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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  FCAFC 135 (hereinafter ―Alyawarr”), . 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  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  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  1606 FCA (hereinafter Yorta Yorta(1998)), . 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) . 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 . 22 Yorta Yorta . 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 . 25 Yorta Yorta [46-47]. 26 Yorta Yorta . 27 Yorta Yorta [79-86, 77]. 28 Yorta Yorta [37-42, 43-44, 46-47]. 29 Yorta Yorta . 30 Yorta Yorta . Strelein (2006), above n 7, 87-88. 31 Yorta Yorta . 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 . 33 Yorta Yorta [49 cf 55]. Young, above n 7, 323. 34 Yorta Yorta . 35 Yorta Yorta . 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 . 38 Yorta Yorta at , , , , ,  and . 39 Yorta Yorta, 549. 40 Yorta Yorta . 41 Yorta Yorta  see also , ,  and . 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  FCA 666, Moses v State of Western Australia (2007) 160 FCR 148; Dale v Moses  FCAFC 78, Jango v Northern Territory  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)  FCA 31; Bodney v Bennell  FCAFC 63, Gumana v Northern Territory of Australia (2007) 158 FCR 349;  FCAFC 23; State of Western Australia v Sebastian  FCAFC 65, De Rose v State of South Australia (No 2) (2005) 145 FCR 290;  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)  FCA 31; Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland  FCA 298 (hereinafter “Lardil”). Hiley, above n 7. 43 Yorta Yorta  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)  FCAFC 65; Risk v Northern Territory of Australia (Larraki)  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  FCAFC 82; Harrington-Smith v Western Australia (No 9) (Wongatha)  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)  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, , . 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 . 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,  (hereinafter Wongatha). 55 Wongatha, . 56 Yorta Yorta, 443-444 per Gleeson CJ, Gummow and Hayne JJ; 463 per Gaudron and Kirby J; Commonwealth of Australia v Yarmirr  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 . 59 (1999) 201 CLR 351. 60 (2007) 238 ALR 1, . 61 Yorta Yorta, 455, 456. 62 Yorta Yorta, . 63 Yorta Yorta, 443-444, -, , . 64 Yorta Yorta -; De Rose (No 2) at 57-58. 65 Yorta Yorta, -; Sampi v Western Australia  FCA 777,  (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 ; 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 . 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  FCA 404; affirmed  FCAFC 46. 74 Ward . Native title rights and interests must be in interests in relation to ―land‖ or in ―waters‖: s223 (1) NTA. 75 Ward . 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  be ‗the rights and interests in land to which these laws and customs gave rise‘; Yorta Yorta  and, be possessed ‗under traditional laws and customs‘; Yorta Yorta .‖ 77 Ward . 78 Ward . 79 Mabo (No2) 60, 70; Ward . 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  ; 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  FCAFC 78, Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9)  FCA 31. See also Daniel v Western Australia  FCA 666; -  and note the discussion about this at -; Moses v State of Western Australia (2007) 160 FCR 148; . 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 ; De Rose v South Australia (No 2) (2005) 145 FCR 290 . 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 . 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  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 . 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 . 97 See for example the Ward, Lardil and Neowarra detereminations. 98 Lardil,  and also -, ,  and . 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, ; 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  FCAFC 135. 102 Alyawarr . 103  FCA 777 (June). 104 Sampi . 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  FAC . 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  FAC 2567; Sampi  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 . 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,  FCAFC 110 and Bennell v Western Australia  FCA 1243 . 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)  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) . 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 ), 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)  applying Ward (2002) 213 CLR 1 at . 118 De Rose (No 1) . See also . 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) . 120 De Rose (No 2) (2005)  [46-50]. 121 De Rose (No 2) (2005) . 122 De Rose (No 2) (2005)  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: . 123 Nguraritja is explained as someone who belongs to a place or who is a traditional owner or custodian. De Rose (No 2) . 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  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  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  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)  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  FCA 206. 127 Bennell v Western Australia  FCA 1243 (hereinafter Bennell), . 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  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 . 129 Bennell . Neowarra applied. 130 Bennell . 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 . 132 Bennell . 133 Bennell . 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 , [113-117]; Shaw v Wolf (1998) 163 ALR 205, at 210; Gumana v Northern Territory of Australia (“Blue Mud Bay”) (2007) 239 ALR 272, . 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  FCA 45, . 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), . 144 See Gumana v Northern Territory (2997) FCR 290 . 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  HCA 29; Neowarra; Northern Territory v Alyawarr (2005) 145 FCR 442, Sampi v Western Australia  FCA 777 at 969-971.
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