Case: Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96
Outcome: cited
Native title is not an institution or creature of the common law; rather, it is sui generis , being rooted and delineated in, and ascertained by reference to, indigenous traditional (pre-sovereignty) laws and customs, and is 'recognised' by the common law: Mabo (No 2) at 58-61 (Brennan J), 100-101 (Deane and Gaudron JJ), 178 (Toohey J); Native Title Act Case at 452 (joint judgment), 492 (Dawson J); Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96 (' Fejo ') at [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) ('joint judgment'), [101] (Kirby J); Ward HCA at [20] (joint judgment); Yarmirr HCA at [10] (joint judgment); Yorta Yorta HCA at [31] [33] (joint judgment). (7) The NTA ' governs the recognition, protection, extinguishment and impairment of native title' (my emphasis): Native Title Act Case at 453 (joint judgment). (8) 'Because native title has its origin in traditional laws and customs, and is neither an institution of the common law nor a form of common law tenure, it is necessary to curb the tendency (perhaps inevitable and natural) to conduct an inquiry about the existence of native title rights and interests in the language of the common law property lawyer': Yarmirr HCA at [11] (joint judgment). This is so, notwithstanding the requirement that the rights and interests be 'in relation to land or waters' and the use of the word 'title': Yarmirr HCA at [12] (joint judgment). In Ward HCA at [52] and [95] (joint judgment) their Honours found the concept of a 'bundle of rights' a useful metaphor for native title. (9) 'Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders. The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law ) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom ) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in para (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions': Yarmirr HCA at [16] (joint judgment) (original emphasis). (10) 'The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title, but their existence is not a sufficient basis for recognising native title [because of the possibility of extinguishment]' (my emphasis): Fejo at [46] (joint judgment). (11) Post-sovereignty adaptations or variations in pre-sovereignty traditional laws and customs are not necessarily a disqualification, but they must themselves be rooted in (allowed by) 'the social structures of the relevant indigenous society as those structures existed at sovereignty'; what is inconsistent with the NTA's concept of native title is that new rights and interests attributable to indigenous laws and customs should come into being after sovereignty, because their doing so could be due only to a right and interest creating system of norms parallel to, and in competition with, the legal system which owes its existence to sovereignty: Yorta Yorta HCA at [43]-[44], [54]-[55] (joint judgment), [178] (Callinan J). (12) Even if rights and interests can be shown to have been possessed under traditional (pre-sovereignty) laws and customs, if there is now no longer an indigenous society which acknowledges those laws and observes those customs, the rights and interests no longer exist; it is not enough that particular individuals acknowledge the traditional laws and observe the traditional customs or hope for their restoration: Yorta Yorta HCA at [50]-[56] (joint judgment), [86]-[87] (Callinan J). 'Laws and customs' and 'society' in the present context, are interrelated: '"society" is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs': Yorta Yorta HCA at [49] (joint judgment). Laws and customs are sustained only by a society which continues to acknowledge and observe them. (13) The NTA's use of the expression 'traditional laws acknowledged and traditional custom observed' (my emphasis) obviates any need to distinguish between traditional law on the one hand, and traditional custom on the other, but the subject of consideration is rights or interests, the rules which together constitute the traditional laws acknowledged and traditional customs observed, and under which the rights or interests are said to be possessed, 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.' ( Yorta Yorta HCA at [42] (joint judgment) (my emphasis)) (14) The word 'traditional' in the present context signifies, not only that the law or custom 'has been passed from generation to generation of a society, usually by word of mouth and common practice', but also: that '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'; and that 'the reference to rights or interest 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.' (my emphasis) ( Yorta Yorta HCA at [46]-[47] (joint judgment)) (19) The expression 'recognised by the common law of Australia' in s 223(1)(c) of the NTA does not mean 'created by or arising from the common law of Australia', but rather, 'acceptable to and not inconsistent with the common law of Australia'. On this point, see Brennan J in Mabo (No 2) at 43 (recognition or the rights and intents by the common law must not 'fracture a skeletal principle of our legal system') and at 61 (or be 'so repugnant to natural justice, equity and good conscience that judicial sanctions under the new r&eacute;gime must be withheld'). See also Wik Peoples v Queensland [1996] HCA 40 ; (1996) 187 CLR 1 (' Wik ') at 84 (Brennan CJ) and Yarmirr HCA at [42] (joint judgment). In Ward HCA at [21] (joint judgment) it was suggested that there would be a failure to satisfy para (c) if the laws and customs which met the requirements of paras (a) and (b) clashed with 'the general objectives of the common law of the preservation and protection of society as a whole.' Further illustration is that the traditional rights and interests might be of such a nature as not to be amenable to enforcement as common law rights, because, for example, of insufficient precision: Yorta Yorta HCA at [176], [186] (Callinan J). (20) '[W]hen the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared', and '[a] native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition': Mabo (No 2) at 59-60 (Brennan J). Counsel for Group 6A submits: Brunton was cross-examined a deal about bias ... Dr Brunton has expressed views as to the Mabo decision, the role of the High Court and other matters. They are no different to views publicly expressed by ( inter alia ) Sir Harry Gibbs, Heydon J, the Hon. Tim Fisher. In respect of the comments regarding Mabo they appear to be little different to the view of Dawson J in dissent in that case. It would have been thought obvious that this does not preclude a witness from expressing an expert opinion on a matter within his expertise, anymore than Mr Vachon's attendance at various rallies would preclude him.' The submission does not identify the other views 'publicly expressed', and, in any event, they would be presently irrelevant. It is one thing to express an opinion that a High Court decision is out of accord with an earlier course of authority, or to express concern over the practical effects a decision will have; it is another thing for a person professing to have the dispassionate objectivity, self restraint and self-discipline of an expert witness, to attack a court in intemperate terms ('unless it feels like it', 'lawless condition', 'avenging High Court') from an overtly political platform. It is unfortunate that Dr Brunton's curriculum vitae lists many articles which he now explains as having merely made political points. An article that does no more than this goes no way towards establishing that the person has 'specialised knowledge based on the person's training, study or experience' (Evidence Act s 79) or to inspire confidence.