Case: Neowarra v State of Western Australia [2003] FCA 1402
Outcome: followed
The general purpose of genealogies as evidence in native title determination applications is to establish a link between the current claimants and previous inhabitants of the claim area. In an ideal world, genealogies would allow claimants to establish links with the inhabitants of the claim area at the time of sovereignty. However, due to a number of reasons including population decline, the oral nature of Aboriginal tradition, and the frailty of human memory, this is not always possible. In Neowarra v State of Western Australia [2003] FCA 1402 at [48] , Sundberg J held that '[I]nsofar as ancestors of the claimants cannot be traced back to sovereignty (1829), it is reasonable to infer that there have been no intervening events between 1829 and the time of the birth of the known ancestors of the applicants that stand in the way of a conclusion that the claimants of today are the descendants of the Aboriginal people present on the claim area [at sovereignty]'. See also Mason v Tritton (1994) 34 NSWLR 572 at 588-589 and Alyawarr at [110]. 497 Both Dr Walsh and Mr Graham gave evidence in relation to genealogies. Dr Walsh prepared the principal report and genealogies, which were checked and updated under the supervision of Mr Graham. 498 Dr Walsh's curriculum vitae, detailing his qualifications and experience, was tendered as an exhibit. He has a PhD in Linguistics and is a Senior Lecturer in Linguistics at the University of Sydney. He has experience with this native title claim group spanning three decades, having been one of the co-authors of the Kenbi Claim Book. I am satisfied that he is qualified to give the expert evidence he has provided to the Court. 536 The first applicants responded that it was essentially of little weight whether the use of kinship terms and the language of such terms, was consistent or otherwise. This was because, it was submitted, the general purpose behind the kinship system was fulfilled regardless of any inconsistency. The Court's attention was drawn to Neowarra v State of Western Australia [2003] FCA 1402 , where Sundberg J at [100] quoted an expert anthropologist as saying that purpose of kinship was to make 'biological links meaningful, culturally'. The first applicants submitted that the Larrakia people's use of kinship terminology fulfilled this purpose, because what is consistent is the presence of 'classificatory nomenclature which uses terms that primarily refer to lineal relatives to refer also to collateral relatives.' The use of the kinship terminology, to quote the submission, fulfilled its purpose by 'includ[ing] in a close network, people who would otherwise be only distantly related, if at all.' 537 Some Larrakia people now practice and recognise requirements and prohibitions concerning relationships. Primary evidence was led in relation to an avoidance requirement for relationships between brothers and sisters, as well as avoidance rules for mothers-in-law and sons-in-law. For example, Lorraine Williams and Anne Risk gave evidence about the brother-sister rule, whilst Maureen Ogden gave evidence in relation to the mother-in-law-son-in-law rule. The Territory noted in its submissions that the only witnesses to give evidence about the latter rule were members of the Williams family. 538 The Territory also points to an inconsistency of application of avoidance rules. There were anomalies in the evidence as to whether, for example saying the name of a brother/sister was prohibited, or whether speaking directly to that person was prohibited. There was evidence that some witnesses had only been informed of the avoidance rule in the last few years. The rule is neither universally nor consistently practised. Certain witnesses gave evidence that they were prohibited from saying the name of their sibling, because of the avoidance rule, only to use that same name in the context of other evidence. 810 The first applicants contrast those circumstances, involving interruption in the use or enjoyment of native title rights and interests which may not disqualify the current generation from having those laws and practices regarded as 'traditional', from those where there has been an interruption in the acknowledgment and observance of laws and customs. In the latter context, it is contended the laws and customs which are now acknowledged and observed will not have continued substantially uninterrupted since sovereignty: see Yorta Yorta at [87]. Sundberg J in Neowarra v State of Western Australia [2003] FCA 1402 described the contrast in the following way at [163]: 'When dealing with the "washed away" submission it is important to bear in mind that if what is asserted is a change or adaptation of traditional law or custom, the question is whether that change is of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws and customs of the Aboriginal people at sovereignty. If what is asserted is that there has been an interruption in the acknowledgment and observance of the law or custom, the question is whether that interruption is "substantial" or whether the acknowledgment and observance has continued "substantially uninterrupted": Yorta Yorta at [87] and [89].' 885 Section 47A must use the word the 'area' consistently. The area required to be occupied must therefore be the area held expressly for the benefit of the particular Aboriginal group under the relevant grant. It was referred to in submissions as the 'particular land administration area'. The common position on that issue, at least in respect of s 47A, follows the observations of Sundberg J in Neowarra v State of Western Australia [2003] FCA 1402 at [686] . 886 The identification of the 'area' for the purposes of s 47B is more elusive than under s 47A, simply because it is described in an exclusory rather than an inclusory way. In Neowarra [2003] FCA 1402 Sundberg J at [721] said that 'in such a case as the present it means the particular area in relation to which it has been concluded that, but for the section, native title rights would be extinguished'. I respectfully agree. 887 It is the nature of the extinguishing act or acts which informs the identification of the area or areas within the claim area upon which s 47B (if otherwise applicable) may operate. It is not the claim area itself, although in certain circumstances the claim area and the 'area' to which s 47B refers may entirely overlap. The finding about whether that 'area' was occupied at the time of the relevant application then becomes a matter of fact to be determined upon the whole of the evidence. 888 The dispute in submissions was about what amounts to occupation of the area. The Territory pointed out that neither s 47A(1)(c) nor s 47B(1)(c) refer to occupation of part only of the relevant area. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [449] , it was said by Beaumont and von Doussa JJ in the context of s 47A that a broad view should be taken of the word 'occupy', so that it would be satisfied by use of the land for the reserved purpose 'as and when that person wishes to do so', even if the person is rarely present on the land. Essential elements of occupation, according to that decision, are some occasional physical presence on the land, for s 47A some relevant usage of the land in accordance with the grant, or for s 47B some relevant usage of it consistent with 'the way of life, habits, customs and usages of the group' (per Olney J in Hayes v Northern Territory (1999) 97 FCR 31 at [162]), and that the activity be permitted. The single judge decisions in Rubibi Community v Western Australia [2001] FCA 607 ; (2001) 112 FCR 409 at [182] ; Passi on behalf of the Meriam People v Queensland [2001] FCA 697 at [29] ; Daniel at [938] and Neowarra [2003] FCA 1402 are consistent with that view. 899 That is the view taken at first instance by several judges of the Court. Nicholson J in Daniel at [930] and [958], and Sundberg J in Neowarra [2003] FCA 1402 at [697] and [720], applied s 47A and s 47B in circumstances where the application preceded the enactment of those sections. I did the same in Alyawarr at [314]. In none of those cases did the issue of intervening grants apparently arise.