Case: Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: discussed
In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442 (" Yorta Yorta" ), the High Court made it plain at [33] that all elements of the definition of native title in s 223(1) must be given effect. 137 In Ward HC, Gleeson CJ, Gaudron, Gummow and Hayne JJ said in relation to s 223(1) (at [17]): "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: (a) they are rights and interests which are "possessed under the traditional laws acknowledged, and the traditional customs observed", by the relevant peoples; (b) by those traditional laws and customs, the peoples "have a connection with" the land or waters in question; and (c) the rights and interests must be "recognised by the common law of Australia"." Their Honours continued in relation to s 223(1)(a) (at [18]): "The question in a given case whether (a) is satisfied presents a question of fact. It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters "by those laws and customs". Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs." 138 Finally, their Honours said in relation to s 223(1)(b) , (at [64]): "In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a "connection"' with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a "connection" of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by "connection" by those laws and customs. This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient. We, therefore, need express no view, in these matters, on what is the nature of the "connection" that must be shown to exist. In particular, we need express no view on when a 'spiritual connection' with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice." 139 In Yorta Yorta Gleeson CJ, Gummow and Hayne JJ identified the requirements of s 223(1). Their Honours focused, in particular upon the need for evidence of "connection". They said (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." 140 Their Honours went on to state, at [38]-[40], and again at [43]-[45], that the rights and interests that are the subject of the NT Act are those that derive from traditional laws and customs forming a body of norms that existed before sovereignty. They said in relation to the meaning of "traditional" (at [46]-[47]): "That being so, 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." 144 In Risk , Mansfield J observed that the High Court's decision in Yorta Yorta imposed a requirement of continuity on both the aboriginal society, and on the acknowledgement and observance of the traditional laws and customs that are claimed to give rise to the rights and interests under the NT Act . His Honour stated (at [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.'" 145 His Honour went on to make clear that the requirement for continuity of connection is not absolute. He cited the following passage from the judgment of the majority in Yorta Yorta (at [83]): "...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?" 146 His Honour went on to say that the acknowledgement and observance of the traditional laws and customs must have continued "substantially uninterrupted" since sovereignty. He concluded that, in the case of the Larrakia people, in the Darwin area, a combination of circumstances had, in various ways, interrupted or disturbed their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty. Accordingly, the current Larrakia society, with its laws and customs, had not carried forward the traditional laws and customs of the Larrakia people so as to support the conclusion that those traditional laws and customs have had a continued existence and vitality since sovereignty. 147 As previously indicated, a key provision in these proceedings is s 47B of the NT Act . That section relevantly provides: " When section applies (1) This section applies if: (a) a claimant application is made in relation to an area; and (b) when the application is made, the area is not: (i) covered by a freehold estate or a lease; or (ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or (iii) subject to a resumption process (see paragraph (5)(b)); and (c) when the application is made, one or more members of the native title claim group occupy the area. Prior extinguishment to be disregarded (2) For all purposes under this Act in relation to this application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded. Effect of determination (3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed: (a) the determination does not affect: (i) the validity of the creation of any prior interest in relation to the area; or (ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and (b) the non-extinguishment principle applies to the creation of any prior interest in relation to the area." 508 In Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 at [7] (" Yarmirr "), in Ward HC at [16] and [25], and in Yorta Yorta at [32], the High Court held that, when determining a native title claim, attention must focus upon the statutory definition of "native title" and "native title rights and interests", in ss 223(1)(a) and (b) rather than the language used by Brennan J in Mabo (No 2) . That is so notwithstanding the fact that those paragraphs were plainly based upon his Honour's judgment. 512 The Full Court then summarised the effect of Yorta Yorta . It said (at [74]-[77]): "In Yorta Yorta the centrality of the statutory definition of native title rights and interests and "determination of native title" was emphasised. A determination under the NT Act was said to be "a creature of that Act, not the common law" (per Gleeson CJ, Gummow and Hayne JJ at [32]). Three characteristics of native title rights and interests which can be the subject of a determination under the NT Act were stated thus: 1. They must be possessed under the traditional laws acknowledged and the traditional customs observed by the people concerned. That is they must find their source in traditional law and custom, not in the common law. 2. The rights and interests must have the characteristic that by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those people have a "connection with" the land or waters. The source of the connection is traditional law and custom, not the common law. 3. The rights and interests in relation to land must be recognised by the common law of Australia. The traditional laws or customs which are the source of the native title rights and interests must have a "normative content". They must derive "from a body of norms or normative system - the body of norms or normative system that existed before sovereignty" ( Yorta Yorta at [38]). This does not require fine distinctions to be drawn between legal rules and moral obligations. The interests may arise under both law and custom. There nevertheless must be some kind of "rules" which have a "normative content". Absent such rules there may merely be observable behaviour patterns but no rights or interests in relation to the land. In order to be cognisable by the common law any rights and interests in the land must have their origin in the system of traditional law and custom in existence at the time of the acquisition of sovereignty by the Crown. After sovereignty that system of traditional law and custom could not validly create new rights or interests cognisable by the common law ( Yorta Yorta at [43]). That does not prevent the recognition of rights and interests transmitted according to rules of transmission which existed at sovereignty. Nor does it prevent the significant adaptation of traditional law and custom post-sovereignty. The joint judgment in Yorta Yorta required that (at [46]): 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. The normative system must have had "a continuous existence and vitality since sovereignty" (at [47]). Any interregnum in its existence would cause the rights and interests derived from it to cease beyond revival in the eyes of the common law (at [47]). The laws and customs, from which the native title rights and interests derive their existence, must necessarily be those of a society or group. This proposition was derived from the general observation of Professor Honore that "all laws are laws of a society or group" ([49]-[50]). It followed that the rights and interests possessed under a body of laws and customs are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes them. If that society ceases to exist so too do the laws and customs which it observed. When a society that existed at sovereignty ceases to exist and its laws and customs are adopted post-sovereignty by some new society the rights and interests to which they give rise would not be rooted in post-sovereignty laws and customs ([52] and [55]). The Court said (at [55]): laws and customs and the society which acknowledges and observes them are inextricably interlinked. The consequence of these considerations is that the inquiry in relation to native title rights and interests under s 223 requires consideration of the relationship between traditional laws and customs now acknowledged and observed and those which were acknowledged and observed at the time of the acquisition of sovereignty by the Crown. It must be shown that the society under whose laws and customs the native title rights and interests are said to be possessed has continued to exist from sovereignty to the present day "as a body united by its acknowledgment and observance of the laws and customs" (at [89]). However, change or adaptation in traditional law and custom or some interruption of enjoyment or exercise of native title rights is not necessarily fatal to that continuity (at [83])." 513 In Alyawarr the Full Court next turned its attention to s 225. It observed that this section required consideration of whether the persons said to be native title holders were members of a society or community that had existed from sovereignty to the present time as a group, united by its acknowledgement of the laws and customs under which the native title rights and interests claimed were said to be possessed. This involved two separate inquiries. The first was whether such a society existed today. The second was whether it had existed since sovereignty. The judgment of the Full Court continued (at [78]): "The concept of a "society" in existence since sovereignty as the repository of traditional laws and customs in existence since that time derives from the reasoning in Yorta Yorta . The relevant ordinary meaning of society is "a body of people forming a community or living under the same government" - Shorter Oxford English Dictionary . It does not require arcane construction. It is not a word which appears in the NT Act . It is a conceptual tool for use in its application. It does not introduce, into the judgments required by the NT Act , technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as "societies". The introduction of such elements would potentially involve the application of criteria for the determination of native title rights and interests foreign to the language of the NT Act and confining its application in a way not warranted by its language or stated purposes." 517 In Alyawarr the Full Court observed (at [87]-[93]): "It is a requirement of s 223(1)(b) that the native title holders, by their traditional laws and customs, gave a "connection" with the land and waters. That requirement operates in two ways. It declares, as a condition of the existence of native title rights and interests under the NT Act , that their putative holders have "a connection with the land or waters". It also requires that the connection be "by" the traditional laws and customs under which the claimed rights and interests are possessed. The drafting is opaque because the word "connection" is taken from a judgment and appears to have been applied in the statute somewhat out of context. It comes from the judgment of Brennan J in Mabo (No 2) . The word appeared in his Honour's judgment at 59, when he referred to the fact that since European settlement of Australia many clans or groups of indigenous people had been "physically separated from their traditional land and have lost their connexion with it". This is consistent with a view of connection as something wider than physical presence on the land, albeit loss of connection could be a consequence of physical separation. His Honour went on to say (at 59-60): Where a clan or group has continued to acknowledge the laws (and so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. His Honour contrasted that situation with the case in which "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". From the preceding it can be seen that "connection" is descriptive of the relationship to the land and waters which is, in effect, declared or asserted by the acknowledgment of laws and observance of customs which concern the land and waters in various ways. To observe laws and acknowledge customs which tell the stories of the land and define the rules for its protection and use in ways spiritual and material is to keep the relevant connection to the land. There is inescapably an element of continuity involved which derives from the necessary character of the relevant laws and customs as "traditional". The acknowledgment and observance, and thereby the connection, is not transient but continuing. The joint judgment of the majority in Ward HC at [64] observed that s 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they had a "connection" with the land or waters: That is, it requires first an identification of the content of the traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a "connection" of the people with the land or waters in question. While evidence of uses might say something about connection, "absence of evidence of some recent use ... does not, of itself require the conclusion that there can be no relevant connection". The question of what is meant by "connection" by traditional laws and customs was not the subject of submissions in Ward HC . The majority therefore expressed no view on the nature of connection and in particular whether a spiritual connection would suffice. In Yorta Yorta , in the joint judgment of Gleeson CJ, Gummow and Hayne JJ, emphasis was placed upon the need to consider the present possession of rights and interests and the present connection of claimants with the land or waters. But that was not to say that continuity of the chain of possession and continuity of connection was irrelevant: [85]. The "connection" requirement of s 223(1)(b) of the NT Act was recently referred to by the Full Court in De Rose (No 2) . Their Honours relied upon the passage cited earlier from [64] of the joint judgment in Ward HC . They identified the content of the traditional laws and customs on the evidence before them which included rights and obligations relating to the use of the land in the claim area. They said (at [113]): In view of these findings as to the content of the traditional laws and customs of the Western Desert Bloc, the effect of those laws and customs is, in our opinion, plainly to constitute a "connection" between Peter De Rose ... and the claim area. The traditional laws and customs confer rights and responsibilities on Peter De Rose over the claim area. They establish that he is inextricably linked to his country in a variety of ways. The "connection" required to satisfy s 223(1)(b) of the NTA is present. It may be that not enough emphasis has been placed on the idea of continuity of observance as a manifestation of connection. The usage in Mabo (No 2) can constitute extrinsic material to aid in the construction of the statute. The use of "connection" as emphasising a requirement to show continuity of association with the land by observance and acknowledgment of traditional law and custom relating to it gives proper recognition to its origins in the Mabo judgment. It involves the continuing assertion by the group of its traditional relationship to the country defined by its laws and customs. This relationship may be evidenced by its physical presence there but also in other ways involving the maintenance of the stories and allocation of responsibilities and rights in relation to it. The word "connection" should not be taken as qualifying or limiting the range of rights and interests arising under traditional law and custom which are native title rights and interests for the purposes of the NT Act . The existence of connection, in the sense explained, is a condition of their existence for the purposes of the NT Act . It does not limit their content. Their content is limited by the requirement that they be rights and interests "in relation to land or waters". The words "in relation to" are words of wide import. The content of native title rights and interests may also be limited by the requirement, imposed by s 223(1)(c) that they "are recognised by the common law of native title"." 518 Before turning to the application of these statements of principle to the facts of the present case, some background to the NT Act may be helpful. 519 The common law of Australia has, since Mabo (No 2) , recognised a form of native title which, in cases where it has not been extinguished, reflects the entitlement of indigenous inhabitants, in accordance with their laws and customs, to their traditional lands. 537 His Honour's reference to the "tide of history" having been washed away was applied by Olney J, at first instance, in Yorta Yorta . There the application for a determination of native title failed because the evidence did not establish possession of tribal lands, or an observation of laws and customs based on tradition, that could provide a basis for a native title claim. In other words, the particular claimants had ceased to be a traditional indigenous community. Likewise, in Risk , Mansfield J found that the current laws and customs of the Larrakia people were not "traditional" in the sense required by s 223(1) , as explained by the High Court in Yorta Yorta . 641 There is little direct evidence linking the laws and customs observed by the current claimants with the practices followed by their forbears at or before sovereignty. In Yorta Yorta , this proved fatal to the applicants' claim. That was because there was a significant break, over a number of years, in the proven connection between any indigenous persons and the land in question. 650 In De Rose No 1 , the Full Court (at [326]) referred to Yorta Yorta (at [90]) as having established that if continuity of acknowledgment and observance of traditional laws and customs has been interrupted, the reasons for the interruption are irrelevant. The Full Court went on to say that Yorta Yorta also established that the reasons why acknowledgment and observance had been affected might influence the fact-finder's decision as to whether there was an absence of continuity. The same applied in relation to the question of connection. If the requisite connection did not exist, or had ended, it did not matter why that had occurred. However, in determining whether there was a connection for the purposes of s 223(1)(b) , the reason why the claimants had not sought to maintain a physical association with the land might be relevant. 651 Professor Butt observes, in relation to connection (at 949-950): "Because Aboriginal and Torres Strait Islander societies are so diverse, no single activity or form of relationship between people and place can determine the question of connection. Ultimately, a finding of connection by traditional law and custom reflects a conclusion drawn from all the evidence of relationship between the claimants and the land or waters in question. Early accounts of settlement and occupation of the continent will be relevant in establishing connection, where they point to historical occupation from which an inference of continuity can be drawn." 652 Applying these principles to the evidence before me, the claimants have established a connection with the claim area. The evidence points strongly to a long-standing link between the Ngaliwurru and Nungali Peoples and the claim area. That relationship is grounded in traditional law and custom. It is manifested in almost every facet of life among the claimants, and in the ritual and ceremonial practices that play such a prominent role in their existence. Their connection to the land is "by" the traditional laws that they acknowledge, and "by" the traditional customs that they observe. The evidence establishes that they have maintained the necessary connection with the claim area since the time the Crown first asserted sovereignty. 699 Counsel for the Northern Territory did not have the benefit of the considered views of the Full Court in Alyawarr at the time these submissions were made. Plainly, they are at odds with the reasoning of the Full Court. As previously mentioned, Alyawarr was the subject of an unsuccessful application for special leave to appeal to the High Court. Hayne J described the reasoning of the Full Court as "not attended by sufficient doubt to warrant a grant of special leave to appeal to this Court". 700 I am of course bound by the decision of the Full Court in Alyawarr . As I was a member of that Full Court, it is hardly surprising that I regard the decision as correct. To the extent that Daniel reflects a different approach to the construction of s 47B, I must respectfully decline to follow that decision. It follows that s 47B(1)(b)(ii) is no impediment to the operation of s 47B in these proceedings. 701 Another point raised by the Northern Territory with regard to s 47B concerned the scope of any benefit that might be claimed in reliance upon that section. It should be noted that, for reasons that will be discussed later, the claimants do not rely upon that section in relation to Lots 16, 22, 33, 35 and 37. 702 The Northern Territory also challenged the claim that one or more members of the native title claim group "occupied" the specific lots identified as making up the claim area at the time each of the three applications presently before the Court was made. It submitted that it is was not sufficient simply to state, as the claimants had done, that "occupation" was established on the basis of residence in, or near, Timber Creek, and that some (unidentified) land was used for traditional purposes. It submitted that the fact that sacred sites may be located within the township in no way altered that position.