Author:	Daniel Lavery BA, LLB (Hons) (Qld) Senior Lawyer, Department of Justice, Northern Territory
Subjects:	Aborigines - land tenure (Other articles) Aborigines culture (Other articles) Native title -- Australia (Other articles)
Issue:	Volume 10, Number 4 (December 2003)
Category:	Refereed Articles

Contents:

• Introduction
• The Intersection of Normative Systems Doctrine
• The Implications of the Doctrine
• The Practical Implications
• The Miriuwung-Gajerrong decision
• The 'Hybrid' Claim
• The 'Native Title Claim Group': The Framing Exercise
• Are these matters salvageable?
• Do "traditional owners" under ALRA = "native title holders" under the NTA?
• A possible model for the future?
• Potential impact on proposed consent determinations
• An imaginary post-determination scenario
• Conclusion
• Notes

Acknowledgement: The author would like to thank Maureen Tehan of the University of Melbourne and the anonymous reviewer for their very helpful comments. All opinions expressed are those of the author and not the Department of Justice or the Northern Territory.

Introduction

1. In December 2002, the High Court of Australia handed down the decision of Members of the Yorta Yorta Aboriginal Community v Victoria.[1] By a majority of 5:2, the High Court dismissed an appeal by the native title claimants against a trial finding that, for the Yorta Yorta People, native title rights and interests could not be recognised because they had ceased to acknowledge their laws and customs in the period since the assertion of sovereignty by the Crown. The tide of history, the trial judge found, had washed away any real observance of their traditional laws and customs.

2. The High Court upheld this conclusion essentially determining that the jural foundations of the native title capable of recognition under the Native Title Act 1993("NTA") had been irrevocably eroded. For the majority, Gleeson CJ, Gummow and Hayne JJ. gave a joint opinion, and McHugh J and Callinan J wrote separate judgments likewise dismissing the appeal. McHugh J's short opinion concurred with the joint majority judgment. Gaudron and Kirby JJ. jointly dissented.

3. The joint majority opinion is of particular interest. The judgment charts the relevant principles from the proposition that only certain indigenous rights survived the assertion of British sovereignty to the statutory definition of "native title" in s.223(1) NTA. In particular, the term "traditional" within that definition is accorded a restrictive and forensically-onerous meaning.

4. The decision was a severe bodyblow to the Yorta Yorta, and one that was felt by other indigenous claimants throughout Australia. The implications of the decision are still being comprehended and this paper attempts to add to this on-going analysis. The first section of this paper outlines and discusses the principles enunciated in the joint majority judgment in the Yorta Yorta decision. The second section attempts to apply these principles to several claim scenarios. The third analyses some of the potential implications for claim purposes, particularly the now-critical issue of the proper framing of the 'native title claim group' in a NTA claimant application and the post-determination circumstances. Some interesting conclusions arise.

   The Intersection of Normative Systems Doctrine

5. The joint majority opinion of the High Court in Yorta Yorta, that of the Chief Justice and Justices Gummow and Hayne, is undoubtedly the leading expression of the relevant law. It begins by emphasising again that because this is an application for determination of native title under the NTA, it is necessary to begin and end with a consideration of the provisions of the NTA itself.[2] However, their Honours said, to understand what the NTA seeks to achieve and what is defined therein as "native title", it is important to comprehend "some fundamental principles".[3]

6. The joint opinion then enunciates a body of legal principle that surrounds the acquisition of radical title by the Crown across Australia. Subject always to the act of state doctrine, these fundamental principles theoretically commence with the (now) well-established proposition that certain indigenous rights and interests survived the Crown's assertion of sovereignty.

   What survived were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.[4]

7. With the introduction of the normative system concept, it is then developed.[5]

   When it is recognised that the subject matter of the inquiry is rights and interests (in fact rights and interests in relation to land or waters) it is clear that the laws or customs in which those rights or interests find their origins must be laws or customs having a normative content and deriving, therefore, from a body of norms or normative system - the body of norms or normative system that existed before sovereignty. Thus, to continue the metaphor of intersection, the relevant intersection, concerning as it does rights and interests in land, is an intersection of two sets of norms.

8. The opinion then explains how, with enormous legal facility, the fundamental premises from which the Mabo (No. 2) decision[6] and the NTA severally proceed are married:

   [T]he fundamental premise from which the decision in Mabo [No 2] proceeded is that the laws and customs of the indigenous peoples of this 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. And of more immediate significance, the fundamental premise from which the Native Title Act proceeds is that the rights and interests with which it deals (and to which it refers as "native title") can be possessed under traditional laws and customs. Of course, those rights and interests may not, and often will not, correspond with rights and interests in land familiar to the Anglo-Australian property lawyer.[7]

9. Their Honours then state that what is important is not this jurisprudential backdrop but "to recognise that the rights and interests concerned originate in a normative system, and to recognise some consequences that follow from the Crown's assertion of sovereignty."[8]

10. There follows an elaborate enunciation of principle which was not necessary for the decision but, their Honours said, must be taken into consideration in the understanding of the definition of native title.[9] These principles will be teased out in discussion. The core concept is the intersection of normative systems, that of the common law and an indigenous legal system. Those indigenous rights and interests in relation to land or waters that survived the intersection were recognised and styled "native title". They owe their existence to the indigenous normative system. What the common law in Mabo (No.2) did was to acknowledge this recognition. Later, native title was protected and defined in the NTA, specifically in s223(1). Their Honours stressed that the definition in s223(1) is centrally important to any application under the NTA. That sub-section reads:

    Key concepts: Native title and acts of various kinds etc. Native title.

    Common law rights and interests
    

    223 (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

11. Their Honours grafted onto the term "traditional", as used in paragraph 223(1)(a), a greater meaning than is suggested by the ordinary sense of the term. The joint judgment stated:

    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.[10]

12. The origins of the laws and customs which found these rights which are capable of recognition, and which are protected, must pre-date sovereignty. Otherwise, the term 'traditional' would have no present meaning in the statutory definition. Their Honours held that acknowledgment and observance of these laws and customs by the indigenous society must have continued, substantially uninterrupted, since sovereignty for native title rights and interests to achieve and maintain recognition and protection.[11] The joint judgment explained the qualification:

    In the proposition that acknowledgment and observance must have continued substantially uninterrupted, the qualification "substantially" is not unimportant. 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.[12]

13. After the acquisition of sovereignty, however, a pre-sovereignty indigenous normative system cannot create new rights and interests that are recognised by the new sovereign order because "there could be no parallel law-making system after the assertion of sovereignty",[13] their Honours explained. The only indigenous rights or interests in relation to land or waters which will be recognised after the assertion of the new sovereign are those that find their origins in pre-sovereignty law and custom.[14] This corpus of principle might conveniently be called the intersection of normative systems doctrine.

14. The joint opinion then examined the lower courts' findings and reasoning, concluding that the trial judge's express rejection of the claim that the Yorta Yorta had continuously observed traditional laws and customs since sovereignty was, more fundamentally, a finding "that the society which had once observed traditional laws and customs had ceased to do so, and by so ceasing to do, no longer constituted the society out of which the traditional laws and customs sprang."[15] The jural foundation of the native title rights had fundamentally and irrevocably eroded. Accordingly, the appeal was dismissed.

    The Implications of the Doctrine

15. The intersection of normative systems doctrine offers some far-reaching challenges for the future framing and carriage of native title determination applications.

    The Practical Implications

16. Perhaps the foremost implication is that the definitional gateway to the NTA, s223(1), has been significantly narrowed. The requirements of traditionality are likely to prove fatal to many current native title claims. Claimants must establish on the evidence that the society under which laws and customs the native title rights and interests are claimed has continued through the post-sovereignty epoch as a vital body united in the acknowledgment and observance of these traditional laws and customs.[16] This is a question of fact, as the Court stressed.[17] However, in eastern and southern Australia, indigenous societies have suffered catastrophic interruption and whilst vital and increasingly dynamic, they are no longer 'traditional' in the sense now required by the High Court.

17. Consequently, it seems likely that for all of Victoria, New South Wales, Tasmania and the Australian Capital Territory, and much of Queensland and South Australia, native title claimants will not be able to demonstrate, as a matter of fact, extant traditional laws and customs and so establish native title.[18] For these claimants, the high water mark of native title may be the winning - for a time only - of procedural rights accorded by the NTA whilst their claims remain registered. It is perhaps only in Western Australia and the Northern Territory, along with select areas of Queensland and South Australia, that it is likely that Aboriginal societies retain sufficient factual underpinnings to make a successful native title claim on a contested application.

18. Yet it cannot be said of the Yorta Yorta decision that the High Court of Australia did not understand the profound difficulties of proof its decision presented for indigenous claimants. The joint majority opinion fully understood the forensic implications its reasoning would have, their Honours stating:

    It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence.[19]

19. But the requirements of s223(1)(a) have been altered - some no doubt tempted to say by judicial epiphany - from the ordinary sense of the term "traditional" to a greater sense, one which requires a jurisprudential key to unlock. Such a prospect, that this reference to "traditional" might be accorded a meaning sourced in the Anglo-Australian jurisprudence, was dismissed in dicta by Lee J in the trial decision in Ward v Western Australia[20] where he said, incorrectly it now appears:

    The expression "traditional laws and customs" used in Mabo (No 2) should be taken to be an inclusive statement consistent with the expression "practices, traditions and customs" referred to in Canadian authorities. (See: Wik per Toohey J at 126; R v Van der Peet per Lamer CJ at 548.) The expression necessarily implies that the words are to be understood from an Aboriginal perspective, not constrained by jurisprudential concepts.[21]

20. In the chain of major native title decisions by the High Court since Mabo (No.2), and those quoted in the Yorta Yorta judgment itself, it is a flexible interpretation of traditionality which has uniformly held sway. Other commentators have developed this point.[22] Neate has minutely traced the jurisprudence on "tradition" through the Australian case law,[23] the vast bulk of which is against the restrictive interpretation accorded the term by the Yorta Yorta High Court, and Strelein has argued in the years between Mabo (No.2) and Yorta Yorta, there has been a very marked change in the interpretation of traditionality within the High Court of Australia.[24]

21. In Canada, Mabo (No.2) has been regarded as expansively treating the concept of tradition. Thus in 1996 in R v. Van der Peet,[25] Chief Justice Lamer, for himself and six other members of the Supreme Court of Canada, quoted Brennan J. in Mabo (No.2) as persuasive for a generous and ordinary meaning to be given the concept. The Court stated:[26]

    This position is the same [in Mabo No.2] as that being adopted here. "Traditional laws" and "traditional customs" are those things passed down, and arising, from the pre-existing culture and customs of aboriginal peoples. The very meaning of the word "tradition" - that which is "handed down [from ancestors] to posterity", The Concise Oxford Dictionary (9th ed. 1995), - implies these origins for the customs and laws that the Australian High Court in Mabo is asserting to be relevant for the determination of the existence of aboriginal title. To base aboriginal title in traditional laws and customs, as was done in Mabo, is, therefore, to base that title in the pre-existing societies of aboriginal peoples. This is the same basis as that asserted here for aboriginal rights.

22. There are other criticisms of the intersection of normative systems doctrine which has fallen from the High Court in Yorta Yorta. It is, on one view, a decidedly recondite and restrictive set of principles to place at the gateway to beneficial legislation. And from a doctrinal perspective, the jurisprudential backdrop which is presented to the acquisition of sovereignty issues is bald of precedent and unorthodox in its development. In the result, however, these concerns are moot and claimants and practitioners are left to assemble what they can of the pieces that have fallen and assess their practical implications.

23. The bold and mostly-unwelcome conclusion that native title is no longer a legal possibility for most of eastern and southern Australia will be tested through the years.[27] Such a conclusion would erase nearly half of the 550 native title determination applications currently before the Federal Court. But might we test this conclusion? Can we run some well-known scenarios from those jurisdictions, principally the Northern Territory and Western Australia, where indigenous societies are the likeliest to retain sufficient factual underpinnings to make a successful native title claim on a contested application, through the principles enunciated in Yorta Yorta to determine how matters might proceed. This is the task of the remainder of this paper.

    The Miriuwung-Gajerrong decision

24. Ward v Western Australia,[28] commonly known as Ward or the Miriuwung-Gajerrong decision, presents the possibility of a multi-faceted application of the intersection of norms principles to some judicially determined facts.

25. The Miriuwung-Gajerrong and Balangarra had a trial decision of Lee J which positively determined their native title in the east Kimberley region, largely in Western Australia but overflowing into the Northern Territory.[29] The trial took 83 days of evidence in 1997-98 and voluminous archaeological, historical, anthropological, linguistic, genealogical and 'primary' Aboriginal evidence presented by both applicants and respondents underpinned the determination. On appeal to the Full Court of the Federal Court, many of the trial findings were challenged by Western Australia and the Territory. However, the Full Court was not persuaded by any of these submissions, upholding the trial judge on all counts stating that there was evidence sufficient to support the findings of fact.[30] These findings remained undisturbed by the further appeal to and decision of the High Court in 2002.[31]

26. His Honour found that, prior to the assertion of British sovereignty, the Gajerrong and the Miriuwung were distinct "organised societies", that they held adjacent territories which overlapped in part and they spoke separate languages; separate peoples, separate languages and separate territories. Yet they shared knowledge of some Dreamings and co-operated in ritual and economic activities.[32] The Full Federal Court later summarised the evidence by saying that the claim area, at the time of assertion of sovereignty, was inhabited by organised societies[33] "operating under elaborate traditions, procedures, laws and customs which connected them with the land".[34]

27. These 'organised societies' that were the Miriuwung and the Gajerrong were substantially impacted upon in the post-contact epoch.

    With European settlement in the East Kimberley, and its impact upon Aboriginal people and their lifestyle as described, Aboriginal communities had to face and accommodate substantial change. Events such as near extinction of sub-groups and removal of people from the country in which the subgroups were located brought greater reliance upon the identity of the Miriuwung or Gajerrong community than the identity provided by a subgroup. Such adjustment was a necessary phase in the development of this Aboriginal community in the East Kimberley.[35]

28. The pre-contact links were reinforced with the depletion of the Gajerrong in the post-contact period. This turbulent period saw the Miriuwung and the Gajerrong fuse and evolve into a 'composite' community of members with a common outlook and beliefs, and common traditions and customs in respect of the land with which they were connected. There was a post-contact ethnogenesis. For the Gajerrong, the blending with the more-numerous Miriuwung was not such as to lose all indicia of a once-separate identity,[36] unlike some neighbouring groups, such as the Doolboong, who had fared much worse as they had been wholly absorbed into the composite.

29. What evolved was a composite post-contact society, one created by the combination of the pre-sovereignty organised societies that were principally the Miriuwung and the Gajerrong. As the Full Federal Court concluded:

    His Honour has addressed in detail the evidence that the Miriuwung community and the Gajerrong community at one time acknowledged and recognised separate territories. His Honour has given reasons for his conclusion that the two communities in more recent times have become regarded (amongst themselves) as a composite community with shared interests. In our opinion that conclusion was in accordance with the evidence.[37]

30. The several laws and customs of the Gajerrong and the Miriuwung blended too, forming a new, compounded set of laws and customs. Lee J gave an example of this compounded law.

    Rules relating to control of knowledge of separate men's and women's law are followed and regarded as important in the organization of the community. There is a common belief that breach of an important aspect of Miriuwung Gajerrong "law" will visit consequences upon that person.[38]

31. And, in relation to the now joint territory, his Honour found that a member of the Miriuwung-Gajerrong community is now entitled to forage over all of that territory.

    The traditional laws, customs and practices of the Miriuwung and Gajerrong community provided for the distribution of rights in respect of the use of the land for sustenance, ritual or religious purposes. For example, a member of the Miriuwung and Gajerrong community is entitled to forage over Miriuwung and Gajerrong territory, and is not confined to the "country" of a sub-group with which that person has connection.

32. As a matter of courtesy or custom that person may be expected to inform the "dawawang" of a sub-group, as persons responsible for the "country", of the intended use of the land in the care and control of the sub-group and to confirm that Miriuwung or Gajerrong traditions and customs would be observed by that person on that land, however, the right to be on the land arises under the laws and customs of the community and not of the sub-group.[39]

33. In the unforgiving light of the intersection of normative systems doctrine, the factual conclusion of a composite Miriuwung-Gajerrong society that was drawn by his Honour has some damaging consequences. It is clear from Yorta Yorta that an indigenous society that claims rights to land or waters recognised as native title under the NTA, must be extant at the time of the assertion of sovereignty by the Crown for the rights to be so recognised. It is equally clear, based on their Honours' reasoning, that if a new normative system has since evolved which has compounded the laws and customs of once-separate pre-sovereignty societies, these compounded laws and customs cannot be "traditional" as the statutory sense now requires.

34. Rights in relation to land or waters which might now be sourced in this new compounded law might be traditional in the sense that those laws are now several generations old, yet they are not "traditional" as the definitional sense requires, and so rights embedded in them cannot be "native title" within s223(1) NTA. The entitlement to forage, for example, when traced to its jural source, is a post-sovereignty right sourced in the compounded laws and customs of the Miriuwung-Gajerrong. Under the doctrine of intersection of norms, therefore, it cannot be recognised as native title.

35. Perhaps informed by the circumstances found by Justice Lee to have evolved in the East Kimberley,[40] the joint judgment in Yorta Yorta addressed this societal circumstance when it stated:

    When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests that are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society. [41] [Emphasis added]

36. Thus, if pre-existing indigenous societies suffer in the post-sovereignty period a fundamental re-alignment such that, like the Miriuwung-Gajerrong, a new normative system has evolved through a process of ethnogenesis, this newly-evolved normative society will have laws and customs, but they are not "traditional" laws and customs which will source recognisable rights within the statutory definition of native title.

37. And it is not merely by reason of paragraph (a) of s223(1) that this definitional failure occurs for the Miriuwung-Gajerrong because it cannot be said, pursuant to s223(1)(b), that it is by "those laws and customs", that is, traditional laws and customs, that a connection to the land or waters is had. As the majority of the High Court had earlier said in Ward:

    The question in a given case whether [s223(1)](a) is satisfied presents a question of fact.It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters "by those laws and customs". Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs.[42]

38. After the assertion of the sovereignty of the Crown only those rights or interests in relation to land or waters that find their origin in pre-sovereignty law and custom will be recognised, otherwise than those created by the new sovereign order.[43] This is demonstrably not the case forwarded by the first applicants in Miriuwung-Gajerrong.[44]

39. The Miriuwung-Gajerrong decision also demonstrates another not-uncommon societal phenomena in the post-contact period - the attenuation of one indigenous society wholly into another. In this context, Lee J found in the trial decision in Ward that several other societies once connected to the claim area, the Doolboong, the Wardenybeng and the Goolawarreng, had been wholly absorbed into the Miriuwung-Gajerrong composite and so had ceased to exist as separate societies. Beaumont and von Doussa JJ (joined by North J on this issue) in the Full Federal Court stated:[45]

40. The evidence linked Wardenybeng in times past with the northern portion of the claim area more recently treated as Gajerrong country. However, there is ample evidence to support the conclusions of his Honour that the Doolboong, Wardenybeng and Goolawarreng no longer exist as separate Aboriginal communities, and now identify as part of the wider Miriuwung and Gajerrong community.

41. The High Court in Yorta Yorta commented on pre-sovereignty societies that have ceased to exist:

    To speak of rights and interests 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.[46]

42. Such is the position of these attenuated societies. Doolboong laws and customs, for instance, may be known of but without a vital society that has continued to acknowledge and observe Doolboong laws and customs, those laws and customs cease to have a continued vital existence.[47] The rights and interests once sourced in the traditional laws and customs of such a society wither to extinction.

43. And, there is no prospect of a resurrection of these native title rights and interests in these circumstances. Attempts to subsequently reconstitute these laws and customs, out of which the rights and interests were once sourced, will be nugatory. As the joint majority opinion in Yorta Yorta noted:

    If that normative system has not existed throughout that period, the rights and interests which owe 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.[48]

    The 'Hybrid' Claim

44. A type of claim common in Western Australia and the Northern Territory is the 'hybrid' claim. Both jurisdictions, with very active minerals and energy sectors, have notified many proposed grants of exploration and productive minerals titles under the future act procedures of the NTA. In response, claimants, usually with the assistance of their relevant NTRBs (native title representative bodies), have filed applications for determinations which are necessarily formulated within the three months of the s29 NTA notification, and then filed in the Federal Court. They are then tested by the National Native Title Tribunal (NNTT) Registrar against the NTA registration provisions so as to hopefully capture the procedural rights for the claimants.

45. These 'hybrid' claims conventionally choose the geographical limits of the proposed licence or lease as the claim area (save, of course, for excluded areas). This is a sound practical approach as it ensures that any group whose native title may be impacted upon by the proposed future act might gain these procedural rights. The 'native title claim group' is composed of, usually, two of more language groups that join together for the limited purpose of responding to the proposed future act. Thus the term 'hybrid', connoting a number of self-sustaining components.[49]

46. The 'native title claim group' of the hybrid claim is very convenient but it is contrived in the sense that the framing of the native title claim group of the application is a happenstance wholly dependent on the boundaries of the future act area notified by the State or Territory.

47. It is commonplace in the necessary accompanying affidavits of the applicants[50] in a hybrid claim that they swear or affirm they are authorised to make the claim in accordance with decision-making processes under traditional laws acknowledged and traditional customs observed by all the persons in the native title claim group. This assertion is normally unsupported by other affidavit materials. It is, however, usual for the relevant NTRB to certify under s203BE that the applicants have been authorised under the relevant traditional decision-making process. In effect, the applicants and the NTRB are asserting a s251B(a) NTA authorisation, that is, that the authorisation is pursuant to traditional laws and customs of the native title claim group of the application.

48. So many hybrid claim applications have been filed on these terms that it is now a matter of routine and almost formulaic. However, the application of the intersection of norms doctrine may rein in the convenient framing of the hybrid claim and further strain NTRB operations, particularly certifications under s203BE NTA. This is because the various references to traditional laws and customs in the certificates and the affidavits may not carry the statutory connotation accorded the term by the leading opinion in the Yorta Yorta decision. Assuming that the term "traditional" in s223(1)(a) is accorded the same meaning in s251B(a), general social anthropology suggests that if there are multiple distinctly-named groups in the claim group, this claim group will have multiple and distinct sets of laws and customs, that is, it is a convenient conglomerate of neighbouring normative systems.

49. Can the authorisation be "traditional" under several distinct systems of law and custom? It is certainly contrary to all general understandings of the social anthropology of indigenous Australians that group A and group B members might have a say as to who should speak for the country of group C, and vice versa. However, if "all the persons" in the native title claim group authorised all the applicants, this is seemingly what has occurred. It may be that an adopted and agreed authorisation process pursuant to s251B(b) might have evolved in post-sovereignty times, but it is most unlikely that such a process is traditional.

50. Certainly, French J expressed doubt that such a proposition could be commonly entertained of the hybrid claim in Holborow v Western Australia.[51] His Honour, dealing directly with the issue of authorisation of the applicants to a hybrid claim comprising two groups, the Yaburara and the Coastal Mardudhunera, commented as follows:

    It may be that traditional decision-making processes relevant to land can be located within the subgroups of the native title claimant group represented respectively by the Yaburara and the Coastal Mardudhunera people. This, however, is a native title determination application that covers both groups. That is not an uncommon phenomenon. It is not surprising in such cases that there would not be traditional decision-making processes embracing all elements of the hybrid claim group.

51. It is thus doubtful that any authorisation found to be pursuant to s251B under several laws and customs could be a "traditional" authorisation under paragraph (a). It may be that, as a matter of fact, groups in a region do authorise collectively as a cultural bloc for mutual business, particularly for ceremony. This occurs quite commonly across northern Australia but if the requisite authorisation by the applicants is claimed to be under s251B(a), then it needs be shown to be "traditional" in the sense that the High Court ascribed that term in Yorta Yorta. This will be no easy task as French J noted on the evidence available to the Court in another matter, Daniel v Western Australia.[52] As with Holborow, this was a case concerning the authorisation of replacement applicants.

52. The anthropological evidence was that the Ngarluma and Yindjibarndi peoples were "separate language groups or tribes", that they have been closely associated with each other for at least the last 50 years.[53] For the 100 years post-contact, they had been resident on pastoral stations, then they had resided in and around the Roebourne area and had become closely associated through co-residence, inter-marriage and the sharing of customs. That closeness was reflected in their bringing the native title claim jointly.[54]

53. His Honour found that the evidence supported the inference that authorisation decisions were made in accordance with a process of decision-making which was adopted and agreed by the persons in the native title claim group over a period of time, that is, a s251B(b) authorisation. In arriving at this conclusion, the Court dismissed the possibility of a traditional authorisation under paragraph (a) saying:[55]

    In my opinion the evidence does not disclose a process of decision-making of the Ngarluma and Yindjibarndi people that could be described as a process of decision-making under the traditional laws and customs of the native title claim group. Indeed, although there has been a close association between the Ngarluma and Yindjibarndi people over the last fifty years or so, the evidence, particularly that of [anthropologist] Mr Robinson, suggests that they have developed no form of common or joint decision-making applicable to native title determination applications which could be called decision-making under traditional law and custom. It may well be that within each group there are internal mechanisms of traditional law and custom which inform the process of joint decision-making in relation to matters connected with the native title determination application. But, in my opinion there is on the balance of probability no process of the kind contemplated in s251B(a) of the Native Title Act.

54. On this analysis, NTRBs might now be understandably reluctant to issue certificates asserting traditional authorisation of hybrid claims in the absence of cogent field and desktop research establishing that traditionality.[56] In the meantime, many such claims remain in Federal Court registries and on the NNTT Register of Native Title Claims with potentially meaningless certificates and affidavits attached.

55. Yet there is a concern, far more substantive than that of registration testing, that of the once-important, now-critical issue of the proper framing the 'native title claim group'.

    The 'Native Title Claim Group': The Framing Exercise

56. Under s61(1)NTA, a native title determination application may be made by a person or persons authorised by the native title claim group which includes all the persons "who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed."

57. In Risk v Native Title Registrar,[57] O'Loughlin J warned that "[a] native title claim group is not established or recognised merely because a group of people (of whatever number) call themselves a native title claim group."[58] Similarly, it must be demonstrated that the native title claim group has common or group rights and interests in the claimed area under traditional laws and customs.[59] O'Loughlin J in Risk stated that

    the acceptance of a small family group (when it is known that it forms part of a larger community) is inconsistent with the philosophy that is to be found in the table to s61; that section talks of the persons who, as a group, hold "the common or group rights and interests". The eight members of the Quall family may be part of the group but they are not the group. The applicant (in this case, Mr Quall) should be seen to be authorised by all persons who relevantly hold the common or group rights and interests.

    In light of the above reasoning the conclusion is inescapable that the Applicant is in fact part of a larger claim group and thus I am unable to find that the claim group is properly constituted.[60]

58. This raises the issue of sub-groups within claimant groups, a topic already very familiar to the anthropologists where, in the Australian discourse, the debate between the 'atomists' and the 'collectivists' has gently simmered for years. The debate centres on whether one favours casting native title claims on the atomistic 'estate' or 'clan' sub-group model or on the broader, collectivist model, usually based on the 'language group'.[61] As Professor Peter Sutton says:

    In the end, a line has to be drawn around the claimant group. Where this line is placed is very much driven by the relationship between the requirements of the relevant legislation and the results brought forward by the anthropological and legal team assisting the claimants.[62]

59. Sutton himself advocates the collectivist model because, he says, in the final analysis he takes the view that

    customary possessory relationships, whether couched in terms of small groups or individual interests, have a communal foundation. The customary-law land entitlements of smaller entities are granted to them by the society of which they form parts.[63]

60. Others, particularly those anthropologists and lawyers schooled in the presentation of land claims under the Aboriginal Land Rights (NT) Act 1976 ("ALRA"), and familiar with concepts of "traditional Aboriginal owners", "local descent groups" and "primary spiritual responsibility", lean naturally to the local, estate-holding group. The tension has been essentially healthy ensuring that strenuous research has been the yardstick by which these matters have been resolved. Yet Sutton has warned elsewhere of the dangers of the framing exercise in the native title context.

    Many native title claims have been lodged in the names of language groups, or in the names of families or other collectivities who also identify as being of a particular Indigenous language in their applications. One occasionally hears criticism if [sic, of] this on the grounds that the anthropological literature on Aboriginal land relationships has tended to emphasise the small estate-holding group as the primary or even the exclusive locus of rights and interests in country. Indeed one finds sometimes the statement that such a group is 'the land owning group'. That only one kind of grouping is given the privilege of being the locus of features that can be translated into some form of proprietary relationship to country in this way seems contrary to the complexity of the facts.[64]

61. This debate came into sharp relief in Ward. The collectivists were represented by the first applicants. They claimed on behalf of all Miriuwung-Gajerrong persons. The atomists were represented by the second applicants who claimed on behalf of three Miriuwung estate groups (the Bindjen, Damberal and Nyawamnyawam) on the Northern Territory side of the border. His Honour stated their relative positions thus:

    The first applicants claim native title as a communal title of the Miriuwung and Gajerrong community. The second applicants claim that native title vests in them as persons who "speak for" the "estate groups" of the Miriuwung and Gajerrong community in the Territory area. Whilst the first applicants did not present their claim as the claim of "estate groups", either severally or in combination, it was accepted by the first applicants that such sub-groups were part of the Miriuwung and Gajerrong community having links to particular parts of the country, being organized on kinship and sub-section systems which were part of the traditional laws and customs of the community.[65] [...]

    The second applicants do not deny the connection of the Miriuwung and Gajerrong community with the land of the Territory area but assert that the common law right of native title, based on occupation and possession, is vested in the sub-groups represented by the second applicants.[66]

62. Lee J found for the first applicants, the collectivists, and echoing Sutton stated:

    "Estate groups", however, were not self-contained, or autonomous functioning societies in occupation of the land. They were sub-groups of the Miriuwung and Gajerrong community from which rights and duties devolved under the traditional laws and customs of that community. When the anthropologists speak of "ownership" of "estate" country, or of "dawawang" as "owners" of such country, those words do not bear their legal meaning but are the best description the anthropologist can supply to a relationship that encompasses the rights and duties acknowledged under traditional laws and customs. (K Maddock, Ex A56 pp 213-215.) [...][67]

    How the occupying societies operated is not an element to be proved in a native title claim but it is likely that sub-groups (whether described as "estates", "families" or "clans") were numerous, more structured, and more engaged in the political and economic affairs of the community. (R M and C H Berndt, "The World of the First Australians", at 39-45, 97.) Responsibility for control of tracts of land according to the traditional laws and customs of the society, defined particular areas of country to which members of sub-groups had close affinity, "belonged" or "spoke for", but the community as a whole occupied the land, and rights in respect of the land, including usufructuary rights, which arose out of that occupation were exercised in the society according to its laws and customs.

    At common law, the native, or aboriginal, title of that community would be a communal title held by the community, not separate and discrete vestings of native title in sub-groups, notwithstanding that control of, and responsibility for, the country of the sub-group was an important part of the maintenance of community life.[68].

63. However, this debate may become somewhat sterile in future native title claims. This is because the language of s61 and the manner in which s223(1) has been construed in Yorta Yorta has set the formwork for claimant applications under the NTA. In order to be successful, it is a vital indigenous society with traditional normative rules that existed at sovereignty that must be proved to be extant. So, an estate group or clan cannot be successful unless it can demonstrate that it is, or is part of, an extant normative system.

64. Yet if the estate-holding group members claim to be the native title rights-holders, exclusive of the broader membership, immediate tensions surface. If they are claiming for themselves only, but relying on the normative rules of the broader group to buttress their claim, the broader society will probably insist, reasonably, that the claim be inclusive of them.

65. Indeed, in this situation it may be arguable that if the membership of an estate group is asserting native title without including the broader membership, the sub-group is forsaking the normative force of the traditional laws and customs of the broader society within which they source their claimed rights. It is purporting to draw from a new normative well, one sourced in their own sub-group. It is secessionist and would be post-sovereignty ethnogenetic phenomenon.

66. Whatever laws and customs are then possessed by the sub-group, those laws cannot thus be "traditional" within s223(1) as it is now understood post-Yorta Yorta. Such a claim by a sub-group membership - be it an estate, a clan or a family - must necessarily fail if the broader society were to contradict the estate group's claim of native title, such as occurred in the Miriuwung-Gajerrong decision.[69]

    Are these matters salvageable?

67. It has been argued that, illuminated by the doctrine of intersection of normative systems, the assertion of a "composite community" in a native title claim has its difficulties, that estate groups, acting independently, are unlikely to be able to successfully prosecute a contested claim, and that many current hybrid claims are potentially vulnerable in their current form. Yet all may be salvageable, even the Miriuwung-Gajerrong claim for there appears to be an abundance of references in the transcript and materials to Gajerrong law and custom and Miriuwung law and custom, perhaps as distinct normative systems.

68. Likewise, whilst the cause of the Doolboong is lost - their society has been wholly attenuated - under Miriuwung or Gajerrong law, transmission rules may permit the expansion of territory to include that of the Doolboong, to 'adopt' the people and their territory. Paragraph (b) connection issues might need, then, to be reinforced. Speaking of transmission rules in traditional law and custom, the joint majority judgment said in Yorta Yorta:

    That is not to deny that the new legal order recognised then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be "significant adaptations".[70]..

69. It is certain that the factual circumstances which will come up for adjudication will be many and varied. In Kinds of Rights in Country, Professor Sutton provides some examples from Queensland and the Northern Territory:

    Under similar catastrophic conditions members of the surviving subgroups of a single language group or other wider regional group have at times jointly assumed responsibility for all the untenanted estates of their wider group as well as maintaining or amalgamating their own local estate interests. Details of these processes are not often available but the cases of Malak Malak, Jawoyn, Cape Melville and Lakefield provide a range of relevant examples.

    These are clearly not cases where existing 'normal' succession pathways are engaged in by one or two individuals or a small genealogical subgroup - whole language groups or similar-sized regional groups may be involved. For this reason I refer to such processes as instances of conjoint succession. These cases do not involve the extinguishment of pre-colonial rights of surviving groups so much as their transformation - usually involving considerable simplification - and their generalisation to wider 'tribal' areas.[71]

70. Whatever has occurred, the indigenous normative system must be substantially intact for any hope of success to be entertained. Those indigenous societies that have fused into composites, evincing the same post-contact societal phenomena found in the Miriuwung-Gajerrong by Lee J, will not have their native title recognised. Those that are hybrid claims, which groups have been joined largely for convenience sake, such as in Holborow, may face searching questions as to the form of their hybrid native title determination application.

71. If their normative systems are distinct and operational, why and how are they joined as a "native title claim group"? and what are the s.61 "common or group rights" that they jointly claim? Is there, perhaps, a cultural bloc or domain to explain this circumstance? The Daniel Determination[72] represents a fascinating struggle between the anthropology, the emergent traditionality principles and the proper framing of a native title claim group under the NTA.

72. The native title claim group (of the first applicants) in Daniel was initially posited on a "composite community", that of the "Ngarluma and Yindjibarndi peoples", which held the native title.[73] Their alternate position was that the community comprised two 'groups', the "Ngarluma people" and the "Yindjibarndi people", and that such native title rights and interests claimed were possessed under the traditional laws and customs of the Ngarluma and Yindjibarndi Peoples respectively.[74] Then, following the High Court decision in Miriuwung-Gajerrong, the first applicants abandoned their primary position and, seemingly on the available evidence, successfully took the alternate position. However, it remains somewhat confused with the trial judge stating:

    The Ngarluma and the Yindjibarndi peoples each form, or are part of, a society with a body of traditional laws and customs on a range of matters, including ownership and management of land and waters.[75] [Emphasis added]

73. RD Nicholson J opined at [334]:

    Sections 223 and 225 do not require the Court to search for an anthropologically identified form of community or group. The NTA makes clear the Court is to examine the evidence to see who holds native title, if anyone, and so whether there are communal, group or individual rights and interests. Anthropological theory and research may inform that examination but cannot determine it.

74. Certainly, an anthropologically-identified form of community or group is not a legal necessity under the NTA. However, if an anthropological study (usually on behalf of the claimants) has not established a body of persons who collectively self-identify, the likelihood of the claimants meeting the definitional requirement of a society united in its acknowledgment and observations of a body of law and customs, is not prospective. Take the example considered earlier, that of the Doolboong. If, prior to 1991, nobody identified themselves to researchers as Doolboong, a claim in the name of the Doolboong might simply lack cogency.

75. The Daniel Determination, at this point in time, seems best regarded as a poorly framed hybrid claim that was salvaged rather than as a post-contact "composite" society formed by the compounded laws and customs of two pre-sovereignty indigenous societies. The native title claim group may have been framed as a composite society, yet, before it was too late, the claim was able to be de-constructed and re-presented on the evidence before RD Nicholson J as two normative systems, each with a demonstrable ethnogenesis prior to the assertion of sovereignty. This permitted the findings for the respective native title claim groups, despite the awkward hybrid framing.

76. When one moves from the coalesced language groups to consider the issue of sub-groups, it is relatively clear that estate groups, being sub-groups, will not succeed without the patent support of the broader normative society unless they can establish that they are a normative system of traditional laws and customs themselves.

77. A chain of single judge authorities supports the general proposition that a sub-group of a native title claim group is not entitled to forward a native title determination application, see Risk v Native Title Registrar,[76] Tilmouth v Northern Territory[77] and Landers v South Australia.[78] However, there appeared to be no correlation of Lee J's finding in relation to estate groups as travelling with these sub-group authorities until, in Landers, Mansfield J accepted Ward as authority for the principle that the making of a claim by a subgroup of the native title claim group is not permissible.[79]

78. Landers was followed by Wilcox J in Bodney v Western Australia,[80] his Honour stating that there must be a strict correspondence between the group claimed to hold native title and the group on whose behalf the claim is made. Wilcox J also introduced the requirements of what is meant by the term "traditional", as illuminated by the Yorta Yorta decision, into his analysis.[81] Most recently, in the context of an actual determination of native title, Sundberg J in Neowarra has again iterated that estate groups, without more, cannot succeed if they are a sub-group lacking a normative force of their own.[82]

79. It is important to not under-estimate the consequences of this framing exercise. An excellent example has been presented recently in the De Rose Hill Station decision of the Full Federal Court.[83] The appeal decision of 16 December 2003 is effectively a re-framing the native title claim group. The claim at trial was posited on the nguraritja for De Rose Hill Station, the local holders. The appellate judges, guided by Yorta Yorta, determined that it is the Western Desert Bloc Anungu which is the normative society that is the source of the laws and customs that entitle the nguraritja.

80. The Full Court could go no further on the evidence. Assuming deficits were filled, the holders of native title should be the Anungu, although the exercise of those rights presently accrue to the benefit of the current nguraritja membership. On the initial framing, the claim group failed, on the sympathetic re-framing by the Full Court, the claim group is still in the running.

81. Likewise, the recent Neowarra determination[84] succeeded despite being what has been termed a hybrid claim, composed as the native title claim group was, of three language groups, the Wunambal, the Worrorra and the Ngarinjin. Sundberg J found, in an anthropologically elaborate situation, that the normative rules were generated in the still-vital Wanjina-Wunggurr cultural domain, which preceded sovereignty, and so could source recognisable native title rights.[85]

    Do "traditional owners" under ALRA = "native title holders" under the NTA?

82. One other issue deserves some discussion in this context as it is prone to confuse and confound. In some recent native title determinations, the enquiry 'who are the native title holders?' has seemingly become entangled with the enquiry 'who are the traditional owners?' In the Northern Territory, for example, the quarter-century history of ALRA claims has been overlaid only recently by NTA claims.

83. Under the former legislative regime, in the search for traditional owners, questions of "primary spiritual responsibility" and "local descent groups" cause an examination of the indigenous legal/property/belief system to be made to determine which member or class of members 'owns' the estate? It matters only tangentially, if at all, from where the laws and customs which underpin that 'ownership' emanate.

84. Under the NTA, it is the society that generates the traditional laws and customs which is the holder of the communal native title rights and interests that spring from those laws and customs.[86] The NTA may require the rights to be identified yet it does not require a combing through the traditional laws and customs to nominate which members or class of members hold or exercise what rights? That distribution is a matter entirely for the relevant traditional indigenous laws and customs.

85. Justice Lee (quoted fully earlier) perhaps best identified the distinction between the ALRA and NTA claims systems when he stated in Ward:

    Responsibility for control of tracts of land, according to the traditional laws and customs of the society, defined particular areas of country to which members of sub-groups had close affinity, "belonged" or "spoke for", but the community as a whole occupied the land, and rights in respect of the land, including usufructuary rights, which arose out of that occupation were exercised in the society according to its laws and customs.[87]

86. There is no requirement in a native title determination application under the NTA to enter upon the traditional normative system of the native title claim group to seek to identify those within the native title claim group who 'own' particular estates or country. However, the tendency to conflate the respective NTA and ALRA claims enquiries has resulted in a number of determinations where native title has been awarded to an estate- or sub-group or groups and which, arguably, may be vulnerable in their current form. The determinations in Hayes[88] and Yarmirr[89] are cases in point.

87. In Neowarra v Western Australia [2003] FCA 1402 (Sundberg J, 8 December 2003), both these contested determinations were placed before the Federal Court as upholding the estate/clan determination model over that of Lee J rejection of it in Ward. However, Justice Sundberg dealt with the submission shortly stating:[90]

    The State submits that more apt than Ward are the precedents constituted by Hayes v Northern Territory (1999) 97 FCR 32 and Yarmirr v Northern Territory (1998) 156 ALR 370. Neither case is of assistance. In Hayes the applicants were members of three "estate groups". A composite estate group determination was made: see [10] and [169(ii)]. In Yarmirr the applicants were the members of five clans. A composite clan based determination was made: see [4] and [162]. The issue that arose in Ward and that arises in the present case did not arise in Hayes or Yarmirr.

88. His Honour surely is sound in his approach as in both cases the point was not taken, and thus the issue remained unargued. Importantly, these decisions were not illuminated by the doctrine of the intersection of normative systems.

89. And it is not only as a matter of statutory construction that this estate group framing of NTA claims fails. There are persuasive public policy reasons for its rejection, the most compelling being that the recognition of native title to a community empowers a greater number of indigenous persons than an award to a discrete section of that community, sometimes a mere handful of "traditional owners" as occurred under ALRA in the celebrated Kenbi claim.[91] It allows a community to move into the future not only with a recognition of their native title, however great or restricted its content, but a present acknowledgment of their sense of community.

90. This latter recognition may in many instances outweigh the quantum of the rights recognised. On the other hand, the award of rights to the sub-group, or a cluster of them, allows the general law to insist that the society then fracture into entities (usually, prescribed bodies corporate, PBCs) to hold that native title. The result is that that a single community or people may then have a plethora of PBCs to hold its native title. This sub-divides already scant resources, people and skills.[92]

91. There is also an argument, best left to the anthropologists to make, that recognition of native title to current estate group members, and perhaps going further into the indigenous legal system and the acknowledging secondary, and even tertiary, native title rights-holders, is entrenching 'flexible' customary laws into the future, so serving to ossify the society. These policy reasons are beginning to be teased out in the case-law and literature. For example, Mansfield J in Landers v South Australia[93] expressed concern about the claim being with the authority and stewardship of part only of the Dieri People, and of the eventual determination if successful:

    The smaller group is not the group of people who should exclusively enjoy the communal native title if it is granted. Yet that is the purport of the Edward Landers application. It seeks, and if it is successful will result in, a determination of native title on behalf of some only of the Dieri People.[94]

92. The determination of native title to "some only" also means that the remainder are necessarily denied that native title under that same determination.[95] Not only is this a fertile source of internecine conflict, it is argued infra that the determination is made more vulnerable to revocation or variation.

    A possible model for the future?

93. What may need to occur in terms of claim modelling is that the native title claim group needs be framed to be co-extensive with the normative indigenous society from which the claimed native title rights are sourced. The normative indigenous society will generally coincide with the language group or bloc of groups, not with the estate sub-groups. Specific ethnographic research can inform this general statement.

94. To press the connection of the estate or clan or family sub-group yet not include the broader membership as native title rights-holders will leave a claim exposed to paragraph 223(1)(a) definitional vulnerabilities. Conversely, to press the broader group claims without factoring in the individual nexus of the various sub-groups will hazard running short on paragraph 223(1)(b) evidence.

95. It may be that a patient, piece-meal 'footprint' claim model may be the most tactically sound. That is, frame the application for a determination on behalf of a language group or bloc (to establish the continuing normative society in the main) yet limit it, in the first instance, to a particular estate or clan or family (to make the connection). If successful, move on to claim on behalf of other estate-holding groups or clans until the patchwork is complete. If unsuccessful, then address the deficiencies where possible in future proceedings.

96. Enormous resource issues, not least for NTRBs and governments, then emerge. Yet, in the longer term, it may in fact conserve the resources of all potential parties. For as late as 2001, Professor Sutton complained:

    Anthropologists frequently have little to do with the initial applications for determinations. That such a crucial document should be lodged prior to any serious research being carried out in an area concerned seems to me to be not entirely counterproductive but in fact quite astonishing, given the risks of unnecessary conflict and expense that this amateurish practice has led to repeatedly.[96]

97. He urged:

    If the clock could be turned back I would be strongly urging potential applicants and those responsible for the bureaucratic generation of native title applications to lodge none until each manageable region had been researched sufficiently for the picture of the different bases of claims to emerge more or less clearly. How a legal strategy can be mounted in the absence of some substantial field work and library study, when the applications themselves are for the recognition of historical and contemporary cultural practices, many of which are complex, foreign and puzzling to the uneducated, remains a mystery.[97]

98. It was perhaps the counsel of perfection when written but, post-Yorta Yorta, it may be of necessity. On the foregoing arguments, the framing of native title determination applications can be seen to be fraught with complexity, the risk of error high. Errors of form may be remediable, yet these might also be symptomatic of more fundamental deficits in the native title determination application itself. The legal strategy and the ethnographic and other research must be very finely tuned.[98] It is trite that adequate up-front resourcing to the NTRBs for the research and preparation of claims is required. However, it may be overlooked at times that as much as such funding allows claimants to put their best case forward, it might also potentially save respondent parties from unsustainable claims being pursued.

    Potential impact on proposed consent determinations

99. As noted earlier, however, to assert that a native title determination application might be legally fragile is not to say that, as a matter of policy, a settlement may not be acceptable to a State or Territory. Indeed, most States and Territories now have as a central policy plank that it is preferable to negotiate than to litigate.[99] Despite the potential availability of strike-out applications, State and Territory governments may use the occasion of the native title claim, however tenuous its legal prospects, as a basis for negotiating broader non-native title outcomes that address land justice concerns. The present Victorian Government appears to be a case in point.[100] However, there may be difficulties ahead for such a proposed course.

100. One further potential impact of the normative system principles in Yorta Yorta is to proposed consent determinations. If a claim settlement includes a consent determination of native title, one interesting consequence will be how the Federal Court comes to regards its power in s87 NTA, particularly where the native title might be seen to be vulnerable in definitional terms. This provision relates to the power of the court if parties reach agreement and provides:

     87 (1) If, at any stage of proceedings after the end of the period specified in the notice given under section 66:

     (a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to:
     

     (i) the proceedings; or
     (ii) a part of the proceedings; or
     (iii) a matter arising out of the proceedings; and

     (b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and

     (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court;
     the Court may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.[101]

101. Will the Federal Court exactingly comb through a proposed consent determination searching for definitional or doctrinal shortcomings? It has not to date. Yet it is submitted that, in the wake of the Yorta Yorta decision, a judge at first instance will be more cautious, principally because of ss13(4) and (5) NTA.

102. By empowering the Federal Court to make an order effecting a consent determination, the Parliament has granted a powerful but harnessed discretion. In exercising such a discretion, the Court must act judicially. In Oshlack v Richmond River Council,[102] Gaudron and Gummow JJ said that the power to exercise a discretion judicially means

     not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as 'the subject matter and the scope and purpose' of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be 'definitely extraneous to any objects the legislature could have had in view.'[103]

103. Kirby J stated, perhaps more plainly, that "[t]he proper approach to the exercise of a statutory discretion may be illuminated by the particular language in which it is expressed and the purpose for which it has been provided."[104]

104. In reaching any agreed outcome, but particularly in the case of consent determinations, the State or Territory would be accountable to the public interest. The nature of the responsibility faced by the respondent States and Territories in native title determination applications was subject to comment by the Federal Court in making orders for a consent determination in favour of the Nharnuwangga, Wajarri and Ngarla. The Court said:

     State Governments are necessarily obliged to subject claims for native title, over land and waters owned and occupied by the State and State agencies, to scrutiny just as careful[ly] as the community would expect in relation to claims by non-Aborigines to significant rights over such land. The State is faced with a good many such claims. A deal of proper caution is to be expected.[105]

105. Into the future, might the Federal Court baulk at ordering a consent determination of native title, although wholly agreed between the parties, that does not strictly satisfy the definition of native title in s223(1)? The objects of the NTA are largely beneficial and it is certainly arguable that a formal doctrinal shortcoming might be sidelined, with the consent of all the parties - the public interest presumably being satisfied by the consent of the relevant State or Territory - in pursuit of a remedial and historic outcome for the parties. The Yorta Yorta doctrine, built as it is on the very definition of native title in the NTA, may prevent such an outcome.

106. Having argued this, it must be stated that there has been a very strong signal to the contrary by the Full Federal Court in the Miriuwung-Gajerrong consent determinations of 9 December 2003.[106] There a Full Court of the Federal Court, composed of Wilcox, North and Weinberg JJ, endorsed what has been argued here to be doctrinally unsound positions, but which equally could be said to be remedial and historic outcomes for the parties.

107. In Western Australia, native title was recognised to be in the Miriuwung and Gajerrong people. In the Northern Territory, native title was recognised to be with the members of three estate groups of the Miriuwung, the Damberal, Bindjen and Nyawamnyawam, and others, including spouses and neighbouring estate group members, these others holding 'secondary' native title rights.

108. Under the traditional laws and customs of the Miriuwung Gajerrong in Western Australia, native title rights accrue to all members of the broader group. Under the same traditional laws and customs, however, native title rights on the Territory side of the border accrue to the estate group members (and a grab-bag of others as secondary rights-holders). How is that so?

109. Mr Pettit SC, leading counsel for Western Australia, made a valiant attempt to persuade the Full Court in argument on the remitter that such an outcome would be internally inconsistent and would require the Full Court to overturn, in some manner, a trial finding of Lee J. This finding, which was expressly upheld by the first Full Court and remained untouched by the High Court, is that native title did not reside in the estate groups, but rather with the members of the broader Miriuwung Gajerrong community.

110. The estate group members would not be disentitled by such an outcome: they would be native title holders still, but by virtue of their Miriuwung Gajerrong societal membership. But the Full Court would have none of this argument. North J said in argument that the Court, on a consent determination, was "entitled to say that the parties have come to us and agreed that for the Northern Territory side of the border, this is a solution that they're prepared to engage in."[107]

     MR PETTIT: That's the reason that the written submissions by ourselves go to some length to make the point that this is a decision in rem. It's a decision that operates against the world. It's not inter parties. [sic]
     NORTH J: So you say it's quite different to commercial litigation - - -
     MR PETTIT: Absolutely.
     NORTH J: - - - where all sorts of pretend situations might be agreed to for the sake of commercial accommodation?
     MR PETTIT: Absolutely, your Honour.
     NORTH J: Here the court must address actual reality?
     MR PETTIT: Yes, your Honour, yes, and that's - well - - -
     NORTH J: That's hard.[108]

     And, later, in dialogue with the Bench on the same issue, Mr Pettit said:

     MR PETTIT: Well, can I say one other thing about it? The court fully understands that it will be - the prospect is that it will be dealing with two different appeals in respect of the same people, the Miriuwung with the same traditional laws and customs. Once a judicial determination is made in this matter east of the border, then the prospect will be that next year, if we don't reach agreement, the court will be asked to decide exactly those same issues in its judicial capacity and will be asked by both parties, WA - the State of WA and the applicants to reach a different conclusion.
     WILCOX J: Well, so be it. As far as I'm concerned, that wouldn't trouble me one bit. My only reaction to that would be that that was made - the order was made by consent, it's not a precedent, it's got no question of res judicata, if you like, it was a consent agreement, a consent order that was founded on a mistake of the parties, so be it. There's no embarrassment at all.
     WEINBERG J: And no curial determination of any contentious issue of that kind.
     WILCOX J: No.
     WEINBERG J: We have examples, Mr Pettit, of courts having found that on the evidence, A committed adultery with B but B did not commit adultery with A in the one proceedings. There's nothing unusual or illogical in that sense about what the litigation process is. It's the way it works.
     WILCOX J: Expressed in those terms it sounds funny.[109]
     

111. And funny it remained. The two consent determinations (although some rulings were necessary to determine the Territory appeal) are of little precedential value, and as unsatisfactory as they might present to purists, they serve admirably to bring the issues and tensions discussed into relief. The resolution of these issues, however, resides in future contested decisions.

     An imaginary post-determination scenario

112. Imagine that an indigenous society secures a determination of exclusive native title in 2005. Then in 2025, the pressures of its situation - the increased mobility to regional centres and the capital by the young for education and jobs, the conflicted state of the title-holding corporation, the new administrative centre at Xanadu, which outside the determination area and has all the modern amenities, is a magnet drawing people away from customary pursuits - erode the group such that it is no longer cohesive, so that the native title rights-holders no longer form "a body united by its acknowledgment and observance of the laws and customs".[110]

113. What of the 2005 determination of native title: can it endure unchallenged throughout time despite the erosion of the normative system underpinnings?

114. The answer seems to be that it cannot. The traditional laws and customs must continue to be acknowledged and observed by the indigenous society for the rights and interests to continue to win recognition under the NTA. This was made patent by the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward where it was said that

     an order in which the Federal Court makes a determination of native title has an indefinite character which distinguishes it from a declaration of legal right as ordinarily understood in such authorities as International General Electric Co of New York Ltd v Commissioners of Customs and Excise. That indefinite character reflects the requirement for the continuing acknowledgment and observance of traditional laws and customs and continuing connection with land implicit in the definition of "native title" in s 223(1) of the NTA.[111]

115. A determination of native title is indefinite under the NTA, not immutable. Traditionality must remain a constant. But the real rub may rest in subsections (4) and (5) of s13 NTA, an untested provision. Subsection (4) allows for the making of an application to the Federal Court for the subsequent variation or revocation of a determination of native title on the grounds stated in sub-section (5), namely:

     a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or

     (b) that the interests of justice require the variation or revocation of the determination.

116. A determination of native title under the NTA is thus seemingly reviewable on the merits far into the future; it is undo-able.[112]

117. It is to be recalled that their Honours jointly said in Yorta Yorta that "[w]hen the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist."[113] In our imaginary scenario in 2025, a party to the original determination presumably has standing to seek a variation or revocation of the 2005 order on the grounds that certain "events" have occurred since 2005 which cause the determination no longer to be correct. Indeed, the relevant State or Territory may be required to act in the broader public interest to formalise the flotsam rights of such a societal erosion, to redeem the full beneficial title.

118. If, as has been asserted here, a determination is un-doable, the Federal Court in the proper exercise of its discretion in s87 may have to dutifully consider how legally secure a consent determination is before it so orders. It would matter nought that a State or Territory along with other respondents might propose (perhaps in a spirit of genuine reconciliation) a consent determination to a small area of land and waters as part of a broader package of otherwise non-native title outcomes in order to settle a claim. If the proposed determination of native title is not definitionally sound, increasingly the Federal Court may be seen to resist such a consent order as the law presently stands.

     Conclusion

119. By narrowing the definitional portal to the Native Title Act 1993 for the vast majority of indigenous Australians, the High Court of Australia in Yorta Yorta has required, in effect, that the issue of indigenous land rights return to the mainstream political sphere. It has been asserted that for most of eastern and southern Australia, native title can not ever be a legal reality in light of the Yorta Yorta doctrine.

120. In the remaining jurisdictions, great care needs be taken, and substantial research undertaken, in the preparation and framing of native title determination applications if they are to be successful. The onerous burdens imposed by the native title claim process on claimants and their NTRBs - the scant funding, the mounting forensic onus, the emotional and other tolls - may now seem to outweigh the benefits.

121. To win recognition, an indigenous society must have remained traditional yet vital. Used in this greater sense of "tradition" now required by the joint majority judgment in Yorta Yorta, this is an almost impossible dynamic to balance. What the Australian jurisprudence seemingly seeks is a museum diorama of indigenous Australian society that robotically replays itself over and over again for the benefit of the increasingly-critical judicial onlooker. Increasingly, this complex thing called native title may prove to be a decade-long ephemeron.