Case: Gale v Minister for Land &amp; Water Conservation for the State of New South Wales [2004] FCA 374
Outcome: considered
Worimi points to Gale v Minister for Land &amp; Water Conservation for the State of New South Wales [2004] FCA 374 where it was accepted that at the time of sovereignty, the lands were inhabited by organised communities of Aboriginal people who had rights and interests in the subject lands, sourced in traditional laws and customs (at [34]). The parties accepted the ' tenacious persistence of native title ' and of traditional Aboriginal culture. Justice Madgwick took account of extensive expert reports of anthropologists and historians, as well as other evidence that had been filed, to conclude that there was no native title over the lands in question. That expert evidence was available in Gale . The fact that no such evidence is available in these proceedings does not prevent a decision being reached as to whether the Land Council has satisfied the burden of establishing the absence of native title, on the basis of the evidence adduced. 75 The Land Council is not required to overcome and negative a presumption that native title exists over Lot 576. 76 Worimi points to the description of all of the land around Port Stephens as "traditional Worimi country" or in similar terms. The Minister accepts that ' it is common ground that the Land falls within traditional Worimi country '. However, the Minister does not agree that the use of such an expression or such informal identification of a region with a people, the Worimi nation, entails acceptance that there is and has at all times since 1788 been a native title holding group that is part of a society which has all the attributes that are necessary to sustain native title rights and interests in the Land under the Act. 153 Worimi says that his family and his mother before him were removed by actions of others and that the removal was not voluntary. In an area where non-Aboriginal communities developed, many Aboriginal families lived at Karuah, which is also part of Worimi land. In deciding whether claimants, by traditional laws acknowledged and traditional customs observed, have a present connection with land, some interruptions to enjoyment of native title rights and interests is allowed ( Gale at [108], citing Yorta Yorta and De Rose ). 165 In Gale, Madgwick J was dealing with a native title claimant application from which the claimants withdrew. One of the respondents, Deerubbin Local Aboriginal Land Council, sought an order that there was no native title over the subject land. Expert evidence had been filed in support of the claimant applications to which the Deerubbin Local Aboriginal Land Council had responded. His Honour considered Yorta Yorta and drew from it a number of relevant principles, including: &#8226; [N] ative title rights and interests derive from traditional laws and customs in the sense that they survived the acquisition of sovereignty over Australia: Yorta Yorta at [75]. &#8226; The rights and interests must be presently 'possessed' under traditional laws and customs. This requires that the normative system under which those rights or interests are possessed ... be a system that has had a 'continuous existence and vitality' since sovereignty: Yorta Yorta at [47]. &#8226; Some change to or adaptation of traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests since sovereignty will not necessarily be fatal to a native title claim. &#8226; The statutory questions (in s 223) are directed to the present possession of the rights or interests, not their exercise, and to the existence of a relevant, present connection. It follows that the non-exercise of native title rights or interests by some of the persons now claiming such rights or interests ... will not inevitably be fatal. &#8226; The requirement in s 223(1)(b) for connection with land or waters by traditional laws and customs must be a connection which the peoples concerned have by their traditional laws and customs, that is the laws and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty. It is the normative quality of the normative rules which rendered the Crown's radical title acquired at sovereignty subject to the rights and interests then existing and which are now identified as native title. &#8226; It is an important qualification that the acknowledgment and observance of those rules need only have continued substantially, and not entirely, uninterrupted. &#8226; Nonetheless, it is necessary to demonstrate that it is the normative system of the pre-sovereign society out of which the claimed rights and interests arise. This entails that it be shown that that society has continued to exist as a body united by its acknowledgement and observance of the traditional laws and customs. &#8226; Acknowledgement and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. It is not enough that there be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe them, notwithstanding that they are similar to or even identical with those of an earlier and different society. 166 Justice Madgwick concluded at [18] that there is a stringent requirement of continuity both of the society which had the rules giving rise to native title rights and interests and of observance of those traditional laws and customs which embodied those rules. At [118], Madgwick J found that, on the available evidence, the claimants did not constitute, even as the last member, ' a society that in any presently relevant sense observes traditional laws and customs '. Aboriginality by descent and/or self-identification and acceptance as such is not enough to found a native title claim. It was not shown that there was ' a society that has continued to exist since before sovereignty and which was and is united by its acknowledgement of traditional laws and observance of traditional customs, allowing that the laws and customs may have adapted '. Those laws and customs were not shown to have had a "continuous existence and vitality" since sovereignty. Justice Madgwick concluded that there was no adequate reason not to make a determination that native title did not exist in relation to the subject land. 168 Worimi asserts laws and customs in connection with the Land which, he acknowledges, are not observed by other Worimi people. That is consistent with the evidence of the other witnesses. As in Gale , Worimi and those of his family who support his claims do not constitute a society that observes traditional laws and customs in respect of the Land. As in Gale , even if the Land was associated with the birth of children of the Garuahgal people, the present observance by Worimi and one of his daughters is ' at best an attempted re-creation of a society which may well have had native title rights and interests ' (at [119]).