Case: Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1
Outcome: cited
The native title that is recognised and protected by the NTA is the native title as defined in the s 223 (1) of the NTA, and the NTA, and, in particular, that definition, must be the starting point for any consideration of an application for a determination of native title brought under the NTA: Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 (' Yarmirr HCA ') at [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 (' Ward HCA ') at [16] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) ('joint judgment'); Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 (' Yorta Yorta HCA ') at [32] (Gleeson CJ, Gummow and Hayne JJ) ('joint judgment'). (21) The existence and content of native title must be ascertained as a matter of fact and on a case by case basis by reference to the traditional laws acknowledged and the traditional customs observed by the indigenous people who posses the title: Mabo (No 2) at 58 (Brennan J); Wik at 169 (Gummow J); Commonwealth v Yarmirr [1999] FCA 1668 ; (1999) 101 FCR 171 at [16] (Beaumont and von Doussa JJ); Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 (' Ward FCAFC' ) at [58] (Beaumont and von Doussa JJ). The importance of the indigenous evidence in an application for a determination of native title was accepted by all parties who referred to acknowledgments of its importance in the authorities: see Yarmirr v Northern Territories (No 2) (1998) 82 FCR 533 (Olney J) at 560; De Rose FCA/O'Loughlin J at [351]; Attorney-General (NT) v Maurice [1986] HCA 80 ; (1986) 161 CLR 475 at 492 (Deane J); and Ejai v Commonwealth [1993] WASC 1744 (Unreported, Owen J, 18 March 1994) at 9 . Nevertheless, some issues deserve mention. The word 'claim' and its derivatives gave rise to difficulty. Witnesses were asked what area they claimed as their country and why they claimed it. The intention was to direct attention to places or areas 'claimed' under traditional Aboriginal law and custom. But some witnesses answered by reference to a Claim area, when it was clear that there were vast parts of that area in which they did not claim to have any rights or interests under traditional law and custom. This difficulty was but one illustration of a more general one: the impact that the NTA and associated practices and procedures have had upon the claimants' knowledge and understanding. Second, in the GLSC Appendices, the GLSC applicants list, on more than 2,000 pages, extracts from the transcript of the indigenous evidence, organised under topic headings. The non-indigenous respondents made many criticisms of these Appendices. On occasion, a passage of transcript set out does not support the proposition for which it is cited, or gives a false impression of the witness's testimony in the absence of context. Sometimes, too, editorial omissions from the quoted transcript passage are not indicated. It is difficult to avoid the impression that a computer program has been used to collect all references in the transcript in which a particular subject is mentioned. The GLSC applicants have also often cited, as evidence that a particular Claim group continues to acknowledge and observe traditional laws and customs, evidence purporting to show that a member of a different Claim group does so.