mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Daniel v State of Western Australia [2000] FCA 1356
Outcome: cited
On that basis, I informed the parties that I would treat the provisional rulings (apart from those rulings contested by the first applicant) as final rulings. In relation to the remaining objections, I made rulings on these objections throughout the examination-in-chief of Mr Graham. The procedure which I followed is now conventional. Other recent native title determination applications have dealt with objections to expert reports in a similar fashion. See Daniel at [230]; Daniel v State of Western Australia [2000] FCA 1356 ; and Neowarra v State of Western Australia (No 1) [2003] FCA 1399 ; (2003) 134 FCR 208 ( Neowarra ) at [11]. However, in view of the extensive submissions on the objections, it is apt that I should explain in a little detail my reasons for my ruling.
Case: Neowarra v State of Western Australia (No 1) [2003] FCA 1399 ; (2003) 134 FCR 208
Outcome: followed
On that basis, I informed the parties that I would treat the provisional rulings (apart from those rulings contested by the first applicant) as final rulings. In relation to the remaining objections, I made rulings on these objections throughout the examination-in-chief of Mr Graham. The procedure which I followed is now conventional. Other recent native title determination applications have dealt with objections to expert reports in a similar fashion. See Daniel at [230]; Daniel v State of Western Australia [2000] FCA 1356 ; and Neowarra v State of Western Australia (No 1) [2003] FCA 1399 ; (2003) 134 FCR 208 ( Neowarra ) at [11]. However, in view of the extensive submissions on the objections, it is apt that I should explain in a little detail my reasons for my ruling.
Case: Jango v Northern Territory of Australia (No 2) [2004] FCA 1004
Outcome: discussed
Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 ( Jango ) addressed the same issues. In that case, certain expert anthropologists' reports were the subject of in excess of 1000 objections by the respondents. Sackville J observed at [8] that it was apparent that the reports had been 'prepared with scant regard for the requirements of the [Evidence Act]'. His Honour cited the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Yarmirr , where their Honours noted at [84] that an expert anthropological report had been received in evidence in that case without proof and without objection 'despite it being a document which was in part intended as evidence of historical and other facts, in part intended as evidence of expert opinions the authors held on certain subjects, and in part a document advocating the claimants' case. Although it was not suggested that the mixing of these disparate elements, without any evident delineation between them, ultimately led to any insuperable difficulty in this case, it is a practice which has obvious difficulties and dangers.' 459 In relation to a particular expert anthropology report before the Court in Jango Justice Sackville said at [11] that it did not 'clearly expose the reasoning leading to the opinions arrived at by the authors. Nor does it distinguish between the facts upon which opinions are presumably based and the opinions themselves. Indeed, it is often difficult to discern whether the authors are advancing factual propositions, assuming the existence of particular facts, or expressing their own opinions. Certainly the basis on which the authors have reached particular conclusions is often either unstated or unclear.' 461 In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [64] , Heydon JA confirmed the existence in common law of the 'basic principle'. This 'basic principle' or 'basic rule' was expressed by Sackville J in Jango as requiring an expert opinion to be 'based on facts stated by the expert and either proved by the expert or assumed by him or her and proved aliunde ': at [33]. Section 79 of the Evidence Act does not import the 'basis rule': Neowarra at [23] per Sundberg J. However, Sundberg J said that despite this 'an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the court to determine whether the opinion is wholly or substantially based on the expert's specialised knowledge which in turn is based on training, study or experience.' 462 In both Harrington-Smith and in Jango , the expert anthropology reports were criticised, inter alia, on the basis that they did not 'distinguish between the facts upon which opinions [were] presumably based and the opinions themselves.'
Case: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705
Outcome: referred to
In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [64] , Heydon JA confirmed the existence in common law of the 'basic principle'. This 'basic principle' or 'basic rule' was expressed by Sackville J in Jango as requiring an expert opinion to be 'based on facts stated by the expert and either proved by the expert or assumed by him or her and proved aliunde ': at [33]. Section 79 of the Evidence Act does not import the 'basis rule': Neowarra at [23] per Sundberg J. However, Sundberg J said that despite this 'an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the court to determine whether the opinion is wholly or substantially based on the expert's specialised knowledge which in turn is based on training, study or experience.'
Case: Ward v State of Western Australia (1998) 159 ALR 483
Outcome: referred to
Expert anthropological evidence serves to provide a framework within which the primary evidence of Aboriginal witnesses can be considered: Lee J in Ward v State of Western Australia (1998) 159 ALR 483 ( Ward , first instance) at 531. As I said in The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 ( Alyawarr ) at [89]: 'Not only may anthropological evidence observe and record matters relevant to informing the court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.' 465 In relation to genealogies, Lee J in Ward , first instance at 532, said that their preparation 'involved distilling information from a broad context of ethnographic material and it involved the application of skill and expertise of anthropologists. ... The charts as received in evidence were not restricted to the expression of opinion by anthropologists but were also evidence as to the truth of the statements contained therein. Genealogies duly prepared by anthropologists employing their specialised skill and understanding of the structure and culture of a society represent not only an appropriate field of expert evidence but also a record of statements made to the anthropologists, the record of which is likely to be reliable, the statements made being appropriate to be admitted in a case of this nature.' 466 In the current matter, Mr Graham gave evidence to the effect that in preparing his report, he had performed fieldwork with various members of the Larrakia group, as well as researching the relevant literature and genealogies prepared by Dr Walsh for the Kenbi Claim.
Case: The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539
Outcome: referred to
Expert anthropological evidence serves to provide a framework within which the primary evidence of Aboriginal witnesses can be considered: Lee J in Ward v State of Western Australia (1998) 159 ALR 483 ( Ward , first instance) at 531. As I said in The Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory (2004) 207 ALR 539 ( Alyawarr ) at [89]: 'Not only may anthropological evidence observe and record matters relevant to informing the court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs, but by reference to other material including historical literature and anthropological material, the anthropologists may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences. And there may also be circumstances in which an anthropological expert may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.'
Case: R v Perry (No 4) (1981) 28 SASR 119
Outcome: discussed
In R v Perry (No 4) (1981) 28 SASR 119 ( Perry ) at 126, Cox J discussed different types scientific opinions. Firstly, his Honour gave the example of opinion evidence from a psychiatrist, in relation to the diagnosis of a mental condition, and a pathologist, in relation to a person's cause of death. His Honour said about this type of evidence that 'much depends on the expert's judgments and it is recognised that the views of informed persons on such matters may reasonably differ.' Justice Cox compared this type of scientific evidence with evidence from an expert analytical chemist. His Honour said that where a reliable method requiring little independent judgment was used to measure the level of arsenic in a person's blood, any statement regarding the presence or absence of arsenic was to be regarded as a statement of fact. 472 At least in the context of expert anthropological reports, the line between an opinion and the fact upon which that opinion is based is not always clear. This is especially the case because expert anthropology reports often rely on hearsay evidence from members of the tribe itself. Judgments are made by the anthropologist about the significance of such evidence. In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 162, Blackburn J said (in the context of hearsay argument) that '[t]here is no doubt a considerable difference in degree between the extent to which statements made by other persons form the basis of conclusions in clinical medicine and in anthropology'. It is trite that Australian indigenous cultures have a distinctly oral tradition, rather than one based on documentary records. This is borne out in the preparation of expert anthropology reports and genealogies. Nor is the distinction necessarily simple to draw in cases involving mathematical or scientific expert evidence. In Quick v Stoland Pty Ltd (1998) 87 FCR 371, a case involving the expert evidence of a 'qualified accountant and registered auditor with extensive experience as an insolvency practitioner', Branson J said at 375 that '[T]he distinction between evidence of "fact" and evidence of "opinion" assumes a dichotomy which is not always easy to draw'. Her Honour also referred to ALRC Report No. 26, Vol 1, para 156, where the decision of Cox J in Perry is considered.
Case: Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316
Outcome: considered
It was accepted by the Territory that certain witnesses gave evidence that their current hunting and fishing practices are motivated not only by a 'desire for sustenance' but also by a desire to maintain a connection with the land and their ancestors: Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [157] . Patrick Briston, Bill Risk, Keith Risk, Eric Fejo, Morris Fejo and Lorna Talbot (in the Kenbi Claim) all gave evidence to this effect. Roque Lee explained that he goes hunting and fishing in the Darwin area 'for personal satisfaction, because I enjoy that sort of thing, but it's also looking after Larrakia country, it's keeping in touch with all the places that I used to go to, that I know of, and basically looking after country, as in checking on it and just going to the places.' 576 The Territory submitted that a system of hunting, fishing and foraging activities, as a way of 'looking after country' has arisen to fill the absence of a system based on spiritual connection to country. It was submitted that this system is so different to the pre-sovereignty system that it 'cannot be considered to be part of a system of "traditional laws and customs" which connect Larrakia people to the claim area'. 577 The DCC also highlighted the evidence of other witnesses, who said that they participated in hunting, foraging and fishing activities for sustenance and enjoyment, so supporting the notion that the desire to maintain a connection to country was a recent phenomenon. The first applicants rejected this position, stating that 'to be motivated to use one's country by the need for sustenance clearly involves "connection" under the system of law and custom that entitles you to regard country as your own.' 888 The dispute in submissions was about what amounts to occupation of the area. The Territory pointed out that neither s 47A(1)(c) nor s 47B(1)(c) refer to occupation of part only of the relevant area. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [449] , it was said by Beaumont and von Doussa JJ in the context of s 47A that a broad view should be taken of the word 'occupy', so that it would be satisfied by use of the land for the reserved purpose 'as and when that person wishes to do so', even if the person is rarely present on the land. Essential elements of occupation, according to that decision, are some occasional physical presence on the land, for s 47A some relevant usage of the land in accordance with the grant, or for s 47B some relevant usage of it consistent with 'the way of life, habits, customs and usages of the group' (per Olney J in Hayes v Northern Territory (1999) 97 FCR 31 at [162]), and that the activity be permitted. The single judge decisions in Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409 at [182] ; Passi on behalf of the Meriam People v Queensland [2001] FCA 697 at [29] ; Daniel at [938] and Neowarra [2003] FCA 1402 are consistent with that view.
Case: De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290
Outcome: referred to
The first applicants in their submission accepted that s 223(1)(a) of the NT Act requires that the laws and customs of the present society should have been passed from generation to generation of the society from sovereignty, and that they exist under a normative system that has had a continuous existence and vitality since sovereignty. They point out that change in laws and customs does not necessarily mean that they are no longer 'traditional'. They may be modified and adapted in response to changing environmental, economic or other circumstances, but nevertheless preserve the link which gives them their 'traditional' character. There may be circumstances in which their exercise in a particular geographical area may be interrupted, but not in a way which destroys their character as 'traditional': see e.g. De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290.
Case: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70
Outcome: cited
Hence, subject to s 47A and s 47B of the NT Act, any extinguishment of native title rights and interests at common law before that date continues to be effective. Acts and matters outside the definitions of 'previous exclusive possession act' and 'previous non-exclusive possession act' and which occurred before 31 October 1975 will retain their force despite the existence of native title and at common law will have effectively extinguished native title: Ward at [5], [114]. That date is the date of commencement of the Racial Discrimination Act 1975 (Cth) (the RD Act). Even if the RD Act applies, extinguishing acts after that date may still maintain their effectiveness where there is provided an entitlement to compensation in the native title holders: see Ward at [108]; Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70 at 98. Sections 47A and 47B provide for certain circumstances in which the effect of certain extinguishing acts is to be disregarded. They are further referred to later in these reasons. 860 Extinguishing acts may fall into three categories: legislative or executive acts which simply extinguish native title rights and interest; laws or acts which create rights in third parties which are inconsistent with the continued right to enjoy native title (either wholly or partly); and laws or acts by which the Crown requires full beneficial ownership of land previously subject to native title. Acts in the first category are assessed objectively as to whether they have the purpose of extinguishing native title. The second category requires an assessment of the respective rights and interests under native title and of the third parties under the relevant instruments. Except on matters of general principle, I do not consider it possible to embark upon any detailed consideration of that category as it involves an assumption of the existence of certain native title rights and interests contrary to my earlier conclusion. The third category encompasses either an acquisition of land in which native title rights or interests existed and the assertion by the Crown of rights inconsistent with them, or an acquisition of such land for a purpose or purposes (and the use of the acquired land) inconsistent with the continued enjoyment of native title. The requirement for inconsistency means the third category also is one into which I consider it inappropriate to delve. 861 The respondents have approached extinguishment by first addressing those acts which, they claim, wholly extinguish native title over some or all of the claim area. They then address acts said to partially extinguish native title. The third step is to address acts which, it is argued, cannot be disregarded by s 47B of the NT Act. This final grouping includes public works which are said to extinguish native title.
Case: Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409
Outcome: followed
The dispute in submissions was about what amounts to occupation of the area. The Territory pointed out that neither s 47A(1)(c) nor s 47B(1)(c) refer to occupation of part only of the relevant area. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [449] , it was said by Beaumont and von Doussa JJ in the context of s 47A that a broad view should be taken of the word 'occupy', so that it would be satisfied by use of the land for the reserved purpose 'as and when that person wishes to do so', even if the person is rarely present on the land. Essential elements of occupation, according to that decision, are some occasional physical presence on the land, for s 47A some relevant usage of the land in accordance with the grant, or for s 47B some relevant usage of it consistent with 'the way of life, habits, customs and usages of the group' (per Olney J in Hayes v Northern Territory (1999) 97 FCR 31 at [162]), and that the activity be permitted. The single judge decisions in Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409 at [182] ; Passi on behalf of the Meriam People v Queensland [2001] FCA 697 at [29] ; Daniel at [938] and Neowarra [2003] FCA 1402 are consistent with that view.
Case: Passi on behalf of the Meriam People v Queensland [2001] FCA 697
Outcome: followed
The dispute in submissions was about what amounts to occupation of the area. The Territory pointed out that neither s 47A(1)(c) nor s 47B(1)(c) refer to occupation of part only of the relevant area. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [449] , it was said by Beaumont and von Doussa JJ in the context of s 47A that a broad view should be taken of the word 'occupy', so that it would be satisfied by use of the land for the reserved purpose 'as and when that person wishes to do so', even if the person is rarely present on the land. Essential elements of occupation, according to that decision, are some occasional physical presence on the land, for s 47A some relevant usage of the land in accordance with the grant, or for s 47B some relevant usage of it consistent with 'the way of life, habits, customs and usages of the group' (per Olney J in Hayes v Northern Territory (1999) 97 FCR 31 at [162]), and that the activity be permitted. The single judge decisions in Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409 at [182] ; Passi on behalf of the Meriam People v Queensland [2001] FCA 697 at [29] ; Daniel at [938] and Neowarra [2003] FCA 1402 are consistent with that view.
Case: Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261
Outcome: cited
The general rule, of course, is that an amendment to an enactment which may affect substantive rights or interests, unless the contrary intention clearly appears, should not be given retrospective effect so as to alter substantive rights and interests already determined under the law: see Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267 per Dixon CJ; Mathieson v Burton [1971] HCA 4 ; (1971) 124 CLR 1 at 22 per Gibbs J.
Case: Mathieson v Burton [1971] HCA 4 ; (1971) 124 CLR 1
Outcome: cited
The general rule, of course, is that an amendment to an enactment which may affect substantive rights or interests, unless the contrary intention clearly appears, should not be given retrospective effect so as to alter substantive rights and interests already determined under the law: see Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267 per Dixon CJ; Mathieson v Burton [1971] HCA 4 ; (1971) 124 CLR 1 at 22 per Gibbs J.
Case: State of Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33
Outcome: referred to
The requirement for authorisation acknowledges 'the communal character of traditional law and custom which grounds native title. It is not a condition to be met by formulaic statements in or in support of applications': Strickland v Native Title Registrar (1999) 168 ALR 242 at 259-260, approved by the Full Court in Western Australia v Strickland [2000] FCA 652 ; (2000) 99 FCR 33 at 52 and cited in Daniel v WA at [12]. 901 In my view, there is no clear indication that s 47A and s 47B were intended to have a retrospective effect. The introduction of legislation intended to have that effect is likely to have been specifically remarked upon in the transitional provisions. That is more clearly so when the amending Act introduced extensive other amendments which included the regime under Div 2B of Pt 2 of the NT Act, and the transitional provisions dealing with them. I do not consider that the decision of the Full Court in State of Western Australia v Strickland [2000] FCA 652 directs a different result. It concerned the Native Title Registrar's obligations under s 190C of the NT Act in respect of the registration of a second claim over the same area. The context and purpose of the provision is quite different. The decision did not involve the potential alteration of established rights and interests retrospectively.