Case: Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Outcome: applied
title rights and interests claimed under the Act must be "possessed under" traditional laws and customs. The requirement that laws and customs be "traditional" is of considerable significance. In my earlier reasons at [26], I identified a number of propositions which emerge from the reasons of Gleeson CJ, Gummow and Hayne JJ in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (" Yorta Yorta "). Some of those propositions expressly address the meaning of the term "traditional" in this context. Their Honours primarily dealt with the subject under the heading "The Inextricable Link Between a Society and its Laws and Customs". As to the word "traditional", at [45]-[47] their Honours observed: ... Hitherto it has been accepted, and the contrary was not contended in this appeal, that the native title rights and interests to which the Native Title Act refers are rights and interests finding their origin in pre-sovereignty law and custom, not rights or interests which are a creature of that Act. 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 owed 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. At [50] their Honours continued: To speak of rights and interested possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise. At [186] Callinan J said: It seems to me that the critical elements of traditional laws and customs and "rights and interests" in the sense and context in which the words are used in s 223 are these. The rights and interests must be definable with sufficient certainty to enable them to be enforced by the common law ... . They must, for the same reason, be held in relation to defined land. For their enjoyment a physical presence is essential. This is so, because, if physical presence were not a necessary component of the right or interest, then the right or interest could be enjoyed elsewhere: physical occupation, presence or possession of the land would not then be essential for the observance, participation in, or enjoyment of the right in question. The Act is concerned with title, that is title to land, and a bundle of rights and interests attaching to, or arising out of that title. The definition of the rights must be found in the traditional laws or customs. Tradition requires a high degree of continuity. It also involves intergenerational transmission, acknowledgement and observance. The traditional laws and customs to which the rights and interests owe their existence must be ones which were in existence on first non-indigenous settlement, in 1788, because it was at that time that the sovereign radical title was assumed, and upon which the native title became a burden. And it is those traditional laws and customs which must have continued (albeit that they may have evolved, a matter which I will discuss later) in order to give real content to the rights and interests currently asserted. It follows that in order for native title to survive (absent extinguishment), and be the subject of a determination under the Act, there must have been, in 1788, a recognisable group exercising identifiable relevant traditional laws and customs, themselves reasonably certain, on and relating to defined land, involving physical presence on it, and continuity of these, until, and at the time of the determination. I understand these paragraphs to establish that in order to demonstrate traditional laws and customs for the purposes of the definition of the terms "native title" or "native title rights and interests", one must demonstrate: The applicant's case necessarily involves the assertion that: Paragraphs 38, 39 and 40 of the applicant's amended submissions are as follows: It is submitted that it is not necessary to start by looking for something that one might regard as a pre-sovereignty "society". Rather, it is permissible to look for (factual assertions of) laws and customs, for example like those apparent from the long list which were set out by the Court at first instance in paragraph [70] to [77] of the Reasons for Judgment, and consider whether they can be laws and customs having a normative content which can definite a relevant "society". Where the evidence is that such laws and customs have been handed down from generation to generation, inferences can be drawn to the effect that they form part of a normative system at the time of sovereignty. Such an approach was referred to in [ Moses v State of Western Australia (2007) 160 FCR 148) (" Moses ")] under the heading "Reasoning Backwards". Further, there is no requirement that different families maintain contact with each other in order to be subject of a common body of laws and customs. Annexure C includes references to the material concerning the laws and customs which have been handed down from generation to generation, and which can be inferred to be "traditional" in the Yorta Yorta sense. See too Annexure E. (Footnotes omitted.) I understand the applicant to submit that one may look at existing laws and customs, presumably those recognized and observed by the claim group, and then draw an inference as to the existence of a pre-sovereignty "normative system". I am not sure how one would decide whether laws and customs have a "normative content which can define a relevant 'society' ". I do not understand the Act to address the appropriateness or adequacy of any system of laws and customs for that purpose. The relevant enquiry is as to laws and customs acknowledged and observed by an existing claim group, laws and customs acknowledged and observed by a pre-sovereignty society and the connection between those societies and between the laws and customs, attributable to them. As is pointed out in Yorta Yorta , a society and its laws and customs are inextricably linked. The applicant then submits that where the evidence is that such laws and customs have been handed down from generation to generation, it may be inferred that they formed part of a normative system at the time of sovereignty. Thus, it is submitted that the application need only contain a general description of the laws and customs presently acknowledged and observed and of the process by which they have been handed down. However the adequacy of such an approach will depend upon the circumstances of the case in question. Of course, in describing the factual basis of a claim for rights and interests in land and waters, the applicant must take account of the specificity required by s 62(2)(d). The general description required by s 62(2)(e) must be, one would expect, commensurate with the detail required by the former provision. In assessing the adequacy of a general description of the factual basis of the claim, one must be careful not to treat, as a description of that factual basis, a statement which is really only an alternative way of expressing the claim or some part thereof. In my view it would not be sufficient for an applicant to assert that the claim group's relevant laws and customs are traditional because they are derived from the laws and customs of a pre-sovereignty society, from which the claim group also claims to be descended, without any factual details concerning the pre-sovereignty society and its laws and customs relating to land and waters. Such an assertion would merely restate the claim. There must be at least an outline of the facts of the case. In many cases the history of a claim group will not be sufficiently well known to permit such an approach. However other matters may be known which assist in demonstrating the traditional nature of the claim group's laws and customs. Sufficient may be known of circumstances before, or shortly after, first European contact (assuming that event occurred after the date of assertion of British sovereignty) to permit an inference that the claim group is a modern manifestation of a pre-sovereignty society, and that its laws and customs have been derived from that earlier society. Such an inference may be available notwithstanding the absence of any recorded history of the society and the way in which it has continued since the earlier "snapshot" of the society. Such a case will involve, at some point, a comparison of the earlier and later societies and their laws and customs. A case of that kind may have to address the fact that there is little or no evidence of continuity of the society since first European contact or of continuous acknowledgement and observance of its laws and customs, a problem recognized in Yorta Yorta . From a forensic point of view the difference between these two approaches is that in the former, the necessary link between the pre-European contact society and its laws and customs, and the claim group and its laws and customs, may be inferred primarily from continuity, without necessarily resorting to a close examination of the societies and their laws and customs. The evidence of actual events will demonstrate continuity. Even if the history commences shortly after first European contact, it may be reasonable to assume that such a stable society was unlikely to have arisen in the period between contact and the commencement of historical records. In the latter approach, the applicant will seek to demonstrate continuity of the pre-sovereignty society, and of acknowledgement and observance of its laws and customs, by examination of those societies and their laws and customs at two or more points of time, inviting an inference as to continuity. Of course there is no clear distinction between these two approaches. Many, perhaps most, cases will involve elements of both. However it must be kept in mind that it is necessary to demonstrate both a pre-sovereignty society having laws and customs, from which the laws and customs of the claim group are derived, and continuity of the pre-sovereignty society, including its laws and customs. Clear evidence of the existence of such a society and acknowledgement and observance of its laws and customs shortly after first European contact, and continuity thereafter, may satisfy both requirements, the first, by available inference and the second, directly. Clear evidence of a pre-sovereignty society and its laws and customs, of genealogical links between that society and the claim group, and an apparent similarity of laws and customs may justify an inference of continuity. However when the evidence as to both aspects is weak, the combined effect may, in some respects, be further to undermine, rather than to strengthen, the claim. Yorta Yorta establishes that a society and its laws and customs are inextricably linked. It is impossible to identify a system of laws and customs as such without identifying the society which recognizes and adheres to those laws and customs. It would mean nothing to say that A had a legal interest in Blackacre unless one identified, or at least knew, the society which recognized that right. Indeed it appears (at [28]) that in Yorta Yorta the appellants took an approach similar to that urged by the applicant. That approach was rejected by Gleeson CJ, Gummow and Hayne JJ at [56] where their Honours said: For these reasons, it would be wrong to confine an inquiry about native title to an examination of the laws and customs now observed in an indigenous society, or to divorce that inquiry from an inquiry into the society in which the laws and customs in question operate. Further, for the same reason, it would be wrong to confine the inquiry for connection between claimants and the land or waters concerned to an inquiry about the connection said to be demonstrated by the laws and customs which are shown now to be acknowledged and observed by the peoples concerned. Rather, it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs. (Original emphasis.) Clearly enough, in order to identify the laws and customs that were acknowledged and observed before sovereignty, it is necessary to identify the persons who acknowledged and observed them, namely the relevant pre-sovereignty society. I accept that the applicant claims that the claim group acknowledges and observes certain laws and customs pertaining to the claim area. However I again reject use of the word "traditional" simply because no pre-sovereignty society has been identified for the purpose of identifying its relevant laws and customs so as to demonstrate that the claim groups' laws and customs are traditional in the sense identified in Yorta Yorta . As to the second sentence, the reference to "early literature" is quite unclear. If Mr Hagen is referring to Palmer's writings, then it is curious that he has at no time explained why they should be applied to the Gudjala people. As to Roth's article, it does not deal with laws and customs concerning land and waters. If, in fact, Mr Hagen is referring to other "early literature", then it is curious that he has not identified it. The reference in the report to Curr, Tindall, Sutton and Tsunoda is in connection with location of the claim area, not laws and customs. Thus there is no factual basis for concluding that there were pre-sovereignty laws and customs with which to compare the claim group's laws and customs. The third conclusion is that: The native title claim group's ongoing observance of traditional laws and customs is consistent with the maintenance of traditional rights and interests in the land subject to the claim. This statement begs the question, namely whether the claim group's laws and customs, which give rise to the claimed rights and interests in relation to land and waters, are "traditional".