Case: Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: referred to
The Minister submits that a party seeking to resist the making of the orders sought in a non-claimant application must adduce or identify at least some credible evidence addressing the following matters as identified in Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 , De Rose v State of South Australia [2003] FCAFC 286 ; (2003) 133 FCR 325 and De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290: a that at the time of sovereignty there was "a body of persons united in and by its acknowledgement and observance of a body of laws and customs" (the "pre-sovereignty society"); b the nature and content of a normative body of laws and customs (the "traditional laws and customs") pursuant to which rights and interests were held at the time of sovereignty; c the nature and content of the rights and interests held at the time of sovereignty pursuant to the traditional laws and customs (the "traditional rights and interests"); d that the pre-sovereignty society has substantially maintained its identity and existence from generation to generation in accordance with the traditional laws and customs through to the present time; e that the traditional laws and customs have been acknowledged and observed by the pre-sovereignty society and their successors, and that such acknowledgement and observance has continued substantially uninterrupted since sovereignty; f that since sovereignty the pre-sovereignty society and their successors have maintained a connection with the application area and have transmitted rights and interests in relation to the application area by and in accordance with the traditional laws and customs; g that they, the native title claim group (as a whole), acknowledge and observe the traditional laws and customs; h the nature and content of the traditional laws and customs observed by members of the native title claim group; i that, by the traditional laws and customs that are still observed by them, the native title claim group has a connection with the application area; j that, by the traditional laws and customs that are still observed by them, the native title claim group has rights and interests in the application area; k the nature and extent of the extant rights and interests; and, l that such rights and interests have not been extinguished, (or if extinguishment has occurred, it is to be disregarded); and are not "antithetical to the fundamental tenets of the common law". 55 Worimi does not need to establish that native title exists on the balance of probabilities. It is for the Court to assess the totality of the evidence to determine whether the Land Council has established, on the balance of probabilities, that native title does not exist. Worimi has identified a number of different groups, at various stages of these proceedings, that he says hold native title in the Land, including himself and his immediate family, and all Worimi people. He must also provide evidence that addresses, at the least, the Land Council's evidence that there is no native title within the principles set down in Yorta Yorta ; that there is no normative body of laws and customs in connection with the Land, the observance of which has been substantially maintained from the time of sovereignty to the present day. Worimi does not need to prove each element of native title. He is not obliged to establish native title as if it were a positive defence being asserted. He does, however, need to address native title under the Act by reference to those material matters. He must address the necessary elements sufficiently to cast doubt on the Land Council's assertion of no native title. He needs to show that there have existed traditional laws and customs in relation to the Land, the continued observance of those laws and customs and the maintenance of a connection with the Land. If he does not lead evidence as to each of those matters, elements of native title, he will need to adduce evidence, sufficient in scope and weight, as to one or more of those elements to cast doubt on the proposition that native title does not exist. 56 Worimi contends that the evidence required to discharge the Land Council's onus of proof ' may not be achieved without strict proof of historical and anthropological facts through use of widely accepted authoritative writings and expert evidence ' and ' involves consideration of the historical, archaeological, linguistic and anthropological evidence in the light of the direct testimony of Aboriginal witnesses '. Worimi says that, in determining the question of the existence or non-existence of native title on the balance of probabilities, regard should be had to the ability of the parties to adduce evidence. By this, he seems to be saying that the Court should give more weight to his evidence and discount the evidence of the Land Council. If he is, I do not accept it. 64 Based on the presumption that native title exists over the Land, Worimi contends that: &#8226; It is common ground that Lot 576 falls within traditional Worimi country. &#8226; The Land Council must prove that any connection which Aboriginal people may have had with the Land under traditional laws and customs has not been maintained. &#8226; In order to succeed, the Land Council must establish that traditional law and custom has ceased to be observed anywhere in "Worimi country". &#8226; It is incumbent upon the Land Council to adduce evidence from Worimi people positively to assert that no laws and customs have been passed down to them by their forebears and, additionally, there needs to be expert evidence that there were a set of normative rules traditionally adopted and followed and observed by the Worimi people. &#8226; Following Yorta Yorta , the Land Council must prove that pre-existing laws and customs have been substantially interrupted from what they were at sovereignty or no longer exist at all. &#8226; There must be evidence of the cessation of the acknowledgement of laws and observance of customs sufficient to show that those laws and customs have been abandoned by the whole of Worimi society. 65 Worimi submits that the evidence supports the inference that there was a group of Worimi people and a society of Aboriginal people who inhabited the area around Port Stephens at the time of sovereignty. For the purposes of this application, I accept that to be the case. 66 Worimi submits that, once this is accepted, it follows that this group had some form of normative rules which regulated their society and that, once this is accepted, it follows ' as a matter of logic and reason ' that, bearing in mind the burden of proof, the Land Council is required to lead sufficient evidence: (i) of the nature and existence of pre-sovereign native title rights and interests; and (ii) to the effect that these pre-sovereign rights and interests are no longer observed before the Court may infer the non-existence of native title over Lot 576. 72 In Mason v Tritton (1994) 34 NSWLR 572, Kirby P pointed to the difficulty for Aboriginal people to provide recorded details of, for example, genealogy. At 586 589, his Honour discussed the inferences that can be drawn to overcome the absence of evidence for the period from 1788 to a later time, in that case to the 1880s. Referring to the analysis in Wigmore on Evidence, vol 2, 3 rd edition at 437, his Honour said that it is not appropriate to apply a "presumption of continuance" but a process of inference. His Honour was prepared to draw an inference from proved use of land in the 1880s back to the time before 1788. As he noted, it is more easily drawn in more traditional Aboriginal communities. However, in Mason , there were other aspects of the claim to native title which were not proved. Further, it is hard to see from Yorta Yorta how a presumption of native title can be said to apply. 134 The Land Council seeks a determination of the absence of native title. That means native title under the Act. In Yorta Yorta , the High Court emphasised that native title under the Act must be understood in accordance with the definition in s 223(1) of the Act. That section provides: (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 135 In Yorta Yorta at [31], Gleeson CJ, Gummow and Hayne JJ raised the importance of identifying whether the body of traditional law and custom that intersects with the common law for the purposes of s 223(1) of the Act is that as existing at the time of sovereignty or that existing today but connected with a body of law and custom that existed at sovereignty. Their Honours reiterated what had been said in Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96. Native title, with its origin in the traditional laws acknowledged and the traditional customs observed by the indigenous people who possess the native title is recognised by the common law. Their Honours went on to state that: ' An application for determination of native title requires the location of that intersection [between native title and the common law] and it requires that it be located by reference to [the Act]. In particular it must be located by reference to the definition of native title in s 223(1) '. A determination of the existence of native title is a creature of the Act ( Yorta Yorta at [32]). So too is a determination of the absence of native title. 136 A number of principles relevant to the present case were set out in Yorta Yorta: &#8226; Laws or customs in which native title rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system that existed before sovereignty (at [38]). &#8226; Observable patterns of behaviour may not amount to rights or interests in relation to land or waters under the Act (at [42]). &#8226; Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power are not given effect (at [43] and [44]). &#8226; This does not prevent the transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty. Nor does it prevent any alteration to, or development of, that traditional law and custom after sovereignty. Account may at least be taken of developments of a kind contemplated by that traditional law and custom (at [44]). &#8226; "Traditional" law or custom is apt to refer to a means of transmission of law or custom. In the context of the Act, the term "traditional" conveys an understanding of the age of the traditions. However, in the context of the Act, "traditional" laws and customs equate to the normative rules that existed before the assertion of sovereignty by the British Crown (at [46]). It follows that the mere use of the word "traditional" does not establish the normative rules necessary for the establishment of native title under the Act. &#8226; The normative system under which the rights and interests are possessed, namely the traditional laws acknowledged and customs observed, must have had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. Importantly, any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which right and interest must spring if they are to fall within the definition of native title (at [47]). &#8226; If the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, the laws and customs cease to have continued existence and vitality (at [50]). 137 The Land Council relies not only upon the absence of any claimant application over the Land but also on the evidence from Aboriginal people associated with the area who have confirmed that, in their view, the native title rights and interests that Worimi asserts do not exist. The Land Council has established that no Aboriginal person other than Worimi (and some of his immediate family who supported his claimant applications) asserts that native title exists in relation to Lot 576. All of the Aboriginal witnesses called by the Land Council identified as Worimi people. All are aware of the assertions made by Worimi concerning the existence of native title in the Land and gave evidence generally rejecting those assertions. Some of those witnesses were parties to claimant applications for a determination of the existence of native title in respect of land in the Port Stephens area but none of the witnesses have filed native title claimant applications in relation to the Land or land in the immediate vicinity of Lot 576. 153 Worimi says that his family and his mother before him were removed by actions of others and that the removal was not voluntary. In an area where non-Aboriginal communities developed, many Aboriginal families lived at Karuah, which is also part of Worimi land. In deciding whether claimants, by traditional laws acknowledged and traditional customs observed, have a present connection with land, some interruptions to enjoyment of native title rights and interests is allowed ( Gale at [108], citing Yorta Yorta and De Rose ). 163 As in Yorta Yorta , if there had been a women's site on or near the Land and Kingsley Beach, much has changed since it was used. 164 This baptism of Worimi's grandson by his daughter Beryl and wife Cynthia represents an attempt by Worimi to restore what he says his grandmother told him, as amended by his wife's practices. It does not represent continuity. Worimi has claimed that the site is sacred to all Worimi women. No woman has supported this claim, apart from some members of his immediate family who supported his claimant applications. 165 In Gale, Madgwick J was dealing with a native title claimant application from which the claimants withdrew. One of the respondents, Deerubbin Local Aboriginal Land Council, sought an order that there was no native title over the subject land. Expert evidence had been filed in support of the claimant applications to which the Deerubbin Local Aboriginal Land Council had responded. His Honour considered Yorta Yorta and drew from it a number of relevant principles, including: &#8226; [N] ative title rights and interests derive from traditional laws and customs in the sense that they survived the acquisition of sovereignty over Australia: Yorta Yorta at [75]. &#8226; The rights and interests must be presently 'possessed' under traditional laws and customs. This requires that the normative system under which those rights or interests are possessed ... be a system that has had a 'continuous existence and vitality' since sovereignty: Yorta Yorta at [47]. &#8226; Some change to or adaptation of traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests since sovereignty will not necessarily be fatal to a native title claim. &#8226; The statutory questions (in s 223) are directed to the present possession of the rights or interests, not their exercise, and to the existence of a relevant, present connection. It follows that the non-exercise of native title rights or interests by some of the persons now claiming such rights or interests ... will not inevitably be fatal. &#8226; The requirement in s 223(1)(b) for connection with land or waters by traditional laws and customs must be a connection which the peoples concerned have by their traditional laws and customs, that is the laws and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty. It is the normative quality of the normative rules which rendered the Crown's radical title acquired at sovereignty subject to the rights and interests then existing and which are now identified as native title. &#8226; It is an important qualification that the acknowledgment and observance of those rules need only have continued substantially, and not entirely, uninterrupted. &#8226; Nonetheless, it is necessary to demonstrate that it is the normative system of the pre-sovereign society out of which the claimed rights and interests arise. This entails that it be shown that that society has continued to exist as a body united by its acknowledgement and observance of the traditional laws and customs. &#8226; Acknowledgement and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. It is not enough that there be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe them, notwithstanding that they are similar to or even identical with those of an earlier and different society. 167 The positive assertion of native title rights and interests requires more than vague assertions of membership of a group of people and of "custodianship" of land. Worimi's facts and contentions comprehensively fail to establish the elements of native title required by s 223 of the Act. They do not establish native title within the meaning of Yorta Yorta . They do not identify the alleged content of the normative body of laws and customs acknowledged and observed by the pre-sovereignty society nor how those laws and customs have continued to be acknowledged and observed substantially uninterrupted. While Worimi is not required positively to establish native title in order to resist the Land Council's application, he must present evidence which is sufficiently cogent with respect to those elements that the evidence does address to cast doubt on the assertion that native title does not exist. 169 As the High Court said in Yorta Yorta , the relevant laws and customs must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters. Rights or interests created after sovereignty are insufficient, although there may be changes in the traditional laws and customs, at least to the extent that such changes and developments were contemplated by traditional laws and customs. 170 As was said in Yorta Yorta at [47] and repeated in Bodney at [47], if the normative system has not existed throughout the period since sovereignty, the rights and interests which owe their existence to that system will have ceased to exist. The law and custom arise out of and go to define a particular society, a body of persons united in and by its acknowledgment and observance of a body of law and customs ( Yorta Yorta at [49]; Bodney at [46]). ' Unless a society has, and acknowledges and observes, laws and customs under which native title rights and interests are possessed, there can be no native title rights whether communal, group or individual ' ( Bodney at [157]). It is therefore necessary for a person claiming native title to show that the normative system that existed at sovereignty is substantially the same as the one that exists today ( Bodney at [47]). This must be established for each generation to establish that the laws and customs have continued to be acknowledged and observed substantially uninterrupted ( Bodney at [70] [74]). 184 It follows from Yorta Yorta at [51] [56] that native title, if it existed pre-sovereignty, ceases to exist for the purposes of the Act if the society, being the Worimi people, the Maiaangal clan or the Garuahgal clan, ceased to acknowledge and observe the laws and customs that Worimi describes. The rights and interests to which those laws and customs give rise are not possessed under traditional laws acknowledged and traditional customs observed. They ceased to exist and the later adoption of the laws and customs does not give rise to rights and interests rooted in pre-sovereignty traditional law and custom. 185 The changes in Worimi's description of the persons who, he says, observe or observed the traditional laws and customs in respect of the Land have not assisted in the analysis of the evidence. As set out in Worimi 2007 and Worimi 2006 , he has changed the identification of the persons said to be relevant. As to the identification of family members in the claim group, Worimi has included, variously apart from himself, his wife and children, all his sisters and their daughters and his mother. He was not consistent in his evidence, asserting that he was bringing the claim on behalf of the Garuahgal women, his family and all Worimi people. Irrespective of the group said to hold native title over the Land, the requirements of s 223 of the Act are not satisfied. While Worimi was not required to establish native title in accordance with s 223 of the Act in order to resist the Land Council's application, given the time available to Worimi since these proceedings were commenced, he has had ample opportunity to formulate his contentions with reference to s 223 of the Act in order to cast sufficient doubt on the Land Council's case. 186 The evidence is that the observance of the traditional laws and customs ceased so far as a women's site on the Land is concerned. The evidence is not of adaptation of traditional laws and customs but of substantial interruption, amounting to cessation, of observance.