Case: Bodney v Bennell (2008) 167 FCR 84
Outcome: referred to
The Land Council relies on Worimi's own evidence to demonstrate a lack of continuity in the practices said to have been carried out on or near the Land. Worimi acknowledges that, whether or not Lot 576 and the area at Kingsley Beach are women's sites and associated with the birth of children, whether Worimi, Maaiangal or Garuahgal, there has not been a continuous connection with such people and the observance of traditional laws and customs since sovereignty. Accordingly, there has not been the requisite "connection" with the Land as required by s 223(1) of the Act ( Bodney v Bennell (2008) 167 FCR 84 at [171] [174]). This is not because of the physical presence or absence on the Land. It is because the practices of his own family, that he says are associated with the Land, were not observed at least from the time of his grandmother until his daughter went onto the Land in 2006. I accept that, at least now, Worimi feels strongly about his Aboriginal heritage. Worimi accepts that he has taken some of the customs observed by the Dunghutti people, as described and observed by his wife Cynthia, in practising with his daughter the customs connected with birth and baptism that he said were carried out on the Land and Kingsley Beach. That could be said to reflect the incorporation, in the ordinary course, of other customs and practices into the traditional forms of the Garuahgal people. 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]). 171 Where individual native title rights are claimed, they arise out of and depend upon the traditional laws and customs of the community in question ( Bodney at [148]). Rights may be communally held or held by a sub-group or, indeed, by an individual, depending on the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title rights and interests ( Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 at [79] and [80]). In the present case, the native title rights over a Worimi women's site would be held by Worimi women. They deny such rights for Lot 576.