Case: Gumana v Northern Territory [2005] FCA 50 ; (2005) 141 FCR 457
Outcome: discussed
In Ward HC, it was held that the first element that had to be met under s 223(1)(a) , namely that the rights and interests of the claimants are possessed under the traditional laws acknowledged, and the traditional customs observed, by the aboriginal peoples, involved a question of fact. That principle was adopted in Gumana v Northern Territory of Australia [2005] FCA 50 ; (2005) 141 FCR 457 (" Gumana "), the case involving Blue Mud Bay in north-east Arnhem Land, at [189] per Selway J. It required identification of the laws and customs said to be "traditional laws acknowledged" and "traditional customs observed", and identification of the rights and interests in relation to land or waters possessed under those laws and customs. 541 The High Court then noted that the second element, namely that the claimants, by those laws and customs, have a connection with the land or waters, bore a number of similarities with the first element. That was because the connection with the land or waters required by s 223(1)(b) had to be "by those laws and customs". However, the joint judgment emphasised that there were, nonetheless, two distinct enquiries required by the statutory definition. As previously noted at [517], in relation to the first element, the inquiry was as to the rights and interests possessed under traditional laws and customs. In relation to the second element the inquiry was into the connection with land or waters by those laws and customs. 542 Section 223(2) of the statutory definition sheds some light upon the meaning of "rights and interests" under s 223(1)(a). It does so by expressly providing, without limiting sub-s (1), that native title rights and interests in that sub-section include "hunting, gathering or fishing, rights and interests". 574 Of course what they were told will be hearsay, but it is hearsay of a kind that has been readily admitted in native title cases. In Gumana , the relevant date for sovereignty was 1788, and not 1825. Selway J concluded that the evidence tendered by the applicants of genealogies and linguistics was sufficient to establish that some of the ancestors of persons who were currently claimants were members of Yolngu society in 1788 and, indeed, well before then. 575 His Honour said (at [194]): "Ultimately the evidence of the existence of the relevant Aboriginal tradition and custom as at 1788, and of the rights held by the particular clans in 1788 and thereafter pursuant to that tradition and custom, is based upon evidence derived from what the Yolngu claimants currently do and from what they have observed their parents and elders do and from what they were told by their parents and elders ..." 576 His Honour continued (at [195]): "As already discussed, there is nothing peculiar or unique about this sort of evidence. It is oral evidence of a custom. It is evidence of fact, not opinion. To the extent that it consists of what Mr Gumana was told by his father and by other old people it constitutes a recognised exception to the rule against hearsay." 577 It is reasonable to infer that the indigenous people who inhabited the Timber Creek region in about the middle of the nineteenth century, and who acknowledged and observed essentially the same laws and customs as do the present claimants did not simply invent them. There is nothing in the evidence to suggest that the ritual and ceremonial practices observed by the inhabitants of this area since about that time, in a largely unbroken pattern, were suddenly created, or radically transformed from what had gone immediately before. The ethnography, and the few contemporary records that are available, support the conclusion that this pattern has evolved over hundreds of years. 578 In Gumana , Selway J adopted precisely the same approach. Referring to the difficulty that the evidence could not literally take the Court back as far as 1788, his Honour observed (at [197]): "This problem is one that is well known to the common law. There are a number of circumstances where it was necessary at common law to establish proof of custom dating back not just to the 18 th century, but to 'time immemorial'. Proof of copyhold was one example ... Another, ... was the proof of ancient custom as a means of establishing either prescription or ancient lost grant 'from time immemorial'." 580 There is no reason why the same evidentiary inference is not available for the purpose of proving the existence of aboriginal custom and tradition at the date of sovereignty. As Selway J noted in Gumana (at [201]), there are a number of cases where such inferences have been drawn, although without expressly acknowledging the common law authorities which support that course. 581 In arriving at my finding that the claimants have essentially the same system of traditions, laws and customs as their ancestors did in 1825, and that those traditions and customs have been observed continuously since that date, I have had regard to the genealogies prepared by Dr Palmer and Ms Asche appended to their joint report. If those genealogies are reliable, and I have no reason to believe that they are not, they identify Lamparangana's father, Mungkawali, and his mother, Parratpawuk/Yitpali. They also identify Lamparangana's uncles and aunts. 582 Assuming that Lamparangana was taught the laws and customs associated with Makalamayi by his father, Mungkawali, or perhaps by his uncle, Minjiringikari, in accordance with the normal cultural and spiritual precepts applicable, those individuals would have had to gain their knowledge of "country" a generation or so prior to Lamparangana's birth. That takes the position back to around 1850. Those who imparted that knowledge to Lamparangana's father or uncle would have had to have gained their knowledge at or about the time of sovereignty. 751 As to these two claims, Selway J found that the applicants had a native title right of exclusive possession in relation to the "land" other than the inter-tidal zone (by which his Honour meant, in essence, tidal waters), and a "non-exclusive" native title right in relation to the sea and the inter-tidal zone. Selway J followed Yarmirr , as explained in The Lardil Peoples v State of Queensland [2004] FCA 298 per Cooper J. In Gawirrin Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 (" Gumana (No 2) "), Mansfield J, after the death of Selway J, gave effect to his Honour's judgment by making appropriate orders, and formulating the determination of native title consequent upon Selway J's reasons.