[1] (2002) 194 ALR 538, referred to hereinafter as "Yorta Yorta".
[2] Ibid, 549 (Gleeson CJ, Gummow and Hayne JJ). This had been emphasised by the High Court in other recent cases that the judgment footnotes.
[3] Ibid, 550.
[4] Ibid.
[5] Ibid.
[6] Mabo v Queensland (No.2) (1992) 175 CLR 1.
[7] (2002) 194 ALR 538, 551.
[8] Ibid, 552.
[9] Ibid.
[10] Ibid, 553. Italics are in the original.
[11] Ibid, 562 (Gleeson CJ, Gummow and Hayne JJ).
[12] Ibid, 563.
[13] Ibid, 552.
[14] Ibid.
[15] Ibid, 565.
[16] Ibid, 563.
[17] Ibid, 553.
[18] This is not to say that, as a matter of policy, native title settlements may not be achievable in those jurisdictions. The potential for such outcomes will be addressed below yet these settlements, too, have their difficulties.
[19] (2002) 194 ALR 538, 561 (Gleeson CJ, Gummow and Hayne JJ).
[20] (1998) 159 ALR 483.
[21] Ibid, 504. His Honour's further comment in this paragraph is instructive yet also now unfashionable: Law in Aboriginal terms is an aggregation of traditional values, rules, beliefs and practices derived from Aboriginal past. It might correspond to an anthropologist's description of "aboriginal culture" or "aboriginal lore". (K Maddock, "The Australian Aborigines - A Portrait of their Society" at 24.) As Brennan J stated in Mabo (No 2) (at 18), the evidence in that case showed the Meriam people to be regulated more by custom than by law and (at 61) that the customs observed were "traditionally based".
[22] See Young, supra note 5.
[23] Graeme Neate, "Turning back the tide? Issues in the legal recognition of continuity and change in traditional laws and customs", paper delivered at Native Title Conference, Outcomes and Possibilities, 3 September 2002, Geraldton, Western Australia. See also S. Young, "The Trouble with Tradition: Native Title and the Yorta Yorta Decision" (2001) 30 Western Australian Law Review 28.
[24] Dr Lisa Strelein, "Members of the Yorta Yorta Aboriginal Community v Victoria - Comment", (2003) 2 Land, Rights, Laws: Issues of Native Title, Issues Paper No. 21.
[25] [1996] 2 SCR 507.
[26] Ibid, [40].
[27] For a contrary view, that Yorta Yorta does not "raise the bar", that it "echoes and clarifies" propositions in Mabo (No.2), see John Waters, "Members of the Yorta Yorta Aboriginal Community v Victoria", (2003) 6 (1) Native Title News 6. See also Richard Bartlett, "An Obsession with Traditional Laws and Customs creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta", 31 (2003) UWA Law Review 35.
[28] (1998) 159 ALR 483.
[29] There is a division of opinion as to the current standing of this determination. On appeal, the Full Court of the Federal Court substituted its own determination for that of the trial judge's. However, the High Court of Australia allowed all appeals and remitted it back to the Full Court but did not, in my view, upset the findings of fact of the primary judge. The remitter had some difficulty finding traction as it was necessary to construct a different Full Court with only North J remaining of the original complement. It is unlikely that the findings of fact by Lee J that withstood the very robust appellate process will now be disturbed.
[30] (2000) 99 FCR at 377-8, [222]-[228]. The majority judgment of Beaumont and von Doussa JJ (with which North J separately concurred at [682]) said (at [226]): The written submissions of the State challenging factual findings have been answered in great detail in the written submissions and attached schedules of the applicants. Our own reading of the evidence to which we have been referred, and the applicants' submissions, satisfy us that there was evidence capable of supporting the findings of fact made by the trial judge. We are not persuaded that the trial judge fell into error in any of the ways alleged. With the trial judge and Full Federal Court against it, WA abandoned these challenges in the High Court and the applicants themselves obviously did not challenge findings of fact (seemingly) in their favour.
[31] (2002) 191 ALR 1. Contra Tom Pauling, "Ward v Western Australia: A Brief Territory Perspective", (2002) 5 Native Title News 164. Mr Pauling QC, the Solicitor-General of the Northern Territory, skilfully argues that the reference in the joint majority judgment in Yorta Yorta to "the right to be asked for permission and to speak for country" as a "core concept in traditional law and custom" (at [90]) and Lee J's finding of fact that this "core concept" rested with the estate groups (at [92] in the trial opinion), and not the broader Miriuwung-Gajerrong, inferentially reversed Lee J's finding. However, the High Court did not equate the capacity to speak for country as being the sum total of native title rights and interests in a particular country, merely describing it as a central part of same. Additionally, and a fortiori, the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ had earlier made the point that this core concept was very likely one of the first casualties of the assertion of sovereignty, stating at [91]: An important reason to conclude that, before the NTA, native title was inherently fragile is to be found in this core concept of a right to be asked permission and to speak for country. The assertion of sovereignty marked the imposition of a new source of authority over the land. Upon that authority being exercised, by the creation or assertion of rights to control access to land, the right to be asked for permission to use or have access to the land was inevitably confined, if not excluded. More recently, Sundberg J in Neowarra v Western Australia ([2003] FCA 1402) rejected similar arguments made by Western Australia stating at [390]:"the Full Court endorsed Lee J's conclusion that native title resided in the Miriuwung and Gajerrong community, notwithstanding that control over parts of the area it occupied was exercised by clans belonging to the community. The High Court did not suggest any disapproval."
[32] (1998) 159 ALR 483, 544.
[33] Lee J used the term "community" and "society" interchangeably in Miriuwung-Gajerrong to describe the pre-contact indigenous society. The Full Federal Court in that case also used both terms but "society" found a resonance in the joint judgment in the High Court Yorta Yorta decision, which footnoted (at Fn 31) the aside, "[w]e choose the word society rather than "community" to emphasise the close relationship between the identification of the group and the identification of the laws and customs of that group".
[34] (2000) 99 FCR 316, 381.
[35] (1998) 159 ALR 483, 541.
[36] Ibid.
[37] (2000) 99 FCR 316, 381 (Beaumont and von Doussa JJ). In the Full Court, Western Australia also criticised his Honour's finding that the Miriuwung-Gajerrong had "become regarded as a composite community with shared interests" because Lee J had not stated by whom they had so "become regarded". The Court dismissed this submission stating, "we think it is clear that his Honour meant that the members of each of the communities so regarded themselves" (at 371).
[38] (1998) 159 ALR 483, 538.
[39] Ibid, 542. The use of "traditional" here is in the ordinary sense of the term.
[40] The High Court heard argument on the Yorta Yorta appeal over two days in late May 2002. It handed down its decision in Western Australia v Ward (2002) 191 ALR 1, on 8 August 2002. At page 17, at [18]-[20] of the majority judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, significant hints are given. They say at [20] as to paragraph (c) issues, '[t]o date, the case law does not purport to provide a comprehensive understanding of what is involved in the notion of "recognition".' In the Yorta Yorta decision of 12 December 2002, the same complement, absent Gaudron J, move to comprehensively develop this understanding.
[41] (2002)194 ALR 538, 554 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
[42] (2002) 191 ALR 1, 17, [18]. (Gleeson CJ, Gummow and Hayne JJ in joint judgment, separately concurred in by Kirby J.) Emphasis is in the original. See also paragraph [20] of the judgment where it is made patent that the concept of "traditional" is embedded in both paragraphs (a) and (b) of s.223(1).
[43] (2002)194 ALR 538, 552.
[44] In the Daniel Determination, (In the matter of Daniel v Western Australia [2003] FCA 666 (RD Nicholson J, 3 July 2003)), which is discussed below, this same case theorum was advanced at the outset but it was subsequently and successfully resiled from.
[45] (2000) 99 FCR 316, 391 [280].
[46] (2002) 194 ALR 538, 554.
[47] At trial, anthropologist Kim Barber was asked about such persons. The transcript of 6 February 1998, at page 7433, reads: MR BARKER: Yes, alright. Now, I was asking you about the traditional country of the Gajerrong speaking people, and whether or not it was your understanding that it lay between the Ord River in the north coast and across the N.T. border, as stated in the second last paragraph on page 31. In your evidence earlier, you made reference to the Wardanybeng and the Doolboong have also been mentioned in proceedings. Can I ask you this, whether in the course of your work as of, say, August 1991, you'd met any person or actually identified themselves as a Doolboong person? MR BARBER: I'd never had cause to ask the question. People identify in a whole range of ways, but I don't recall speaking to anyone who'd identified as Doolboong, no.
[48] (2002)194 ALR 538, 553 (Gleeson CJ, Gummow and Hayne JJ).
[49] It has also been called a "composite claim" but this term is apt to confuse when also discussing the finding of Lee J in Miriuwung-Gajerrong of a "composite community".
[50] Section 62(1) NTA.
[51] [2002] FCA 1428 (20 November 2002).
[52] [2002] FCA 1147 (13 September 2002).
[53] Ibid, [41].
[54] Ibid.
[55] Ibid, [51].
[56] The decision in Northern Territory v Doepel [2003] FCA 1384 (28 November 2003) does provide some protection to certificates from NTRBs, but this may only be in the registration-testing phase by the Native Title Registrar and not seemingly to applications to the court.
[57] [2000] FCA 1589 (10 November 2000). This decision is sometimes cited as Risk v National Native Title Tribunal.
[58] Ibid, [60].
[59] Ward v Western Australia (1998) 1
[59] ALR 483, 550-552.
[60] [2000] FCA 1589, [30], [31] and [60] .
[61] Peter Sutton, "Atomism versus Collectivism: the Problem of Group Definition in Native Title Cases" in J Fingleton and J Finlayson (Eds), Anthropology in the Native Title Era: Proceedings of a Workshop, AIATSIS, Canberra, 1995, 1. Professor Ken Maddock, anthropologist and lawyer, anticipated this debate by a decade, see "Owners, Managers and the Choice of Statutory Traditional Owners by Anthropologists and Lawyers", (Chapter 13), Aborigines, Land and Land Rights, N Peterson and M Langton, (eds.) (Canberra: Australian Institute of Aboriginal Studies, 1983).
[62] Ibid, 4.
[63] Ibid, 8.
[64] Sutton, "Aboriginal Country Groups and the "Community of Native Title Holders"", National Native Title Tribunal Occasional Papers Series, No.1/2001, 29. The footnote is omitted.
[65] (1998) 159 ALR 483, 539-540.
[66] Ibid, 542. The Northern Territory joined the second applicants in arguing that the three estate groups were the holders of native title in the claim area in the Northern Territory, see above, Pauling, "A Brief Territory Perspective", 164.
[67] Ibid, 529.
[68] Ibid, 540-541.
[69] That is, they would not be rights-holders other than as members of the broader society. Even in the situation where the broader indigenous society did not assert a claim, the Federal Court's hands may be bound; see discussion of the post-determination implications below.
[70] (2002) 194 ALR 538, 552 (Gleeson CJ, Gummow and Hayne JJ).
[71] Peter Sutton, "Kinds of Rights in Country: Recognising Customary Rights as Incidents of Native Title", National Native Title Tribunal Occasional Papers Series, No. 2/2001, 1 at 8. Footnotes are omitted.
[72] In the matter of Daniel v Western Australia [No.8] [2003] FCA 666 (RD Nicholson J, 3 July 2003).
[73] Ibid, [58]-[59].
[74] Ibid.
[75] Ibid, [63].
[76] [2000] FCA 1589 (10 November 2000, O'Loughlin J).
[77] (2001) 109 FCR 240.
[78] [2003] FCA 264 (31 March 2003, Mansfield J).
[79] Ibid, [33].
[80] [2003] FCA 890 (25 August 2003).
[81] At [29]-[32] and [36]. Wilcox J did have reservations that he expressed in his judgment at [40]-[41]. They may be readily answerable on public policy grounds.
[82] Neowarra v Western Australia [2003] FCA 1402 (Sundberg J, 8 December 2003).
[83] De Rose v South Australia [2003] FCAFC 286 (Wilcox, Sackville and Merkel JJ, 16 December 2003).
[84] [2003] FCA 1402 (8 December 2003).
[85] Ibid, at [323]-[346].
[86] In R v Powley 2003 SCC 43 (19 September 2003), the Supreme Court of Canada unanimously endorsed the view that aboriginal rights are held communally, see McLachlin CJ and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ at [24].
[87] (1998) 159 ALR 483, 541. On appeal, the Full Court (Beaumont and von Doussa JJ, and concurred in by North J) upheld this finding stating: Those submissions [from the State of Western Australia] fail to recognise that rights of occupation, use and control of particular areas enjoyed by the Miriuwung and Gajerrong community, and the estate groups within it, are a consequence of the communal title shared by the composite community under the traditionally based laws and customs as currently acknowledged and observed by it ((2000) 99 FCR 316, 372).
[88] (1999) 97 FCR 32.
[89] (1998) 156 ALR 370.
[90] At [397].
[91] The Kenbi (Cox Peninsula) Land Claim No.37, Report No 59, ATSIC, 2001. This claim under the Aboriginal Land Rights (Northern Territory) Act 1976 was first lodged on 20 March 1979 and the first hearing resulted in the Commissioner finding no claimants. The second report in December 2000 found six "traditional Aboriginal owners".
[92] The immediate problem, recognised by Mr. Basten QC for the claimants in argument on the remitter in Ward, for example, is resources, see Transcript WAG 6005/98, 1 October 2003, 16.
[93] [2003] FCA 264 (31 March 2003).
[94] Ibid, [32].
[95] Professor Richard Bartlett, in his text, Native Title in Australia, argues the exclusionary effect of a determination to only estate group members (at [8.49] on 103).
[96] Peter Sutton, 'Aboriginal Country Groups and the "Community of Native Title Holders"", National Native Title Tribunal Occasional Papers Series, No.1/2001, 7.
[97] Ibid, 9. Veth argues that approaching it from a regional model also allows mobility patterns, which may include of leaving estates fallow for a time - rather like the alleged abandonment in the De Rose Hill Station matter - can be explained as part of longer term patterns of land use. See Peter Veth, "Abandonment, or Maintenance of Country? A Critical Examination of Mobility Patterns and Implications for Native Title", Issues Paper No.22, Volume 2, April 2003, Land, Rights Laws: Issues of Native Title, AIATSIS, 3.
[98] Noel Pearson is reported as stating in a keynote address in Alice Springs in early June 2003: "Many of the claims that are registered were prepared with about as much planning, strategy, forethought and consultation as went into the European dismembership of colonial Africa." The Weekend Australian, Inquirer, "Dreaming No More", 7-8 June 2003, 21.
[99] See, for example, Western Australia's Guidelines for the provision of Evidentiary Material in Support of Applications for a Determination of Native Title, Department of Premier and Cabinet, Office of Native Title, October 2002, 1.
[100] Guidelines for Native Title Proof, Department of Justice (Victoria), Native Title Unit, September 2001, 2.
[101] Sub-sections (2) and (3) go on to provide for agreement as to the terms of an order or to part of proceedings. If the application involves making a determination of native title, the order would need to comply with s94A NTA (which deals with the requirements of native title determination orders).
[102] (1998) 193 CLR 72.
[103] Ibid, 80.
[104] Ibid, 121.
[105] Smith v Western Australia, [2000] FCA 1249, [38] (29 August 2000, Madgwick J).
[106] The determinations are reported together as Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 (9 December 2003).
[107] Transcript, WAG 6005/98, 1 October 2003, 100.
[108] Ibid, 101.
[109] Ibid, at 105-06.
[110] (2002) 194 ALR 538, 563. Emphasis added.
[111] (2002) 191 ALR 1, 21. Emphasis added.
[112] There is an ingenious argument that would nullify this line of reasoning. That is, that upon the determination of native title by a court, the native title is transformed into a statutory title under the NTA. Therefore, it would not have to maintain its traditional normative underpinnings. The argument has a number of shortcomings and its persuasive presentation is left to others.
[113] (2002) 194 ALR 538, 554 (Gleeson CJ, Gummow and Hayne JJ).