past occupation, and that is supported by the Canadian
authorities. Likewise, we would say that there is no need to prove an unbroken chain in
terms of particular laws and customs that are said to be part of the body from one year to
the next through the 1800s.
KIRBY J: The point that was unique about this case was that the observance by a
missionary of this particular Aboriginal group and in the petition - I mean these were
unusual evidentiary factors which were available in this case that are not normally
available to a remote Aboriginal group who were never observed because people in the
19th century thought they were uncivilised and did not bother recording what their
conduct, habits and traditions were.
MR YOUNG: Yes, your Honour, I am going to come to those aspects. Can I turn first of
all, though, to the task that the trial judge set himself. In our submission what Justice
Olney did was to set out to identify the nature and content of the laws and customs of the
original indigenous inhabitants at sovereignty and then to trace those particular laws and
customs through the ages. Further, at a certain point he then narrowed the search to a
search for the laws and customs of the two particular ancestors who were biologically
connected and to aid him in that search for the content of those laws and customs, he
searched for known facts concerning traditional laws and customs observed in the 1840s
in the historical records of one settler and one missionary. He did all that because what he
wanted to do was to relate the particular content of laws and customs back to 1788. Now,
in our submission, that course was misconceived as a matter of common law, but that is
what his Honour did.
GUMMOW J: I suppose his Honour was responding to some submissions. Now, were
the submissions you have been putting to us put to his Honour?
MR YOUNG: Yes, your Honour, at both levels.
GUMMOW J: Were they rejected or just not passed upon at trial?
MR YOUNG: They were implicitly rejected.
GUMMOW J: Yes, but they are not directly passed upon, are they? I am just seeking
information, that is all.
MR YOUNG: Well, they were explicitly rejected in that the argument was you do not
need to engage in this tracing exercise and his Honour said you did. They were explicitly
rejected in the Full Court.
Can I refer to a few passages to make good what I just said about the task which the trial
judge set himself. Firstly, at page 208, paragraph 4, after having referred to several
passages in Mabo - - GUMMOW J: I think the real problem maybe starts at page 206, paragraph 3.
MR YOUNG: Paragraph 3.
GUMMOW J: Yes, at page 206.
MR YOUNG: Yes. His Honour mentions 223 but then goes straight for its content to
Mabo.
GUMMOW J: That is right, yes.
MR YOUNG: Your Honour, we do say that where his Honour quotes from the judgment
of Justice Toohey at 208 he misunderstands the reference to a traditional society and the
reasons why Justice Toohey made that mention and that he thereafter uses that particular
extract referred to at about line 25 to erect his quite separate "traditional society"
requirement. In paragraph 4 he speaks of a number of distinct avenues of inquiries. The
first is:
descendants of the indigenous people who occupied (in the relevant sense) the claimed
area prior to the assertion of Crown sovereignty - - HAYNE J: Now, is that said to be because traditional law and custom required what in
other contexts would be called succession to only descendants or is it because that is seen
as some obligation under the Act?
MR YOUNG: It is because his Honour sees that as some obligation under the common
law.
HAYNE J: Was there evidence before his Honour about what traditional law and custom
said or required about who was entitled to the rights?
MR YOUNG: I am told, your Honour, that the principle burden of what was put forward
was to rely upon biological connection.
HAYNE J: As a matter of traditional law biological connection was both necessary and
sufficient.
MR YOUNG: Yes, I think that is right, your Honour.
HAYNE J: Yes.
MR YOUNG: There was no separate case that there was another avenue of connection
that did not involve a biological element.
HAYNE J: Yes.
CALLINAN J: That was your whole case, really, was it not? There were 18 named
people, I think, to whom a biological connection was attributed, in your case.
MR YOUNG: Yes. Now, of course, the law has moved on from when Justice Olney
addressed it in that the Full Federal Court has now accepted on a number of occasions
that strict biological descent is not the only mode of proving matters. You can prove the
necessary connection under traditional laws or customs that may go wider than a
biological connection.
HAYNE J: If that is a proposition that traditional law and custom may permit certain
things, that I understand.
MR YOUNG: Yes, it is, your Honour.
HAYNE J: Yes.
MR YOUNG: But the point I am going to about the first element is that his Honour
refers not just to descent but to descent from the indigenous people who occupied, in the
relevant sense, the claimed area. The parenthetical reference to "in the relevant sense" is a
reference to traditional society and that is how his Honour thereafter uses it. So, you not
only have to occupy the land - or be descendants of the indigenous people who occupied
the land, but he adds the requirement of occupation as a traditional society, and he later
finds that that is not established. So that is what those words "(in the relevant sense)"
refer to. Then in the next paragraph his Honour says it is necessary to inquire into:
the nature and content of the traditional laws acknowledged, and the traditional customs
observed by the indigenous people That is a reference to the indigenous people at the time of assertion of sovereignty. So,
you have to go back to 1788 and investigate the content - not the existence of a broad
body of laws and customs, but the particular content of their laws and customs. Then,
third, he uses language drawn from - - HAYNE J: You challenge that.
MR YOUNG: Yes, your Honour.
HAYNE J: Can I just understand the nature of the challenge you make? Is it a challenge
which proceeds from attributing Anglo-Australian real property concepts to traditional
law and custom concepts of connection with land? That is, are you challenging by saying
you have to look at the rights as whether they amount to occupation under AngloAustralian real property, or is your challenge of a different kind, namely, that it does not
matter what the rights and customs were under traditional law for the inquiry that has to
be made?
MR YOUNG: It is both, your Honour. We say he - - HAYNE J: The former seems to me to be illegitimate, that is to impose on traditional
law and custom Anglo-Australian real property concepts.
MR YOUNG: Yes, we say his Honour did that in that he regarded the laws and customs
as being the burden on the radical title which is really to treat - in a loose fashion, is
looking for some kind of Anglo-Saxon concept of property that he can say is the burden
on the radical title, and he searches in the content of the laws and customs of the
traditional community for that. But that leads him into the second error, your Honour
which is then, in our submission, erroneous even as a matter of common law to search for
the content of the laws and customs of the 1788 indigenous inhabitants and then to try
and trace that particular body of laws and customs until a point of time at which you no
longer find a reference in historical documents for some of those laws and customs, and
then to leap to the conclusion that the entire community has abandoned all of its laws and
customs because we are able to identify one or two; we no longer find any reference to
them. So that the two errors are connected.
Can I show how his Honour then - it is clear that he uses "indigenous people" to refer to
the original occupants because at the end of paragraph 4 he distinguishes the position of
the "contemporary clan, group or community".
KIRBY J: There is a certain pressure to use the words "indigenous people" because
otherwise we have to use the mouthful of "Aboriginal and Torres Strait Islanders"
because it is not only Aboriginals.
MR YOUNG: Yes. Your Honour, as I go through the judgment I will demonstrate what
his Honour really has done is to search for the laws and customs of a particular ancestral
group, and he uses different expressions but they all have the same meaning. His Honour
makes another - I will pass on. Can I go through the judgment - - GAUDRON J: There does seem to be perhaps an indication that his Honour's flawed
thinking, at page 209, the last sentence of paragraph 4 where his Honour proceeds as
though it is:
the laws acknowledged and the customs . . . should be afforded the protection of
Australian law.
Whereas it is the rights and interests that make up native title that get the protection under
the Act.
MR YOUNG: Yes, we agree with your Honour. That was the point I was about to make.
I was going to pass over it because it becomes clearer later because his Honour says that
it is the laws and customs that are the burden on the radical title which - errors I think
rooted in the first of the points that Justice Hayne made.
Can I go then to page 228, paragraph 25, last sentence. It is the passage I have just
referred to. The words, "whose traditional laws and customs" refer to "the people who
occupied the area in 1788". Next, can I go to paragraph 54, sixth line opposite line 15 at
page 240. This is an indication of his Honour's approach:
The time when it really mattered, namely (in this case) the 1830s and 1840s.
That is because his Honour is trying to ascertain the content of laws and customs as at
first contact with Europeans, as a surrogate for 1788.
Next, paragraph 56, the first four lines:
the need to connect the "known ancestors" with the people whose traditional laws and
customs at and before the time of European contact entitled them to the rights of
ownership, possession, occupation and use now claimed by their descendants.
It is obviously not the laws and customs of those ancestors. Paragraph 59, from the
second sentence onwards, particularly the last sentence:
If that connection is made it will be necessary to identify the nature and extent of the
native title rights of those ancestors.
Then paragraph 105 at page 263 - - KIRBY J: Can I just ask here, would this analysis be flawed if, instead of doing it as his
Honour did, that is to say, looking at paragraph (c) or just looking at the common law, his
Honour were doing this search in terms of whether the laws and customs were
traditional? Answering Justice Gummow's earlier question, how many generations back
gives it the character of traditional?
MR YOUNG: We say it would be flawed even in that circumstance, your Honour,
because - - KIRBY J: You have to characterise it as traditional and presumably one way to do it,
instead of moving from 1788, is to take it back to 1900 and then to have anthropologists
who say, "We've studied Aboriginal traditional societies who never had much contact at
all, and this is what they do", and therefore the two go together and therefore you say,
"We give it the character of traditional".
MR YOUNG: We do say that, your Honour, but we say there is a further flaw and if you
extrapolated this approach to an investigation moving back from the present into what is
truly traditional. The flaw is this, that you do not need to investigate by tracing particular
laws and customs so as to connect a particular law and custom with a particular law and
custom, say scarring or tooth evulsion or something like that, that you can identify back
at 1840.
HAYNE J: But do you accept that we are concerned with an intersection between two
normative systems?
MR YOUNG: I do, your Honour.
HAYNE J: That is that the traditional law and custom with which we are concerned is
not simply a question of habit; it is a question of normative rules for the society under
consideration.
MR YOUNG: No, your Honour. Normative rules, in our submission, would fall into the
same sort of Anglo-Saxon process of characterisation.
HAYNE J: No, Anglo-Saxon law is not the only normative system in this world.
MR YOUNG: No, my adjective was wrong, your Honour.
HAYNE J: There are many other normative systems.
MR YOUNG: Yes, but what I meant, your Honour, is that Aboriginal law and custom, to
quote Yanner or to quote Justice Gummow in Wik, is not necessarily to be perceived as a
set of normative rules. It may well be perceived as a set of beliefs as well.
HAYNE J: But we are concerned, are we not, with communal group or individual rights
and interests in relation to land or water? In that respect, are we not confined to a
normative system?
MR YOUNG: No, your Honour, because of (a). It is possessed under traditional laws
and customs and you may possess a right or interest under Aboriginal laws and customs
because you have a belief system that this is your country and your ancestors' spirits
inhabit it. I am only adopting what was said in Yanner and in Wik by Justice Gummow to
say that the search is not for a set of normative rules regulating land ownership. The
search is one that must recognise the nature of Aboriginal law and custom.
GAUDRON J: But is it not a search for at least a body of, if not rules, but a body of
beliefs and accepted practices which determine the rights of the community inter se?
MR YOUNG: It may be, your Honour.
HAYNE J: Must it not be because of the use of the word "rights and interests"?
MR YOUNG: No, I disagree with that, your Honour, but we would agree with your
Honour Justice Gaudron that it is not a search for particular normative rules. If you are
looking for anything as part of the process of investigating whether it is truly traditional,
it is you are looking for - - GAUDRON J: I am looking as to whether it is traditional laws?
MR YOUNG: Yes, but you are looking for the body, the fact that there existed a body of
rules in relation to - I withdraw the word "rules" - a body of beliefs or laws or customs
understood from an Aboriginal perspective in relation to hand, to use the language of
section 223(1). You are not looking for particular elements within that. His Honour
Justice Olney searched for the elements within.
HAYNE J: It surely must be accepted that Aboriginal society was much more complex,
could be understood from any of a huge number of socialogical anthropological, et cetera,
viewpoints. The point to which I seek to direct you, though, is whether the Act in this
inquiry is confining to one aspect of a hypothesis necessarily complex society, namely, a
body of knowledge - if I can use "knowledge" as the most neutral of terms - that concerns
the rights and interests. Does it not follow from the use of the expression "rights and
interests" that we are in the realm of the normative?
MR YOUNG: No, we would not fully accept what your Honour says, and I quote Justice
Lee in Ward. Justice Lee said that:
Law in Aboriginal terms is an aggregation of traditional values, rules, beliefs and
practices derived from Aboriginal past. It might correspond to an anthropologist's
description of "aboriginal culture" or "aboriginal lore".
Now, that, we would say, is an accurate description and that is not altered by the use of
the term "rights and interests" in the opening words, the chapeau to 223(1), because that
is fraught out by (a), it is rights and interests possessed under Aboriginal laws and
customs now currently observed and acknowledged.
Can I return to the judgment of Justice Olney and finish the process that I had embarked
upon. I will try and get through it briefly. Paragraph 105 is the next passage we would
point to, then 106.
GAUDRON J: Could I stop you there. "To demonstrate descent" et cetera: was the
evidence that the traditional laws and customs required the claimants to demonstrate
descent? I have just been very confused about this.
MR YOUNG: I think the answer is the one I gave before, that is to say, the case was put
on the basis of proving biological descent because that was consistent with the laws and
customs of the community.
HAYNE J: And was both necessary to and sufficient for the purposes of traditional laws
and customs.
MR YOUNG: Yes, your Honour.
GAUDRON J: Then what is concerning me about it - I am probably wasting time, I am
sorry - from the indigenous inhabitants, what it seemed to me was that one got to a point
going back where his Honour said, "Well, look, you cannot prove that these people did
not come from over near Walgett or somewhere". Is that right?
MR YOUNG: He did, in effect, your Honour. What his Honour did was to say, "Mr Curr
has referred to several tribes as sets of the Bangerang people. The only people I am going
to find have the necessary ancestral connection are people whose lineage in terms of
tribes matches Curr and if I find a reference to the Ulupna tribe or some other tribe from
the general area that Curr does not mention, I will ignore that connection."
GAUDRON J: I realise this is not a ground of appeal, but it would seem to me that what
the claimants had to prove was that the traditional body of laws and custom recognised
them as the persons entitled to rights or interests in land and nothing else. They might do
that by a series of processes.
MR YOUNG: But can I put it this way, your Honour: we say his Honour was wrong in
his approach to biological descent, but that was not the reason why we failed because we
established even that strict test in relation to two ancestors. It will become relevant on
remitter if we are successful because we say his Honour took an overly narrow view of
the connection that needed to be established for several reasons which I will mention as
we go through this piece. Can I refer the Court to 106. His Honour then narrows the
search in 106:
The most credible source of information concerning the traditional laws and customs of
the area from which Edward Walker's and Kitty Atkinson/Cooper's early forebears came and accords weight to Curr and less weight to evidence based on oral tradition which, of
course, is a separate complaint. But at the end of that paragraph, last sentence of 106.
Then in paragraph 109, the narrowing of the search is also apparent. the last line at page
264:
as it is only the traditional laws and customs in relation to the land of the antecedents of
Edward Walker and Kitty Atkinson/Cooper that have been shown to be of relevance in
this proceeding.
So if we have other members of an Aboriginal community living in the area in the 1880s,
but not biologically connected to Edward Walker or Kitty Atkinson/Cooper, that is to be
put aside. The vice of the biological connection is that he then narrows his search for a
relevant connection of the community to a search for the laws and customs of the
antecedents of two individuals.
CALLINAN J: That seems to be so, Mr Young, but I am just still concerned that that
might be the way in which you presented your case.
MR YOUNG: No, that was not the way in which we presented our case, your Honour.
Indeed, his Honour refers to the fact that we led anthropological evidence about the laws
and customs of a much wider group of communities in the area.
CALLINAN J: But I thought there was a supplementary anthropologist's report which
was relied upon and tendered by you and which did identify - was it 18 people, or 18
ancestors?
MR YOUNG: Well, 18 who could claim direct descent, your Honour, but in terms of
laws and customs, what we say were relevant were the laws and customs of the various
communities.
CALLINAN J: I know what you say here and I understand the argument about it. I am
just not completely sure about what you said and what the argument was in relation to - I
will call it, lineal descent, at first instance.
MR YOUNG: Your Honour, I can say that we did not argue that the relevant laws and
customs were those that could be shown to have been observed by biological ancestors
and only those. We have never put the case that way, and what Justice Olney recounts of
the evidence demonstrates that fact.
CALLINAN J: Well, was that a ground of appeal to the Full Federal Court?
MR YOUNG: Yes, your Honour. This is part of what we say is his Honour's
fundamental error in undertaking this tracing exercise pursuant to a mistaken requirement
that the common law requires this kind of tracing. Then can I go to paragraph 117 at page
268. After quoting from Curr's reflections, his Honour says that those extracts were:
not intended to be a comprehensive survey of the laws and customs of the Bangerang as
observed by Curr in the 1840s. Rather, they have been 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 it is not clear what 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 On the same point, the next paragraph, 118 - - KIRBY J: Well, it is the next sentence:
at the time it claimed sovereignty in respect of the colony of New South Wales.
that is the foundation of his Honour's reasoning, that you have to get back, in evidentiary
terms, to what at that instant of time - completely unknown, one would think, to the
Aboriginal people on the Murray River - the burden on the title of the Crown was.
MR YOUNG: Yes, but you also have to get back, according to his Honour, to the
particular laws and customs of those ancestors in 1788, and then trace them through
history, and if you reach any point of time where your proof falls short, you leap to the
conclusion that all laws and customs have been abandoned.
Paragraph 118, on the same page, last sentence:
no evidence to suggest that either the two ancestors or, their immediate descendants continued to acknowledge the traditional laws or observe
the traditional customs of their forebears Next, paragraph 121 at page 271, which has been described as his Honour's critical
finding, suffers from the same vice, amongst many others.
KIRBY J: Which paragraph?
MR YOUNG: It is 121, but the relevant part of it is at page 271. It is the fifth line, your
Honour:
It is clear that by 1881 those and we stress that word 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 et cetera. But what his Honour is searching for and making a finding about is those:
through whom the claimant group now seeks to establish native title it is the two known ancestors and their descendants, and only them were no longer in possession of their tribal lands and had, by force of the circumstances .
. . ceased to observe those laws and customs.
HAYNE J: His Honour seems to have attributed that to the use which your predecessor
made of the document in opening.
MR YOUNG: Your Honour, he did. We have criticisms of the document but can I leave
them until we reach that part of the argument?
HAYNE J: Yes.
MR YOUNG: Then the conclusion is reiterated at page 274, paragraph 129, second
sentence and continuing:
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 that expression crops up nor that they have continued to observe and acknowledge, throughout that period, the
traditional laws and customs in relation to land of their forebears.
Then the next sentence:
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.
So the focus is on the particular laws and customs of the ancestor group, biologically
connected that he has narrowed down to two. Now, that approach, in our submission, is
fundamentally flawed.
HAYNE J: Can I just again interrupt you and see if I understand what lies behind those
findings. First, your case at trial was that you had to demonstrate biological connection, is
that right?
MR YOUNG: That is the case we made, your Honour, yes.
HAYNE J: Yes. That case failed, save in respect of two named ancestors.
MR YOUNG: As held by Justice Olney, yes.
HAYNE J: I understand you may have criticisms of that but that is the situation arrived
at.
MR YOUNG: Yes.
HAYNE J: What is the criticism you then make of his Honour confronted by a case
which depends upon biological connection demonstrated in respect of only two?
MR YOUNG: Your Honour, that his Honour erected as a separate requirement that the
appellant community had to satisfy this, they had to prove the particular laws and
customs observed in 1788. By surrogate for that the particular laws and customs observed
by ancestors, presumed ancestors in about 1840. You search for the particular laws and
customs in writings that were not directed to laws and customs but writings that were
directed to, and I quote, "particular aspects of lifestyle" namely Curr.
He then said, "Well, I narrow the search to the laws and customs, the particular laws and
customs observed by Kitty Atkinson/Cooper and Edward Walker, or their biological
descendants in or about the 1880s. I do not find any evidence that particular group of
individuals were observing particular laws and customs that were consistent with the
lifestyle aspects mentioned in Curr, therefore, I infer that the whole Aboriginal
community of the Bangerang people have abandoned all of their laws and customs in
relation to land which I have never been able to identify".
That is the process of logic his Honour went through, and can I make good the last step in
that. His Honour set himself the task of identifying what were the traditional laws and
customs of the ancestors in 1788 and then, by surrogate, 1840.
He never did identify any traditional laws and customs in relation to land. He substituted
for it "aspects of lifestyle". Now, that is flawed in so many ways it is difficult really to
comprehend how his Honour could reach that conclusion. The first thing is that section
223(1) says you are only concerned with laws and customs in relation to land or waters. It
is not a search into lifestyle, traditional or otherwise.
KIRBY J: What does "lifestyle" mean? I have often been curious about that.
MR YOUNG: Presumably, your Honour, it is the image of an Aboriginal standing on a
hill with a spear or paddling down the Murray River in a bark canoe with - - KIRBY J: Some stereotype notion.
MR YOUNG: Some stereotype notion, we would say. Can I say this about that process
by way of introduction to the criticism that he never did identify laws and customs. It
needs to be borne in mind what I submitted earlier about the Aboriginal concept of law as
described accurately, we would say, by Justice Lee and as confirmed by this Court in
Yanner and by Justice Gummow in Wik. Namely, it is a set of beliefs, spiritual
associations and the like.
HAYNE J: And did your side set out to prove that the system of custom and tradition
that was relevant was a system sourced in, and in its essential features was continuous
with, the system operating amongst the various generations of its ancestors from 1788 to
the present?
MR YOUNG: No, the case was presented as we are presenting it, which is - - HAYNE J: That is page 95, your statements of facts and contentions, is it not, paragraph
37 of it, or am I reading from the wrong document?
MR YOUNG: Your Honour is reading from the amended statement of facts and
contentions - sorry, the paragraph, your Honour?
HAYNE J: Paragraph 37, page 95. Is that the task you set out on?
MR YOUNG: Paragraph 37 addresses, your Honour, the system of custom and tradition
now operative, the current set of beliefs as to custom and tradition.
HAYNE J:
sourced in, and in its essential features, is continuous with Now, is that the case you sought to make?
MR YOUNG: All I can say is this, your Honour, that as that paragraph says, it starts
with the present and says the present system of beliefs, customs and practices, as a body,
is sourced in earlier systems. Now, that is a different thing than saying that you need to
identify a particular law and custom now observed and trace it. It goes on to say the
activities include "physical presence", and (ii) refers to the current observance:
observance by members of the Applicants, and the ancestors, of traditions, customs and
practices derived from the ancestors Now, that is not inconsistent with anything I have put to the Court, nor does it explain his
Honour's error which is of a very different kind which is to try and ascertain the content
of the particular laws and customs and then track them.
GAUDRON J: A problem may arise in relation to the ambiguity of the word "ancestors".
MR YOUNG: Well, your Honour, if your Honour reads his judgment, there is a
consistent usage in the sense that his Honour refers - and he does use different
expressions. He uses "indigenous inhabitants of the area", he uses "ancestors", but he uses
them all to refer to an ancestral group and what he is searching for are the laws and
customs of that particular group. As I have said, your Honour, it narrows the expression
down to "ancestors" because of his view that all that counts, given that only two
biological forebears have been identified, are laws and customs, the observance of which
can be connected with those particular ancestors, and that is why the expression changes.
There is no ambiguity, we would say.
GLEESON CJ: "The ancestors" is the expression used on page 94, is it not?
MR YOUNG: Of the claim of the - - GLEESON CJ: Yes.
MR YOUNG: Yes, your Honour.
GLEESON CJ: Is that a convenient time, Mr Young? We will adjourn until 2.00 pm.
MR YOUNG: It is, your Honour, yes.
McHUGH J: Just before we adjourn: Mr Young, the order that you seek that the appeal
be allowed is that the case be remitted to a justice of the Federal Court. Now, this is a
case that lasted for 114 days with 11,664 pages of transcript, 201 witnesses. It would be a
disaster if this case was to go back for rehearing and given the findings of credibility, I
think it would probably have to be reheard. In fact, it rather indicates to my mind the
failure in this present system to try and ensure that Aboriginal people get their
entitlements. But are you pressing for an order that it go back for a new trial, as opposed
to going back to Justice Olney? Will you give some thought to it because - - MR YOUNG: Can I give some thought to it, your Honour.
McHUGH J: The cost of this litigation is just enormous - 114 days of litigation; to go
through that again - and, as one knows from experience, the second trial is usually longer
than the first.
MR YOUNG: Yes, your Honour, I will give some consideration to it.
GLEESON CJ: We will adjourn until 2.00 pm.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.02 PM:
GLEESON CJ: Yes, Mr Young.
MR YOUNG: May I respond to your Honour Justice McHugh's question of me just
before the adjournment. Our position is that if we are successful on the appeal, the
appropriate order is that the matter be remitted to the trial judge for determination in
accordance with law on the evidence led at trial.
McHUGH J: So you would want it to go back to Justice Olney?
MR YOUNG: As I said, our instructions are that that would be an appropriate order if
we succeed on the appeal.
McHUGH J: Yes. What if he is involved in some other long case that might take a
couple of years?
MR YOUNG: Your Honour, all we can submit is that the appropriate order is for
remitter for determination in accordance with law. We cannot make any submission
beyond that.
KIRBY J: I think the Justice McHugh's last question really highlights my unease about
the issue. We would not normally, I think, make an order specifying that a particular
judge should not hear a matter unless a question of natural justice or something of that
kind - we would normally not interfere in the way the Federal Court organises it list.
MR YOUNG: I understand that, your Honour, and that is why we framed the order in the
relief sought in the terms we did, but normally it is a matter for the Federal Court. What I
have endeavoured to make clear is that we have no objection and put no argument against
the remitter of the matter to the trial judge.
CALLINAN J: Notwithstanding some credibility findings against some of your clients.
KIRBY J: They are balanced by credibility findings in favour of some - - MR YOUNG: They are, but can I simply say about the credibility issues found against
us, they relate, as the Full Court observed, to very minor matters. So I do not think I need
to say anything beyond that.
GLEESON CJ: Well, if a matter is remitted to the Federal Court, it is ordinarily a matter
for the Chief Justice of the Federal Court to decide who will hear it, but it could be noted
that the parties - if this is a common attitude - will ask Dr Griffith that - if the parties have
a common attitude that it would be convenient, from their point of view, if it were
reheard by Justice Olney - - MR YOUNG: Yes, I think that is - - GLEESON CJ: - - - on the evidence given the first time around.
MR YOUNG: Yes. Can I then return to complete the point I was making at the
adjournment. The submission was that notwithstanding the task that the trial judge had
set himself, of identifying the content of relevant laws and customs, effectively, at
sovereignty in 1788, and then each decade thereafter, his Honour never completed that
task. Indeed, he failed entirely to identify or specify the traditional laws and customs
relating to land that he said was the objective of his inquiry. He did no more than refer in
several passages to some incidental evidence, firstly, at paragraph 110, at 265, opposite
line 10. Referring to Mr Curr's writings:
Curr obtained some understanding of the laws and customs in relation to land of the
indigenous people with whom he made contact and what he later wrote about these
matters provides a useful basis from which to proceed.
Next, after setting out passages from Curr, the trial judge returned to the significance of
those extracts at paragraph 117 at 268. It is a very equivocal statement that the trial judge
makes in the fourth and fifth lines:
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 His Honour never identified what bearing or what particular aspects of lifestyle were
considered to be important.
McHUGH J: Mr Young, it is difficult to accept that his Honour is correct when he talks
about the traditional laws and customs which are said to have constituted the burden in
the radical title of the British Crown, but given the terms of paragraph (c) do you
maintain that it is not necessary to show that the rights and interests which are the subject
of paragraph (a) of the definition must be shown to have burdened the title of the Crown
as at the acquisition of sovereignty?
MR YOUNG: Yes, we maintain that position in this sense, your Honour, that if
paragraphs (a) and (b) are satisfied, there are proven to exist, as defined by Parliament,
rights and interest in relation to land and Mabo decided that it is presumed that they
burdened radical title at sovereignty. The Act has moved on from there. It is no longer
necessary to investigate what were the precise laws and customs as at 1788 that existed.
McHUGH J: It may not be necessary to investigate what the precise customs were as at
that stage, because traditional laws and customs can evolve, but the whole basis of native
title, its jurisprudential foundation is that this constitutes a burden on the title of the
Crown as at the date of acquisition of sovereignty. Now do you say that Parliament has
now rejected that, notwithstanding the reference to being recognised by the common law
in this matter?
MR YOUNG: Your Honour, what we say is that the radical title doctrine, if I can call it
that, explains how it is that there continues to exist and be recognised by the common law
the possibility of Aboriginal native title; it does no more than that. If Parliament then
defines that native title for the purposes of the Act can be established by proving (a) and
(b), that is where the inquiry begins and ends and it is not necessary to go back to
establish that there was native title at 1788 burdening the radical title by proving,
presumably, what the content of laws and practices and customs were as at that date. We
do say that.
McHUGH J: You may not have to prove what the customs were as at that date so long
as you can show that what exists now is, in effect, a linear evolvement of something
similar at an earlier time. Can I give you a concrete example. Supposing the evidence
established that in 1820 a group of Aboriginals, for the first time, moved to a new area
somewhere in Australia and had been in occupation of that area since 1820 and never left
it. Now, on your theory, as I understand it, that would, nevertheless, be a case that falls
within 223, notwithstanding that they were not there as at the date of acquisition of
sovereignty.
MR YOUNG: Well, can I deal with it in stages, your Honour. We would say this, that
the Parliament has now enacted a new starting point and the backdrop - and it is no more
than background - is the recognition that the acquisition of sovereignty, at whatever date
is appropriate in the relevant part of Australia, did not extinguish native title. Now, that
being so and that being the background - - McHUGH J: But that assumes that it existed as at the date of acquisition of sovereignty,
that is, that what we call native title existed.
MR YOUNG: Yes, but your Honour postulates for me a case that is somewhat novel in
the sense that your Honour is postulating that there were no Aboriginal inhabitants of the
relevant area at sovereignty, therefore, sovereignty involved not just acquisition of radical
title but an acquisition effectively of the full beneficial interest.
First, let me say, that is plainly not this case. This area was occupied at sovereignty and
the trial judge has so found, and there is not a hint of argument to the contrary, but even
then, your Honour, we would say that if there is such a case, as a real example - and we
doubt it - of the kind your Honour indicates, we would say that it is not necessary under
the Native Title Act to go back and investigate the situation, vis-à-vis radical title, at 1788
or at any time prior to the 1820 date your Honour gives me.
The reason is that this Act says that if Aboriginal peoples can establish rights and
interests in relation to land that satisfy (a) and (b) and enforcement is not withheld on a
repugnancy or extinguishment ground by (c), then they can obtain a native title
determination which has the benefits that flow under this Act, including protection
against extinguishment.
McHUGH J: Yes, I understand what you put but your argument seems to confine
paragraph (c) to matters of extinguishment and perhaps abandonment, but it rejects any
notion that it covers the necessity to show that the rights and interests that you presently
hold were a burden on the Crown's title as at the date of acquisition.
MR YOUNG: No, your Honour, I had not quite finished what I was about to say which
will have addressed your Honour's point. Your Honour's argument might fall for
consideration on our construction of paragraph (c), that is to say, if (c) permits, as we say
it does, inquiry into the question of whether there has been extinguishment, your
Honour's example might raise an argument that there has been by exercise of sovereign
power - not by cessation of laws and customs or abandonment, but by exercise of
sovereign power an act which forecloses the possibility of native title arising. So your
Honour's example is not inconsistent with our construction. It simply depends upon the
ambit of the doctrine of extinguishment that is admitted into the inquiry by paragraph (c).
It says nothing about the issues in this case, which is a case where there is found to have
been occupation, use and enjoyment as an organised society at settlement, 1788, of this
area and ever since there has been physical occupation.
McHUGH J: Yes, but just to speak in those general terms seems to me to fall into the
same trap which at the moment the learned trial judge seems to have fallen in that he did
not identify what were the particular rights and interests of the claim and then seek to
trace them back. You seem to deny that there is any necessity to trace them back.
MR YOUNG: No, what we say, your Honour, is that the Act obliges a claimant for
Aboriginal title to prove that it possesses rights and interests in relation to land under
traditional laws now acknowledged and now observed. To prove that they are traditional
laws, there will necessarily have to be some proof that they are traditionally based and
rooted, if I can use your Honour's words, in a body of custom from the past, but only a
body of custom. That does not involve necessarily going back to 1788 and proving that
there is a particular set of normative rules or beliefs from that date. It is an impossibility
to prove what they were.
HAYNE J: Can we tease that out just a little more. Your argument includes within it,
perhaps begins from, an understanding of "traditional", an understanding of "traditional"
which focuses more upon means of transmission than any particular attribution of
longevity.
MR YOUNG: No, not necessarily so, your Honour.
HAYNE J: You shy from saying that the tradition must be pre the arrival of the white
man in this country, do you not?
MR YOUNG: We say that you do not have to find a particular law, an element, within
that tradition that existed then and now exists.
HAYNE J: Do you say that you need not base the right or interest upon traditions rooted
in traditions that existed before 1788?
MR YOUNG: The first part of that we say yes to. We have accepted the approach of
Chief Justice Black as being an appropriate approach, that is you need to show truly
traditionally-based laws and customs and which are rooted in the past. But that is not the
same thing as saying that you have to establish the pre-sovereignty situation.
HAYNE J: Leave aside evidence. Leave aside the problem of proof, which you keep
coming back to, and the importance of which I do not downplay. What, as a matter of
principle, as distinct from a matter of proof, is to be established? Is it necessary to prove
that the tradition is pre-settled?
MR YOUNG: Your Honour, we would say - and the answer to that broadly speaking, we
would say, is no but it is impossible to give a precise answer if you have a court that
adjudicates on the matter without examining what are the current traditions observed and
acknowledged, and identifying what they are and then asking whether they are
traditional, in the language of the statute, and then seeking to see whether the particular
matters established by the facts are rooted in the past. That is the proper inquiry. It really
begs the question to ask in the board, "Do we say that there has to be a particular tradition
that you can establish existed as its sovereignty?"
If the only traditions established, for instance, are certain beliefs about the people's
country, they are not usufructuary rights. These are rights to land. There is an ongoing
belief that you can establish by evidence back to 1900 and so forth, and you can establish
that the forbears of the community occupied the land back in the 1700s. Why do you need
to show more than that in relation to a right to land than that there is an organised system
of belief, it is traditionally based, the people have always occupied the land and we can
prove those matters back into the turn of the 19th to the 20th century. Why do you have to
go further? Parliament, in our submission, does not require you to go further, and it has
considered the matter and determined that you ought not to be made to go further.
HAYNE J: But your claim was framed, at pages 96 and 97, in respect of particular
rights. I do not intend this to sound disrespectful. It is not focused only on spiritual
connection.
MR YOUNG: No.
HAYNE J: It is focused on other elements.
MR YOUNG: Yes, your Honour.
HAYNE J: I am not saying spiritual connection was unimportant or irrelevant, but the
focus of the claim was otherwise.
MR YOUNG: Yes, your Honour, but we have not had that factual investigation and if
we had it we might have established all of those elements. I was about, I think, to turn to
118, I may have already done so, I cannot recall. I draw attention to the words "some
bearing" in 117. At 118 his Honour then makes one of his key logical findings, or key
findings that supports his conclusion:
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 quote from
Curr.
That is one of the principal bases of his decision; that and the petition.
Now, that is lifestyle, and evidence silent about continued aspects of traditional lifestyle.
His Honour entirely disregarded evidence from Aboriginal witnesses of - and I quote
from the trial judge:
what they understood to be the traditional laws and customs of their ancestors . . . derived
from parents or grandparents or simply "from the old people".
That evidence took you back to the start of the 20th century. He had no regard to it paragraphs 21 and 22 of his judgment - and the reason he did that was that they did not
witness events in the 1840s to the 1880s. Paragraph 22 at 226, what he says there, after
the passage I quoted, was that:
The cogency of such evidence from living witnesses does not necessarily depend upon the credibility of the individual witnesses but must be
assessed in the whole context of the case, including where it exists, evidence derived
from historical records and the recorded observations of people who witnessed activities
and events about which the members of the claimant group know only what has been
passed down to them by their forebears.
The historical observations of white people witnessing events and recording the odd
aspect of them is intrinsically treated by his Honour as less reliable and less cogent than
those which members of the claimant group know only from what has been passed down
to them by their forebears about their own laws and customs. That is the basis on which
his Honour treated Curr as the most credible source and says "less weight" is to be given
to oral testimony. That is paragraph 106. His Honour's approach, as Chief Justice Black
rightly pointed out, makes no allowance for adaptation and change in laws and customs,
or no proper allowance, and we rely upon the reasons given by the Chief Justice at
paragraph 69 to 72 of his judgment.
KIRBY J: Have you collected the references in the decisions since Wik in this Court
about the capacity of Aboriginal laws and customs to develop?
MR YOUNG: Yes, we have, in our written submissions, your Honour, and if time
permits, I will come back and give your Honour a catalogue.
KIRBY J: I know that reference is made to Yanner, which, in a sense, is a sort of vivid
illustration, but it has been touched upon in virtually every case.
MR YOUNG: It has, by Justice Lee and by two Full Courts in Ward and Yarmirr.
KIRBY J: I am talking about this Court.
MR YOUNG: By this Court - - KIRBY J: I think it was raised in Yarmirr and it certainly was raised in Yanner v Eaton.
MR YOUNG: It was certainly raised in Yanner v Eaton in the passage to which I
referred without going to, your Honour.
GLEESON CJ: At some stage before you complete your submissions - and this would
not be the appropriate time - can you let us know what your submission is as to the
decision and reasoning in the Court of Appeal of New South Wales in Mason v Tritton?
MR YOUNG: Yes, I will, your Honour. Can I make another point about the judgment
and approach of his Honour. His Honour makes no allowance for the practicality or the
practicability of observing traditional laws and customs. The Court will recall that Justice
Brennan made such an allowance on a number of occasions in his judgment in Mabo,
using the words "so far as practicable" in relation to observance.
KIRBY J: Is that not all part of the capacity and necessity to develop?
MR YOUNG: It may be, your Honour, but I want to make a particular point about it in
the context of Justice Olney's reasons which is this: his Honour said and placed weight
upon the fact that "The evidence is silent concerning continued observance in Matthews'
time". Matthews was the missionary who established the Maloga Station, but his Honour
at the same time observed that Matthews was responsible for suppressing the observance
of traditional laws and customs.
KIRBY J: I think Justice Toohey specifically referred to the advent of Christianity and
the way that was affect in - - MR YOUNG: Yes, but his Honour's findings went further, your Honour, and he found
that if people were caught observing traditional customs or practices they were punished,
they had their rations withdrawn. People were forced to marry contrary to their traditional
laws and customs and that is one of the reasons later in the 1880s people left Maloga and
went to Cummeragunja.
Now, to place reliance - critical reliance in his chain of reasoning upon the fact that
"evidence is silent concerning observance in Matthews' time" sits oddly with his finding
that Matthews suppressed the observance of traditional laws and customs. They were
hardly going to confine Matthews who was pressing traditional laws and customs. The
references I make to the trial judge's judgment are at paragraphs 40, 41, 44 and 117, in
that regard.
Can I note that in Yarmirr in the Full Court Justice Merkel said this at paragraphs 341 to
345, and I simply quote a few words:
abandonment does not arise where non-observance of laws and customs occurs in
circumstances where a requirement of effective observance is unrealistic.
Or to use Justice Brennan's words, "impracticable". I turn then to make a few more
observations about the second requirement imposed by the trial judge in the Full Court,
namely, occupation as a traditional society. We have seen from paragraph 3 that the trial
judge drew that requirement out of the passage of Justice Toohey's in Mabo. Now,
without going to it can I remind the Court that at pages 191 to 192 of Mabo Justice
Toohey was addressing an argument that the Meriam people had lost all their native title
rights by changing their ways and adopting modern ways of society and to that Justice
Toohey said that:
An indigenous society cannot, as it were, surrender its rights by modifying its way of life.
KIRBY J: What page is that, 112, is it?
MR YOUNG: That is at page 192 of Mabo. His Honour found, in fact, that a traditional
society could undergo significant change in terms of adherence to Christianity, adoption
of contemporary institutions, establishment of a new land court system that the colonial
authorities forced upon the people, and so forth, without losing its traditional title to land.
Now, it was in the course of that passage that Justice Toohey made the statement quoted
by the trial judge at 208, line 27:
So long as occupancy by a traditional society is established now and at the time of
annexation, traditional rights exist.
His Honour has misunderstood the passage and treated the common law as stated by
Justice Toohey as stipulating a requirement that you would lose your native title unless
you continued a traditional way of life, as a traditional society.
That is why his Honour returned to that matter at paragraph 121 of his judgment and
made what was the second aspect of his critical finding which, in these terms, about lines
13 to 14:
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
Justice Toohey's test of occupation by a traditional society now and at the time of
annexation.
Now, in our submission, there is no such requirement in the Act and there never was any
such requirement at common law and his Honour has fundamentally misunderstood the
passages from the judgment of Justice Toohey.
In relation to that matter, Justices Branson and Katz thought that Justice Olney may have
applied too stringent a test. That is in the Full Court majority judgment at page 370 at
paragraph 195. There they say:
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 . . . but also
that they presently occupy the land in the sense that the original inhabitants can be said to
have occupied it . . . If his Honour did take this view, we consider that he applied too
stringent a test.
And then they go on to say:
The correct position in respect of occupation is as follows. But that shows that their Honours misunderstood what Justice Olney had
said and was doing. His Honour was not addressing occupation; his Honour conceded
that members of the community continue to occupy the area physically. His Honour was
addressing the character of the occupation - that is, the trial judge was doing that - as a
traditional society. That is what the words in a sense were directed at. So the depth of his
Honour's error is not really understood by the majority in the Full Court. They think it is
an error about occupation; it is more fundamental than that.
The next point we would make is this, if I can go back to the trial judge's findings at 121
on page 271. The trial judge did not at any stage make a finding that the entire Yorta
Yorta community, as of the 1880s, had ceased to observe their traditional laws and
customs in relation to land. He made no finding addressing the position of the community
as an entire community, nor did he make any finding addressing all of the laws and
customs of the community in relation to land. His finding was confined to:
those through whom the claimant group now seek to establish native title in paragraph 121.
In so far as his Honour had identified anything like a law and custom, it was really only,
as he pointed out at paragraphs 117 and 118, only aspects of traditional lifestyle. So his
only factual finding was that aspects of traditional lifestyle observed by Curr were not the
subject of any evidence in the 1880s.
McHUGH J: What do you say about the passage at page 271, lines 5 through to 11?
MR YOUNG: Lines 5 to 11 is addressing, your Honour, those through whom the
claimant now seeks to establish native title. That is what it is confined to.
GLEESON CJ: What do you say about the reasoning from paragraph 122 on? The last
sentence in paragraph 121 simply refers to "some mention . . . of the evidence", but then
Justice Olney from paragraph 22 onwards goes through a series of current beliefs and
practices and deals with them one by one. I have no idea, but how comprehensive is that
treatment?
MR YOUNG: Far from comprehensive, as Chief Justice Black's judgment makes out. It
is no more than some mention. It is not an attempt to evaluate the laws and customs
currently observed and acknowledged in relation to land as required by section 223.
GLEESON CJ: Can you give an example of an important one that he left out?
MR YOUNG: The creation myths concerning the land in question, how the people came
to be there and their beliefs in relation to their ancestors' occupation of the land. So there
are those sort of beliefs as a set of beliefs about why it is their country. Can I show your
Honour an example of that in these mentions that his Honour makes. At paragraph 124
about reburials, I draw attention to the last sentence:
There can be no question about the importance of the returning of remains to the
appropriate country His Honour seems to accept that there was evidence identifying what the appropriate
country was as a matter of traditional law and custom. That was part of the current laws
and customs currently acknowledged and observed by the people. There are no findings
about that. They are simply an incidental recognition that there were laws and customs
identifying an appropriate country of this community. His Honour dismisses the idea that
current beliefs that remains need to be reburied when they have been taken away for
scientific observation and the like in the appropriate country. He dismisses that as a
modern practice. Why is it not an adaption of the traditional belief from time immemorial
- and Curr records the burial practices of these people - that the people needed to be
buried in their own country because their spirits needed to reside on their land; they
belonged to it.
Now, his Honour dismisses that as some kind of modern practice that has no traditional
roots. It is a complete misconception, we would say. But Chief Justice Black goes
through some of the broad sweep of the evidence that was never evaluated. But my point
about the way in which this conclusion builds up is this - the steps in it are apparent from
117 to 121. Paragraph 117 refers to Curr's observations about aspects of life and culture
that might have some bearing upon the laws and customs of ancestors of the group. Then
118 says silence "in Matthews' time" who was suppressing laws and customs about
"aspects of traditional lifestyle". The next step is then to say there has been severe
dislocation of the population and considerable reduction in numbers in 118. The next step
is to say no evidence that either two individuals or their particular biological descendants
were observing laws and customs, no attention to what the rest of the community was
doing. From that absence of evidence, his Honour then adds the petition and from there and that is the only evidence his Honour refers to - he comes to the conclusion in 121. In
our submission, on any evaluation that is wholly inadequate and flawed.
But his Honour makes no findings, we would say, about the entire community which
must be critical. We are not talking about laws and customs of individuals; we are talking
about the laws and customs of the entire community and the effect of his finding is that
everyone in the community is presumed to have intended, within a few years of Curr's
observations of a vital lifestyle, to have abandoned all of their laws and customs in
relation to land, every one of them.
HAYNE J: What evidence was there that there was a community ancestor to the present
claimants to whom attention should be given?
MR YOUNG: There is substantial evidence his Honour recounts about groups of blacks
living in the vicinity of Moira Lakes - - HAYNE J: I understand there is a lot of evidence about that, but what evidence was there
of connection between these claimants and those who formed those communities?
MR YOUNG: I am not sure if I entirely grasp your Honour's question, but we will soon
see.
HAYNE J: One of us will.
MR YOUNG: The connection his Honour was working from was biological connection
to the two ancestors. There was evidence of those two ancestors being part of the Maloga
Cummeragunja community. Neither of them signed the petition and there is evidence of a
lot of other people in the records of Maloga who were parts of the same community and
the entry's records of Maloga record them as being members of the same tribe. But his
Honour does not direct attention to members of the Ulupna tribe or other people. He
focuses on the two ancestors and their observance.
HAYNE J: At some point after the oral hearing I think it may be of assistance if I could
be directed to that part of the proceedings at trial in which your side sought to make the
point that regard should be had to a wider community than the position of the two
individual ancestors. Do not delay a lot now, but after oral hearing it would be of
assistance, I suspect.
MR YOUNG: Now, can I also then draw attention to another aspect of the reasoning in
paragraph 121 at page 271. That is the emphasis his Honour places on dispossession.
Dispossession is mentioned by his Honour effectively in paragraph 118 in the second last
sentence. Firstly:
Land . . . taken up for pastoral purposes . . . and severe dislocation . . . reduction in
numbers.
Then his Honour refers to the petition which refers to:
That all the land within our tribal boundaries has been taken possession of by the
Government and white settlers; our hunting grounds et cetera. His Honour stresses that reference to tribal land being taken possession of in
paragraph 120, about line 27. Then in his critical reasoning he attaches great significance
to the dispossession - page 271, line 7, "No longer in possession of their tribal lands" and
a bit further on, "and the dispossession of the original inhabitants and their descendants
has continued through to the present time." But, of course, that is not of all the land and it
is not of the Moira Lakes or the Barmah Forest or Cummeragunja, all those areas.
Now, his Honour seems to attach significance to dispossession as a reason for inferring
abandonment by an entire people of all of their laws and customs. He is using
"dispossession" in a sense different than the court used it in Mabo where it was used in
the technical sense of recurrent exercises of paramount sovereign power. His Honour is
using it to refer to physical exclusion from tribal land, and the modern cases accept that
physical exclusion from tribal land or some parts of it is not basis for finding that native
title has disappeared.
The modern cases I refer to are Justices Beaumont and von Doussa in Ward at paragraphs
241 to 245 and we refer to what Chief Justice Black says about the matter and the
authorities in paragraphs 46 to 48 of his judgment.
Your Honour, can I give your Honour Justice Hayne an indication of his Honour's
attitude to the wider community without going through all the references. The records
record that various people were entered at Maloga as members of the Ulupna tribe. For
instance, paragraphs 70 and 72 at 249 to 250 - the middle of 250 is perhaps the best
example. Does your Honour see that - tribe Ulupna?
HAYNE J: Yes.
MR YOUNG: And the petition itself starts off by saying, "We, members of the Moira
and Ulupna tribes" say something. Now, because Curr had mentioned something like a
Moira tribe in his writings, his Honour was prepared to have regard to evidence about
members of the Moira tribe. But Curr made no reference to Ulupna and so his Honour
took a different attitude to that. I think the best example is paragraph 100 at the bottom of
261:
description of his "tribe" as Ulupna appears to merely reflect his place of residence.
And somewhere else his Honour says expressly he is going to treat Ulupna as referring to
a pastoral station rather than a tribal group.
That is the passage I cannot immediately find, but for instance at 256 there is another
quote about significance of Ulupna at about line 10. The paragraph I was searching for is
paragraph 70 at page 249 - no, that is not the passage. Paragraph 70, I think. In the end
his Honour treats it as a geographical indicator not as a tribal indicator.
The majority in the Full Court identified a number of errors in the approach by Justice
Olney. They should, in our submission, have led the Full Court majority to allow the
appeal because the errors were pervasive and fundamental. The errors are identified as
follows. Firstly, paragraph 145 in the joint judgment of Justices Branson and Katz at 355.
Next at paragraph 162 - I am sorry, that is at page 360. Next page - I am sorry, before I
get there, page 364, paragraph 175. Their Honours say of the failure of the issue
mentioned by the trial judge identifying:
the nature and extent of the native title rights of those ancestors they say:
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.
Now, we say a reading of the trial judgment indicates that he plainly did identify the
purpose, which was to see if those laws and customs were continuously observed through
the decades. Over the page at paragraph 181, last three lines, in reference to the quoted
passage that it is only the traditional laws and customs of those biologically connected
with Edward Walker and Kitty Atkinson/Cooper that are relevant, their Honours in the
Full Court said the trial judge:
does not clearly identify the relevance which he attached to the acknowledgment and
observance by the ancestors of Edward Walker and Kitty Atkinson/Cooper.
Again, in our submission, a reading is clear that he did. He saw that as the vital thing that
had to be established as part of this continuous chain of observance that had to be
negated, or had to be proved by proving that at no time did it cease. Paragraph 195 - I am
sorry, I have taken the Court to the continuation of that already at paragraph 182. Finally,
at paragraph 195 at page 370 there is the error about the losing character as a traditional
community.
Now, having identified those matters as errors or probable or potential errors, their
Honours in the Full Court failed to recognise that those errors were pervasive and
affected every aspect of the trial judge's reasoning, from paragraph 3 to paragraph 129.
Moreover, they failed to realise that those errors were the reason why the trial judge held
that you must establish that at no time did your ancestors cease to continuously observe
the same laws and customs that could be tracked back to 1788, or as a surrogate 1840,
when Curr first started observing matters.
Can I turn to another aspect of our criticism of the judgment, that is the conclusion of
abandonment. Abandonment means to forsake and utterly desert and to do so
intentionally. Justice Merkel in Yarmirr said abandonment of a whole community's laws
and customs is not likely to be inferred. That is at paragraphs [341] to [345] of Yarmirr.
Now, that understates the matter, in our submission. You cannot infer abandonment from
this paucity of evidence, within a period of a couple of years, for all the reasons that
Chief Justice Black gave. Moreover, it is unreasonable to suppose that the common law
would, as a requirement, impose an onus on a claimant for native title to demonstrate the
negative, that at no time since 1788, during any period of a few years or a decade, have
ancestors ceased to observe and acknowledge traditional laws and customs. We say the
common law would not impose such an onus for these reasons. First, to do so is
unreasonable and unrealistic - - GAUDRON J: Is there not a presumption of continuity?
MR YOUNG: Well, that is the next reason I was going to come to, your Honour. The
second is a presumption of continuity, the same sort of presumption considered in Mabo,
the presumption that native title continued beyond annexation. Next, Canadian authority
would reject the imposition of any such onus of disproving abandonment. The view taken
in Delgamuukw and other cases such as Calder is that if abandonment is alleged, he who
alleges has to prove it.
Thirdly, the common law onus concerning allegations that rights of way or easements or
the like have been abandoned rests on the person alleging abandonment. So that is the
rule for the general population. Moreover, non-use for extensive periods of time, 15, 20,
30 years, at common law is no basis for imputing abandonment. Why should an
impossibly onerous and discriminatory burden be imposed by the common law on
claimants for Aboriginal native title? Can I then turn to the factual findings by Justice
Olney - - KIRBY J: There is some mention of the presumption of continuity in Mason v Tritton.
MR YOUNG: There is, your Honour, yes. I will turn to Mason v Tritton as soon as I
complete the analysis of the judgments, if I may.
I have already pointed out that the critical steps in the reasoning of the trial judge occur in
the passages from 117 to 121. Then his Honour repeats his conclusion in broad terms at
129. The steps from which his Honour builds his conclusion, and the only evidentiary
steps, are these. First, silence:
concerning the continued observance in Matthews' time of those aspects of traditional
lifestyle to which reference is made in Curr. Now, that could be put to one side immediately. There is no basis for inferring
abandonment of any laws and customs. The second matter he mentions is:
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.
That would seem to be the common experience of Aboriginal communities throughout
this country. It also affords absolutely no basis for drawing a conclusion of abandonment
of laws and customs. The third element is:
no evidence to suggest that either two individuals or their immediate descendants continued to acknowledge traditional laws and customs of
their forebears Again, an absence of evidence, a gap, about certain individuals affords no basis for the
conclusions.
His Honour then moves from the gap, from the absence of evidence, to the petition, but in
doing so his Honour seems to indicate that he is going to draw conclusions from an
absence of evidence, in the opening words of paragraph 119 at page 268. He then goes to
"positive evidence", which he says is the petition. Now, Chief Justice Black has made
pertinent criticisms of the petition, but can I draw attention to some aspects of it that
should have told in our favour, not in favour of presuming abandonment. It commences
by saying that this is the petition of "members of the Moira and Ulupna tribes", so
presumably, at the time of the petition there were traditional laws and customs in place
being acknowledged and observed that would determine membership of those tribes.
Secondly, in paragraph 1 it refers to the tribal boundaries, "our tribal boundaries" and
"our hunting grounds". So again, the petition evidences the fact that as at 1881, there
were in place, being currently acknowledged and observed, laws and customs defining
the tribal boundaries of the land of those tribes and their hunting grounds. That indicates
ongoing customary laws regulating tribal membership, tribal identity, tribal lands and
tribal hunting grounds. His Honour did not recognise those features of the petition.
Paragraph 2 refers to "the men of our several tribes" and it goes on to speak about,
effectively, requesting an area of sufficient land being granted. In 3, there is reference to:
our old mode of life is not in keeping with the instructions we have received perhaps about Christianity, perhaps about other matters - the very sort of thing that was
said not to be a disqualifying factor in Mabo.
Based on the petition, which plainly was prepared for the members of the tribes - and I
think it is accepted it is likely prepared by Matthews, 121, Matthews may have played a
part in it - no conclusions really can be drawn from the petition that it affords evidence
that the whole community has abandoned its traditional laws and customs in relation to
land; on the contrary.
In paragraph 120 on page 270 his Honour makes some observations about the petition. Of
the membership of the tribes, in about the fourth and fifth lines, his Honour says:
a description which is not found in Curr's writing but suggests that the individuals
concerned identified with the two main pastoral properties in the region That is an extraordinary proposition in the light of the evidence his Honour has recounted
earlier about individuals being recorded as saying, "I'm a member of the Ulupna tribe",
and the Maloga records recording that fact. But he says:
identified with the two main pastoral properties in the region rather than as Bangerang or
any of the other sub-groups referred to by Curr.
As for the reference to tribal boundaries, his Honour fastens on the dispossession:
The petition contains a frank acknowledgment that "all land with (the petitioners') tribal
boundaries has been taken possession of by the government and white settlers" The fact that land has been taken possession of may found by sovereign Act or found no
doubt the extinguishment aspect of this case, but it is no evidence of abandonment.
In our submission, abandonment cannot be inferred without evaluating the current day
evidence of customs, beliefs and traditions. That evidence covered what was passed down
from people alive at the turn of the century. How can you infer abandonment when you
have evidence of healthy, vital laws, customs and traditions as of 1910, 1920 because of
the meagre facts that his Honour incorrectly interprets as of about 1880? For those
reasons, it is our submission that his Honour's legal and factual inquiry miscarried in its
entirety in both respects and it cannot be saved by what the Full Court did, which was to
recognise the errors, to say, "We don't think they are of real significance", and then
themselves make some brief essay into evidence never considered by the trial judge from
the contemporary oral evidence about laws and customs.
At paragraph 189 and thereabouts the Full Court tiptoed but only tiptoed into a few
aspects of the evidence that the trial judge never considered.
McHUGH J: Yes, but you have to show error on the part of the Full Court.
MR YOUNG: We do that, your Honour, by saying that the Full Court said that Olney's
errors, the full depth of which they never appreciated - - KIRBY J: Justice Olney, please.
MR YOUNG: I am sorry, your Honour.
KIRBY J: Justice Olney.
MR YOUNG: Justice Olney, yes. I am sorry, your Honour.
McHUGH J: Earlier you said "Toohey" without saying "Justice Toohey" as well.
MR YOUNG: Yes, I am sorry, your Honour, I apologise. What we say is the error by the
Full Court is that the Full Court recognised some of the trial judge's errors. It did not
recognise all of them, it did not recognise their depth and their reach as affecting all of his
Honour's reasons, nor did they recognise that the entire inquiry and the questions his
Honour asked himself were a misdirection because he misunderstood both the Act and
the law. But on the factual aspects of the matter, the trial judge's findings were directed
solely to the position in 1881. The basis for them is unsustainable. In our submission, the
Full Court was in error in saying that findings about the position in 1881 could be
sustained by having recourse to the Full Court's own consideration of some evidence
from contemporary witnesses that was never considered or evaluated by the trial judge.
McHUGH J: Why. You told us for two days or the best part of two days on Tuesday and
Wednesday it is the Full Court's findings that matter.
HAYNE J: Other times, other cases.
MR YOUNG: That is the prerogative of counsel, your Honour. But the Full Court has
not made any findings about the matters that determined the case. The only findings
about 1881 and abandonment are the trial judge's findings, and we have explored the
basis for those. What the Full Court then turned to at page 370 was to say, "We will look
at some aspects of the evidence given by contemporary witnesses". What they refer to
falls well short of an evaluation of the relevant evidence concerning contemporary rules
and conditions and that is plain from the Chief Justice's account of those matters. Can I
refer the Court for comparison to page 332 of the appeal book.
CALLINAN J: Mr Young, just before you do that, I wonder if you can help me with a
matter. It seems to me the words "in relation to land or waters" in section 223(1) are
important words and eventually a court has to give a determination in relation to a
particular piece of land or water, so that has to be identified.
MR YOUNG: Yes, your Honour.
CALLINAN J: It would need, I would think, to be identified according to and by a
traditional law or a traditional custom. You accept that?
MR YOUNG: Yes, your Honour.
CALLINAN J: Was there actually evidence placed before Justice Olney of a traditional
law or custom which actually identified with some degree of precision the land the
subject of the claim?
MR YOUNG: Yes. Indeed, his Honour comments - and I do not have the passage
immediately to hand, but there was considerable amount of such evidence in relation to
particular areas, but a paucity of evidence in relation to land in the north-east quadrant.
CALLINAN J: I think his Honour said that the overall area within which the claimed
land was, was not identified by reference to any geographical feature, for example.
MR YOUNG: That is the blue boundary, yes, your Honour, that is so.
CALLINAN J: And as I understood the claim - and I may be quite wrong about this - it
would have encompassed everything within that area but for the fact of alienation to
others for exclusive possession.
MR YOUNG: Yes, that was the claim, but the evidence that was led was more piecemeal
than that, if I can say that, your Honour. It made out boundaries of the tribal
communities. There was a lot of evidence about land in the vicinity of the Barmah Forest,
Mooroopna, Shepparton, the Goulburn, the Murray.
CALLINAN J: But did it descend to evidence about boundaries?
MR YOUNG: Yes, it did, in a broad way.
CALLINAN J: Yes, but you say "in a broad way", that always worries me, because, I
mean, it may be a defect in the Aboriginal laws in relation to this.
MR YOUNG: Your Honour, it was done by reference to - and I am thinking of an
example of one witness - that it was from such and such a place on the Murray, out to
there, across to the Goulburn - - CALLINAN J: It arose in Yarmirr - - MR YOUNG: Yes.
CALLINAN J: - - - and I think it is going to arise perhaps in a lot of cases, but do you
not really need to point to a traditional law - I am not suggesting an indigenous equivalent
of the Titles Act or a common law system of title - - MR YOUNG: But there was evidence.
CALLINAN J: There was evidence?
MR YOUNG: There was evidence, your Honour, as to the traditional land - - CALLINAN J: Just in a nutshell, what was that evidence that enabled the land to be
defined and would enable the Court to say that it was held pursuant to it? What was the
law or custom?
MR YOUNG: Well, your Honour, I can only do it by giving your Honour an example.
Particular witnesses gave evidence saying that, "Our people's country - or we believe our
people's country extends from -" particular physical locations that were identified.
Beyond that it is the country of - I think Wamba Wamba country was one example in the
evidence. But the evidence was more in the nature of belief than - - CALLINAN J: Belief. Well, that may be a problem - - MR YOUNG: Well, it may be a problem ultimately, your Honour, but - - CALLINAN J: - - - that the common law has in embracing that or accepting that.
MR YOUNG: But, your Honour, we never got to that because that evidence has never
really been addressed.
CALLINAN J: Well, I do not know whether you might not have had to have got to it that is my point - looking at it. You might have needed to have got to that, even at the
preliminary stage that the matter had reached. Certainly on one reading of 223 you might
have needed to.
MR YOUNG: Your Honour, we say we have not had the evaluation by a trial court of
the 223(1)(a) and (b) requirements.
CALLINAN J: But your clients are the only people who can prove that and it goes to
your onus of proof point too. I mean, it is all very well to speak of a presumption of
continuity, but you have to prove in the first instance what it is that you say continues which law continues or which custom continues.
MR YOUNG: No, we say the presumption of continuity attaches to the native title right
or interest, not necessarily the particular laws or customs within the body.
CALLINAN J: But the particular laws or customs which determine, according to
Aboriginal law or custom, that your clients are the persons possessed of it and entitled to
it. I do not mean all of the ingredients of it. I am talking about the particular one which
establishes, as it were, your Aboriginal title to it, preceding the common law.
MR YOUNG: Yes, I think I just come back to the same point that I have made a number
of times, your Honour, and I do not want to repeat myself, which is that we are obliged to
make out the proofs in 223(1)(a) and (b) and there was evidence there to do it which was
never evaluated in respect of the precise matters that your Honour raises with me.
CALLINAN J: Except you have just told me that all you could prove and all you did
prove was a belief, not a particular law and I am talking about a particular law or custom
governing ownership, perhaps boundaries.
GAUDRON J: Did not Mr Curr write about the requirement for groups from other
Aboriginal areas to seek permission to enter the land and about individuals having
particular rights and, in fact, he even, somewhat arrogantly, sought to buy the fee simple
from one of - - MR YOUNG: That is right, your Honour.
CALLINAN J: I remember that evidence and I am conscious of it.
GAUDRON J: It may not give the boundaries exactly but it does give some indication of
an assertion of exclusive possession against others.
MR YOUNG: Yes, your Honour. There was evidence of that kind. There was
anthropological evidence of language groups and which - - CALLINAN J: Evidence of an assertion of a right of exclusion does not to me
necessarily convey the content of the relevant law or custom.
MR YOUNG: We would say that your Honour is applying an ideal of what a law is.
CALLINAN J: No, I am not. I am looking at what the common law has to receive. The
common law has ultimately to receive this and one thing that it has to receive is a precise
area of land that is defined and it has to be defined by reference to something and the Act
requires that it be defined by the Aboriginal law or custom.
MR YOUNG: Yes, your Honour, but there was evidence of that kind and not being
present at trial and not knowing all of the evidence is a disadvantage but there was
evidence from various witness demarking what they said were, according to their laws
and customs, their tribal boundaries and there was other evidence supporting it both of
the historical kind, as Justice Gaudron refers to, and of an anthropological kind.
CALLINAN J: At the moment I need a little more persuasion that it goes far enough certainly what is quoted, any way. I have an open mind about that. I am just wondering
about it.
KIRBY J: When you have in the Act - in section 223 - reference to traditional laws and
traditional customs, it has to be read in the context of a society that did not write its laws,
that did not have the precision, that did not have feudal title, and that it would be artificial
if the Parliament were to be taken to demanding the precision of our system of law.
Somehow, we have to read section 221(a) and (b) as relating to a system of law that is
different from ours.
CALLINAN J: I do not doubt, with respect, a word of what Justice Kirby has just said
but in the end it still has to be received into and given effect by the common law.
MR YOUNG: Yes, your Honour, but that aspect of this inquiry has not occurred. The
evidence is there and it is for someone, a judge, properly instructed in accordance with
relevant principles, to consider and determine. The evidence in the Chief Justice's
judgment I was going to refer the Court to is at pages 332 and 333.
KIRBY J: What paragraphs are they?
MR YOUNG: At paragraphs 79 to 84 at 332 to 334, Chief Justice Black summarises
additional evidence that was not referred to either by the trial judge or by those parts of
the judgment of Justices Branson and Katz that referred to contemporaneous evidence.
CALLINAN J: What is meant by the words:
Likewise the evidence shows that his ancestors never lost physical connection with the
land and waters of that area Were they actually living there?
MR YOUNG: I am sorry, whose words are those, your Honour?
CALLINAN J: That is the Chief Justice's summary on page 333 of the evidence, I think
of Mr Briggs. About line 40, Mr Young.
MR YOUNG: Yes, your Honour. That refers to the fact that there was ongoing,
unbroken physical occupation.
CALLINAN J: Occupation. I should read "connection" as "occupation", should I?
MR YOUNG: Yes. We submit that for the reasons we have said that the Full Court's
judgment was in error. Can I turn to Mason v Tritton as the last matter that I wish to
address. I will be very brief. Mason v Tritton was a case in which the applicant failed on
the facts because evidence establishing - - GLEESON CJ: When you say "applicant", it was not an application for native title.
MR YOUNG: Your Honour is right. It was a defendant to a prosecution, I think, taking
abalone. We would say this about the significance of the case. Your Honour the Chief
Justice agreed with Mr Justice Priestley. There is a passage in the judgment of Mr Justice
Priestley that we say is consistent with our approach to the Native Title Act. It appears at
600 C to E. It recognises that the Native Title Act has simplified matters of proof and the
elements of native title compared to the common law situation. The other significant
passage, we would say, is in what Justice Kirby, then President of the Court of Appeal,
had to say concerning not imposing unreasonable and unrealistic burdens on Aboriginal
claimants by way of proof.
KIRBY J: It was not so much that, I think. It was that you have to recognise that they
cannot prove their cases from written records and that it would be unreasonable to
demand that and the common law does not normally act unreasonably.
MR YOUNG: Yes. The passage to which I was going to particularly refer your Honour
is at 588F to the top of 599.
GLEESON CJ: What do you say about the propositions set out in the judgment of
Justice Kirby at 583 to 584 and the similar propositions set out in the judgment of Justice
Priestley at 598?
MR YOUNG: It is our submission that those passages that reflect the view that the
common law required continuous proof of observance of laws and customs do not
accurately state the common law position. They are based, it seems, on a reading in Mabo
that, in our submission, properly read, Mabo does not go so far as to support that
requirement. Over and above that, in our submission, that requirement has no longer
survived, if it was ever part of the common law. It is not a requirement of the Native Title
Act and it is not incorporated via (c). It would appear that that argument was not one
advanced before the court in Mason v Tritton. If the Court please - - KIRBY J: I have not read this for some time, but I do not think that either Justice
Priestley or I suggested that you had to go back to 1780 and work forward. On the
contrary, I referred to the fact that you would go back and then have the benefit of a
presumption. At least, I think that is what I said. I will have to reread it.
MR YOUNG: I think your Honour is right. None of the judgments suggests that you
start where the trial judge in this case started and work forward, but there is reference in a
number of places, including, for instance, 584, between D and E, to continued
observance. Of course, we would say, the proper view of that is to start with the present
and to inquire whether the observance is a real observance of something which is
properly described as traditional.
GLEESON CJ: Well, the expression used is "continued, uninterrupted".
MR YOUNG: Yes, but I do not think that was the issue in the case, your Honour, that - GLEESON CJ: Well, what happened in the case was that evidence of anthropologists
was tendered and it fell a long way short of establishing anything other than that, as might
be expected, people who live near the sea fish.
MR YOUNG: Yes.
GUMMOW J: But the State Act was post the RDA, was it not, in Mason v Tritton?
MR YOUNG: It is, your Honour, but my submission was that the sort of arguments that
we have put were not in the forefront of the court's mind in Mason v Tritton because the
matters were not argued that way.
GUMMOW J: No. That is right.
MR YOUNG: If the Court pleases, those are our submissions.
GLEESON CJ: Thank you, Mr Young. Yes, Mr Basten.
MR BASTEN: Your Honours, may I seek to deal with this matter in two stages. I wanted
to make some brief submissions in relation to the statutory construction argument and
then deal at a level of abstraction - and hopefully, succinctly - with some of the questions
of principle which my friend, Mr Young, has been asked by the Court.
Firstly, could I say in relation to the law, we would understand that the form of the Act
which the Court is concerned with is that which was in force as at the date of the
judgment of the Full Court. That would follow from CDJ and Jia's Case and so on,
contrary to what was said by the Full Court in Ward. For that purpose, the Court may use
reprint No 2, subject to two qualifications which are of no consequence but which are
established by the reprint itself. Perhaps, if your Honours do not have it, I can simply note
at page 453 there is a reference to certain amendments which commenced on 24 May
2001. On the following page, there are some further amendments which commenced on
that date. They are notes 3 and 4 in the table of amendments. Might I also note that - - KIRBY J: By the date of the court, do you mean the date before us?
MR BASTEN: The date of the judgment of the Full Court of the Federal Court. This
Court the appeal is strictu sensu so therefore this Court would not be interested in
changes in the law, not that there have been any.
In relation to the operation of section 225, item 24 at page 471 of the print indicates that it
applies "to all determinations made after the commencement of" the Act and therefore
applied - before Justice Olney in fact, although of course, the amendments to it made no
difference because his determination was that native title did not exist.
GUMMOW J: Well, he dealt with the 1998 Act in the very last paragraphs of his
judgment?
MR BASTEN: He did, correctly in that respect, your Honour. In relation to the issues
which arise in this case, your Honours have been taken primarily to section 223. May I
just briefly note the way that it fits within the structure of the Act. The application for
native title was made under section 61 which appears at page 164. The jurisdiction of the
Federal Court was enlivened in relation to that application by section 81 which appears at
page 187. It is probably also conferred by section 213(2) at page 344 which is a general
statement about the jurisdiction of the Federal Court.
The obligation of the Federal Court in considering an application for a determination of
native title is set out in section 94A at page 205 of the print which in turn takes one to
section 225. Now those sections, of course, pick up section 223 because it is a
definitional provision and, with respect, it should be seen as such, and therefore it has
work to do at a general level in relation to the concept of native title wherever it may
appear in the Act.
In terms of the analysis which has been given by Mr Young we suggest there are two
points which may require further consideration. Firstly, it is not obvious that
extinguishment is caught by section 223(1)(c), and we say in the written submissions that
the question of extinguishment or not of rights is properly understood to fall within the
scope of section 225 which requires the Court to consider whether native title exists.
The reason for saying that is that sections 47 and following demonstrate that native title
may exist notwithstanding extinguishment. The alternative way of approaching that
problem is to say that the reference 223(1)(c) is a reference to the common law as
modified by this Act. That might pick up, as it were, and avoid the problem of
disregarding extinguishment.
The second proposition that I wanted to put was that the question of abandonment is dealt
with in 223(1)(a) and in order to explain why it falls within that paragraph, might we
make a distinction between three levels at which concepts need to be understood under
this Act. The highest and most general level is that of traditional law and custom which
we have no difficulty in describing as an overarching system of normative principle to
which rights will owe their existence. Therefore, it is the traditional law and custom
which must give rise to rights so that they may be said to be possessed under it. I will
come back in a moment to the question of traditional, if I might.
Under that lie a set of rights and interests which are qualified by paragraph (c). Although
the terms "rights and interests" are referred to in paragraph (a), properly understood, we
understand paragraphs (a) and (b) to be saying something not so much about the rights
and interests as about the laws and customs, namely, firstly, that they must be traditional
and, secondly, that they must give rise to the connection with land or waters.
GLEESON CJ: And they must be acknowledged or observed.
MR BASTEN: They must be acknowledged or observed, we would say, in the present,
following Mr Young.
CALLINAN J: And they must relate to particular land or particular water.
MR BASTEN: Yes. Well, your Honour, we would say that the rights - can I come back
and deal with that?
CALLINAN J: Yes, of course.
MR BASTEN: It is a slightly more complex concept because that may depend upon the
interrelationship of the laws and customs with the rights which, in turn, may connect with
particular land or waters. I will explain that a bit more, if I may, in a moment.
The question of abandonment, which undoubtedly is part of the common law we would
understand, both from the judgment of Justice Brennan in Mabo at page 60, and the joint
judgment of Justice Deane and your Honour Justice Gaudron at page 110, and your
Honour Justice Gummow in Wik at page 183 all say that the concept of abandonment is
concerned with the continued existence of traditional law and custom and, therefore, the
existence of traditional law and custom of a traditional kind - and I will come back to the
element of that - is that which is picked up by paragraph (a). Therefore subparagraph (c)
has nothing to say about the question of abandonment.
If one adopts that as a textual approach, it has a number of benefits. One of them is that it
suggests that the work to be done with (c), which picks up recognition by the common
law, is, in effect, limited to those two factors in Mabo, discussed by Justice Brennan in
terms of repugnancy which would prevent the common law providing protection and
inconsistency with some fundamental element or skeletal principle of the common law as
applied in Yarmirr.
CALLINAN J: Would there not be a third condition that they are sufficiently precise for
the common law to enforce them? If they are not, neither equity nor common law can
give effect to them.
MR BASTEN: Your Honour, there is no condition of precision which we would
respectfully say can be derived from the terms of the Act itself.
CALLINAN J: Well, what about (c)?
MR BASTEN: Well, may I come to that. If in picking up the common law (c) is thought
to have that effect, then we would respectfully say that the common law does not add that
element, because at page 51 in the judgment of Justice Brennan in Mabo, at the bottom of
the page his Honour expressly noted:
There may be difficulties of proof of boundaries or of membership of the community or
of representatives of the community which was in exclusive possession, but those
difficulties afford no reason for denying the existence of a proprietary community title - CALLINAN J: Well, can I go a step beyond that, Mr Basten, and take the classical case:
somebody wants to get an injunction to restrain the use of the land in a way which is
inconsistent with native title as determined.
MR BASTEN: Yes.
CALLINAN J: The land itself needs to be defined - - MR BASTEN: Undoubtedly.
CALLINAN J: It will be fundamental to proof of the case.
MR BASTEN: Yes.
CALLINAN J: Well, does that not therefore mean that one of the requirements of the
common law is precision and that is something you get out of paragraph (c)?
MR BASTEN: The determination would need to be precise, your Honour, in terms of
setting boundaries, so that if there is a level of uncertainty about the size or boundaries of
the area identified, then at some stage the judge will not be satisfied to the right level of
proof that the native title extends beyond a particular point.
CALLINAN J: I would not only confine it to boundaries. It needs to relate to the right
asserted in order to enable a remedy to be granted in respect of any conflicting use.
MR BASTEN: Yes, indeed. I suppose I make the same point, that the amendments to
section 225, I think, were in part intended to make sure that there was a sufficiently
precise determination provided to allow for subsequent enforcement activity, but if there
is uncertainty about a particular right in a particular case, then the trial judge will not
consider it made out, no doubt, and it will not form part of those rights which go on the
register of native title rights or form part of the determination.
GUMMOW J: Mr Basten, can I take you back to what you were saying about (c). You
indicated two species, I think, of de-recognition, if you like, or refusal to recognise.
MR BASTEN: Yes.
GUMMOW J: Take the common law lease. Now, that may exist. May it not be the
situation that the common law, by reason of that common law lease, no longer recognises
even though (a) or (b) might be satisfied? Do you not have to allow for that?
MR BASTEN: Yes. That is on the basis that the leases, as we would say - - GUMMOW J: A red-blooded common law lease.
MR BASTEN: Yes, or a freehold estate.
GUMMOW J: Or a freehold estate - a Fejo situation.
MR BASTEN: Yes, indeed, your Honour. My only problem with that is that one may be
entitled to disregard it. Section 47A, for example, provides for the disregarding of the
extinguishing effect of the Fejo freehold.
GUMMOW J: That is a simple. Section 47 reverses the common law de-recognition,
that is all.
MR BASTEN: That is so. The question is then whether the native title is recognised by
the common law. I was saying either one treats the extinguishment as having effect under
225 by saying native title no longer exists, or one says of paragraph (c) it is the - - GUMMOW J: It may exist. It is just not recognised.
MR BASTEN: Yes. It is the common law as - - GUMMOW J: The common law does not recognise it and the Act does not reverse that.
That is the end of it.
MR BASTEN: But what one has to say about the phrase "the common law" in paragraph
(c) is implicitly subject to this Act, subject to other provisions of the Act. I have no
difficulty with that proposition, your Honour.
GUMMOW J: Yes, thank you.
MR BASTEN: Can I briefly note that if the extreme position put against us was correct
and paragraph (c), in effect, subsumed all the elements of the common law within it so
that paragraphs (a) and (b) became, to a large extent, otiose, it would be necessary to
come to grips with the argument that was accepted by this Court in the Native Title Act
Case 183 CLR 373 in relation to the invalidity of section 12 of the Act as it then stood,
where the Act sought to adopt the common law and give it the force of a law of the
Commonwealth. That discussion appears at 484 through to 488 and may I simply note
that in the final paragraph at 488 the Court considered that section 223(1)(c) did not
suffer from the same defect but it did say because it was satisfied that the rights and
interests which were defined as native title were defined by that section.
Your Honours, having said that, may I then deal as briefly as I may with the questions of
principle which were raised by the court and answer them with the greatest possible
concinnity. To do that could I ask your Honours to go to an article by Dr Sutton, an
anthropologist at the University of Adelaide entitled "The Robustness of Aboriginal Land
Tenure Systems: Underlying and Proximate Customary Titles" in volume 67 of Oceania
which is a referee journal put out by the University of Sydney. I hope to provide the
brevity. Dr Sutton will contribute the elegance of style, I hope.
CALLINAN J: Mr Basten, was this in evidence?
MR BASTEN: No, I am talking about the matters of principle which were specifically
addressed to Mr Young at a level of abstraction. Justice Hayne did not want to know
about the factual matters in this Court and I am doing it in order to illustrate why I would
answer those questions in a particular way.
CALLINAN J: Does it deal with the possible content of traditional laws and customs?
MR BASTEN: Not in this area, your Honour, no.
CALLINAN J: Anyway, we will see what it says.
MR BASTEN: I will not ask your Honour to draw - - CALLINAN J: You would appreciate why I ask you that.
MR BASTEN: Undoubtedly, your Honour, yes. Might I say - I will come back if I may
to why I think that when one gets to this case one is resistant about answering questions
at the level of abstract principle because the facts do not seem to accord with that which
would be necessary to give the answers I am going to give.
Firstly, might I take your Honours to page 9 and adopt as a matter of general principle a
concept of Aboriginal law which is set out in the first full paragraph on that page, which
says:
It is always integral and common to these concepts that the Law and he is talking of traditional law is something derived from ancestral people or Dreamings and is passed down the
generations in a continuous line. In the Flinders Island language of Cape York Peninsula
the term translated as `Aboriginal Law' is epiy-abiya, literally `from father and from
father's father' (my own unpublished field notes). Although transformations between
ancient and modern practices are recognised by people such as the Wiradjuri, their
customary land law still has this same essential feature of being something that derives
much of its authority and sanctity that is the normative element by being conceived as a body of principles transmitted down the generations from elders
to younger people.
Thus it is the law and custom, not of course the land, which is passed down as traditional.
It follows from that passage that we would respectfully answer your Honour Justice
Hayne's question in the affirmative. If there were on the facts a true break established,
which meant there was no traditional law and custom of the kind now asserted, existing
pre-sovereignty, then it would not be traditional in the sense in which section 223(1)(a)
accepts. Therefore, the submissions which we are seeking to make do not, I would
suggest, infringe upon the basic underlying principles derived from Mabo, which I think
your Honour Justice McHugh was putting to my learned friend.
The difficulty is to understand the hypothesis on the basis of which that might be
achieved because, as I understood the question, it assumed that there was a noncolourable assertion of presently existing traditional laws and customs accepted factually
by a trial judge. If that were the case -that would be the test of our position - the evidence
may be, "My great-grandfather passed this down through our family but he said that he
made it all up himself." Now, one smiles immediately at the thought of that sort of
evidence, and for good reason, because one would say, "Is that so?" What did other
people in the community learn from their fathers and great-grandfathers? How did this
chap invent his ideas, and how is it that one person is said to know everything about
traditional law and custom? That is simply implausible in any traditional society.
Might I add that the implausibility grows because when one looks at the evidence that is
called in these cases, although some may be traditional elders, many of the people who
are claimants - there were 56, I think, called in the present case - will have no better
ability to conceptualise traditional law and custom than would the traditional person on
the Bondi tram or whatever the English Australian equivalent is. So that what we will
learn from their evidence is what happens in practice and what they have been told and
believe to be that which is passed down. The ability to conceptualise in a way which
would allow that sort of analysis to be made is quite unlikely. Of course, why Mr Young
was uncomfortable about acceding to the hypothesis was that in the present case we
know, as he pointed out, that even as late as 1864 Mr Matthews was battling with existing
traditional law and custom about marriages and we never hear him say that his battle had
been won once and forever at 1881.
HAYNE J: In the expression, "traditional laws acknowledged and traditional customs
observed", is anything more meant than knowledge of traditional law and custom, that is,
is there any concept of pursuit of obedience to compliance with?
MR BASTEN: In the present, there may be. In the past, we would say no. In other
words, when the questions were forced underground literally in Rome, they no longer
practised their religion openly, although it may have been part of the tenets of that
religion that it be practised openly. That tenet would no longer have been followed. The
fact that a particular tenet was not observed in the circumstances of compulsion would
not suggest that Christianity died in Rome. There must be a distinction drawn. I draw a
distinction in going to section 223 between a system of law and custom and the rights
which exist thereunder.
May I go a further stage which is recognised by the Act and distinguish between rights
and practices or activities in exercise of those rights. As your Honours know from
Yarmirr, section 211(3) identifies that further distinction of principle. It may be said that
223(3) confuses the issue in some degree by referring, with respect, we would say
loosely, to hunting as a right. Hunting is an activity. Hunting undertaken in a particular
manner may indicate that it is carried out pursuant to a right, but it is necessary to go
beyond the activity to demonstrate the right.
GLEESON CJ: That is the problem that arose in Mason v Tritton in relation to fishing.
MR BASTEN: Precisely, it is identified by your Honour on the first page of the
judgment and we accept what your Honour says there that it is necessary to assert there is
a right and that the right owes its origin to a form of traditional law and custom and by
"traditional" it is a system of law and custom which owes its sanction and authority to the
fact that it is passed down as opposed to being made by the Parliament. We would not
think that there is anything inconsistent with what your Honour said in Mason about that.
Might I say in defence of your Honour Justice Kirby's position in that case, that really
was a common law case, as I understand it and, therefore, there was no difficulty in the
way in which your Honour dealt with the concepts on the basis of Mabo.
KIRBY J: Yes, but both Justice Priestley and I seemed to be drawing on the Native Title
Act.
MR BASTEN: Only to the extent, as I understood it, that the existence of section 223(3)
may have constituted a statutory recognition of that which the common law had not yet
considered, namely whether rights of fishing were part of native title and I think either
your Honour or Justice Priestley said that the common law may well have reached that
stage in any event, if it had not already done so.
May I just go back for a moment to Dr Sutton's paper simply to refer your Honours to
what he has as his basic thesis at pages 11 and 12 where he discusses what he describes in the middle of page 11 - as a dual system that recognises both an underlying title and
approximate title. I will not take your Honours through the rest of that page. At the top of
page 12 he indicates what is his use of the term "underlying title", and if I may take your
Honours down to the fifth dot point, it involves, after the identification of areas of land in
a systematic way:
the acceptable norms by which claims as of right may be made over it the land:
by Aboriginal people (eg a certain kind of descent from former landholders, conception,
modes of ceremonial incorporation, long residence combined with other preconditions,
etc.)."
And he says:
These and other components of the underlying title may be established in evidence for the
purpose of legal action . . . whether or not the land concerned has, for the time being,
living claimants with unambiguous entitlements to it. Uncompleted succession to a
vacated proximate title, or a proximate title in dispute . . . are contexts which make it
plain that underlying title may be distinguished from any current state of active
claimancy.
And, of course, for the American realists, who drew much of their theory from
anthropology - American Indian anthropology - the mere existence of disputes and
disputation was an indication of an underlying system of normative rules or principles
because appeal was made precisely to those rules or principles.
In answer to the question about people who were only on the land in 1820 - I think your
Honour the Chief Justice may have raised that as a possibility - the answer would need to
be given, we would think, in terms of succession under existing traditional law and
custom. In other words, if it could be established that those people moved there, because
there were not proximate owners of the land under traditional law, and that under the law
which probably would have applied across a region of the country, their claims were
recognised by those who lived around them, then we would see no difficulty in
recognising those claims as traditional.
McHUGH J: But, Mr Basten, what about a case where there was no occupation as at the
acquisition of sovereignty? We know as a matter of history that when Port Jackson was
settled Aboriginal claimants were pushed further and further - and, as the Chief Justice
reminded me, that when Port Jackson was settled, the Aboriginals at Port Jackson moved
to La Peruse. Now, as at that time, that is, as at 1788, there was no burden on the Crown's
radical title at La Peruse at that time, but let us say by 1790 a group was there in force.
Now, could those descendants of that group claim under this legislation, under 223?
MR BASTEN: I know why your Honour takes the precise dates. For the purpose of my
argument they probably do not matter terribly, because the question would have to be
answered by saying - presumably these people are the current claimants who now say,
"We have traditional laws and customs under which we own this land."
McHUGH J: Yes.
MR BASTEN: On that assumption, one would need to ask whether there was some
evidence, one way or the other - and that may be a burden problem - as to whether their
ancestors were accepted under traditional law and custom as the people who were entitled
to La Peruse, as well they might have been if the estate which had held La Peruse had
died of disease, for example, and it was therefore unoccupied by other Aboriginal people,
but the question would need to be answered in that manner.
Your Honour, in some ways the difficulties are greater when one has subsequent
disruption, but if there is a traditional law and custom which still exists in relation to that
area, we would say that the presumption of continuity would allow a court to accept, on
the balance of probabilities, that these people did hold their land according to a traditional
law which existed from well before sovereignty. The fact that it may have operated in a
state of succession so that others than the original biological owners now occupied it
would not matter. That is not an uncommon problem.
I do not want to take your Honours to it, but may I simply note that in a case called Re
Waanyi People's Application 129 ALR 118, Justice French, as President of the Native
Title Tribunal, dealt with precisely that case in which a particular group had been
exterminated, I think was the word he accepted, by settlers and that another group had
later moved into that area and after a period had been accepted by the surrounding
landowners as the people entitled to that land. He describes it, in any event.
GLEESON CJ: I am not sure of my facts and my memory may be playing tricks on me,
but I believed I had read somewhere that there was an attempted move by the people
from around Port Jackson to Botany Bay which was repelled and your point, as I would
understand it, is that the very existence of potential for a dispute or a conflict of that kind
witnesses an underlying system.
MR BASTEN: Yes.
GLEESON CJ: But if there are disputes like that now between rival claimants, they
presumably have to be resolved in the course of a native title determination according to
Aboriginal custom and law, or in the light of it.
MR BASTEN: Yes. Your Honour, we actually advert to that in the final paragraph of our
written submissions, at paragraph 6.1, I think. We set out there a set of questions in an
order which we say they should be answered in, and they include that possibility and they
include that answer. May I just note that the questions in (b) and (c) probably logically
should be reversed. I apologise for that.
Might I also say something, just by reference - your Honours may not wish to follow it
through, but the concept of succession is dealt with in more than one passage in that
article by Dr Sutton, because it is an issue which has arisen more than once in cases. At
page 15, at the top of the page, your Honours will see a heading "Continuity of
underlying title during processes of succession".
The other thing that I was going to take your Honours to briefly is a passage in the middle
of page 18. The point that Dr Sutton is making is that there may be divestment of
proximate interests. If a member of the community traces his, let us say, entitlements
back to great-great-grandparents, there may end up being entitlements in perhaps 16
different estates - estates being different areas of land. That is a possibility which is dealt
with by traditional law in effect by divesting, so that the person ends up with only one
primary entitlement in relation to land.
Now, the point of that, of course, is that questions of rights do not descend in the same
way under Aboriginal traditional law as they do under our system, so that one is not
looking backward - even if one does look backward - to find out a right which existed in
1788 and therefore burdened the radical title. One must take account of how traditional
law and custom deals with rights, and as long as the rights are inherited under that
system, then that is sufficient.
GLEESON CJ: Talking about the possibility of conflict, have you and the others who
are supporting Mr Young agreed on how you are going to share the remainder of the
afternoon?
MR BASTEN: We have agreed that Mr Walker will share the rest of it, your Honour, or
have the rest of it, I should say. May I just say one other thing then, in closing, because I
do not want to take Mr Walker's time. May I just note that some of this discussion is
reflected in the judgment of the Full Court in Ward's Case (2000) 99 FCR - - GLEESON CJ: We will sit on until 4.30 to enable you and Mr Walker between you to
complete what you have to say.
MR BASTEN: I am indebted to your Honour. I will only be a couple of minutes. 99 FCR
316 at paragraph 230 and paragraph 234. At paragraph 230, their Honours go to Mabo and I do not take your Honours to that - but if one goes to paragraph 234, this, I think,
was not a passage which was discussed before this Court, but, of course, their Honours
were looking at evidence of continuity of connection. All I note is that when they had
evidence before them, they were then required to consider whether biological descent
enabled them to establish a connection on the basis of some of the material. At point 3,
after the reference to "father's country", "mother's country", and so on:
The country of a spouse, and spiritual conception or birth within the area.
We say now of course that their Honours were wrong, and we said this before, in looking
to Mabo, but it is significant that the Act talks of connection with land, not descent at all.
Now, I make that point because it seems to us that that is the correct test to be applied
since the Native Title Act. Therefore, one is not necessarily concerned with whether or
not the traditional law and custom relies on biological descent or whether it takes account
of conception and place of birth. It may not matter in this case but it is a demonstration,
we would think, of one way in which the Act has displaced the common law principles
and make it important that the scheme of the Act should be followed.
HAYNE J: Now, given these submissions you have just been making, were these issues,
for example, about connection going beyond descent, live issues in this matter as argued
at trial?
MR BASTEN: Not as I understand it, your Honour. All I am seeking to do is to make a
submission about how one deals with the concepts in the Act and answering your
Honour's question about could there be a break, because we accept that if there were no
traditional law and custom it cannot be revived. One might find it difficult to establish as
a fact that there were none. We say that the current Act allows us to establish an existing
traditional law and custom and we would then say, as Mr Young did, there would be a
heavy burden on someone who wished to say that somehow, this being a non-colourable
present state of affairs, there had yet been a break.
HAYNE J: But that proposition seems to carry with it that you deny the possibility of
existence of present tradition and any intervening period in which that tradition has not
been observed.
MR BASTEN: Yes, but when your Honour - - HAYNE J: Yes, that is you deny the possibility - - MR BASTEN: Yes. We accept that proposition that your Honour puts, and we - - KIRBY J: Query whether it is then tradition.
MR BASTEN: That is so. What I was going to say is it seems to us that that is inherent
in the concept of "tradition" as understood in this area.
HAYNE J: The case I have in mind is - the word passed down from generation to
generation, "The old people did this. We no longer do." So there is continuity of
information being passed.
MR BASTEN: That is a question of fact.
HAYNE J: But absence of observance of it.
MR BASTEN: At some time in the past though, your Honour. Can I deal with it in both
ways.
HAYNE J: Yes.
MR BASTEN: If your Honour's hypothesis is stated in that way in the present, then it
may be the fact that paragraph (a) is not satisfied because the traditional laws are not
acknowledged and customs observed in the current.
HAYNE J: But the new generation comes and says, "Look, you kept telling us that the
old people did this. You didn't do it, but we will revive it and we will observe what the
old people did."
MR BASTEN: Yes, that means that there has been a break, not as we would understand
it, in the recognition internally, as it were, emically I think is the word, of the traditional
law, but there is an absence of practices which constitute the observance of that law at
some time in the past.
KIRBY J: Perhaps like the Jewish people during the Nazi period or in the camps who
could not observe their religion but immediately after they were free, returning to observe
it.
MR BASTEN: Indeed, that is so.
KIRBY J: On analogy with the Christian people that you mentioned.
MR BASTEN: Yes. So that our answer is that observance at all stages is not necessary.
KIRBY J: They remain Jews throughout.
MR BASTEN: They maintained their religious beliefs and handed them down to their
children.
CALLINAN J: But that was according to their traditional laws or - - MR BASTEN: That is the qualificational always. That is the qualification.
HAYNE J: Yes, analogies are apt to mislead in this area, Mr Basten. The example I want
you to grapple with is where people know of what the old people did.
MR BASTEN: Yes.
HAYNE J: People know also that for some time those who immediately preceded them
did not do what the old people did but who later consciously say, "We will go back".
MR BASTEN: Your Honour, if the knowledge is passed on and there is a continuity of
connection in the knowledge and understanding of the law, then the fact that it was not
observed for a period, on our submission, does not prevent that being a traditional law
which if currently observed and practised may be sufficient to give rise to the rights
which are then recognised. That is my principle.
KIRBY J: I agree that analogies are dangerous, but it seems to me that is exactly what
happened with the establishment of the state of Israel.
MR BASTEN: Yes.
KIRBY J: People went there and revived their own old traditions.
MR BASTEN: May I give an example to Justice Hayne from Australia. There were laws
in place in this country at particular times in the Northern Territory which prohibited
Aboriginal people from coming within a certain area.
The fact that they were not able to observe such of their traditional laws and customs as
required them to visit sites and undertake ceremonies within that area, may be for a
period of 10 or 20 years, did not mean that they no longer acknowledged the laws or the
obligations thereunder and when those laws were appealed, they continued their
observance.
GLEESON CJ: Thank you, Mr Basten. Yes, Mr Walker.
MR WALKER: May it please, your Honours. Your Honours, for the Human Rights and
Equal Opportunity Commission and in light of the international obligations binding
Australia internationally, upon which we have relied in our written submissions, we
would offer the following adaptation of some of the answers that have been given to your
Honour Justice Hayne's last question. It has to do with what might be called the notion of
break and, in our submission, that has to do with the notion central to the statutory
provisions, which we seek to construe in light of the international obligations of tradition.
In any group observable in modern society in the cities, as well as, no doubt, in traditional
societies reported on by anthropologists, there will no doubt be, as a matter of human
nature, some more or less zealous members of the community in relation to preserving
old values. That will certainly also be true, no doubt, in relation to the pedagogy
necessary in order to pass anything on. It is obviously true, as a matter of human nature,
in relation to what one actually does day by day by way of setting an example, good or
bad. None of that, in our submission, will, as a mere matter of degree, reduce something
from being traditional, because from time to time, or place to place, as a subset of the
land in question, one might see a more or less extreme version of the observance of
custom or the acknowledgment of law. The acknowledgment of law, for example, might
be considered to be subject to exceptions on certain days or for different people from time
to time, in different degrees.
None of that would attack traditionality so long as none of the matters of degree
comported such a fracture in what might be called the cultural continuity as to require the
trial court to find that there was not now traditionality about that which could be said to
be observed as customs and that which could be said to be acknowledged as laws. But we
would certainly embrace, as a matter of ordinary statutory interpretation, which no real
part of our international obligations argument would affect, that the ordinary English
requires that there be customs, which are observed - present tense, are observed - and that
there be laws which are - present tense - acknowledged.
The acknowledgment of a law must mean more than being able to know that it existed
and the observance of a custom must be more than to notice that some people do it and, in
our submission, it is talking about conduct, a pattern of conduct, mental as well as
physical, personal as well as social, on the part of the claimant group. Against that
background, we turn then to the relevant parts of the international obligations upon which
we rely. If your Honours will forgive me for being shorthand about it, there is Article 26
of ICCPR. I will call that anti-discrimination. There is Article 5(a) of CERD. That is
another form of anti-discrimination, equality before the law. There is ICCPR 27, the
enjoyment of culture by minorities. That is a very important one ,for our argument, and
there is CERD (d)(v) and (vii) in relation to the rights to own property and the freedom of
religion.
All of those combine, in our submission, in two particular ways. The first is that the antidiscriminatory strand that can be found in them is one which requires, amongst other
things, the presumption of continuity to operate backwards, in this case, in the fashion
that has already been mentioned from the Bar table and to which I will return very
briefly. The second is that that will obviously have an effect on what might be called
"onus". It need not matter, perhaps, whether it be evidentiary or legal but in our argument
it ought to be a legal shift of onus at the point of proving 223(1)(a) and (b). I will come
back to the role for (c) in just one moment.
Third, in our submission, those international obligations compel a reading of the Native
Title Act which would respect the dynamic and changing nature of the cultures in which
the traditions are being passed on, that is, manifested at the latest date being the date
when the application is made and respect it in so far as it would not see what might be
called the ordinary waxing and waning, particularly of small minority social groups
subject to extreme extraneous pressures, particularly where there is he trauma of recent
white settlement, as being necessarily the break which would be the true cessation of
native title.
The break, of course, is a concept or a metaphor in what might be called a chain
stretching back to the instant of the acquisition of sovereignty. The chain of continuity
need not be uninterrupted. Links can get rusty, links can be burst - so long as the chain
can be seen. Your Honours, so much, in our submission, can be put confident that there is
nothing in the text of the statute which would require to the contrary. We have of course
concentrated, as has all the argument to date on section 223(1)(a), (b) and (c).
McHUGH J: The difficulty with this argument: it is an argument that one may accept in
other contexts, but we know as a matter of history that this legislation was the product of
compromises from among different interest groups.
MR WALKER: In a country which is bound by these obligations.
McHUGH J: It may be bound by the obligation but it is Parliament and why should not
we not give effect to the realities that this is a bargain among interest groups and we give
effect to the text without any presumptions in favour of any particular group?
MR WALKER: I think I have given an answer to this question before, your Honour.
McHUGH J: Well, that is right.
MR WALKER: My summarised answer is as follows: it is not a bargain it is a law.
Laws, like sausages, do not always bear close scrutiny of how they are made. Bargains of
a kind which produce this law, in particular, might not bear close scrutiny as to the reality
of the equality of bargaining power. But most importantly, we adopt and embrace what
your Honour puts as the stricture of interpretation, namely, the text; and the text is a text
enacted by the Parliament of a country with international obligations, and on the basis of
the law that we put in our written submissions, the law which tells one how to read the
text of laws enacted by such a Parliament, one does not proceed by presumption but by
what might be called a benevolent view of parliamentary intention, not presumptive or
presumptuous, that the Parliament would not have intended to place the country in breach
of its international obligations but that it has power to do so if the words compel that
result.
In this case, for the following reasons, the words of the Act do not compel that result and
so what we submit is the ordinary rule - not presumption - but the ordinary rule of reading
the words will result in the outcome for which we contend.
Now, the provisions we focused on are section 223(1), obviously. However, for the
reasons that Mr Basten has already touched upon, they will include also recognition that
one has to face and pass the test of a countervailing indication in the following text as
well. There is section 94A and there is section 225 itself. Those two go together.
There is, at the very broad levels, section 13, 61 and 81 as to what has been done in the
court. There is also 213, as Mr Basten observes. There is section 82 about evidence, and
the new form will suffice for that argument. There is also, for what it is worth, and
picking up something that your Honour Justice Hayne asked my learned friend, Mr
Young, this morning, the way in which the grammar operates in paragraph 62(2)(e) as to
what goes into an application and where the grammar alters, according to the people
before the court and the people who were, what I will call their forbears tho I do not mean
to restrict that to biology.
There is also the very small indication, but telling, in section 62(1)(a)(i) which talks about
what has to be put on by way of what I will call "preliminary averment". It is a belief as
to non-extinguishment. It is certainly not a requirement that there be a proof of the
negative. So for those reasons, when one looks at that text, in our submission, one is able
comprehensively to say there is nothing to the contrary in that text.
As to continuity, one then moves to consider the role of what is called the "common law"
in paragraph (c). If that common law is to be construed in a way which would render that
law effective, then it must be referring to judicial utterances which have authoritative
force. It would appear that everyone at the Bar table accepts what might be called the
"repugnancy element" as being imported by paragraph (c). The repugnancy element
would appear in everyone's submissions when the footnotes are actually traced through to
source, all to come from page 61 of Mabo. That page in relation to that all seems to come
from the African case Idewu Inasa, to which we have given reference in our paragraph
17, footnote 48. Interestingly, in that decision [1934] AC 99 at 100 one finds that the
actual words about repugnancy come from section 20 of the 1923 Nigerian Supreme
Court Ordinance, and the common law trail stops at that point. Now, no doubt those
words in the ordinance - - GUMMOW J: It has been taken up in Canada actually.
MR WALKER: It has been. No doubt those words in the ordinance - - GUMMOW J: Quite recently actually.
MR WALKER: As to continuity in particular there are Canadian authorities to which we
have referred. My point is this, that it requires tracing through of the authoritative
standard and the common law will obviously change from time to time, as one can see it
changing fairly rapidly in that connection there. In our submission when one then comes
to continuity, and picking up what your Honour Justice Gummow has said about the
Canadian authority, one sees that Mabo itself is cited by Chief Justice Lamer in
Delgamuukw, the citation I will give in the Supreme Court Reports, [1997] 3 SCR 1010.
The passage is at pages 1102 to 1103 towards the end of paragraph [152]. The words that
appear in quotes would appear to be an adaptation from page 59 of Mabo, with which one
can also compare of course in the judgment of Justices Deane and Gaudron, page 110.
GUMMOW J: No, what I had in mind is Mitchell v Minister of National Revenue,
(2001) 199 DLR (4th) - - MR WALKER: Yes. Could I give your Honour the paragraph's reference in Mitchell, to
which I was about to come, is 12 and 13, in particular. That is Mitchell v Minister of
National Revenue (2001) 1 SCR 911 or (2001) 199 DLR (4th) 389, Chief Justice
McLachlin talking about a reasonable degree of continuity and, of course, Chief Justice
Lamar, having talked precisely in order to say, you did not have to show, what I will call,
a solid chain of continuity. Those, in our submission, are statements which are on all
fours with the approach we urge in our written submission concerning the way in which
international obligations not to discriminate and international obligations so as to permit
the enjoyment of culture, ownership of property and religion, will combine so as not, as it
were, to deprive the present generation who satisfies the Court to revoke some of your
Honours' real or true traditionality - I will just call it traditionality - that they do not have
to then, coupled with the fact that their grandfathers were, shall I say, slack or, more
likely, oppressed and, in our submission, so long as - - -
KIRBY J: What is the justification in principle for applying to them a reasonable degree
of continuity and to other Australians who are trying to prove title, a very, very strict rule
of continuity?
MR WALKER: No, there are two answers, your Honour: as to other Australians, they
benefit very strikingly from presumptions of continuity, which have the effect of
reversing onuses in a way that my learned friend, Mr Young, referred to. Could I add and
support two of his citations in writing: the first is Justice Hasluck's decision in the
Owners of Corinne Court 290 Stirling Street Perth Strata Plan v Shean, (2000) 23 WAR
1; I will not take your Honours to it. And, of course, within that, the well-known decision
of this Court, Treweeke v 36 Wolseley Road 128 CLR 274, where the first part of my
answer to your Honour Justice Kirby is, other parts of the population under nonindigenous law, in being able to rely upon their present possession and what flows from
that forensically, have a benefit which would be denied to Mr Young's clients by reason
of the arguments arrayed against him - would be denied.
The second part of the answer has to do with Article 27 of ICCPR, which has to do with
minorities. Now, on that point, we have said against us by the Commonwealth in
paragraphs 223 to 226 of their written submission, that we have overlooked not only
something that Sir Anthony Mason has said off the Bench, to which we would simply
invite your Honours to read the next sentence from the quoted passage, where his Honour
talks about the need to take into account cultural sensitivity, but the Commonwealth also
says that we have not taken into account the appropriate balance to be struck by the socalled margin of appreciation when Australia comes to fulfil its international obligations,
so as to balance between the interests of the rest of the community, other individuals, and
native title claimant groups.
The short answer is that Article 27 is about minority groups and there is no balance when
it comes to the question of individuals having rights under minority group provision. The
balance has already been struck by the acceptance of the international obligation to give
certain rights to minority groups.
KIRBY J: But you have to give it content and I think the suggestion is that in giving it
content there is some room for a margin of appreciation and that - - MR WALKER: Yes, of course, there is. How could one contend against a margin of
appreciation, your Honour? We do not. In our submission, nothing is suggested here as to
why a margin of appreciation should be used so as to make it more difficult for a minority
to prove something because the minority, as a result of being the minority, has a history
which is unwritten and has a title which has what this Court has described as the fragility
of needing to depend upon the intersection of two systems at the point of the acquisition
of sovereignty.
So far as concerns the question of the reversal of onus, as we have put it in our written
submissions - or the presumptive continuity, as I think your Honour Justice Gaudron has
raised it - could we draw to attention that in a case that your Honours are all very familiar
with, cited in Mabo, Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399, at 410
there is a passage which refers as follows:
The original native right was a communal right, and it must be presumed to have
continued to exist unless the contrary is established by the context or circumstances.
The same ought to apply; once (a) and (b) are satisfied, traditionality is satisfied.
Obviously, as a matter of weight and evidence, if the only tradition one can talk about is
what you heard last week from somebody you had never met before, you would fail, but
if, as was said by his Honour Justice Olney, as follows - then in our submission, you
would win on the point.
Now, there is an extraordinary sentence, in our submission, contrary to the principles for
which we contend, to be found in paragraph 106 of Justice Olney's reasons. Halfway
through that paragraph to which your Honours have already been taken, after referring to
Mr Curr and his writings, his Honour said as follows - at the foot of page 263, over the
top of page 264 of the appeal book:
The oral testimony of the witnesses from the claimant group is a further source of
evidence pausing there, well, that is a tick . . . but being based upon oral tradition pausing there, that is another tick passed down another tick through many generations another tick extending over a period in excess of two hundred years a very big tick. That should have been traditionality right back to Captain Phillip, but
instead we have the words that follow in the sentence, "less weight should be accorded to
it than to the information recorded by Curr", that is, in writing.
McHUGH J: Yes, but it may be because he has put it in the passive voice. What if he
said, "I give it less weight than - - MR WALKER: Well, if those other reasons for giving it less weight, those things that I
have described as ticks ending up with a big tick, your Honour, are findings foursquare of
traditionality. Now, at that point, in our submission, the onus, the presumption of
continuity as to the nature of the rights and interests bestowed by or, as we would
suggest, picking up this Court's approach in Yarmirr, recognised by the traditional laws
and customs, would, in our submission, obviously require a determination favourably
under 225.
In Mitchell 199 DLR (4th), the Canadian case, could I, on the same point give your
Honours a reference to paragraph [37] at pages 405 to 409, especially [37]. As to the
contextual approach to the nature of changes in which presumptions would operate, could
we draw to your Honours' attention the Human Rights Committee report in relation to
Lansmann v Finland in paragraph 12(b) of our written submissions. The reference is
footnote 40.
Could I supply to your Honours finally, in answer to a number of matters raised by your
Honour Justice Gaudron and also Justice Callinan, and I think your Honours already have
Mr Dodson's article which we have cited as footnote 55 to our paragraph 23, "Indigenous
Culture and Native Title" and that also contains material which we respectfully adopt in
relation to Mason v Tritton but, in particular, it contains material which we urge and
adopt in relation to the proper approach to the proof of and the understanding of the
proved culture that is the laws and customs.
Finally, may I put this about paragraph 223(1)(c). In our submission, in reality, for all
practical purposes in this Court, it is paragraph [40] but particularly paragraph [42] of the
majority reasons in Yarmirr which, in our submission, strongly supports, for the reasons
that we seek support from the international obligations but for all the reasons that Mr
Young has argued as well, the proposition that paragraph (c) does not render paragraphs
(a) and (b) tautologous, does not reverse an onus and does not destroy the kind of
presumption of continuity which justifies the enjoyment of present rights claimed to be
traditional in such stark contrast to what would occur in relation to the mundane exercise
of arguing the abandonment of an easement under registered title.
May it please, your Honours.
GLEESON CJ: Thank you, Mr Walker. I presume that, consistently with the agreement
we were told about earlier, the other parties and interveners in the same interest as Mr
Young will rely on their written submissions and we will hear from Dr Griffith at 10.15
tomorrow morning.
AT 4.32 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 24 MAY 2002