Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out

Stephenson

VIEWS: 25 PAGES: 28

  • pg 1
									                                                                                                           1

                      DRAFT Paper: Not to be cited or reproduced without the author‟s permission.
       The Politics of Community and Identity: Learning from One Another, May 20-22, 2009, Uni of Ottawa



   What is an Indigenous Claimant ‘Society’ in the Context of Proving Native
                                              Title in Australia?
                                               Margaret Stephenson1


1. Introduction

   In Australia native title was recognized for the first time in the 1992 High Court decision in
   Mabo v State of Queensland (No2).2 This title was acknowledged by Mabo (No2) as a
   communal title to land to be held by an Indigenous community. In 1993 the Commonwealth
   government enacted the Native Title Act 1993 (Cth) (hereinafter NTA) which gave statutory
   effect to much of the High Court‘s decision in Mabo (No2). In 2002 the High Court in Yorta
   Yorta Aboriginal Community v Victoria3 reviewed the requirements for Indigenous claimants
   to succeed in a native title determination under the Native Title Act and confirmed that the
   claimants must prove the elements contained in section 223 of that Act. In accordance with
   section 223(1) of the Native Title Act the basis for a claim for the recognition of native title is
   proof of a connection with the traditional land or waters in accordance with the laws and
   customs of the Aboriginal society. Although there are no express provisions in the Native
   Title Act requiring an identification of the nature of the relevant society the High Court in
   Yorta Yorta confirmed that one of the requirements in proving native title involves the
   claimant group establishing a particular type of ‗society‘. The High Court in Yorta Yorta
   further set out what type of society is required in proving native title stating that a claimant
   society is ―a body of persons united in and by its acknowledgement and observance of a body
   of laws and customs‖.4 Following the High Court‘s interpretation of ‗society‘ in Yorta Yorta
   the identification of the relevant ‗society‘ has become a key question for native title
   claimants. Not only must the relevant society be identified during the proceedings for the
   native title claim but it is also relevant when a determination of native title is made.5


   1
       Margaret Stephenson, TC Beirne School of Law, The University of Queensland, Australia.
   2 (1992) 175 CLR 1 (hereinafter Mabo(No 2).
   3
       (2002) 214 CLR 194, 440 (hereinafter Yorta Yorta).
   4
       Yorta Yorta [49 and 55] and ss 223(1) and 225 (a) NTA.
   5
       NTA ss 223, 225.
                                                                                                                 2


For the purposes of a native title claim the relevant society is not defined by anthropological
and sociological concepts of a society. It is defined only in the sense in which the High Court
outlined in Yorta Yorta. In essence the relevant society is defined as a body of laws and
customs pursuant to which rights and interests in land and waters are held. Thus a relevant
society is one whose laws and customs grant and regulate rights and interests in the land and
waters. The relevant society must furthermore have existed at the time the Crown asserted
sovereignty and must have continued to the present time. The joint judgment of Gleeson CJ,
Gummow and Hayne JJ in Yorta Yorta detailed the principles for identifying the relevant
society. As the Full Court of the Federal Court explained in Northern Territory v Alyawarr:6
         ―The concept of a ―society‖ in existence since sovereignty as the repository of
         traditional laws and customs in existence since that time derives from the reasoning in
         Yorta Yorta. The relevant ordinary meaning of society is ―a body of people forming a
         community or living under the same government‖ — Shorter Oxford English
         Dictionary. It does not require arcane construction. It is not a word which appears in
         the NT Act. It is a conceptual tool for use in its application. It does not introduce, into
         the judgments required by the NT Act, technical, jurisprudential or social scientific
         criteria for the classification of groups or aggregations of people as ―societies‖. The
         introduction of such elements would potentially involve the application of criteria for
         the determination of native title rights and interests foreign to the language of the NT
         Act and confining its application in a way not warranted by its language or stated
         purposes.‖


This paper will review precisely what the joint majority judgment of the High Court in Yorta
Yorta required to establish the relevant ‗society‘ for a native title claim under s 223 NTA. To
determine this requirement this paper will first review the legal position in relation to
determinations and proof of native title in Australia to establish the context in which this
question operates.7 It will further examine the Yorta Yorta High Court‘s analysis and

6
 Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005]
FCAFC 135 (hereinafter ―Alyawarr”), [78].
7
 See generally in relation to proof of native title and the Yorta Yorta decision: Richard H Bartlett, 'Humpies not
Houses or The Denial of Native Title: A Comparative Assessment of Australia's Museum Mentality' (2003) 10
Australian Property Law Journal 83; Sean Brennan, 'Native Title in the High Court a Decade after Mabo'
(2003) 14 Public Law Review 209; Native Title in Australia (2nd ed, 2004) Ch 7; Lisa Strelein, 'Members of the
Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, 'Comment' (2003) 2 Land, Rights, Laws: Issues
of Native Title 1; Melissa Castan and Sue Kee, 'The Jurisprudence of Denial: The Political Devolution of the
Concept of Native Title' (2003) 28 Alternative Law Journal 83; Wayne Atkinson, 'Not One Iota" of Land
Justice: Reflections of the Yorta Yorta Native Title Claim 1994-2001' (2001) 5(6) Indigenous Law Bulletin 19;
                                                                                                               3


reasoning in its interpretation of an Indigenous ‗society‘. Finally, this paper will focus on the
requirements to establish ―who is the claimant society‖ as interpreted by subsequent
Australian court decisions.


Thus the following will be considered:
        The Yorta Yorta High Court‘s reasoning and interpretation of a ‗society‘ under section
         223 NTA.
        The elements required to prove native title under section 223 NTA, and
        How post Yorta Yorta decisions have interpreted the requirements for a claimant
         ‗society‘.


    2.     Determinations of native title claims under the Native Title Act

Since the Mabo (No2) High Court decision in 1992, native title exists independently of any
statute and does not depend on any claims process for its existence. However, the Native Title

Lisa Strelein, Comprised Jurisprudence: Native Title Cases Since Mabo, Aboriginal Studies Press, 2006; Simon
Young, Trouble with Tradition: Native Title and Cultural Change, The Federation Press, 2008; Graham, Hiley,
―What is the relevant 'society' for the purposes of native title? Will any society do?‖ Native Title News; 8 (9)
July 2008: 143.
See generally in relation to the Yorta Yorta case: Anker: Kirsten, ‗Law in the Present Tense: Tradition and
Cultural Continuity in Members of the Yorta Yorta Aboriginal Community v Victoria‘ (2004) 28(1) Melbourne
University Law Review 1;; Bartlett, Richard, ‗An Obsession with Traditional Laws and Customs Creates
Difficulty Establishing Native Title Claims in the South: Yorta Yorta‘ (2003) 31(1) University of Western
Australia Law Review 35; Basten, John, ‗Beyond Yorta Yorta‘ (2003) 2(24) Land, Rights, Laws: Issues of
Native Title 1; Costenoble, Karin, 'Defining Native Title: What is a Normative System?' (2003) 6(3) Native Title
News 30; Glaskin, Katie, ‗Native Title and the 'Bundle of Rights' Model: Implications for the Recognition of
Aboriginal Relations to Country‘ (2003) 13(1) Anthropological Forum 67; Henriss-Anderssen, Dianna, 'Case
note: Members of the Yorta Yorta Community v Victoria [2002] HCA 58 (12 December 2000)' (2003) 9(1)
James Cook University Law Review 331; McIntyre, Greg, ‗Native Title Rights after Yorta Yorta‘ (2003) 9(1)
James Cook University Law Review 268; Moreton-Robinson, Aileen, ‗The Possessive Logic of Patriarchal
White Sovereignty: The High Court and the Yorta Yorta Decision‘ (2004) 3(2) Borderlands E-Journal 1;
Ritter, David, ‗The Judgement of the World: the Yorta Yorta Case and the 'Tide of History'‘ (2004) 35(123)
Australian Historical Studies 106; Seidel, Peter, ‗Native title: the Struggle for Justice for the Yorta Yorta
Nation‘ (2004) 29(2) Alternative Law Journal 70; Strelein, Lisa, 'The "Courts of the Conqueror": Judicial
Independence and the Assertion of Indigenous Peoples' Claims' (2000) 5(2) Australian Indigenous Law
Reporter 1; Strelein, Lisa, ‗Members of the Yorta Yorta Aboriginal Community v Victoria - Comment' (2003)
2(21) Land, Rights, Laws: Issues of Native Title 1; Weiner, James, 'Diaspora, Materialism, Tradition:
Anthropological Issues in the recent High Court Appeal of the Yorta Yorta‘ (2002) Land, Rights, Laws: Issues
of Native Title 2(18); Young, Doug and Tony Denholder, ‗Proof of Native Title: Yorta Yorta‘ (2001) 20(1)
Australian Mining and Petroleum Law Journal 82; Webb Raelene & Kennedy Gordon; ‗The application of
Yorta Yorta to native title claims in the Northern Territory : the City and the Outback‘ (2006) 25(2) Australian
Resources and Energy Law Journal, 201; Sean Brennan, "Native Title in the High Court of Australia a Decade
after Mabo" (2003) 14 (4) Public Law Review 209, 213. Young, Simon, "The Trouble with 'Tradition': Native
Title and the Yorta Yorta Decision" (2001) 30 (1) University of Western Australia Law Review 28; Tehan,
Maureen, "A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten
Years of the Native Title Act" (2003) 19 Melbourne University Law Review; Pearson, Noel. ‗The High Court‘s
Abandonment of ‗The Time-Honoured Methodology of the Common Law‘ in its Interpretation of Native Title
in Mirriuwung Gajerrong and Yorta Yorta‘ (2003) 7(1) Newcastle Law Review 1.
                                                                                                                  4


Act provides a process by which application can be made for a determination as to whether
native title exists. A determination of native title under section 225 of the Native Title Act
decides and states: 8
      Whether or not native title exists;
      Who holds native title;
      What native title rights exist – the nature and extent of those rights;
      Whether native title rights and interests confer possession, occupation, use and enjoyment
       to the exclusion of all others;
      The relationship and interaction between the native title rights and interests and other
       interests over the area.
Section 225 does not expressly provide that a ―society‖ be identified in the determination
(although members of the native title claim group must be named in an application for a
determination of native title).9Applications for native title can be made to and determined by
the Federal Court.10


Holders of Native Title: Native title is a communal title and both at common law and under
the Native Title Act the emphasis is on the collective society. The native title claimant group
and its members will require some identification. First, all members of the native title
claimant group must be named in an application for a determination of native title. 11
Secondly, the Federal Court must also determine who holds native title at the same time as it
determines the existence of native title.12 To some extent the issue of identification of the
precise ‗society‘ can be avoided as the Native Title Act allows the native title holders to
choose between vesting title in a prescribed body corporate acting as trustee for the common
law holders, or vesting native title in a prescribed body corporate being the common law
holders themselves.13 If the native title holders choose to hold native title themselves then it is

8
  Section 225 also includes a determination that native title does not exist. The Yorta Yorta decision was the
highest profile case that native title does not exist.
9
  NTA s 61(4).
10
  NTA s 6. See also NTA ss 61 and 24FA. Contested determinations: The Federal Court has made 21
determinations under s 225 of the NTA. Another two applications have been dismissed following full hearings
on their merits See re dismissals 8 NTN 113–114. Other determinations: More than 55 determinations have
been made by consent. A number of determinations have also been to the effect that native title does not exist.
NTA ss 86G and 87. Details regarding all of the determinations made may be found on the NNTT website at
<http://www.nntt.gov.au/Pages/default.aspx>.
11
     NTA s 61(4).
12
     NTA s 225.
13
     NTA s 56.
                                                                                                            5


possible (under regulations) that a prescribed body corporate could be appointed to act as
agent for the common law holders.14


     3. Yorta Yorta High Court’s interpretation of ‘society’

How did the High Court in Yorta Yorta Aboriginal Community v Victoria15 interpret ―who is
the claimant society‖ for the purposes of section 223(1) of the Native Title Act? In 2002 the
High Court in Yorta Yorta (as had the Federal Court, the Full Federal Court on appeal) found
that the Yorta Yorta Aboriginal Community failed to meet the requirement of the relevant
‗society‘ under the Native Title Act and failed to establish sufficient evidence of the
observance of traditional laws and customs to prove native title.


The Yorta Yorta Aboriginal community applied for a determination of native title under the
Native Title Act 1993. They claimed that native title existed in relation to certain areas of land
on the Murray River valley in Victoria and New South Wales, which were among the most
productive agricultural regions in Australia. Due to pressures of European settlement of the
claim area, their society had changed greatly since 1788 and this was acknowledged by the
claimants. The Yorta Yorta community had seen the appropriation of their traditional lands
for pastoral and agricultural purposes, had experienced the forced removal of their members
to missions and government settlements and the separation of Aboriginal children from their
families, and the prohibition of traditional ceremonies and the speaking of traditional
languages. The claimants argued that, despite the above, they had a system of traditional
customs and practices which had been passed down from their ancestors, albeit in an altered
form. And, they claimed they had maintained a traditional relationship to the land and had
been in continuous physical occupation.


Olney J in the Federal Court found that at some time prior to the end of the 19th Century the
Yorta Yorta ancestors had ―ceased to occupy their traditional lands in accordance with their
traditional laws and customs‖ and at this time native title ceased to exist.16 Olney J rejected
the contemporary practices of the Yorta peoples as the acknowledgement of their laws and


14
   NTA ss 56(2)(c), 58. For the role and functions of prescribed bodies corporate see Corporations (Aboriginal
and Torres Strait Islander) Act 2006.
15
   (2002) 194 ALR 538.
16
  Members of the Yorta Yorta Aboriginal Community v Victoria [1998] 1606 FCA (hereinafter Yorta
Yorta(1998)), [129].
                                                                                                           6


traditions because they were not undertaken by the pre-sovereignty society and were not
significant to that pre-sovereignty society.17 Olney J considered that as there was no reference
or connection to the laws and customs of the original inhabitants such activities lacked a
traditional character. His Honour found that on the evidence presented the Yorta Yorta had
lost their status as a traditional society. Olney J had given great emphasis to the historical
evidence.18 He considered that credible information about the community‘s traditional laws
and customs was to be found in the writings of the pastoralist, Curr, and a missionary, Daniel
Matthews. Both had written about the disruption of the community‘s traditional life and the
suppression of their language and the lack of observance of traditional practices (in the mid
1800s).


The Full Federal Court also found that the claim was unsuccessful.19 The High Court reached
the same conclusion.20 The High Court found that the Yorta Yorta people no longer observed
the same normative system that burdened the Crown‘s acquisition of sovereignty. Despite the
group‘s genealogical and physical continuity and despite their existence as an Indigenous
community who regarded themselves as bound by rules of normative content, the group who
asserted native title were a different Yorta Yorta ‗society‘ from the society that once held
native title.21 This was because the contemporary rules had no source in the normative system
of the original Yorta Yorta people from whom they were directly descended.


The majority joint judgment (Gleeson CJ and Gummow and Hayne JJ) reasoned as follows:


Intersection of normative systems: Having regard to the concept of native title being
recognised at the intersection between Indigenous and non-Indigenous systems of law the
majority focused on identifying exactly what traditional laws and customs intersect with the
common law.22 The majority found that recognition is given to the laws and customs that
existed at sovereignty and not to today‘s laws and customs which may have some reference
or connection with the laws and customs that existed at sovereignty. Thus majority found

17
     Yorta Yorta (1998) [121-5].
18
     Yorta Yorta (1998) [123].
19
  Members of the Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244 (hereinafter Yorta Yorta
(2002)).
20
     Yorta Yorta (2002) 214 CLR 422.
21
     Yorta Yorta [96].
22
     Yorta Yorta [31].
                                                                                                7


that native title is sourced in a ‗normative‘ Aboriginal ‗system‘ which existed at the time of
sovereignty.23 Any rights and interests created after sovereignty would not be recognised by
the common law and would not be given legal effect. The only rights or interests in relation
to land or waters afforded recognition after sovereignty are those which have their origin in
pre-sovereignty law and custom.24


Meaning of „tradition‟: Having established that the source of native title is in the pre-existing
normative system the majority reviewed the meaning of ‗tradition‘ in section 223 NTA. The
majority agreed that the meaning of tradition is more than generational transmission of law or
custom. 25 The joint judgment considered that the NTA ―conveys an understanding of the age
of the traditions‖,26 which means that ‗traditional‘ laws and customs include only the rights
and interests that are found in the normative rules of the pre-sovereignty society.27 Because
the post-sovereignty society is unable to create new rights and interests which will be
recognised under the NTA the only rights and interests which have recognition post-
sovereignty are those whose origin is in pre-sovereignty law and custom.28


Continuous existence of normative system required: The majority regarded it as essential that
the normative system has had a continuous existence and vitality since sovereignty. 29 The
normative system can continue to exist only if the society continues to observe and
acknowledge the traditional laws and customs. It can thus be said that the continued
maintenance of the normative system defines the society.30 This reasoning does not mean
simply tracing activities, rights or interests to pre-sovereignty times but rather focusing on the
traditional ‗body of laws‘. The issue is whether the laws and customs ―can be said to be the
laws and customs of the society whose laws and customs are properly described as
traditional laws and customs‖.31 If the normative system fails to exist in the post-sovereignty
period then the rights and interest owing their existence to this system will also cease to exist.


23
     Yorta Yorta [37-42, 46-47].
24
     Yorta Yorta [44].
25
     Yorta Yorta [46-47].
26
     Yorta Yorta [46].
27
     Yorta Yorta [79-86, 77].
28
     Yorta Yorta [37-42, 43-44, 46-47].
29
     Yorta Yorta [47].
30
     Yorta Yorta [49]. Strelein (2006), above n 7, 87-88.
31
     Yorta Yorta [56].
                                                                                                   8


Any revival of the traditional laws and customs will not result in the recognition of native
title.32


Connection between laws and customs and a society: The close connection between laws and
customs and the society out of which they arise was emphasised by the Court. The reasoning
of the majority in the Yorta Yorta High Court would mean that any group which does not
currently exist as a ‗society‘ and which does not acknowledge and observe traditional laws
and customs would not succeed in a claim to establish native title.33 Their Honours stated:
           ―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.‖ 34
And also the joint judges 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 which are not rooted in
           pre-sovereignty traditional law and custom but in the laws and customs of the new
           society.‖ 35



32
     Yorta Yorta [47].
33
     Yorta Yorta [49 cf 55]. Young, above n 7, 323.
34
     Yorta Yorta [50].
35
     Yorta Yorta [53].
                                                                                                       9


Laws and customs giving rise to rights and interests in land and waters: The key enquiry
under the Native Title Act in relation to native title concerns the rights and interests of native
title in relation to land and waters.36 The often quoted statement of the joint judgment that
exemplifies the definition of society is:

          ―Law and custom arise out of and, in important respects, go to define a particular
          society. In this context, ―society‖ is to be understood as a body of persons united
          in and by its acknowledgment and observance of a body of law and customs.‖ 37

However, an additional requirement mandates that the rights and interests in lands and waters
must be held under those laws and customs.38 This is because the reference to ‗land and
waters‘ in the NTA requires that the rights and interests must be ‗in relation to‘ either of
those subjects.39 The joint judgment stated:

            ―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.‖40

And further:

            ―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.‖ 41

Thus, to identify a normative ‗society‘ as described by the Yorta Yorta majority it is
necessary to first examine the laws and customs pursuant to which rights and interests, in




36
  See NTA s223 defining native title and NTA s 225 stating how native title is to be recognised in a
determination. Yorta Yorta at 549.
37
     Yorta Yorta [49].
38
     Yorta Yorta at [37], [38], [47], [50], [53], [87] and [89].
39
     Yorta Yorta, 549.
40
     Yorta Yorta [37].
41
     Yorta Yorta [38] see also [40], [41], [47] and [89].
                                                                                                          10


relation to land and waters are held.42


Terminology of „society‟: The joint majority judgment deliberately elected to use the word
‗society‘ as opposed to ‗community‘, to "emphasise this close relationship between the
identification of the group and the identification of the laws and customs of that group".43


Comment: The High Court‘s reasoning in Yorta Yorta results in a restrictive interpretation of
the concept or notion of a ‗society‘ and contributes to even greater difficulties in establishing
native title.44 As Strelein has noted ―to establish a coherent and continuous society defined by
a pre-sovereignty normative system creates enormous ambiguity in the requirement of
proof‖.45       Additionally of concern in the reasoning is that a non-Indigenous identity is
responsible for ruling on whether an Indigenous society‘s culture and law are consistent with
that of the pre-sovereignty normative system.46 Identifying the ‗society‘ is clearly of critical
importance to the success of any native title claim.


4. Proof of native title under the Native Title Act

This section of the paper will now examine the role of ‗society‘ in the general requirements
for proof of native title. The foundation of any native title claim is establishing proof that by
the traditional laws and customs of the claimant group they have a connection with the
traditional land or waters in accordance with the definition of native title in section 223 NTA.
As discussed above in 2002 in Yorta Yorta47 the High Court re-interpreted the tests for proof
of native title in the context of the NTA.48 Native title is defined in section 223(1) of the

42
   This has been followed in Daniel v Western Australia [2003] FCA 666, Moses v State of Western Australia
(2007) 160 FCR 148; Dale v Moses [2007] FCAFC 78, Jango v Northern Territory [2006] FCA 318; Jango v
Northern Territory (2007) 159 FCR 531; 34 Harrington-Smith on behalf of the Wongatha People v State of
Western Australia (No 9) [2007] FCA 31; Bodney v Bennell [2008] FCAFC 63, Gumana v Northern Territory of
Australia (2007) 158 FCR 349; [2007] FCAFC 23; State of Western Australia v Sebastian [2008] FCAFC 65,
De Rose v State of South Australia (No 2) (2005) 145 FCR 290; [2005] FCAFC 286; Northern Territory of
Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442;
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; Lardil,
Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland [2004] FCA 298 (hereinafter “Lardil”).
Hiley, above n 7.
43
   Yorta Yorta [49] footnote 94.
44
     See Strelein (2006), above n 7, 90.
45
     See Strelein (2006), above n 7, 90.
46
     See Strelein (2006), above n 7, 90.
47
     (2002) 194 ALR 538.
48
  See further Bodney v Bennell (Noongar) (2008) 167 FCR 84; Western Australia v Sebastian (Rubibi) [2008]
FCAFC 65; Risk v Northern Territory of Australia (Larraki) [2007] 240 ALR 75; Griffiths v Northern Territory
                                                                                                    11


NTA which provides:

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:
            (1)(a) The native title rights and interests must be possessed under the traditional
           laws acknowledged, and the traditional customs observed, by the claimant group.
            (1)(b) The claimant group, by the traditional laws acknowledged and the traditional
           customs observed have a connection with the land or waters claimed.
           (1)(c) The rights and interests are recognised by the common law of Australia.
Section 223 defines native title but it fails to provide for any particular type of ‗society‘ to be
identified in a native title determination.


The following elements must be established to prove native title under the NTA:


(i) Traditional laws and customs (s223 (1)(a))
Section 223(1) (a) requires that the claim group, the society, (as a whole) establish a
normative ‗body of laws and customs‘ (the traditional laws and customs) pursuant to which
native title rights and interests are held in the claim area.49 In Yorta Yorta the approach taken
by the majority of the High Court was to treat ‗traditional‟ as meaning pre-sovereignty.50
That is the laws and customs that are currently observed by the claimants must be sourced in
laws and customs that were observed by their ancestors prior to the Crown asserting
sovereignty over the claim area. Thus, the only rights and interests recognised as native title
will be those that have their origin in pre-sovereignty laws and customs.51 Creation of new
rights post the acquisition of sovereignty is not possible.52 For example, although fishing was
a pre-sovereignty activity, if the selling of fish was not undertaken in pre-sovereigtny times it
could not be a native title right today.


(2007) 243 ALR 72; Moses v State of Western Australia (2007) 241 ALR 268; Dale v Moses [2007] FCAFC 82;
Harrington-Smith v Western Australia (No 9) (Wongatha) [2007] FCA 31; Gumana v Northern Territory of
Australia (Blue Mud Bay Federal Court Decision) (2007) 239 ALR 272; Northern Territory v Arnhem Land
Aboriginal Land Trust (Blue Mud Bay) [2008] HCA 29; Jango v Northern Territory (2007) 240 ALR 432;
Alyawarr v Northern Territory (2005) 220 ALR 431 (Alyawarr); De Rose v State of South Australia (No 2)
(2005) 145 FCR 290 (De Rose (No 2)); De Rose v State of South Australia (2003) 133 FCR 325.
49
   Yorta Yorta [85-86]; De Rose (No2) [57-58].
50
     Yorta Yorta, [44], [113].
51
     Yorta Yorta, 441-444.
52
     Yorta Yorta, 443-444.
                                                                                                          12



Normative content of laws and customs: It will not be sufficient for the laws and customs
under which the rights and interests are held to be merely patterns of behaviour; they must
have a normative content.53 Thus the body of laws and customs must provide a standard
which regulates the way the society lives. For example, in Harrington-Smith on behalf of the
Wongatha People v Western Australia (No 9) Lindgren J stated that: ―... whether residence
within a claim area and hunting by an individual are probative of a standard or norm will
require close attention to the reasons why the individual resides in the claim area or hunts
…”.54       Lindgren J noted that the reasons given by the claimants for hunting, such as
inexpensive recreation, socialising with family and friends, passing on knowledge and skills
gained from previous generations to children and grandchildren, and obtaining supplements
to their food supply did not constitute evidence of the observance of traditional laws and
customs.55


Continuity of observance of traditional law and customs: Section 223(1)(a) further requires
that the system of laws and customs had a continuous existence and vitality since
sovereignty. If the system of laws and customs ceases to operate for any period then the
rights and interests that owe their existence to that system will cease to exist.56 Any attempt
to revitalize the system would not amount to native title under the Act. Therefore, the native
title claimants must have continued, substantially uninterrupted, to observe the traditional
laws and customs since pre-sovereignty times.


Change and adaptation: How much change is possible and how far can native title evolve
and yet still be ‗traditional‘? In Mabo (No 2) it was recognised that in time the laws and
customs of any peoples will change and that native title would not be ‗frozen‘ at the time of
settlement of Australia.57 Adaptations and changes to traditional laws and customs were not
considered by the Yorta Yorta High Court to be fatal to proving a native title claim under s


53
  Yorta Yorta [42]. The use of the term ‗normative‘ is not defined by the High Court but could mean the
customary situation or standard pattern of behaviour that is considered normal in a society.
54
  Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1, [332]
(hereinafter Wongatha).
55
     Wongatha, [953].
56
  Yorta Yorta, 443-444 per Gleeson CJ, Gummow and Hayne JJ; 463 per Gaudron and Kirby J; Commonwealth
of Australia v Yarmirr [2001] 208 CLR 1, 443-444
57
     Mabo (No 2) per Brennan J at 60-61; Deane and Gaudron JJ at 110; Toohey J at 192.
                                                                                                     13


223(1)(a) provided that the claimant‘s rights and interests could be shown to have their
source in traditional laws:58 Thus, the use of contemporary means to undertake traditional
activities will not, of itself, mean a loss of native title. For example, in Yanner v Eaton59
Gummow J considered that using a motorised boat in which to carry out traditional hunting
and fishing was an ‗evolved or altered form of traditional behaviour‘ and thus it was an
exercise of a native title right. In Harrington-Smith on behalf of the Wongatha People v
Western Australia(No 9) Lindgren J stated that: ―I have no difficulty in regarding the changes
from residence in wiltjas (Aboriginal bough shelters) to residences in houses, from hunting
on foot with spears to the use of motorised transport and rifles, and from the use of sharp
stones to razor blades in the ceremony of male initation, as adaptations‖.60 It is important to
ensure that the modified activities are sourced in the traditional laws and customs of the
group. Furthermore, an interruption in the observance of the traditional laws and customs will
not be regarded as simply an adaptation.61


(ii) A claimant ‘society’ (s 223(1)(a))
It was considered by the Yorta Yorta High Court to be implicit in s 223(1)(a) there was ―a
body of persons united in and by its acknowledgement and observance of a body of laws and
customs‖.62 Thus a pre-sovereignty society with a normative system, that is a system of laws
and customs, must have existed prior to colonisation. It must also be demonstrated that this
pre-sovereignty society has substantially maintained its identity and existence from
generation to generation, in accordance with the traditional laws and customs, through to the
present time.63 Additionally, it must be established that the claim group today, as a whole,
acknowledges and observes the traditional laws and customs.64 If the society or community
from whom those laws derive no longer exists or if that society has extensively changed its
form from the time of sovereignty or if the laws and customs are no longer observed then this
will mean an inability to claim native title.65 In determining the ‗society‘ what is required
under the Native Title Act is evidence demonstrating that a body of laws and customs

58
     Yorta Yorta [83].
59
     (1999) 201 CLR 351.
60
     (2007) 238 ALR 1, [332].
61
     Yorta Yorta, 455, 456.
62
     Yorta Yorta, [49].
63
     Yorta Yorta, 443-444, [47]-[56], [89], [95].
64
     Yorta Yorta [85]-[86]; De Rose (No 2) at 57-58.
65
     Yorta Yorta, [49]-[57]; Sampi v Western Australia [2005] FCA 777, [1046] (hereinafter Sampi).
                                                                                                        14


pursuant to which rights and interests in relation to the land or waters exist, and that members
of the ‗society‘ abide by those laws and customs, together with evidence showing the
continuance of that ‗society‘ in adhering to those laws and customs.66


(iii) A connection with land or waters (s 223(1)(b))
Section 223(1)(b) of the Native Title Act requires that the claimants establish a ―connection‖
with the land or waters claimed and establish that connection exists ―by the laws and
customs‖. Occupation of the land is not, in itself, enough to establish a connection;67 and
neither is connection directed at how Aboriginal people use the land.68 In Mabo (No 2) the
High Court took different interpretations of the ―connection‖ requirement at common law.
Brennan J noted that a ‗traditional connection‘ with the land was required.69 Deane and
Gaudron JJ highlighted ‗occupation and use‘ and recognised that use of the land must be of
sufficient significance to establish a locally recognisable special relationship with the land.70
Toohey J took the view that occupancy of the land and a ‗physical presence‘ was the
foundation of title although His Honour considered that presence on land need not amount to
possession at common law in order to amount to occupancy. Certainly in Mabo (No 2) in the
case of the Murray Islanders, a physical connection with the land was easily established.
Precisely what connection with the land was required at common law was not clear. Nothing
in s 223(1)(b) requires a physical connection. A ‗connection‘ with land or waters may be
established without a current physical connection, and in some cases without a continuous
physical presence on the land.71 As the High Court in Ward noted ―….the absence of evidence
of some recent use of the land or waters does not, of itself, require the conclusion that there
can be no relevant connection”.72 Thus historical and even contemporary presence on the
land, though not continuous, may be relevant but will not be determinative in establish
ing native title. Interruptions in the claimant‘s presence in an area could, however, affect the
continued observance and enjoyment of traditional laws and customs and thus the necessary

66
     Yorta Yorta 464-465.
67
     Western Australia v Ward (2002) 213 CLR 1 (hereinafter, Ward), 93.
68
     Yorta Yorta, 455; Ward, 64.
69
     Mabo (No 2) 59.
70
     Mabo (No 2) 86.
71
   See Ward, 64. See further in support of the view that physical occupation of the land is not a necessary
requirement for continuing connection to the land: Ward, 146; De Rose v State of South Australia (2005) 145
FCR 290 at [62]; Northern Territory v Alyawarr (2005) 145 FCR 442 at 92; Bennell v Western Australia (2006)
153 FCR 120; Bodney v Bennell (Noongar) (2008) 167 FCR 84.
72
   Ward [64].
                                                                                                                      15


connection will be lost.73 While spiritual rights cannot be native title rights themselves; they
may be evidence of native title rights or evidence of a connection to the land or waters.74


Connection by traditional rights and interests: In Ward the majority of the High Court stated
that s 223(1)(b) requires consideration of whether by the traditional laws acknowledged and
the traditional customs observed by the peoples concerned, they have a ―connection‖ with the
land and waters.75 First, this requires that the Indigenous claimants identify the content of
traditional laws and customs. That is, the claimants must particularise the content of the
rights and interests held pursuant to those traditional laws and customs.76 It is clear that a
connection cannot be established without demonstrating the existence of a traditional system
of laws and customs pursuant to which rights and interests in relation to the land or waters
exist. Secondly the majority in Ward stated that the Indigenous claimants must characterise
the effect of those laws and customs as constituting a ‗connection‘ of the peoples with the
land or waters in question.77 That is, the claimants must show that by those laws and customs
they have native title rights and interests in the claimed land, and so have a connection with
the land. In this way evidence of the existence of traditional laws and customs will be
relevant in establishing a connection. Such evidence could include for example, evidence of
ceremonies, using the land in obtaining traditional foods, kinship relationships between the
people and the traditional land.78 Reports of historical occupation could also be significant in
ascertaining ‗connection‘ where an implication of continuity can be made. Once the
connection with the land is lost it cannot be revived.79


(iv) Recognition by the common law- section 223 (1)(c)
Under s 223(1)(c) native title rights and interests must be ―recognised‖ by the common law.
First, this section reflects the common law requirement that native title rights and interests

73
     Risk v Northern Territory of Australia [2006] FCA 404; affirmed [2007] FCAFC 46.
74
   Ward [59]. Native title rights and interests must be in interests in relation to ―land‖ or in ―waters‖: s223 (1)
NTA.
75
   Ward [64].
76
   Hiley, above n 7, notes that ―to constitute ‗native title rights and interests‘ these rights and interests must:
    ‗owe their existence to (the relevant normative) system‘; Yorta Yorta [47,37,38]
    be ‗the creatures of the laws and customs of a particular society‘; Yorta Yorta [50]
    be ‗the rights and interests in land to which these laws and customs gave rise‘; Yorta Yorta [53] and, be
     possessed ‗under traditional laws and customs‘; Yorta Yorta [89].‖
77
   Ward [64].
78
     Ward [18].
79
     Mabo (No2) 60, 70; Ward [59].
                                                                                                                16


which ―are antithetical to the fundamental tenents of the common law‖; are refused
recognition.80 Secondly, native title rights can be capable of being recognised by the common
law today and do not have to meet this test at a past date, such as at the time of the acquisition
of sovereignty.81 Thirdly, if native title has been validly extinguished in the past then it will
be incapable of being             ―recognised‖ by common law. (A discussion of the laws of
extinguishment is beyond the scope of this paper.)


5.         The claimant ‘society’ in the post-Yorta Yorta cases


Establishing the relevant ‗society‘ was the basis of the analysis of proof of native title under
the Native Title Act by High Court in Yorta Yorta. Identifying this concept of ‗society‘
continues to remain a requirement for native title determinations in the post Yorta Yorta
cases.82 Issues regarding the society most commonly arise as to whether the Indigenous
society still has a connection to the land and whether the society continues to observe
identifiable laws and customs that existed pre-sovereignty establishing continutity and
connection.83 Not all applications for native title have been discrete claims on behalf of the
whole ‗society‘. While generally identifying the relevant Indigenous ‗society‘ has not been
controversial in the post Yorta Yorta cases, identification of the ‗society‘ has been
contentious in cases where a ‗society‘ is made up of multiple ‗clans‘ and a claim for
communal native title is made.


Multiple „society‟ groups
Given the diverse nature of Indigenous societies it may not always be appropriate for
claimants to classify themselves as a specific grouping. For example, it is possible that
individuals or small groups may claim to hold native title in their own right under the
traditional laws and customs of the ‗society‘. It then becomes necessaty to identify whether

80
     Yorta Yorta [55] [79]; Mabo (No 2) 45.
81
     Yarmirr 76.
82
   See the discussion in Graham, Hiley, ―What is the relevant 'society' for the purposes of native title? Will any
society do?‖ Native Title News; 8 (9) July 2008: 143-147; Daniel Lavery, ―A Greater Sense of Tradition: the
Implications of the Normative System Principles in Yorta Yorta for Native Title Determination Applications‖,
(2003) E Law Murdoch University Law Journal; Lisa Strelein, ―Native Title Holding Groups and Native Title
Societies: Sampi v State of Western Australia”, 2005 Land, Rights, Laws: Issues of Native Title, Vol 3 No 4.
83
   See for example, Dale v Moses [2007] FCAFC 78, Harrington-Smith on behalf of the Wongatha People v
State of Western Australia (No 9) [2007] FCA 31. See also Daniel v Western Australia [2003] FCA 666; [60]-
[63] and note the discussion about this at [345]-[349]; Moses v State of Western Australia (2007) 160 FCR 148;
[2007].
                                                                                                              17


the native title claim group is a single group which holds native title rights and interests under
a single body of laws and customs as a single ‗society‘ or whether it is part of a larger
composite multiple group ‗society‘ which holds rights and interests under the laws and
customs of different ‗societies‘ (with the same or similar laws and customs).84


Where composite ‗groups‘ have been recognised as one ‗society‘ (as opposed to limited
rights over limited areas of land being allocated to individual clans) the groups have
recognised one body of laws and customs which gives rise to the rights and interests in
relation to the land or waters. Examples of ‗multiple groups‘ being a ‗society‘ can be found
in a number of cases. Multiple or ‗hybrid‘ claims have been a convenient way of responding
to ‗future act‘ proceedings under the NTA (for example where mineral lease or exploration
permit is proposed).85 Potential issues arise where multiple distinct groups also have multiple
distinct traditional laws and customs that again may not meet the test of ‗traditional‘ in
section 223 NTA. How have the courts responded to such claims?


Two High Court cases where this occurred were both decided prior to Yorta Yorta. In
Western Australia v Ward 86 the Miriuwung and Gajerrong groups were territorially adjacent
and shared economic and social links. Lee J at first instance found that they were distinct
‗organised societies‘ that held adjacent territories which overlapped in part and they spoke
separate languages and were separate peoples with separate territories but that they shared
knowledge of Dreamings and there was evidence of cooperation in relation to religious
ceremonies.87 In the post contact period the Miriuwung and Gajerrong groups evolved into a
new composite community with common traditions and customs in respect of the land and
were regarded by the Federal Court as a composite post contact ‗society‘ with shared interests
and it was considered appropriate that these groups be recognised as a single native title
group. However, applying the Yorta Yorta principles in the light of the normative system
doctrine, the relevant Indigenous society must have been in existence when the Crown
asserted sovereignty for native title to be recognised. The laws and customs of this new
society will not meet the definition of ‗traditional‘ under the NTA and such a composite

84
  De Rose v South Australia (2003) FCR 325 [223]; De Rose v South Australia (No 2) (2005) 145 FCR 290
[63].
85
  Native title claimants have 3 months after the s 29NTA notice in which to lodge a native title claim with the
Federal Court in order to be a part of the future act proceedings.
86
     (2002) 191 ALR 1.
87
     Western Australia v Ward (2000) 99 FCR 316 [32, 33, 34, 35, 36, 38].
                                                                                                             18


community may not meet the standard of section 223 NTA today. 88 French J in Sampi v
Western Australia89 noted that because Ward was decided prior to the High Court‘s decision
in Yorta Yorta consideration was not directed at the need to establish a normative society.90
In Commonwealth v Yarmirr91 the applicants were members of five different estate groups.
Although each group asserted traditional rights in respect of discrete areas of land and sea
their members saw themselves as a single community and brought their application on that
basis.


In Neowarra v Western Australia92 the application was made on behalf of three Kimberly
language groups being those people who hold in common the body of laws and customs
derived from beliefs about Wanjina/Ungurr. The claimants identified as Ngarinyin, Worrorra
and Wunambul and, by their clan relationships were also part of the Wanjinaa-Wunggurr
community as they shared a system of law and custom with that community. 93 Sundberg J
suggested that the reasoning of the High Court and the lower courts in Ward was directly
comparable to this case. In Ward, the Miriuwung and Gajerrong communities had been
accepted as the appropriate native title holding group.94 Sundberg J also noted that various
categories of groups have been accepted in determinations under the Native Title Act, citing
the cases of Hayes, Yarmirr and Lardill.95 Sundberg J described the identification of the
Indigenous society as a question of the native title recognition level when determining
whether rights are held as communal, group or individual rights and interests under section
223 NTA. Sundberg J found that certain groups and individuals hold various rights and
interests as determined by the laws and customs that define the broader Wanjinaa-Wunggurr




88
     Yorta Yorta [41]. See Lavery above n 84, 31.
89
     Sampi.
90
  In contrast the reasoning in Ward was affirmed by the Federal Courts in De Rose (No2) and Neowarra v State
of Western Australia [2003] FAC 1402 (hereinafter Neowarra),as defining the recognition level of native title
holding groups.
91
     (2001) 208 CLR 1.
92
     Neowarra, [61(3)].
93
     Neowarra [393].
94
     Neowarra [392-3].
95
  In the Hayes determination over Alice Springs, three estate groups had been recognised as holding title. Hayes
v Northern Territory (1999) 97 FCR 32. In Yarmirr five clans had claimed a communal title over Croker Islands
sea country, similarly in Lardil a composite of groups had been recognised as sharing laws and customs that
defined them as a group for the purposes of native title over the Wellesley Island sea country.
                                                                                                                  19


community.96 Sundberg J suggested that a determination at any lower level would not fully
reflect the basis upon which rights and interest are conferred or transmitted and accordingly
found that claimants were an organised society for the purposes of the NTA. The Court thus
found that a number of groups under a single system of law can be a native title holding
group and that a law or custom does not have to be distinctive of the claimant group. In
Neowarra, the definition of the community in Yorta Yorta was thus interpreted to allow some
flexibility in the way that a ‗society‘ is determined for the purposes of recognising native
title.


Determinations of native title have been made where the group has changed in the post-
sovereignty period.97 In Lardil v State of Queensland98 Justice Cooper found that the four
claimant ‗constituent groups‘ constituted single ‗societies‘ as each had its own system of
traditional laws and customs under which rights and interests in the different sea areas were
held and that native title was held by more than one normative society. The court made a
determination that each group held native title in respect of a defined area of land. 99 Cooper J
stated:
           ―At sovereignty, there was no over-reaching communal system of traditional law
           acknowledged laws and customs observed with respect to the land and waters within
           the claim area by the applicant group as a whole, or by the groups separately, which
           gave any constituent group rights or interest in the traditional territories of the other
           constituent group. Any cross-grouping rights were held at an individual level under
           the specific traditional laws and customs of the constituent group in whose territory
           the particular land and waters were located. Any agreement made post sovereignty by
           the four claimant groups to treat the determination area as a single communal area
           held by them jointly without internal areas which they each held separately, is not one
           recognised by the Act.‖100




96
  Sundberg J rejected the State‘s argument that native title should be recognised on a clan (dambun) or
language level on the basis that it would not accommodate evidence that close relatives of dambun members
have rights and interests in the dambun estate [150].
97
   See for example the Ward, Lardil and Neowarra detereminations.
98
   Lardil, [140] and also [102]-[108], [125], [200] and [210].
99
   Lardil. The evidence did not indicate that each of the four groups had rights or interest in the traditional
territories of another group.
100
      Lardil, [140]; Yorta Yorta [43-44]
                                                                                             20


In Northern Territory v Alyawarr101 at first instance Mansfield J determined that the
communal or group rights comprising native title were held by the members of one or more
of seven landholding estate groups. On appeal the argument was that each group had a
particular relationship with a part of the claim area but not with the whole of it. However, the
Full Court treated the relevant title as communal over the whole of the claim area, rather than
as severally held by the groups in respect of their particular estates within that area, because
of the findings of extensive connections across the seven groups in the observance of a
common body of traditional law and custom. The Full Court adopted this approach as the
observance of a common body of traditional law and custom by the estate group meant that
the necessary connection with country was shown to exist at a communal level. The Full
Court in Alyawarr stated that ―... a composite community of estate holding groups may
comprise a community which enjoys communal ownership of the native title rights and
interests albeit there may be intramural allocations between particular family or clan groups
or other sub-sets of the community‖.102


In Sampi v Western Australia103 the Bardi and Jawi, of the Dampier Peninsula and the Islands
of the Buccaneer Archipelago, argued that for the purpose of claiming and holding native title
they were distinct but related groups who formed one ‗society‘. They based this on shared
characteristics including being one people under one system of law custom and practice,
although with distinct territories, shared language (but with some dialect differences), shared
‗skin‘ systems and share cultural practices and intermarriage. Thus they argued they should
be considered as having always been one ‗society‘ at the broadest level. The court accepted
that the Bardi and Jawi peoples view themselves as one people.104 However, French J was not
convinced on the evidence that the Bardi and Jawi were in fact one society, united by a single
set of traditional laws and customs, at the time of colonisation. French J noted that the Bardi
society had membership rules that enabled it to become the Bardi/Jawi society and decided
that the application for a determination would be treated as a Bardi claim. French J found the
evidence did not allow identification of a distinct Jawi society. However, the Bardi were not
entitled to claim the traditional territory of the Jawi (certain islands) although they were
considered to have incorporated the Jawi into their membership through marriage and shared

101
      145 FCR 442 and on appeal [2005] FCAFC 135.
102
      Alyawarr [81].
103
      [2005] FCA 777 (June).
104
      Sampi [1071].
                                                                                                                 21


law.105 (This was in contrast to the applicants own view of their history and relationships.)
Thus no determination of native title was made over the Jawi islands.


His Honour invited the applicants to made submissions in favour of a further determination.
The claimants argued that both De Rose (No 2) and Alyawarr support the view that a
communal claim is not dependent on the native title claim group who brings the claim being
the ‗entire society‘.106 French J later handed down further reasons to clarify and conclude this
case.107 The final determination was handed down in November 2005 and provides that the
‗native title rights and interests of the Bardi and Jawi people are the rights of possession and
occupation as against the whole world‘.108 French J dismissed the further application for a
determination in respect of the Islands to the north of the Dampier Peninsula finding that
there is no basis upon which a determination of native title could be made. The evidence
supported a finding that there is one and only one extant traditional society: the Bardi
society. Its traditional country was found not to include the Islands to the north and north-
east of the Peninsula. There was no basis for a finding of a Jawi society "overlapping" the
Bardi society and retaining the requisite connection to the claimed Islands. French J made no
positive determination as to the existence of a Jawi society at the time of sovereignty. The
court made no determination in relation to the existence of native title over the Jawi territory
(the Islands). The result remains unsatisfactory for the Jawi peoples. It seems possible that the
court could have reached an outcome more satisfactory to the Jawi people and have made a
determination that native title in the whole or parts of the determination area was held by



105
    The Court noted that the Bardi and Jawi were recognised by early ethnographers as having distinct territories
and for the most part the two groups occupied different territories, one mainland, the other archipelagic
Although the Bardi people went to Sunday Island in post sovereignty times there was no real indication, in my
opinion, of any historical perception of Sunday Island as part of the country of a single society. It was historical
circumstance and in particular the arrival of the mission that had an important part to play in those movements.
106
    Sampi [2005] FAC [36]. The applicants submitted that whether the entire native title claim group involves,
and at sovereignty involved two societies or one, may not matter in the context of this case because the
closeness of the normative systems indicated an inherent capacity for cross-recognition. From a jurisprudential
perspective this would allow the native title claim group to comprise an overlap of two ‗societies‘ or, in the
alternative, for two native title claim groups to substantially overlap in respect of a claim area. On the principle
illustrated by Alyawarr it would not matter if a native title claim group involved ‗one and a half‘ societies or
one, so long as it collectively included those who possessed rights and interests in the collective parts of the
claim area under laws and customs the origins of which could be traced to a normative system at sovereignty.
107
      Sampi [2005] FAC 2567; Sampi [2005] FAC 1761.
108
   The Alyawarr Full Court (2005) 145 FCR [79-80] regarded Sampi v Western Australia as an example of a
case where members of the relevant society enjoyed "communal ownership of the native title rights and
interests, albeit they are allocated intramurally to particular families and clans": at [79]. In that case the
traditional laws and customs "as explained in the evidence, supported a principle of communal ownership".
                                                                                                                22


more than one normative society (as was done in Lardil).109


Single Society
Where a single ‗society‘ consists of many individual ‗clans‘ it seems that, provided that these
clans follow the same body of traditional laws and customs in relation to rights and interests
in the land and waters, the body of native title rights will generally be accorded ‗society‘
status as a whole (as opposed to limited rights over limited areas of land being allocated to
individual clans). This is the case even if specific allocations are made to families/clans,
according to the laws and customs of the society.110



The courts have found that it is possible for individuals and small groups to hold native title
in their own right without the ‗society‘ consitutituing a community, in the sense of all
members knowing each other and living together.111 At first instance in De Rose v South
Australia112 O‘Loughlin J in Federal Court found no evidence of a coherent social group and
loss of connection with the land and dismissed the claim.113 On appeal in De Rose (No 1) 114
the Full Court (Wilcox, Sackville and Merkel JJ) found that the applicants were a small group
within the larger Western Desert cultural bloc and that they shared the same laws and
customs.115 The Western Desert bloc was the normative system upon which the claim could
be based. The Court did not consider it essential that the claimants demonstrate they
constituted a discrete society in order to bring a claim under the NTA. 116 However, the Full
Federal Court considered that to satisfy section 223(1)(a) of the NTA:
           ―The appellants had to show that under the traditional laws and customs of the
           Western Desert Bloc they possessed rights and interests in relation to the claim

109
  Refer to the discussion in Strelein, ―Native Title Holding Groups and Native Title Societies, Sampi v State of
Western Australia‖, Land Rights, Laws: Issues of Native Title 3:4: 2005.
110
   See Gumana, Ward, Neowarra, Alyawarr, De Rose, Yarmirr, Sampi. The courts have also taken into
consideration whether the groups are territorially adjacent, whether they share economic and social links and
whether they have shared interests.
111
   De Rose v South Australia (No 2) (2005) 145 CLR 290, [2005] FCAFC 110 and Bennell v Western Australia
[2006] FCA 1243 [473].
112
      (2003) FCR 325.
113
    The court found that the case did not raise the same issues as Yorta Yorta, because it was not contended that
the society did not exist.
114
    De Rose v South Australia (No 1) [2003] 133 FCR 325 (hereinafter De Rose (No 1)).
115
  The court pointed to expert evidence describing the Western Desert culture as ‗the largest cultural bloc in
Australia‘ and pointed out common kinship, social organization, behavioural patterns, ideology and language.
116
      De Rose (No 1) [282].
                                                                                                23


           area. It was not enough for them to show that they had purported to
           acknowledge or observe the traditional laws or customs of the Western Desert
           Bloc.”117
And further that ―the appellants had to show, among other things, that at sovereignty the
traditional laws and customs of the Western Desert Bloc provided for those who were
Nguraritja to possess rights and interests in relation to land.‖118 If, for example, the
appellants had been "usurpers" of the claim area, who were not recognised under the laws and
customs of the Western Desert Bloc as capable of possessing native title rights and interests,
their claim could not succeed. This would be so even though they might have genuinely been
attempting to act in conformity with their understanding of the traditional laws and customs
of the Western Desert Bloc.


The Full Federal Court concluded:
           ―One of the questions posed by s 223(1) of the NTA is whether the appellants possess
           rights and interests under the traditional laws and customs acknowledged and
           observed by them. If the traditional laws and customs of the Western Desert Bloc
           allowed Nguraritja to possess rights and interests in relation to land only if the
           Nguraritja for a particular area constituted a discrete social group or community, the
           appellants would doubtless have to show that they formed part of such a group or
           community. There was some evidence, notably in a published article by Professor
           Berndt, which suggested that the land-owning group in Western Desert society was an
           enlarged family unit, consisting of a man and his living descendants in the male line.
           Had this thesis been accepted by the primary Judge, there may have been a basis for
           holding that the traditional laws and customs of the Western Desert Bloc required
           those who held rights and interests in land to form a discrete social group or
           community, albeit of a particular kind. But his Honour rejected the Berndt thesis (at
           [102]), on the ground that it was inconsistent with the evidence of the Aboriginal
           witnesses. His Honour‘s findings therefore do not support the proposition that the
           traditional laws and customs of the Western Desert Bloc recognised the rights and
           interests of Nguraritja in relation to land only if the Nguraritja for a particular area
           formed, or were part of, a cohesive social group or community. It follows that the


117
      De Rose (No 1) [233] applying Ward (2002) 213 CLR 1 at [18].
118
      De Rose (No 1) [276]. See also [278].
                                                                                                               24


           primary Judge‘s findings to the effect that the appellants did not constitute or were not
           part of a social, communal or political organisation on or near the claim area could not
           adversely affect their claim to a determination of native title. To the extent that his
           Honour thought otherwise he was, with respect, in error.‖119


In De Rose (No 2) the Full Federal Court re-considered whether the claimants could bring a
‗group‘ claim.120 The Court concluded that native title can be claimed or held by an
individual or a small group provided that they held native title rights by reference to the body
of laws and customs or the normative rules of the society that confers the rights and interest
in the land is essential.121 It was not necessary for them to constitute a society or community
in their own right. The Court examined the variety of ways in which native title claim groups
had been constituted in recent cases and concluded that in this case:
           ―The appellants do not claim to be a discrete or functioning community and... the
           normative system on which they rely for their rights and interests is that of the wider
           Western Desert Bloc. But the appellants claim to be Ngutraritja for the claim area and,
           by virtue of that status, they have common rights and responsibilities under the laws
           and customs of the Western Desert bloc in relation to the claim area.‖122
The applicants were thus entitled to bring the claim on behalf of the native title group being
all those who were Ngutraritja123 for the claim area.124 As Strelein notes, the acceptance by
the Full Federal Court in De Rose, that the normative society was distinct from the native title
claim group, demonstrates the flexibility with which the courts and claimants could operate



119
      De Rose (No 1) [282].
120
      De Rose (No 2) (2005) [24] [46-50].
121
      De Rose (No 2) (2005) [31].
122
   De Rose (No 2) (2005) [44] and see [35-43]. The Full Federal Court noted that the primary Judge had
rejected the contention that the traditional laws and customs of the Western Desert Bloc required those who held
rights and interests in land to form a discrete social group or community: [282].
123
  Nguraritja is explained as someone who belongs to a place or who is a traditional owner or custodian. De
Rose (No 2) [275].
124
   This approach was approved in Alyawarr at 80. The Alyawarr Full Court selected De Rose (No 2) as an
illustration of a society constituting a cultural bloc whose members were dispersed in groups over a large arid or
semi-arid area. It was pointed out at [80] that in such a case "an inference of communal ownership ... may be
difficult if not impossible to draw". As the Full Court in Alyawarr observed, each case will depend on its own
facts. In Dale v Moses [2007] FCAFC 78 the Full Court found that in that case the claimants had not shown that
the rights and interests held pursuant to the body of laws of one society could be (or were) transmitted to
persons who derived rights under the laws and customs of a different society. See also the decisions in
Neowarra; Rubbi v Western Australia (Rubibi (No 6); Western Australia v Sebastian [2008] FCAFC 66 and De
Rose (No 2) which all concerned intra-societal transmission of rights.
                                                                                                                25


within the Yorta Yorta doctrine.125

Group identification was also an issue in 2009 in Brown v State of South Australia.126 It was
found that the applicant‘s family group was not a native title claim group but rather a
subgroup of a group larger than was specified in the application. For this, and other reasons,
the native title determination application was struck out.

The relevance of common language


While a common language is not a determining factor in the Yorta Yorta sense of identifying
the existence of a normative ‗society‘ in accordance with the section 223 of the Native Title
Act, courts have reflected on its significance in this context. In Bennell v Western
Australia127 Wilcox J noted that a conclusion as to whether or not there was a common
language throughout the claim area at date of settlement will not itself resolve the issue as to
the identity of the relevant community, for the purposes of s 223(1) of the Native Title Act.
However, the conclusion is a significant factor, to be taken into account with other matters, in
identifying the relevant community at time of sovereignty.128 In Bennell the Federal Court
considered that all who speak a particular language are not necessarily members of the same
society or community and that the converse is also true; a single society may transcend
language differences.129 The Court noted that the oral tradition of the Aboriginal peoples in
the claimant area is that there is, and always has been, only one Indigenous language in the
region and that language is called "Noongar" and is still spoken by many of them.130 Regional


125
    Strelein (2006), above n 7, 118. See also Harrington-Smith on behalf of the Wongatha People v State of
Western Australia (No 9) [2007] FCA 31. The Wongatha claim was dismissed as the Federal Court found that
the claims were not properly authorised under the NTA. Lindgren J nevertheless considered that on the evidence
the Western Desert Cultural Bloc was a society in which the nature and basis of traditional rights and interests in
land related to the connection of the individual with the land. Landholding in this society was not at the level of
groups such as the claim group, but rather individuals, or small groups of individuals. Accordingly, it was not
permissible for these claimant groups to be recognised as landholding groups under Western Desert laws and
customs.
126
    [2009] FCA 206.
127
    Bennell v Western Australia [2006] FCA 1243 (hereinafter Bennell), [273]. The Federal Court found that the
Noongar people, which included some 400 families, held native title rights and interests over the Perth
metropolitan area. Justice Wilcox accepted that a single Noongar society existed at the time of sovereignty and
continued to today as a body united by its observance of some of its traditional laws and customs. The decision
of Wilcox J in the first Noongar case was appealed and the Full Federal Court allowed the appeal (Bodney v
Bennell [2008] FCAFC 63) deciding that Wilcox J had not considered certain matters required to be established
under s 223 of the Native Title Act to prove native title. The Appeal Court did accept that a single Noongar
society existed. All parties have now agreed to meditation regarding the claim.
128
    Bennell [274].
129
    Bennell [273]. Neowarra applied.
130
    Bennell [276].
                                                                                                     26


variations in language as dialects, rather than different languages, would not have precluded
communication between people living in different parts of the claim area.131 The language
spoken inside the claim area was a language different to that spoken immediately outside its
boundaries.132 In conjunction with other factors (including laws and customs concerning land
and other customs and beliefs and social interaction in the claim area) the Court found that
there was a Noongar normative system relating to the claimant area and that the current
normative system is that of the Noongar society.133


Who is a member of the “claimant society”?

In Mabo (No 2) Brennan J considered that the rights and interests of native title may be held
only by Indigenous inhabitants and their descendants.134 Biological descent was deteremined
to be a requirement by the Federal Court in determining whether someone was an Aboriignal
person in the case of Shaw v Wolf.135 In Shaw v Wolf a challenge was made regarding the
eligibility of certain people to stand as Aboriginal candidates in the ATSIC Regional Council
elections in accordance with the Aboriginal and Torres Strait Islander Commission Act 1989
(Cth) which states that to be an eligible candidate for election a person must be an
‗Aboriginal person‘ or a ‗Torres Strait Islander‘.136 The Act defined an ‗Aboriginal person‘
as ‗a person of the Aboriginal race of Australia‘.137 Merkel J found that descent, self-
identification and community recognition are the three criteria to consider in making
determinations in respect of whether someone is an ‗Aboriginal person‘.

More recent cases suggest that the need for strict biological descent from the pre-sovereignty
society may not be essential if the ‗community‘ of native title holders has continued the
connection with the land through observance of traditional laws and customs.138 In 2000 in



131
      Bennell [278].
132
      Bennell [279].
133
      Bennell [791].
134
      Mabo (No 2), 70.
135
      (1998) 83 FCR 113.
136
      Aboriginal and Torres Strait Islander Commission Act 1989 ss 101(8) and 102(1)(8).
137
      Aboriginal and Torres Strait Islander Commission Act 1989 s 4(1).
138
   Western Australia v Ward (2000) 99 FCR 316, 380-381; Neowarra at 48. Regarding group membership see
also Ngalakan People v Northern Territory (2001) 112 FCR 148; Northern Territory v Alyawarr (2005) 145
FCR 442 at [94], [113-117]; Shaw v Wolf (1998) 163 ALR 205, at 210; Gumana v Northern Territory of
Australia (“Blue Mud Bay”) (2007) 239 ALR 272, [135].
                                                                                                            27


Western Australia v Ward139 the Federal Court rejected the need for strict biological descent
suggesting that non-descent based connections and identification with a group may be
sufficient where the group has continued the connection with the land through observance of
traditional laws and customs. In Yorta Yorta at first instance, Olney J referred to ‗known
ancestors‘. The question of descent was not reviewed on appeal; however, in the Full Federal
Court Balck CJ criticised the need for strict biological descent.140 In Ngalakan People v
Northern Territory141 O‘Loughlin J considered that the key factor was whether, in accordance
with the traditional laws acknowledged and customs observed, a person was able to identiy as
a group member. In Northern Territory v Alyawarr 142 group membership was determined by
reference to both lineal descent and non-descent based connections, for example adoption and
birth place affiliation. In De Rose (2003) the Federal Court noted that section 223(1) does not
purport to limit native title rights and interests to those which have passed to the biological
descendants of the Aboriginal people who held those rights and interests at sovereignty.
Claimants may rely on other means of acquiring native title rights and interests, provided that
traditional laws acknowledged and customs observed allow for those means of acquiring the
rights and interests.143


Another issue that has arisen in relation to the membership of the society is whether spouses
of group members can claim to hold the same rights as their partners in relation to native title.
Can spouses of members of the claimant group also be included in the claimant society? The
Full Federal Court in Gumana v Northern Territory144 found that where a communal claim is
made, spouses are automatically considered to be part of the ‗Indigenous society‘ entitled to
the native title rights. Therefore, it need not be demonstrated that individual member‘s
spouses have an individual connection to the land and waters. The relevant question for any
native title determination is whether there is a connection between the community as a whole
and the land and waters.



139
      (2000) 99FCR 316, 380-381.
140
   Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors [2001] FCA 45, [88]. See
also a similar view by the High Court in Ward in 2002.
141
      (2001) 112 FCR 148.
142
   (2005) 145 FCR 442 at 94, 113-117. In this case establishing membership of the group was undertaken by
reference to factors such as lineal descent and also by non-descent based connections such as adoption or
birthplace affiliation and spouses in the prior categoies.
143
      De Rose (No 1), [2003].
144
      See Gumana v Northern Territory (2997) FCR 290 [135].
                                                                                                               28


6. Conclusion

The relevant ‗society‘, for the purposes of native title determinations, is the society that gives
rise to and is defined by the body of laws and customs. These relevant laws and customs must
be ‗traditional‘ for the purposes of the definition of ‗native title‘ in s 223(1) NTA. In
ascertaining the ‗traditional laws and customs‘ it is important to remember that they must
also, inter alia, define and regulate rights and interests in land and/or waters. The
identification of a body of laws and customs regarding matters totally unrelated to rights and
interests in land such as social discourse or behaviour, will not alone identify the relevant
‗society‘ for native title purposes. Hiley suggests that an appropriate formula for identifying
the relevant society would be to:145
                  ―identify the laws and customs which define or regulate rights and interests in
                   the land (and or waters);
                  ascertain whether those laws and customs, together with other laws and
                   customs, constitute a "body of laws and customs" that evidences the existence
                   of a "normative system"; and
                  identify the "body of persons" that is defined by and is responsible for those
                   laws and customs -- namely the relevant ‗society‘‖.


Thus, in identifying the ‗society‘ what is required under the Native Title Act is evidence
demonstrating that a body of traditional laws and customs exist and that members of the
society abide by those laws and customs together with evidence showing the continuance of
that society in adhering to those laws and customs from pre-sovereignty times to the
present.146 Where this evidence is established the courts generally appear to be taking a
flexible approach to interpreting ‗society‘.147




145
      Hiley, above n 7.
146
      Yorta Yorta, 464-465.
147
   See Gumana v Northern Territory of Australia (“Blue Mud Bay”) (2007) 239 ALR 272 As the Full Federal
Court (French, Finn and Sundberg JJ) in Gumana considered, what is emerging, ―is the flexible approach
adopted by the courts arising out of the flexible language of s 223(1) of the Native Title Act – whether the rights
and interests found are "communal, group or individual", and of s 225(a) – who are the persons holding the
"common or group rights". The answer will depend upon the evidence‖. See also Northern Territory v Arnhem
Land Aboriginal Land Trust [2008] HCA 29; Neowarra; Northern Territory v Alyawarr (2005) 145 FCR 442,
Sampi v Western Australia [2005] FCA 777 at 969-971.

								
To top