FEDERAL COURT OF AUSTRALIA

Members of the Yorta Yorta Aboriginal Community v State of Victoria

[2001] FCA 45

NATIVE TITLE - Native Title Act 1993 (Cth) - determination of native title claim - finding that native title had expired by the end of the 19^th century - whether trial judge recognised the ability of traditional laws and customs to adapt to changes in circumstances - need for traditional connection with land to have existed continuously from date of acquisition - use of historical documents

WORDS AND PHRASES - "traditional laws and customs" - "traditional"

Native Title Act 1993 (Cth) ss 223, 225

Native Title Bill 1993 (Cth)

Mabo v State of Queensland [No 2] (1992) 175 CLR 1 followed

State of Western Australia v Ward (2000) 99 FCR 316 applied

Commonwealth of Australia v Yarmirr (1999) 168 ALR 426 discussed

Ward v State of Western Australia (1998) 159 ALR 483 applied

Yanner v Eaton (1999) 166 ALR 258 discussed

Wik Peoples v State of Queensland (1996) 187 CLR 1 cited

Mason v Tritton (1994) 34 NSWLR 572 cited

Delgamuukw v British Columbia (1993) 104 DLR (4^th) 470 cited

Anderson v Wilson (2000) 171 ALR 705 referred to

Shaw v Wolf (1998) 83 FCR 113 referred to

Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193 referred to

Pareroultja v Tickner (1993) 42 FCR 32 referred to

Coe v Commonwealth of Australia (1993) 118 ALR 193 cited

Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 cited

Biogen Inc v Medeva Plc (1996) 36 IPR 438 cited

MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY v STATE OF VICTORIA AND OTHERS

V 34 of 1999

BLACK CJ, BRANSON & KATZ JJ

8 FEBRUARY 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 34 of 1999

On Appeal from a Judge of the Federal Court of Australia

BETWEEN:

MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY

Appellants

AND:

STATE OF VICTORIA AND OTHERS

Respondents

JUDGES:	BLACK CJ, BRANSON and KATZ JJ
DATE:	8 FEBRUARY 2001
PLACE:	MELBOURNE

EXPLANATORY STATEMENT

1. The members of the Court who heard this appeal, Chief Justice Black, Justice Branson and Justice Katz, have prepared the following brief statement to accompany their reasons for judgment. The statement is intended to assist in an understanding of the essential nature of the appeal and the judges' reasons for decision. It should be emphasised, however, that the only authoritative pronouncement of the Court's reasons is that contained in the reasons for judgment; this statement is necessarily incomplete and deals only with certain aspects of the judgments.

2. This an appeal against a determination by Justice Olney that native title does not exist over areas of land and waters in northern Victoria and southern New South Wales. The claim that native title does exist in these areas was made on behalf of the Yorta Yorta Aboriginal Community.

3. The case before Justice Olney was notable for a number of reasons. It was the first application for a determination of native title to come on for trial after the enactment of the Native Title Act 1993 (Cth), the hearing of which was completed before the 1996 amendments to the Act came into force. Second, the case was very complex, including (initially) some 500 non-claimant parties to the proceeding. Third, the hearing of the case was particularly lengthy; altogether, the Court sat for 114 days and heard 201 witnesses. Some 48 witness statements were also admitted into evidence. The transcript of the hearing exceeds 11,000 pages. The Court sat to hear evidence at many places within the claim area.

4. In essence, the trial judge refused the application because he found as a fact that by the end of the 19^th century, the impact of European settlement in the claim area was such that the forbears of the applicants had lost their traditional connection with the land. As a result, those forbears could no longer be said to have observed and acknowledged their traditional laws and customs, causing the foundation for any native title rights and interests to disappear at that time. Because native title, once expired, is not able to be revived, this finding determined the outcome of the applicants' claim, notwithstanding what his Honour described as the genuine attempts of members of the claimant group to revive the lost culture of their ancestors. In these circumstances it was not necessary for his Honour to deal with arguments raised by some of the respondents that native title had in any event been extinguished. His Honour also found it unnecessary to make comprehensive findings about the current beliefs and practices of the claimant group.

5. The appellants, the members of the Yorta Yorta Aboriginal Community, do not take issue with the proposition that native title rights and interests cannot be revived once they have been lost. Instead, their primary argument was that the trial judge erroneously adopted what their counsel described as a "frozen in time" approach and that his Honour failed to give sufficient recognition to the capacity of traditional laws and customs to adapt to changed circumstances. They also contended that in reaching his decision, the trial judge failed to take into account significant and important evidence in support of their case, particularly evidence about current practices and beliefs.

6. The members of the Court are in substantial agreement about many of the principles to be applied in determining a claim for native title and they all acknowledge that the traditional laws and customs that form the foundation for native title may adapt and change. A "frozen in time" approach to the determination of native title would be incorrect.

7. The judges have not, however, reached an unanimous decision about the outcome of this appeal.

8. The majority, Justice Branson and Justice Katz, consider that the trial judge's finding that there was a period of time between 1788 and the date of the appellants' claim during which the relevant community lost its character as a traditional Aboriginal community was a finding that it was open to the judge to make and that a case has not been made out for disturbing that finding. In their view the trial judge's finding provided a complete answer to the appellants' claim and for that reason the appeal should be dismissed.

9. In a separate judgment the Chief Justice concludes that although the learned trial judge did not adopt a strict "frozen in time" approach, he nevertheless was in error in that he applied too restrictive an approach to the concept of what is "traditional" when he made his finding that native title expired before the end of the 19^th century. In his reasons for judgment the Chief Justice discusses what he considers to be the difficulties and dangers in making findings about the expiration of native title at a particular point of time in the past. The Chief Justice also considers that various aspects of the evidence should have been the subject of findings by the learned judge. The Chief Justice would allow the appeal and order that the case should be referred back to the trial judge for further consideration and for those findings to be made.

10. As will be apparent from the judges' reasons, the task of the Court in hearing a claim for the determination of native title involves interpreting the law, making findings of fact and applying the law to the facts as found. The applicable law is to be found in the Native Title Act and the decisions of the courts, including the binding decisions of the High Court of Australia in cases such as Mabo (No 2). The task of this Court on appeal is essentially to determine whether appealable error has been shown in connection with this process. As to this, the judges in the present appeal have reached differing ultimate conclusions. It is appropriate to emphasise two things concerning the role of the Court. First, it is not the role of the Court, nor of individual judges, to determine native title claims by reference to any considerations other than those dictated by the law as interpreted and the facts as found. Secondly, the interpretation of the law concerning native title is an ongoing process of considerable complexity. Indeed, two important appeals in this area from decisions of Full Courts of this Court are currently listed for hearing before the High Court of Australia.

The result is that the appeal must be dismissed and the Court has so ordered.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V34 OF 2000

On Appeal from a Judge of the Federal Court of Australia

BETWEEN:

THE MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY

APPELLANTS

AND:

THE STATE OF VICTORIA AND OTHERS

RESPONDENTS

JUDGES:	BLACK CJ, BRANSON AND KATZ JJ
DATE:	8 FEBRUARY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BLACK CJ:

Introduction:

1 An application was made to the Court under the Native Title Act 1993 (Cth) by eight applicants on behalf of the Yorta Yorta Aboriginal Community for a determination that native title exists over areas of land and waters in northern Victoria and southern New South Wales. After a lengthy hearing, the trial judge rejected the application and made a determination that native title did not exist over the areas claimed. This is an appeal against that determination.

2 The trial judge's determination is in respect of "the areas of land and waters identified in Schedule 'D' to Native Title Determination Application VN 94/1 accepted by the Native Title Registrar on 26 May 1994". That description encompasses over 200 individual pieces of public land, many of them contiguous with other such pieces, within an area described by the trial judge as being more or less oval in shape and covering large areas of northern Victoria and southern New South Wales. Speaking generally, the River Murray bisects the area from east to west, although it should be noted that the area includes the southerly flowing section of the Murray commencing at about Picnic Point and continuing to Echuca, where the river turns to flow in a north westerly direction towards Cohuna and Gunbower, and beyond there to where the Darling joins it near Mildura.

3 The claim area extends from about Chiltern near Beechworth in the east to Cohuna in the west, and from near Euroa in the south to near Jerilderie in the north. Cities and towns within the claim area include Echuca, Kyabram, Shepparton, Mooroopna, Benalla, Glenrowan, Wangaratta, Rutherglen, Corowa, Berrigan and Finley. The public lands within the claim area over which the existence of native title was claimed are, again speaking generally, mostly along or close to the courses of the Murray River, the Goulburn River and the Ovens River. Substantial contiguous areas of public land over which native title was claimed are in the region of the Barmah Forest and, further west, in the region of Gunbower Island and Cohuna. The Murray River runs more or less through the centre of these substantial contiguous areas.

4 This was the first application for a determination of native title to come on for trial after the enactment of the Native Title Act. The hearing of the application, which was completed before the 1996 amendments to the Act came into force, was necessarily lengthy and complex. There were initially some 500 non-claimant parties to the proceeding. Subsequently, other parties obtained leave to be joined, and others withdrew. Many of the respondents took an active part in the hearing. Altogether, the Court sat for 114 days and heard 201 witnesses. The transcript exceeds 11,000 pages. A total of 48 witness statements were also admitted into evidence without formal proof. The Court sat to hear evidence at many places within the claim area. For the purposes of the appeal the transcript was reproduced electronically, but even so there are in excess of 6,000 pages in the appeal books, contained in 11 volumes. At one point in the submissions on the appeal it was said that "boxes" of historical material had been tendered during the course of the trial. Clearly, the task of the learned primary judge was an exceptionally complicated and difficult one.

5 The appellants called 60 witnesses, 56 of whom are of Aboriginal descent and all but two of whom are members of the claimant community. They also called two anthropologists (Mr Rod Hagen and Dr Deborah Rose), an archaeologist (Dr John Craib) and a linguist (Dr Heather Bowe). Some of the respondents also adduced expert evidence. Victoria called two historians (Dr Marie Fels and Ms Susan Priestley) and a professional genealogist (Ms Helen Harris); New South Wales called an anthropologist (Professor Kenneth Maddock) and a linguist (Dr Bruce Sommer); and a group of other represented respondents called a second anthropologist (Dr Ronald Brunton).

6 The numerous parties to the proceeding took differing positions in relation to the claim. These are summarised in the trial judge's reasons for judgment. On the appeal, the principal submissions on behalf of the respondents were made by the respective counsel for the States of Victoria and New South Wales, the Murray Darling Basin Commission, Emat Industries Pty Ltd and Field and Game Australia.

7 In his reasons for judgment the trial judge drew attention to what he described as the difficulties inherent in litigating a complex native title determination application. He pointed out that a substantial portion of "the enormous mass of evidence presented to the Court" dealt with matters relating to the extinguishment of native title rights and interests, an issue that his Honour noted only arose in the event that the observance and acknowledgment of traditional laws and customs in relation to the land are shown to have survived.

8 The judge was satisfied that the descendants of either of two people, Edward Walker or Kitty Atkinson/Cooper, had been shown to be descended from "persons who were in 1788 indigenous inhabitants of part of the claim area" and concluded that a significant number of the claimant group (but not all) were descended from either of these two people. The claim failed, however, because the judge concluded that before the end of the nineteenth century those through whom the claimant group sought to establish native title "were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim".

9 His Honour held that, traditional native title having expired, the Crown's radical title expanded to a full beneficial title and native title, once extinguished, could not be revived. It was thus unnecessary for his Honour to rule on other issues in the case, but he added that it was "appropriate that some mention be made of the evidence concerning the current beliefs and practices of the claimant group".

10 The primary submission of Mr Castan QC, who appeared with Mr R Howie for the appellants, was that the trial judge had misdirected himself as to the way in which a court hearing an application for the determination of native title under the Native Title Act should approach the central issue of the existence or otherwise of native title in respect of the claimed area. He contended that the judge had erroneously adopted what he described as a "frozen in time" approach. The States of Victoria and New South Wales, and some of the other respondents who made submissions on the primary point, contested this; they argued that the judge's approach did not involve any "frozen in time" concept and that the approach he adopted gave proper recognition to the capacity of traditional laws and customs to adapt to changed circumstances.

11 The judge's finding that by the end of the 19^th century native title had expired assumed central importance on the hearing of the appeal. The appellants contended that this finding was a manifestation of the "frozen in time" approach. They said that the judge had wrongly equated the existence of native title with the existence of a "traditional society" or a "traditional lifestyle". They also contended that the finding was flawed in other fundamental respects. Specifically, they contended that in making the finding his Honour had ignored historical evidence of a continuing connection with the land and the evidence of living witnesses bearing upon the situation in the late 19^th century. The States of Victoria and New South Wales, and some of the other respondents, argued that the finding of expiry was correctly made, that it was a finding that was open on the evidence to the judge to make, and that it had not been shown to be wrong. They argued that it was properly determinative of the whole case. Accordingly, they submitted, even if there were errors in the judge's approach to other aspects of the case, the finding that native title had expired by the end of the 19^th century necessarily resolved the case against the appellants.

12 A related issue on the appeal concerned what was said to be the failure of the trial judge to make necessary findings of fact, particularly in relation to the traditional laws presently acknowledged and the traditional customs presently observed by the members of the Yorta Yorta community. Counsel for the appellants submitted that the judge had approached the matter from the wrong point in time and that he should have commenced with the present instead of commencing, as they said he had, with the past. In this they were supported by submissions made on behalf of the New South Wales Aboriginal Land Council. It was submitted that the terms of the Native Title Act itself revealed that an assessment of the present laws and customs of the claimant group was the correct starting point. It was also said that a failure to adhere to that process, by beginning instead with an analysis of the situation as at 1788, would result in a court placing undue and potentially misleading reliance on historical documents, and was liable to lead it to overlook permissible adaptations in behaviours and practices. In other words, it was argued, the nature of an inquiry that begins in the past and traces forward is, in itself, likely to result in an erroneous "frozen in time" approach being adopted.

13 I should mention at this point that the submissions made by Mr Castan QC in this appeal were the last that he made before his untimely passing two months later. He was leading counsel for two of the plaintiffs in Mabo v Queensland (No 2) (1992) 175 CLR 1 ("Mabo (No 2)") and had a close involvement in this developing area of Australian law.

The trial judge's reasons:

14 With this general overview of the primary submissions in mind, I now outline the way in which the primary judge approached the evidence and the issues in the case, before returning to consider the questions raised by this appeal.

15 Early in his consideration of the evidence his Honour made findings about the appellants' witnesses. He found that the oral evidence of "many of [them] was in some respects both credible and compelling". This was particularly so with the more senior members of the applicant group, although not always so. The judge was critical of the evidence of "some of the younger members of the claimant group", which he considered to be less impressive than that of their senior colleagues and the subject of embellishment. In a later portion of his reasons, his Honour made a specific finding about the credibility of one of the senior members of the applicant group, Mr Ken Briggs, whom he found to be a "thoroughly honest gentleman and a credible witness".

16 The judge observed that a substantial portion of the oral testimony of the senior members of the claimant group was directed towards establishing their genealogical links with earlier generations. He described the depth of knowledge of these witnesses as most impressive and noted that for the most part, with only minor exceptions, they proved to be accurate. In relation to evidence about traditional laws and customs his Honour observed, at [22]:

"Many witnesses also described what they understood to be the traditional laws and customs of their ancestors, information which was frequently said to have been derived from parents or grandparents, or simply 'from the old people'. The cogency of such evidence does not necessarily depend upon the credibility of the individual witnesses, but must be assessed in the whole context of the case including, where it exists, evidence derived from historical records and the recorded observations of people who witnessed activities and events about which the members of the claimant group know only what has been passed down to them by their forebears."

17 Some observations follow about the considerable body of evidence called by the respondents. The judge noted that it was extremely detailed in content and that its primary focus was directed to what he described as the related questions of whether the traditional laws and customs of the original inhabitants had continued to be acknowledged and observed and whether any pre-existing native title rights and interests had been subjected to extinguishing acts. The judge commented specifically and favourably about the evidence tendered by the States of Victoria and New South Wales concerning the tenure history and current status of the claimed land and waters. His Honour did not, however, make any finding at this point about the respondents' evidence concerning the observance of traditional laws and customs, and extinguishment. He noted that expert evidence had been called, but expressed no findings at that stage about that evidence. Later, at [25], he said that he had derived little assistance from the evidence of the experts who had given evidence in the proceeding as he considered that much of it was based upon speculation.

18 His Honour then wrote of the difficulties inherent in proving facts about a time when, for the most part, the only record of events was oral tradition, but he concluded that the inference that "indigenous people occupied the claim area in and prior to 1788 is compelling". The judge outlined the course of European settlement in the claim area, saying that he was conscious of the need to avoid assuming the role of historian and that his commentary was based upon material tendered by the applicants in support of their case, much of it drawn directly from the applicants' anthropological report. The outline begins with the traverse of the claim area by Hamilton Hume and William Hovell in 1824 and Major Thomas Mitchell's explorations in 1836. It outlines the establishment of pastoral runs and the general expansion of settlement into the Murray Goulburn Valley. Aspects of European contact with Aboriginal people are dealt with, including the appointment of squatters as "guardians" and official policy involving the relocation of children to stations where they could be properly "educated" away from parents and "other traditional distractions". Some were sent to Coranderrk, near Healesville. The narrative continues with a brief account of the work of Daniel Matthews and his establishment, in 1874, of a school and mission station at Maloga and the establishment in 1888 of a new settlement called Cummeragunja. The historical account for the next 100 years centres upon Cummeragunja. His Honour observed that the account includes numerous instances of discrimination and deprivation.

19 His Honour then considered the question of descent and, as I have noted, concluded that only the descendants of Edward Walker and those of Kitty Atkinson/Cooper had been shown to be descendants from persons who were, in 1788, indigenous inhabitants of part of the claim area. In the course of this analysis his Honour was to some extent critical of the evidence of Mr Hagen, the anthropologist called on behalf of the appellants.

20 The judge considered historical evidence about traditional laws and customs. Counsel for the appellants were very critical of aspects of this part of his Honour's reasons and it is necessary that I refer to them in some detail. The judge held that the most credible source of information about traditional laws and customs was to be found in the writings of the pastoralist Curr. This was because he had "at least observed an Aboriginal society that had not yet disintegrated and he obviously had established a degree of rapport with the Aboriginal people with whom he came into contact". His Honour considered that Curr's record of his own observations should be accorded considerable weight. As to the oral testimony of the witnesses from the claimant group, his Honour said that his was "a further source of evidence, but being based upon oral tradition passed down through many generations extending over a period of 200 years, less weight should be accorded to it than to the information recorded by Curr". The judge then set out extracts from Curr's work "selected with a view to providing an indication of what Curr observed in relation to a number of aspects of Bangerang life and culture that may have some bearing upon the traditional laws and customs of the ancestors of the claimant group which are said to have constituted a burden on the radical title of the British Crown at the time it claimed sovereignty in respect of the colony of New South Wales". His Honour concluded that by the 1860s the disturbance of the way of life of the Aboriginal people to which Curr had referred was further advanced and that when the missionary, Daniel Matthews, settled in Echuca in 1864 he found people of many different tribal groups living in the area. Matthews himself, the judge noted, was the architect of further disruption of traditional life and his Honour referred to suppression of the use of indigenous languages and of the observance of traditional practices.

21 There follows a paragraph which, because of its importance in the submissions made on behalf of the appellants, it is desirable that I set out in full. I do so, together with the opening sentence of the paragraph that follows it, which was likewise the subject of much attention during the hearing of the appeal:

"[118] The evidence is silent concerning the continued observance in Matthews' time of those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr. Whether the former territorial areas of the various tribal groups were still recognised and protected as described by Curr is not something upon which there is any evidence. What the evidence does demonstrate is that the land on either side of the Murray had been taken up for pastoral purposes and that there had been both severe dislocation of the indigenous population and a considerable reduction in its numbers due to disease. Furthermore, there is no evidence to suggest that either Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forebears in relation to land.

[119] Apart from any conclusions which may be drawn from the absence of evidence of continued observance of traditional laws and customs in the period after the establishment of Maloga, there is positive evidence emanating from the Aboriginals themselves to the same effect."

22 The positive evidence to which his Honour referred, and to which he gave substantial weight, was a petition to the Governor of New South Wales signed in 1881 by 42 Aboriginal people, many of whom were known to have been resident at, or otherwise connected with, Maloga. The petition sought a grant of land. It is set out in full in his Honour's reasons and I reproduce here only the recitals, which are as follows:

"1. That all the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are used for sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious, and often reducing us and our wives and children to beggary.

2. We, the men of our several tribes, are desirous of honestly maintaining our young and infirm, who are in many cases the subjects of extreme want and semi-starvation, and we believe we could, in a few years support ourselves by our own industry, were a sufficient area of land granted to us to cultivate and raise stock.

3. We have been under training for some years and feel that our old mode of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry, that we may form homes for our families."

23 His Honour said that whilst there could be little doubt that Matthews, the missionary, would have played a part in the composition and presentation of the petition, it had not been suggested that the general thrust of the statements attributed to the petitioners was factually inaccurate or in any way misrepresented their views or aspirations. It was at this point that the judge made the factual finding that was determinative of the appellants' claim:

"It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time. Although many of the claimant group reside within the claim area, many do not. No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. The claimant group clearly fails Toohey J's test of occupation by a traditional society now and at the time of annexation (Mabo No 2, p 192) a state of affairs which has existed for over a century. Notwithstanding the genuine efforts of members of the claimant group to revive the lost culture of their ancestors, native title rights and interests once lost are not capable of revival. Traditional native title having expired, the Crown's radical title expanded to a full beneficial title (Mabo No 2 per Brennan J at p 60)."

24 Having made this finding, the judge concluded that section of his reasons for judgment by stating that it was appropriate that "some mention should be made of the evidence concerning the current beliefs and practices of the Yorta Yorta people". Since the manner, and what was said to be the limited scope, of his Honour's treatment of the evidence of current beliefs and practices is relied upon by the appellants as demonstrating error, it is desirable that I should now outline what his Honour said about that matter.

25 His Honour found that the "main thrust of contemporary activity by members of the claimant group has to do with the protection of what are regarded as sacred sites and the proper management of the land". He referred to oven mounds, shell middens and scarred trees, but concluded that whilst these provided evidence of indigenous occupation and use of land, there was no evidence to suggest "that they were of any significance to the original inhabitants other than for the utilitarian value, nor that any traditional law and custom require them to be preserved". Likewise, he considered that the contemporary practice of conservation of food resources should not be regarded as the continuation of a traditional custom. Fishing was currently engaged in as a recreational activity, rather than as a means of sustaining life. The judge also referred to the evidence of witnesses to the effect that, consistent with traditional laws and customs, it was their practice to take from the land and waters only such food as was necessary for immediate consumption. His Honour's observation about this practice was that it was not one which, according to Curr's observations, was adopted by the Aboriginal people with whom he came into contact and it could not be regarded as the continuation of a traditional custom. In relation to the practice of re-burial, his Honour observed that there could be no question about the importance of returning remains to the appropriate country, but "the modern practices associated with their re-burial are not part of the traditional laws and customs handed down from the original inhabitants". His Honour made similar observations about the extensive involvement of the Yorta Yorta people in activities associated with conservation. He also made findings about the granting of permission to enter upon land. He observed, too, that the applicants readily conceded that they and their forbears had long since ceased to observe traditional practices in relation to initiation or to perform other ceremonial activities frequently, in other Aboriginal societies, indicative of spiritual attachment to the land. Moreover, whilst the preservation of Aboriginal heritage and conservation of the natural environment were worthy objectives, "the absence of a continuous link back to the laws and customs of the original inhabitants" deprived those activities of the character of traditional laws acknowledged and traditional customs observed in relation to land and waters.

26 His Honour concluded, at [129]:

"The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to land of their forebears. The facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs. The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival. This conclusion effectively resolves the application for a determination of native title."

Tradition and Change:

27 This appeal raises questions about the impact of European settlement, dispossession and the consequent abandonment of a traditional lifestyle, upon native title rights and interests. It also raises questions about the way in which evidence should be approached in a native title case when it is said that, over a century ago, the foundation for native title disappeared by reason of the cessation of any real acknowledgment of traditional laws and any real observance of traditional customs: see Mabo (No 2), at 60, per Brennan J; Wik Peoples v Queensland (1996) 187 CLR 1 at 182-184, per Gummow J. How should the evidence be approached in a case in which a determination of native title is sought and it is said that the rights and interests that are claimed to be enjoyed currently are not traditionally based but, rather, to the extent that they exist at all, are really no more than a revival in a modern form of customs or rights lost long ago when the ancestors of the Aboriginal people asserting those rights were dispossessed of their traditional lands and when their traditional lives on those lands came to an end?

28 I begin the discussion of the legal framework within which the issues are to be resolved by noting that the common law as expounded in Mabo (No 2) recognises the universal reality of change, as a system based upon rationality would necessarily do. Thus, Brennan J, in one of the most frequently cited passages from his judgment in Mabo (No 2), said (at 61):

"Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed."

(Emphasis added.)

29 The practicability of observing, in the face of change, customs based upon tradition was acknowledged as a relevant matter by Brennan J in an earlier passage in his judgment in Mabo (No 2), where his Honour said (at 59 - 60):

"Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise." (Emphasis added.)

30 That the notion of practicability in relation to the observance of customs was seen as significant by Brennan J is confirmed by his later reference to that notion when writing of the circumstances in which the foundation of native title disappears (at 61). Later, in stating in summary form what he held to be the common law of Australia with reference to native title, Brennan J said (at 70):

"It is immaterial that the laws and custom have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains."

31 Other members of the Court in Mabo (No 2) referred to changes in traditional laws and customs in terms that suggest that even substantial changes will not necessarily bring native title to an end. Deane and Gaudron JJ said (at 110):

"The traditional law or custom is not, however, frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land."

Toohey J said (at 192):

"An argument to the effect that, regardless of the state of things at the time of annexation, the Meriam people now do not have title because they no longer exercise 'traditional' rights and duties and have adopted European ways also fails. There is no question that indigenous society can and will change on contact with European culture. Since annexation a school, a hospital, the Island Court, the Island Council, a police force and other government agencies have been introduced to the Islands. Christianity has had a profound influence; so too have changed means of communication. The economy of the Islands is now based on cash from employment rather than on gardening and fishing.

But modification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life." (Footnotes omitted.)

32 Nothing in section 223 of the Native Title Act casts doubt upon the potential for native title, as now defined for the purposes of the Act, to survive change, and cases decided since the enactment of the Act have demonstrated that native title may continue to exist notwithstanding that profound changes have impacted upon those by whom the relevant native title rights and interests are possessed.

33 Section 223 relevantly provides:

"Common law rights and interests

(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

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

..."

34 The definition is in the language of the present, and so in applying the statutory definition of native title the question is whether the claimed rights and interests are possessed under the traditional laws acknowledged - that is to say now acknowledged - and the traditional customs observed - now observed - by the Aboriginal peoples. A critical question, of course, in the application of the definition is whether the relevant laws and customs are "traditional". It will be necessary to return to that question, but it was not in controversy on the hearing of the appeal that native title will no longer exist once its foundation has disappeared by reason of the disappearance of any real acknowledgment of traditional law and real observance of traditional customs. Where such circumstances exist, the claimed rights and interests will no longer be possessed under what are truly "traditional" laws acknowledged and customs observed.

35 It is wrong, however, to see "traditional" as, of its nature, a concept concerned with what is dead, frozen or otherwise incapable of change. As Beaumont and von Doussa JJ observed in Commonwealth v Yarmirr (1999) 168 ALR 426 at [65], citing The Macquarie Dictionary, 3^rd ed., the meaning of "traditional" is that which is "'handed down by tradition' and 'tradition' is 'the handing down of statements, beliefs, legends, customs etc., from generation to generation, especially by word of mouth or by practice'". The Oxford English Dictionary gives a very similar definition, again emphasising that tradition is the handing down of statements etc., especially by word of mouth or by practice, and not by writing. Far from being concerned with what is static, the very notion of "tradition" as involving the transmission from generation to generation of statements, beliefs, legends and customs orally or by practice implies recognition of the possibility of change.

36 Given the historical and legal context of s 223 of the Native Title Act, the relevant "tradition" for the purposes of s 223 must, however, at least have had its roots in the laws and customs that provided the foundation for the native title that burdened the radical title acquired by the Crown. Nevertheless, the nature of the concept of "traditional" in the context of s 223 implies that adapted and evolved laws and customs which, in their essence, still reflect the continuity of tradition, will fall within the concept of "traditional" for the purposes of a determination of native title. The recent cases support this view.

37 Such has been the impact of European settlement upon Aboriginal people that questions may well arise as to whether particular customs are "traditional" in the sense that I have described, or whether their link with the past is so tenuous they can no longer be seen as "traditional". It may be, however, that even in the latter case the asserted "traditional" law or custom may nevertheless provide indirect support for rights founded upon what are truly "traditional" laws and customs. Practices that are not "traditionally based", in the sense that they are not rooted in the past, may still illuminate and support other practices that are "traditional" in the sense used in s 223.

38 I now turn to the recent cases, all but one of which were decided after the decision of the learned primary judge in the present case. In Yanner v Eaton (1999) 166 ALR 258 the High Court considered whether a magistrate was right in acquitting the appellant on a charge of keeping fauna without a permit, contrary to the Fauna Conservation Act 1974 (Qld), on the ground that the appellant was exercising native title rights and interests protected by the Native Title Act. The appellant had used a traditional form of harpoon to catch two juvenile estuarine crocodiles in a creek near the Gulf of Carpentaria. The appellant (and other members of his clan) ate some of the crocodile and froze the rest of the meat, and the skin, which he then kept at his home. The magistrate found that it was a traditional custom of the appellant's clan to hunt juvenile crocodiles for food and that the evidence suggested that the taking of juvenile rather than adult crocodiles had "tribal totemic significance and [was based on] spiritual belief".

39 The case provides an example of the survival of a native title right in the face of legislative regulation of an activity, and profound changes in the circumstances in which the traditional activity was carried out. In their joint judgment, Gleeson CJ, Gaudron, Kirby and Hayne JJ pointed out, at [38], that native title rights and interests must be understood as "a perception of socially constituted fact" as well as "comprising various assortments of artificially defined jural right". They went on to say that an important aspect of the socially constituted fact of native title rights and interests recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land did not sever the connection of the Aboriginal peoples with the land. Section 211 of the Native Title Act necessarily assumed, in any event, that a conditional prohibition of the kind in issue in that case did not affect the existence of the native title rights and interests in relation to which the activity which was pursued.

40 The other feature of the case that illustrates the continued existence of native title rights in the face of change was the method used to hunt the crocodiles. As appears from the reasons for judgment of Gummow J, at [68], Mr Yanner hunted the estuarine crocodiles with a traditional harpoon-type weapon, known as a "wock", but using a dinghy powered by an outboard motor. Gummow J observed:

"This was an evolved, or altered, form of traditional behaviour. That is, the use of this mechanical device to provide transport during the hunt was not a method of hunting known to the appellant's tribe before contact with non-indigenous people." (Footnote omitted.)

41 Gummow J noted that, at trial, the magistrate had held that this method of hunting was consistent with the traditional custom of the appellant's indigenous community and that that finding was not challenged. His Honour later noted, at [70], that it was not challenged that the appellant's conduct in eating part of the crocodiles, sharing part and freezing the remainder with the skins and keeping them at this home, was at all times within the customs of his community.

42 While recognising that the content and manner of exercise of the asserted native title right or incident was not in issue, it is, I think, legitimate to note that the existence of such a right to hunt was accepted in circumstances that necessarily involved very large changes from what must have been the method of exercise of the right and the disposition of the products of the hunt at a time long before the invention of the outboard motor (or indeed any practical form of mechanical propulsion over water) and long before the invention and ready availability of any method of freezing food in the tropics. Moreover, the changes just mentioned cannot, of their very nature, be isolated simply to the presence or otherwise of an outboard motor and a refrigerator. The mere presence and use of such devices implies much else.

43 It can readily be appreciated how hunting with the use of an outboard motor (or to take examples accepted by at least some of the present re

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V34 of 1999

JUDGES:	BLACK CJ, BRANSON & KATZ JJ
DATE OF ORDER:	8 FEBRUARY 2001
PLACE:	MELBOURNE

Amendment to the Reasons for Judgment of the Court delivered on 8 February 2001.

MELBOURNE

EXPLANATORY STATEMENT