Case: Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422
Outcome: followed
than once, members of the High Court of Australia have observed that the elements of a native title claim depend upon the terms of the Act, not the common law: see The Commonwealth v Yarmirr (2001) 208 1 at [7] ( 'Yarmirr' ), Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1 at [16] ( 'Ward HC' ), Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [32] ( 'Yorta Yorta' ). In Yorta Yorta at [75], Gleeson CJ, Gummow and Hayne JJ said: 'Native title, for present purposes, is what is defined and described in s 223(1)' of the Act. That subsection reads as follows: '(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.' Gleeson CJ, Gummow and Hayne JJ analysed the effect of s 223 (1) in Yorta Yorta at [33] [35]. They said: ' "Native title" means certain rights and interests of indigenous peoples. Those rights and interests may be communal, group or individual rights and interests, but they must be "in relation to" land or waters. The rights and interests must have three characteristics. The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. That is, they must find their source in traditional law and custom, not in the common law. It will be necessary to return to this characteristic. Secondly, the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have "a connection with" the land or waters. Again, the connection to be identified is one whose source is traditional law and custom, not the common law. Thirdly, the rights and interests in relation to land must be "recognised" by the common law of Australia ... Three separate strands of argument about this element of the definition of native title will require consideration. First, does this element of the definition permit, even require, consideration of any aspect of the general law as it stood after the decision in Mabo v Queensland [No 2] [1992] HCA 23 ; (1992) 175 CLR 1 ['Mabo'] but before the enactment of the Native Title Act ? Secondly, does this element of the definition carry within itself any rule or principle relating to extinguishment, abandonment, or loss of native title rights, by which it can be decided whether native title rights which existed at sovereignty may no longer be the subject of a determination of native title under the Native Title Act ? Thirdly, what, if anything, does this element of the definition of native title say about the significance that is to be attached to the identification of what traditional law or custom may have said, at the time sovereignty was first asserted , about the rights and interests of peoples in the land or waters in which native title is now claimed?' (Original emphasis, footnotes omitted). It is convenient to note and adopt some observations about s 223 (1) made in the final submissions by counsel for the applicants: 'In the joint judgment in Yorta Yorta , Mabo ... is cited as providing an explanation of the consequences of sovereignty upon existing indigenous rights and interests in land. The fundamental premise from which the decision in Mabo ... proceeded is that the laws and customs of the indigenous peoples of the country constituted bodies of normative rules which could give rise to and had in fact given rise to, rights and interests in relation to land or waters. The fundamental premise from which the [Act] proceeds is that the rights and interests with which it deals can be possessed under traditional laws and customs. As the definition in s.223(1) refers to traditional laws acknowledged "and" (as opposed to "or" ) traditional customs observed, there is no need to distinguish between what is a matter of traditional law and what is a matter of traditional custom . The Full Court in Alyawarr has stated ... that this does not require fine distinctions to be drawn between legal rules and moral obligations. Nevertheless, there must be some kind of "rules" having a normative content, and those rules must derive from a body of norms or normative system that existed, before sovereignty. In Yorta Yorta , the High Court noted that the reference to a normative "system" of traditional laws and customs may be distracting if undue attention is given to the word "system" , particularly if it were to be understood as confined in its application to systems of law that have all the characteristics of a developed European body of written laws. Similarly, the rights and interests possessed under traditional laws and customs often will not correspond to common law or European concepts. The application of common law or Eurocentric concepts of "property" or of "normative systems" is likely to mislead: "The rights and interests under traditional laws and customs will often reflect a different conception of 'property' or 'belonging'. But none of those considerations denies the normative quality of the laws and customs of the indigenous societies. It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener." ' (Footnotes omitted. Original emphasis. The concluding quotation comes from the judgment in Yorta Yorta of Gleeson CJ, Gummow and Hayne JJ at [40]. The full reference to Alyawarr is Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; 145 FCR 442.) As counsel for the Applicants submitted, it is difficult to separate questions about the relevant society from questions about laws and customs. The two are interdependent. Counsel referred to an important statement, in Yorta Yorta at [49], by Gleeson CJ, Gummow and Hayne JJ: 'Laws and customs do not exist in a vacuum ... Law and custom arise out of and, in important respects, go to define a particular society. 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 law and customs.' In a footnote, their Honours disclosed they had chosen the word 'society', rather than 'community', 'to emphasise this close relationship between the identification of the group and the identification of the laws and customs of that group'. Counsel for the Applicants commented: 'In this respect, the term "society" is clearly not used in its common or usual sense but nor is it used as a scientific or anthropological term of art. It is submitted that the [State's] anthropological expert, Dr Brunton, despite being instructed to adopt for the purposes of his evidence the meaning of "society" as specified in the joint judgment in Yorta Yorta ... has clearly not done so.' Counsel developed the submission about Dr Brunton's approach. I will return to it later. However, it is appropriate immediately to note the Applicants' further submission that the effect of the Yorta Yorta explanation of the meaning of 'society' is that it is sufficient 'that the peoples in question acknowledge and observe what are essentially the same laws and customs. That is, the rights and interests in relation to land which are possessed by those peoples, are possessed under the same normative system. It is that which unites them and makes them a "society"'. Counsel went on: 'In Alyawarr the Full Court noted that "society" is not a word which appears in the [Act], rather it is a conceptual tool for use in its application. In particular, it does not introduce into the judgments required by the [Act] any technical, jurisprudential or social scientific criteria for the classification of groups or aggregations of people as "societies". What a determination of native title requires, is a consideration of whether the persons said to be the native title holders, are members of a society or community which has existed from sovereignty to the present time, as a group, united by its acknowledgment of the laws and customs under which the native title rights and interests claimed are said to be possessed. That involves two inquiries. The first is whether such a society exists today. The second is whether it has existed since sovereignty.' (footnotes omitted) Counsel also mentioned three points made in the Yorta Yorta joint judgment (at [85] and [87]): (i) evidence that, at some time since sovereignty, some of those who now assert a native title right or interest (or some of those through whom those persons claim) have not exercised those rights or interests 'does not inevitably answer the relevant statutory questions'; those questions 'are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question'; (ii) 'account must no doubt be taken of the fact that' both pars (a) and (b) of s 223(1) are cast in the present tense; the questions are 'about present possession of rights and interests and present connection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant' (original emphasis); (iii) Notwithstanding point (ii), acknowledgment and observance of the laws and customs 'must have continued "substantially" uninterrupted since sovereignty'. Their Honours went on to explain, at [89], the effect of the qualification 'substantially': 'It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult. It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end 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 throughout that period as a body united by its acknowledgment and observance of the laws and customs.' Counsel for the Applicants made the additional point that it is not necessary that the relevant rights and interests be communally enforceable. In Yarmirr at [16], Gleeson CJ, Gaudron, Gummow and Hayne JJ said: '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 par (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions.' (Original emphasis) Counsel for the Applicants submitted: 'A right is a non-mandatory entitlement. It exists independently of its exercise and certainly independently of the existence of any present opportunity or capacity to exercise it. The existence of a right does not presuppose any power to enforce it or to have it recognised outside those who acknowledge and observe the laws and customs from which it derives.' (original emphasis) Counsel recognised that Dr Brunton did argue against that position. However, they contended Dr Brunton's argument was flawed by his insistence that there could not be a single Noongar community unless the people themselves knew of, and acknowledged, their commonalities in culture and language: see para 395 above. Counsel commented: 'In the High Court's explanation of the meaning of the term " society" in Yorta Yorta , there is no requirement that the members of the society subjectively possess a " sense of unity" or " an awareness of the existence of substantial numbers of the other [members of the society]". Similarly, there is no need to establish the existence of any "all encompassing relationships or structures" . All that is required is that the peoples in question acknowledge and observe what are essentially the same laws and customs. That is, the rights and interests in relation to land which are possessed by those peoples, are possessed under the same normative system. It is that which unites them and makes them a " society" .' (footnote omitted) Counsel said that, in De Rose, both the primary judge and Full Court: 'accepted that the relevant "society" was the Western Desert Bloc, because the laws and customs that exist throughout the Western Desert "are essentially the same" . The Full Court noted that it had been estimated that the population of the Western Desert prior to European contact may have been 18,000 persons living and moving over an area of some 250,000 square miles. It would be unreal to suggest that at sovereignty, the members of that far-flung society in the Western Desert, had any subjective sense of unity or even an awareness of the existence of substantial numbers of other members of the society. (footnotes omitted) In their closing submissions, counsel for the State correctly said that the 'Applicants say that at sovereignty there was a distinct society of Aboriginal people in the south-west of Western Australia, which they describe as "Noongar". The distinguishing characteristic is said to be shared law and custom'. They went on: 'That immediately raises the question distinct from whom? Although Dr Palmer was of the opinion that there was a single Noongar society based on shared law and custom, he was unable to define the geographical extent of the Noongar society. The [Applicants] seek to distinguish Noongar s from Yamatjis to the north and Wongais to the east. However " Yamatji" and " Wongai " are clearly not precise anthropological terms. Dr Palmer explained that Wongai is a coverall term for a lot of different groups that are broadly speaking part of the Western Desert cultural bloc. They do not adjoin Noongar country, but rather between " Noongars" and " Wongais" there were other " transitory groups, if you see them as marked cultures" . In our submission, although there was frequent reference in this case to "Wongai" and " Yamatji" people and country, those are very generic labels for a number of different groups (in the same way Noongar is a generic label for groups in the south-west). There is no clear delineation between these groups.' Counsel's reference to Dr Palmer's evidence was not incorrect. However, that evidence should be read in its context. Dr Palmer explained, in answer to a question as to 'the boundary of the Single Noongar society': 'Well, I'm limited of course by the fact that I only did research within the application area, so had I done research outside perhaps I could answer that question definitively, but I am aware from other research that I've done not connected with this inquiry that and I think it's also borne out in evidence - that there appears to be an understanding that Noongar extends further east in the southern portions of the application area.' Dr Palmer said he thought all the claim area was within the territory of the single Noongar society. In their closing submissions, counsel for the State noted that 'Dr Brunton accepted that the various groups in the south-west of Western Australia may be classified as forming a cultural bloc, in the sense that they may objectively be seen as having many similar laws and customs'. However, they said, 'there is no sense in which those similarities combined to define a particular group of people or a particular area of land as being distinct from neighbouring groups'. Counsel then offered the following summary: '(a) Language: There was a group of "Noongar" languages, some of which extend east beyond the SNC # 1 claim boundary, which languages are part of a near Australia wide Pama Nyungan language family. Within that group there were in the order of 13 separate languages or dialects. Within the SNC #1 claim boundary there was also a distinctive difference in place names, which fall into two categories - the "up" and the "ing". (b) Circumcision: The eastern boundary of the alleged Noongar society is said to have been the line beyond which Aboriginal groups did not circumcise. However the location of the circumcision line is unclear, the absence of the practice of circumcision continued northwards up the western coast of Australia into the Pilbara, and it seems some "Noongar" people may have been circumcised. (c) Laws and customs in relation to land: There was similarity throughout the whole of the south-west and beyond. In the First Respondent's submission, the normative rules in relation to land in the south-west are essentially the same as those further north including the Pilbara and Kimberley. Even on the SNC Applicants' case there is said to be similarity between the south-west and the Western Desert systems to the east. (d) Moieties and kinship: There were two different moiety systems in the south-west. There is no evidence of either moiety system, nor the likely kinship system, being different from those of neighbouring groups at any particular point further north or east of the alleged Noongar society. (e) Wagyl: Belief in mythical serpents inhabiting water are common throughout Australia, and there is no evidence of a distinctive wagyl belief common to all groups in the south-west. (f) Spirits: Belief in spirits, including deceased ancestors, was not unique to the south-west. For example, other Aboriginal groups also regarded Europeans as returning ancestors; and other groups believed in mischievous small people ... The performance of propitiatory rituals is also common to other Aboriginal groups. (g) Treatment of kangaroos: Groups as far away as the Western Desert may or may not have skinned kangaroos, however there is no evidence of a boundary anywhere near the ... claim boundary beyond which skinning stopped. Some groups further east also wore kangaroo skin cloaks and this may be the result of climatic factors as much as cultural ones. (h) Clever men: Such people exist in most other Aboriginal groups outside the south-west. Indeed the word "mabarn" is also used in the north of the State. (i) Funerals: There were different funeral practices in different parts of the south-west, and no evidence that any of those funeral practices were unique to the south-west. (j) Respect for elders: Not unique to the south-west. (k) Totems: There is no evidence of any unique system of totemism in the south-west at sovereignty. (l) Use of fire: There is no evidence that the use of fire to hunt and care for country is unique to the south-west.' After referring to several of the early writers, counsel submitted that 'Dr Palmer acknowledged that small groups in the south-west could be classified as societies according to his understanding of the Yorta Yorta definition'. Dr Palmer did say that. However, it is only fair to note that he immediately added 'it wouldn't be an exclusive category ... the term could apply to smaller groups ... that comprised a larger social formation'. Dr Palmer's evidence continued: 'MR WRIGHT: So, do I understand you then to be saying that at the level of Noongar society, is that the largest level at which one could realistically classify a society in this region? DR PALMER: According to the definition that I think we've agreed upon, yes.' Counsel for the State went on to say: 'The [State] submits that Aboriginal evidence as to the precise situation at sovereignty must be treated with considerable caution in this case, because of the degree of disruption to Aboriginal culture and knowledge transmission in the south-west ... and the fact, clearly disclosed in the evidence at trial, that many Aboriginal people have had regard to early records and the writings of anthropologists. Nevertheless, we note that the [State's] submission as to the existence of a separate society in the Swan coastal plain at sovereignty is not inconsistent with the Aboriginal evidence about the Perth Metropolitan Area ... Note in particular Greg Garlett's description of the Wadjuk tribal group.' In her closing submissions, counsel for the Commonwealth identified four factors which, she claimed, 'are contrary to a finding of a single society in existence over the entire SNC claim area at sovereignty': '(i) the existence of a number of dialects (or languages) in the SNC claim area which appear to accord closely in name and geographic area with "tribes" identified by Tindale (and others); (ii) apparent differences in initiation practices; (iii) different moiety systems in the south west; and (iv) different burial practices.' Counsel did not develop her submission in relation to any of these factors. Item (i) is certainly correct. Counsel did not identify any evidence about item (ii); nor could I find any. Item (iii) apparently depends on Bates' comments. The evidence about (iv) is unclear. On the one hand, Dr Host noted the similarity in Collie's description of Mokare's burial at King George's Sound and Moore's description of a burial at Upper Swan. On the other hand, there may be a regional explanation for some apparent inconsistencies in the Aboriginal evidence about present-day burial practices. Counsel went on: 'Of particular relevance is the historical material indicating that groups referred to themselves (and others) by regional names such as Wills, Mineng, Yued etc, and asserted a territorial independence albeit that there was cooperation amongst neighbouring groups. There is no evidence that supports a broad "south west" society which could be described as a "body of people forming a community or living under the same government".' Referring to the statement, in Yorta Yorta at [49], that the word '"society" is to be understood as a body of persons united in and by its acknowledgement and observance of a body of law and customs', counsel for the State submitted 'it is not sufficient to simply show that certain Aboriginal people or groups of people share similar laws and customs'. Despite my invitation to them to do so, counsel did not cite any authority for that submission. The State further submitted that a 'society', for the purposes of the Act, requires not only 'shared laws and customs' but also 'other factors which demonstrate unity and organisation'. This seems to repeat the same submission. If something else is intended, by 'other factors', counsel have neither identified them nor cited any authority for their imposition on native title applicants. In Yorta Yorta , Gleeson CJ, Gummow and Hayne JJ seem to have regarded common acknowledgement and observance of a body of laws and customs as a sufficient unifying factor. Certainly, as is graphically illustrated by De Rose , it is not necessary that the 'society' constitute a community, in the sense of all its members knowing each other and living together. If that element was required, it would constitute an additional hurdle, for native title applicants, which would be almost impossible for most of them to surmount. The task of showing the existence of a common normative system some 200 years ago is difficult enough; it would be even harder to show the extent of the mutual knowledge and acknowledgment of those who then lived under that normative system, bearing in mind the non-existence of Aboriginal writings at that time. The requirement postulated by Dr Brunton, and contended for by counsel for the respondents, must be rejected. The problem now under discussion is best resolved by examining the material before the Court, especially the early writings, in order to determine whether they reveal the existence of a single normative system, operating throughout the south-west of Western Australia, and acknowledged and observed by all the people in the claim area at the time of sovereignty. The King George's Sound writers (Barker, Nind and Collie) do not help very much in relation to the existence or otherwise of a common normative system; those writers had no knowledge of Aborigines living elsewhere. The only considerations put against a finding of a single Noongar community in 1829 were those voiced by Dr Brunton - predominantly the absence of evidence that the 'strong commonalities in culture and language' were 'acknowledged by the people themselves' and made to have 'consequences in terms of social organisation, land tenure etc'. He thought the fact of the commonalities 'means nothing if the groups themselves did not see these characteristics as socially significant' (see para 261 above). As I have indicated, I think this requirement is an unwarranted addition to the test laid down in Yorta Yorta. Consequently, it would not justify me in rejecting the Applicants' position on this aspect of the case. In this section of my reasons, I have been addressing the first issue that arises in the cases before me: was there a single Noongar community in 1829? For the reasons set out above, I answer that question in the affirmative. Because of the form of the evidence that was given, it is convenient for me to consider together two questions that are logically distinct: (a) whether the community that existed in 1829 (the single Noongar community) continued to exist over subsequent years, up until recent times, with its members continuing to acknowledge and observe at least some of the traditional laws and customs relating to land that were acknowledged and observed in 1829; (b) whether that community continues to exist today, with members, including at least some of the Applicants, who continue to acknowledge and observe at least some of those laws and customs. In addressing these questions, I am conscious of the possibility that a native title claim may fail because of a discontinuity in acknowledgement and observance of traditional laws and customs, even though there has been a recent revival of interest in them and there is current acknowledgement and observance. I have in mind cases such as Yorta Yorta and the decision of Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404 (the 'Larrakia case'). Before upholding a native title claim, the Court must be satisfied, on the balance of probabilities, of continuity of acknowledgment and observance, by the relevant community, from the date of sovereignty until the present time. Of course, there can never be direct evidence covering such a long time. However, inferences may be drawn, from evidence led at trial, concerning the situation in earlier times: see Yorta Yorta at [80] and Gumana v Northern Territory of Australia [2005] FCA 50 at [195] [201]. In the latter case, Selway J applied the principle enunciated by Jessell MR in Hammerton v Honey (1876) 24 WR 603 at 604: 'It is impossible to prove the actual usage in all time by living testimony. The usual course taken is this: Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time.' Selway J noted (at [200]) 'that in the case of prescription in particular, the evidentiary inference applies not just to the prescription but to the rights created pursuant to it'. He went on: 'There is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom ... This does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement: contrast Yorta. However, in my view where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had "always" been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.' (Citations omitted) In the preceding section of these reasons, I referred only briefly to evidence given by the Aboriginal witnesses in which they identified themselves as 'Noongars' and mentioned community interaction. It is necessary to deal more fully with that evidence, in now determining whether the 1829 single Noongar community continued to exist, as such, after the date of settlement and continues to exist today. Although the result will be lengthy, I propose to summarise the evidence of each of the Aboriginal witnesses relevant to this point, they being arranged in the order in which they gave their oral evidence. I will then deal, more briefly, with the evidence relating to maintenance of customs and beliefs, in particular laws and customs concerning land and waters. (ii) Community identification and interaction (a) The Aboriginal evidence A Mr WW (named applicant, born 1946, evidence at Jurien Bay) In his witness statement, Mr WW said: 'I am a Noongar. I "enjoy" my father's country and I have lived my whole life as a Noongar. I was taught by my grandmother, Ollie, that Noongars go from up near Jurien Bay, all the way down to Albany and to Esperance. I am Noongar through my father, but I am also Yamatji through my mother. This is because of where they were born and where their families have always lived. Noongars were from the South West and Yamatji's were from up North, past Geraldton. Wongais are from Kalgoorlie way and you can tell them by their complexion, they have more grey dry skin than Noongars. When I was younger, we knew who was Noongar through our families. We knew the families of one another and we knew they were Noongar. No-one told me that I was Noongar, I just knew because of the way that we spoke to each other and other things, like hunting and fishing and camping that was all done together.' Counsel then put two submissions: (i) Dr Palmer's opinion that there is a normative system for determining rights and interests in land is not supported by the Aboriginal evidence at trial, and 'what Dr Palmer would consider to be a normative system is not a normative system of the kind require by s 223 [of the Act] and Yorta Yorta '; and (ii) 'even if there can be said to be a normative system, it is not one based on traditional law and custom'. Counsel then referred to the Aboriginal evidence, correctly noting that some witnesses claimed rights through patrilineal descent, some through matrilineal descent and some by their own choice between mother's country and father's country. They also noted cases where witnesses claimed a connection with two different areas either because of birth in one, and an ancestral connection with the other, or because of ancestral connections with both. Counsel made the point that some witnesses based a connection claim upon an ancestor some generations removed. They mentioned Richard Wilkes, Albert Corunna, Norma Jones and the Garlett brothers. Counsel criticised the evidence of three witnesses, Mr Northover, Mr Storey and Mr Davis, as 'internally inconsistent and confusing'. It is appropriate to say immediately that I do not think this criticism is justified. At paras 68 and 69 above, I noted statements in Mabo and Yorta Yorta about the effect of a change in laws and customs relating to land. Perhaps the critical point is the recognition by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta , 'that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement'. That is certainly true of the south-west, the place of earliest European settlement in Western Australia and the location of one of Australia's largest cities and most intensively farmed rural areas. Moreover, the Aboriginal people in this part of Australia have been personally affected, in a profound way, by European actions. Every one of the 30 Aboriginal witnesses has at least one white male ancestor. If a rule of patrilineal descent had been strictly applied, all these witnesses would have lost their entitlements to country. I have no reason to doubt this would have also been the position of everybody else within the Noongar community. In such a situation, it is only to be expected that members of the community would have widened the application of the exception, so as to allow a claim to country to be made through the mother, equally with the father, and even, skipping a generation, through a grandparent. Further, the evidence shows the disruption inflicted on families by their expulsion from their traditional country and, particularly, by children being taken away from their parents. It is not surprising that many people are 'mixed-up', in terms of identification with particular country. For the normative system to have survived, it was obviously necessary to allow a degree of choice of country exceeding what would have been necessary in more ordered, pre-settlement times. In assessing how much change is tolerable, before it must be said the pre-settlement normative system no longer exists, guidance is to be taken from para [89] in Yorta Yorta : '... it is necessary to demonstrate that [despite the changes] the normative system out of which the claimed rights and interests arise is the normative system of the society [at sovereignty] ... not a normative system rooted in some other, different, society ... it must be shown that the society ... has continued to exist throughout that period as a body united by its acknowledgement and observance of the laws and customs.' In other words, one should look for evidence of the continuity of the society, rather than require unchanged laws and customs. No doubt changes in laws and customs can be an indication of lack of continuity in the society; they may show that the current normative system is 'rooted in some other, different, society'. Whether or not that conclusion should be drawn must depend upon all the circumstances of the case, including the importance of the relevant laws and customs and whether the changes seem to be the outcome of factors forced upon the community from outside its ranks. The descent rules are undoubtedly of great importance. However, changes to them must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices. I think the move away from a relatively strict patrilineal system to a mixed patrilineal/matrilineal or cognative system should be regarded as not inconsistent with the maintenance of the pre-settlement community and the continued acknowledgement and observance of its laws and customs. I accept counsel's comment about inconsistency in the evidence concerning place of birth. In pre-settlement times, this was presumably never an issue; babies would usually have been born in their parents' country. However, once again, after settlement difficulties arose; people were dispersed from their traditional country. It would have been natural for the community to respond by regarding birth upon country as not essential to recognition of the person's entitlement to rights over that country; but only provided the person was prepared to commit to an association with that country by living upon it, at least for substantial periods of time, and learning about it. A principle in those terms emerges clearly from the evidence of the Aboriginal witnesses. The changes mentioned by counsel for the State, and counsel for the Commonwealth, raise important issues. There is no doubt that enormous forces have assailed Noongar society since 1829, making it impossible for many of the traditional laws and customs to be maintained. However, when I come back to the test stated in Yorta Yorta , and ask myself whether the normative system revealed by the evidence is 'the normative system of the society which came under a new sovereign order' in 1829, or 'a normative system rooted in some other, different society', there can only be one answer. The current normative system is that of the Noongar society that existed in 1829, and which continues to be a body united, amongst other ways, by its acknowledgement and observance of some of its traditional laws and customs'. It is a normative system much affected by European settlement; but it is not a normative system of a new, different society. At para 74 above, I mentioned the State's focus on the Perth Metropolitan area; that is, the area of land and waters that is the subject of the separate question. The State's focus was supported by other respondents and, to a point, is legitimate. As I indicated at para 82, I accept the Applicants must establish a connection with the area that is the subject of the separate question; however, I believe they are not required to do so in a manner that is divorced from their asserted connection to the whole claim area. I said that, if the Applicants succeed in demonstrating the necessary connection between themselves and the whole claim area (or an identified part of it that includes the Perth Metropolitan Area), they demonstrate the required connection to the Perth Metropolitan Area. I have reached the conclusion that the Applicants have succeeded in demonstrating the necessary connection between themselves and the whole claim area (excluding the off-shore islands and land and waters below low-water mark). Accordingly, in my opinion, they have established a connection with the Perth Metropolitan Area, which is part of the claim area. However, counsel for the Commonwealth submitted: 'As the subject of the separate proceeding is the existence of native title in respect of only part of the ... claim area, it follows from the ... Applicant's case that any native title in respect of the area of the separate proceeding will be held as either group or individual rights, not communal rights ie as rights deriving from a body of traditional laws and customs said to be observed by a community, but not held by all members of the community.' In Yorta Yorta at [77], Gleeson CJ, Gummow and Hayne JJ explained the requirement, in s 223(1)(c) of the Act, that any proved rights and interests be 'recognised by the common law of Australia'. They said: 'The reference to recognition by the common law serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law. No such case was said to arise in this matter and it may be put aside. Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are "recognised" in the common law.' (Citations omitted) In the present cases, it is convenient to say immediately, no party has contended that any of the native title rights and interests asserted by the Applicants in Schedule E of their application, if established pursuant to paras (a) and (b) of s 223(1), is not recognised by the common law of Australia. None of the asserted rights and interests is 'antithetical to fundamental tenets of the common law'. All of them are identical, or similar, to rights and interests that have been recognised in earlier determinations of this Court. Accordingly, it is not necessary for me to return to s 223(1)(c) in relation to any particular rights and interests which I might find, on the evidence, to satisfy the requirements of paras (a) and (b) of s 223(1). The Applicants accept, as they must, that their asserted rights and interests do not extend to land or waters over which native title has been extinguished by a past act attributable to the Commonwealth or the State, including a grant of freehold title. Given the extent of urbanisation, and intensive farming, in the claim area (especially the Perth Metropolitan Area) a very large proportion of the claim area will be affected by this exclusion. It is nonetheless important to consider rigorously the Applicants' claim to occupation, use and enjoyment.