Case: Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606
Outcome: cited
Full Court ([277]) distinguished Yorta Yorta HCA on the basis that, on the primary judge's findings, the traditional laws and customs of the Yorta Yorta community had not been acknowledged and observed substantially uninterrupted since sovereignty ([277]). The primary judge in that case ( Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606) had found that the claimants and their ancestors had not continued to acknowledge and observe traditional laws and customs in relation to the land of their forebears, and that before the end of the nineteenth century their ancestors had ceased to occupy their traditional lands in accordance with their traditional laws and customs. In contrast, and as noted above at [522], their Honours observed ([278]) that in De Rose , it did not appear that the respondents had contended at trial: that the WDCB society had not existed at sovereignty; that the WDCB society did not provide for persons recognised as Nguraritja to possess rights and interests in relation to land; that the WDCB society had ceased to exist; or that members of the WDCB society had ceased to observe traditional laws and customs at any time between sovereignty and the trial and as noted above at [522]. The importance of these matters not being in issue is obvious. After quoting the observations which the Full Court made at [278] (referred to at [527] above), the State, submits that in these proceedings, virtually all of the factual premises advanced by the Claim groups are disputed. It submits that the evidence has failed to establish that the WDCB laws and customs constitute a 'normative system' under which rights and interests of the kind described in the various Forms 1 are possessed in the respective Claim areas. As well, it submits that no Claim group has established that as a group it acknowledges and observes such laws and customs, even if the latter constitute a normative system. The Full Court in De Rose FCAFC further stated ([279]): it were necessary to go back to the evidence, there is ample support for the proposition that, whatever the degree of acknowledgment or observance of traditional laws and customs by the appellants themselves, Western Desert society has continued to exist since sovereignty and the traditional laws and customs of that society have continued substantially uninterrupted throughout that period. [Their Honours referred to anthropological evidence in support.] ' Their Honours said ([281]) that this conclusion did not mean that the appellants were relieved of the obligation to prove that they had continued to acknowledge and observe the traditional laws and customs of the WDCB, and that they possessed rights and interests under those laws and customs. It did mean, however, that 'the appellants' claim [did] not encounter the obstacle upon which the claim of the Yorta Yorta people foundered'. The Full Court stated ([283]) that the primary judge's finding to the effect that the appellants did not constitute, or were not part of, a social, communal or political organisation on or near the claim area, could not properly adversely affect their claim, and that to the extent that his Honour had thought otherwise, he had erred. De Rose (No 2) FCAFC Having allowed the appeal, the same Full Court, subsequently in De Rose (No 2) FCAFC , determined that native title existed in the claim area. Of present interest in De Rose (No 2) FCAFC is their Honours' discussion ([27] [44]) of the meaning of the expression 'communal, group or individual rights and interests', as that expression appears in s 223(1) of the NTA. It will be recalled that in Yorta Yorta HCA , the joint judgment stated ([49]) that in the present context: is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.' and in a footnote to this passage, their Honours said they had chosen the word 'society' rather than 'community', in order to emphasise the close relationship between the identification of the group and the identification of its laws and customs. The implication is that, otherwise, 'community' would have done as well. All eight Claims before the Court are claims by groups to hold group rights and interests. They are claims of rights and interests which inhere in a group of fluctuating membership. In my opinion, enjoyment of those rights and interests, by an individual depends upon that individual's being a member of the group. In my view, which is consistent with [27]-[44] of the Full Court's judgment in De Rose (No 2) FCAFC , the expression 'communal, group or individual rights or interests' reflects a taxonomy. The 'community' is the 'society' which sustains the traditional laws and customs in question, and is therefore the largest possible right or interest owning entity (eg the Meriam People in Mabo (No 2) ). At the other extreme is the individual. Any right or interest owning entity lying between the individual and the community is a 'group'. A group may be numerically small, as in De Rose , or numerically large, as in the case of the Wongatha Claim group. On the other hand, a numerically small or large number of individuals may all hold only individual rights and interests. Everything depends on the content of the traditional laws and customs. Many, perhaps most, or even all, groups will have a fluctuating membership. Again, all depends on how the group is identified by the traditional laws and customs. In the case of group rights and interests, the individual members of the group (claimants) have rights and interests by reason of that membership . Their rights and interests will not, however, necessarily be identical. A member may have 'active' or 'productive' rights and interests only in a particular area, and his or her rights and interests in the remainder will then be only 'nominal', 'residual' or 'theoretical'. As ever, the governing consideration is the traditional laws and customs. But the individual's rights and interests will always arise from his or her membership of the group; they will not arise directly and without group mediation, from the laws and customs of the society. In De Rose (No 2) FCAFC , their Honours stated the position ([39]-[40], [44]) in a manner which, I believe, is consistent with what I have said in the preceding paragraph: The distinction between group and individual rights and interests (to the extent it matters) is perhaps more difficult to identify. An example of group rights and interests may be those held by a subset of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas. The members of the subset may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community. The members of the subset might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites. Ordinarily, it might be expected that the "group" holding native title rights and interests would have a fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed. A person holding individual native title rights and interests, by contrast, may not necessarily share common characteristics, in relation to land or waters, with other members of that community under the relevant body of traditional laws and customs. Unless the traditional laws and customs provide for the individual rights and interests to be transmitted to other community members, they presumably will terminate upon the death of the holder. ... If it is necessary to classify the rights and interests claimed by the appellants in the present case, they are best regarded as group rights and interests, rather than individual rights and interests. It is true that the appellants do not claim to be a discrete or functioning community and that the normative system on which they rely for their rights and interests is that of the wider Western Desert Bloc. But the appellants claim to be Nguraritja for the claim area and, by virtue of that status, they have common rights and responsibilities under the laws and customs of the Western Desert Bloc in relation to the claim area (although not necessarily in relation to precisely the same sites or tracks). Moreover, the appellants claim on behalf of all people who are Nguraritja for the claim area. The composition of that class will vary from time to time depending upon who can satisfy the rules identified by the primary judge for identifying Nguraritja ( De Rose (FC) at [37]-[40], [58]-[61]). On the appellants' case, native title rights and interests over the claim area will not cease on the death of the last survivor among them.' The present Claims are also group claims advanced by the respective applicants on behalf of groups having the memberships identified in the respective Forms 1 on the basis of the membership criteria identified in the respective POCs. The question is whether it is established that traditional laws and customs of the WDCB society provide for group rights and interests to be possessed by the various groups of claimants in the respective Claim areas. As will appear, I think, it has not been. I accept that the WDCB existed at sovereignty and that it still exists. The joint report of the anthropologists who participated in the conference appears to have assumed as much. But virtually everything else touching the WDCB is in issue: whether it is a society united by the acknowledgment and observance of laws and customs; its characteristics; its geographical extent; and whether the respective Claim groups continue to acknowledge its body of traditional laws and customs. (a)(b) Geographical extent and migration/Geographical coincidence; Claim areas and the WDCB (1) Introduction There has been a lively issue as to the western extent of the WDCB. The point of the debate is that if any of the Claim areas or parts of any of them lie west of the WDCB area, the Claims, or the Claims insofar as they relate to overlaps, must fail to that extent , since all Claims are put as dependent on the WDCB 'society'. The onus of establishing how far west that area extends, or, more accurately, that the Claim areas are within it, rests on the respective Claim groups. On any reckoning, the Wongatha Claim area is at the western periphery of the Western Desert. The report on the anthropologists' conference expressed the agreement of the participants that the Western and South Western boundaries of the Western Desert are 'not definable based on the historical ethnographic sources'. So be it, but everyone agrees that it does not extend west to the coast. It is also agreed that there are cultural continuities and that the WDCB is not distinguished by sharp boundaries. The anthropologists' joint report states that '[t]he relations between people who might be claimed as Western Desert or non Western Desert were not necessarily qualitatively different from relations that are intra-Western Desert or intra-non-Western Desert, as there are likely to have been cultural continuities between those who appear on both sides of Berndt's line in the 1959 article'. I discuss the Berndt line at [630] ff it is one possible line that has been suggested as the western boundary of the WDCB. The difficulty of the present question is obvious. I am proceeding on the basis that the WDCB is a 'society' that existed in 1829 and continues to exist. A society is not a territory. However, the name WDCB suggests a relationship with the Western Desert. It is difficult enough to know precisely where the Western Desert begins and ends. It is even more difficult to know precisely where the geographical area occupied by the 'body of persons united in and by its acknowledgment and observance of a body of law and customs' ( Yorta Yorta HCA at [49]) known as the WDCB, begins and ends. Finally, it is most difficult of all to know precisely where that area began and ended in 1829 and at various times since then. There have been population shifts since first contact, and, in particular, since settlement. Did the 'migrants' take the western boundary of the WDCB to the west with them? Or, did they leave the area of the WDCB for places west of it? Again, did they simply move from one place within the WDCB area to another place within that area?