Case: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: applied
The starting point for consideration of the consolidated proceeding is the NT Act. True though it may be that paragraphs (a) and (b) of s 223(1) are based on the judgment of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1, it is the provisions of the NT Act which the Court must address in any determination of native title. See Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 ( Ward ), at [16], [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422 ( Yorta Yorta ), at [32] per Gleeson CJ, Gummow and Hayne JJ; and Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 ( Yarmirr ), at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 48 All the elements of the definition of native title in s 223(1) must be given effect: Yorta Yorta at [33]. In Ward at [17]-[18], Gleeson CJ, Gaudron, Gummow and Hayne JJ said in relation to s 223(1): 'Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist "in relation to land or waters". Thirdly, the rights and interests must have three characteristics: they are rights and interests which are "possessed under the traditional laws acknowledged, and the traditional customs observed", by the relevant peoples; by those traditional laws and customs, the peoples "have a connection with" the land or waters in question; and the rights and interests must be "recognised by the common law of Australia". 49 The High Court reiterated those matters in Yarmirr at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ and also in Yorta Yorta at [33]-[35] per Gleeson CJ, Gummow and Hayne JJ. 52 In Yorta Yorta , the High Court (Gleeson CJ, Gummow and Hayne JJ; Gaudron and Kirby JJ dissenting) further addressed the requirements of s 223(1) and expanded on the need for connection. 53 The majority set out the following principles at [37]: 'First, it follows from Mabo [No 2] that the Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court. Secondly, upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown's acquisition of sovereignty and radical title. What survived were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.' 54 At [38]-[40] and at [43]-[45], the majority stated that the rights and interests the subject of the NT Act are those which derive from traditional laws and customs forming a body of norms that existed before sovereignty. This principle affects the construction of the definition of native title in s 223(1), in particular, the meaning of 'traditional'. See Yorta Yorta at [46]-[47], where the majority said: ' ...the references, in pars (a) and (b) of the definition of native title, to "traditional" law or custom must be understood in the light of the considerations that have been mentioned. As the claimants submitted, "traditional" is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act , "traditional" carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are "traditional" laws and customs. Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title.' 55 The majority judgment in Yorta Yorta imposes a requirement of continuity on both the Aboriginal society and also on the acknowledgment and observance of the traditional laws and customs which are claimed to give rise to the rights and interests under the NT Act: at [49]-[53]. 56 Laws and customs do not exist in a vacuum they 'arise out of and, in important respects, go to define a particular society': Yorta Yorta at [49], [55]. In this context, 'society' is to be 'understood as a body of persons united in and by its acknowledgment and observance of a body of laws and customs': at [49]. If the society ceases to exist, then so too do its traditional laws and customs, from which rights and interests arise: at [50]. Once a society has ceased to exist, it is not possible for descendants of that society to take up again the 'traditional' laws and customs as those expressions are used in the NT Act: [51]-[52]. As the majority said in Yorta Yorta at [53]: 'When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society , they are not laws and customs which can now properly now be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society.' See also Yorta Yorta at [55]. 57 The requirement for continuity of connection is not absolute. In Yorta Yorta , the majority recognised at [83] that '...demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. ... The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?'. See also Yorta Yorta at [44] and [82]-[89]. 58 The acknowledgement and observance of the traditional laws and customs must have continued 'substantially uninterrupted' since sovereignty: Yorta Yorta at [87]. 59 The issues on the hearing have been hard fought. Apart from facilitating the course of the evidence, the Territory and the other respondents have made no admissions. They dispute each element of the matters the applicants or one or other of the first applicants or the second applicants must establish to demonstrate to the satisfaction of the Court that, but for the extinguishing effect of any particular dealings with any parts of the claim area, they have or would have native title rights or interests in any part of the claim area. 60 Senior counsel for the DCC identified five steps in the respondents' opposition: (1) that no native title rights and interests have been shown to exist in the claim area; or (2) if such rights do exist, they are limited and non-exclusive rights only; and (3) the extent to which, if at all, s 47A and s 47B of the NT Act can apply in respect of any parts of the claim area; (4) in respect of those parts of the claim area to which s 47A or s 47B apply, what extinguishment of native title rights and interests should be disregarded by reason of their operation; and (5) in respect of those parts of the claim area where s 47A or s 47B of the NT Act do not apply, or if they do where extinguishment is not to be disregarded, the detailed consideration of the nature and effect of the myriad extinguishing acts relied upon by the respondents. 230 It is appropriate at this point to address the question whether, at sovereignty, there existed a society of Aboriginal persons having traditional laws and customs under a normative system under which those laws and customs gave rise to rights and interests in the land and waters comprising the claim area possessed by members of that society. It is also appropriate to identify whether at the time of settlement there existed such a society of Aboriginal persons. And finally, it is appropriate to determine whether such society as may be found to have existed at the time of settlement (in say the mid 1870s) is the Larrakia people, and is the same society as that found to exist at the time of sovereignty. Each of those questions is necessary to be answered affirmatively if the claims of either the first applicants or of the second applicants are to succeed: see the discussion above, and in particular Yorta Yorta at [46], [47], [79] and [86]. 231 The affirmative determination of those questions at this point of my reasons which I am about to record is not intended to say anything on the subsequent issues which also must be affirmatively answered if the first applicants or the second applicants are to be determined to be entitled to native title in respect of the claim area or parts of it. 232 As I indicated, I am satisfied about each of those matters. I find that within the geographical area which includes the claim area, at sovereignty, there existed an Aboriginal society which, by its traditional laws and customs, had a normative system which gave rise to rights and obligations on the part of its members in relation to the land and waters within that area. The archaeological evidence points to there having been some form of society at that time, albeit directly demonstrating only an 'economic' society. From the time of the first observations of the area by European observers, their observations are in general terms consistent with there being then, and there having been, such a society. Again, the observations are only a course indication of such a society. 724 The NT Act does not require a specific method for the transmission of knowledge between generations of an Aboriginal society. Section 223(1) requires that the 'rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed' and that the Aboriginal group have a connection with the land or waters 'by those laws and customs'. In Yorta Yorta at [79], the majority said that '"traditional" does not mean only that which is transferred by word of mouth from generation to generation, it reflects the fundamental nature of the native title rights and interests with which the Act deals as rights and interests rooted in pre-sovereignty traditional laws and customs.' The majority went on to say that demonstration of some adaptation or change will not 'necessarily be fatal' to a native title claim, and that the 'key question is whether the law and custom can still be seen to be traditional law and traditional custom.' 725 The current proceeding presents a situation where (a) there is no documentary or expert evidence of an historical or anthropological nature indicating the existence of any traditional system of transmission of knowledge at the time of sovereignty; and (b) it is obvious, given the notorious oral nature of historical tradition of all Australian indigenous societies, that such a system must have existed; and (c) primary evidence indicates that current members of the Larrakia community have obtained knowledge through a variety of methods, including (but not exclusively) from other Larrakia people, from non-Larrakia people, from books, from courses of study, and from the Kenbi Claim hearings which spanned many years. A series of events such as the removal of children from their parents, and removal of people from the area during the war, detailed in the outline of the history of the area, above have precipitated this process and the need for it. 726 I regard it as significant that the recent processes for the acquisition and transmission of cultural knowledge are somewhat piecemeal. It is not a criticism that they have that quality. It is a consequence of the history of the Larrakia people during several decades of the 20 th Century. I am prepared to infer that the process of knowledge acquisition and transmission which existed at sovereignty (and which I have found continued to the time of settlement in the 1870s and beyond) was not of the same piecemeal character; it was likely to have been a process effected within formal rules of the Larrakia people as to who should hold, and pass on, knowledge; when they should do so; and to whom they should do. It was unlikely to involve any passing on of knowledge from non-Larrakia people. 804 In Yorta Yorta , Gleeson CJ, Gummow and Hayne JJ said at [52] that 'society' is to be understood as a 'body of persons united in and by its observance and acknowledgment of a body of laws and customs'. 805 For reasons which are apparent from the above consideration of the evidence, and findings in relation to it, I am also satisfied that the Larrakia people are the same society as that which existed previously, including at settlement. There is no reason to think otherwise, and I did not understand the respondents to contend otherwise (although there was, as discussed, significant debate as to the accurate composition of the Larrakia people). 806 However, that is not sufficient for the first applicants or the second applicants to succeed in a determination of native title rights and interests in respect of the claim area or parts of it. 808 As quoted above, in Yorta Yorta , the majority at [46]-[47] said: ' ... A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act , "traditional" carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are "traditional" laws and customs. Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continued 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.' 810 The first applicants contrast those circumstances, involving interruption in the use or enjoyment of native title rights and interests which may not disqualify the current generation from having those laws and practices regarded as 'traditional', from those where there has been an interruption in the acknowledgment and observance of laws and customs. In the latter context, it is contended the laws and customs which are now acknowledged and observed will not have continued substantially uninterrupted since sovereignty: see Yorta Yorta at [87]. Sundberg J in Neowarra v State of Western Australia [2003] FCA 1402 described the contrast in the following way at [163]: 'When dealing with the "washed away" submission it is important to bear in mind that if what is asserted is a change or adaptation of traditional law or custom, the question is whether that change is of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws and customs of the Aboriginal people at sovereignty. If what is asserted is that there has been an interruption in the acknowledgment and observance of the law or custom, the question is whether that interruption is "substantial" or whether the acknowledgment and observance has continued "substantially uninterrupted": Yorta Yorta at [87] and [89].' 811 I am mindful that ultimately the court must simply apply the provisions of s 223 of the NT Act. Interruption of the enjoyment or exercise of native title rights and interests in a particular geographical area will not necessarily be fatal to a native title claim. Nor will change of itself necessarily have that effect. The significance of change to, or adaptation of, traditional law or custom in particular circumstances may present difficult questions as to whether the current law and custom is still 'traditional' as used in s 223(1)(a) and as discussed, for example, in Yorta Yorta . In that case, the majority also pointed out at [84] that interruption of use or enjoyment of native title rights or interests may be significant in determining whether those rights and interests now possessed are possessed under "traditional" laws and customs. That is why the observance and acknowledgment of the pre-sovereignty laws and customs should be shown to have continued substantially uninterrupted since sovereignty. In Yorta Yorta the majority at [86]-[88] said: 'Yet again, however, it is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, "traditional" in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty. For exactly the same reasons, acknowledgement and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those people had and could exercise in relation to the land or waters concerned. They would 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 laws and customs of content similar to, perhaps even identical with, those of an earlier and different society. To return to a jurisdprudential analysis, continuity in acknowledgement and observance of the normative rules in which the claimed rights and interests are said to find their foundations before sovereignty is essential because it is the normative quality of those rules which rendered the Crown's radical title acquired at sovereignty subject to the rights and interests then existing and which now are identified as native title.' 812 I have carefully considered the evidence. A combination of circumstances has, in various ways, interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the 20 th Century in a way that has affected their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty. A significant circumstance has simply been the development of Darwin into a substantial community, following European settlement. As the evidence shows, that process has involved many other Aboriginal people than the Larrakia people moving into the Darwin area. The other circumstances are discussed above. It is not necessary to repeat them. Some are the consequence of natural or external events. Some are the consequence of governmental policy. It is not the function of the Court to form or express any views about the wisdom or appropriateness of the circumstances which flowed from or followed governmental policy. Its function is to determine the issues of fact which s 223(1) of the NT Act requires. In that, the Court must apply s 223(1) as explained by the High Court. 813 There was evidence from the observations of Spencer in his 'Preliminary Report on Aboriginals of the Northern Territory' early in the 20 th Century that the practice of Larrakia traditional laws and customs in the Darwin area was waning. He apparently attributed that to the racially mixed community there, naming Asiatics in particular. The evidence also shows other groups of Aboriginal persons were also part of the Darwin community by then. Other evidence of the time indicated a more thriving community with those laws and customs. Subsequent material suggests Spencer was correct. It is not necessary to decide if his more extreme view that the Larrakia people had by then already 'lost all their old customs and beliefs' was correct. I think it was likely to have been, at the time, an overstatement. 834 I have therefore reached the conclusion that the Larrakia people, that is the present society comprising the Larrakia people, do not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. That is because I do not find that their current laws and customs are 'traditional' in the sense explained in Yorta Yorta . 835 There is considerable ambiguity, and some inconsistency, about the current laws and customs of the Larrakia people which I have discussed in my findings when considering the evidence. There are also in my view significant changes in those laws and customs from those which existed at sovereignty. Again, I have discussed my findings when considering the evidence. Those differences and changes stem from, and are caused by, a combination of the historical events which occurred during the 20 th Century. Those events have given rise to a substantial interruption in the practice of the traditional laws and customs of the Larrakia people as they existed at sovereignty and at settlement, so that their practise and enjoyment has not continued since sovereignty. I find that the present laws and customs of the Larrakia people are not simply an adaptation or evolution of the traditional laws and customs of the Larrakia people in response to economic, environmental and historical and other changes. 836 In my judgment, the present laws and customs of the Larrakia people reflect a sincere and intense desire to re-establish those traditional laws and customs adapted to the modern context. These are the consequence of significant efforts on the part of many to achieve that result. It is an entirely proper objective. It is apparent that the process is enriching the lives of the Larrakia people, and of the Darwin community. That, however, is not a sufficient factual foundation for making a determination of native title rights and interests in this proceeding. 841 In view of that conclusion, I shall refer to the requirements of s 223(1)(c) only briefly. The common law is not the source of the relevant rights and interest, if they were found to exist. 'Recognition' by the common law of such rights and interests requires that they be capable of enforcement or protection by remedies available in appropriate courts in Australia, and so excludes any particular rights or interests which are repugnant to the fundamental principles underlying the common law: see Ward at [20]-[21]; Yorta Yorta at [77]. Those rights and interests must have survived the fundamental change in the legal regime which occurred at sovereignty so that they can be enforced, if necessary, under the common law. They must also be capable of being expressed with sufficient precision to be enforceable by the courts. 842 Had the first applicants or the second applicants established an entitlement to a determination of native title in terms of the proposed determination of the first applicants (or in similar terms), I would have had no difficulty in finding that the rights and interests to which it refers are not repugnant to fundamental principles underlying the common law. There is no particular reason to conclude to the contrary. Any determination would, of course, have had to describe the rights and interests with precision, so that they could be enforced or protected. I have no doubt that could be done in terms which reflect the rights and interests which existed at sovereignty. That may have required some alteration to the first applicants' proposed determination. It could, I am sure, have been done effectively. 843 Subject to addressing issues of extinguishment (and to being satisfied of occupation at the time of the various applications now consolidated into the current proceeding as required by ss 47A(1)(c) and 47B(1)(c)), I would conclude that the rights and interests claimed do meet the requirement of s 223(1)(c). The respondents did not make a firm submission to the contrary. 938 For the reasons given, in my judgment the application must be dismissed. I think that is a consequence of the application of s 223(1)(a) and (b) of the NT Act to the facts as I have found them to be. It is a conclusion which is not intended to, and should not, be seen as meaning that the Larrakia people do not presently exist as a society in the Darwin area with a structure of rules and practices directing their affairs. They clearly do. My conclusion is based upon the finding that, by reason of past events, those rules and practices are not 'traditional' in the sense required by s 223(1)(a) and as explained by the High Court, particularly in Yorta Yorta. I certify that the preceding nine hundred and thirty-eight (938) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 13 April 2006 Counsel for the First Applicants: D Parsons QC with R Blowes Solicitor for the First Applicants: Ron Levy, Northern Land Council Counsel for the Second Applicants: K Quall appeared in person Counsel for the First Respondent: T Pauling QC with V Hughston SC and S Brownhill Solicitor for the First Respondent: Solicitor for the Northern Territory Counsel for the Fifth Respondent: G Hiley QC with R Webb Solicitor for the Fifth Respondent: Cridlands Lawyers Counsel for the Sixth Respondent: B O'Loughlin Solicitor for the Sixth Respondent: Withnal Maley &amp; Co. Solicitors for Defence Housing Authority, Delfin Chase Pty Ltd and ANZ Banking Corporation Ltd: Ward Keller Solicitor for Conservation Land Council: Clayton Utz Solicitor for CSR Limited and CSR Readymix (Australia) Pty Ltd: Minter Ellison Solicitors for Diamond Leisure Pty Ltd and Fernbank Pty Ltd: Ward Keller Solicitors for NT Gas Pty Ltd and NT Gas Distribution Pty Ltd Ward Keller Solicitors for Telstra Corporation: Blake Dawson Waldron Giuseppe Maugeri In Person Dates of Hearing: 2, 3, 4, 5, 6, 23, 24,25, 26,27 and 30 September 2002 1, 2, 3, 4, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25 October 2002 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27 and 28 February 2003 3, 4, 5, 6 and 7 March 2003 9, 10, 11, 14, 16, 17, 18, 21, 22 and 23 July 2003 16, 17, 18, 19, 22 and 23 September 2004 21, 22, 23, 24, 26 and 27 June 2004 Date of Last Submissions: 7 December 2004 Date of Judgment: 13 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/404.html