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Court and Tribunal Decisions - Australia
Federal Court of Australia (Wilcox, Sackville and Merkel JJ)
16 December 2003
Aboriginal and Torres Strait Islanders — native title — whether claimants could prove connection with claim area to satisfy s 223(1)(b) of the Native Title Act 1993 (Cth) — whether spiritual connection maintained after twenty years’ physical absence from claim area — whether non-attendance to sacred sites demonstrates lack of continuing connection — significance of post-sovereignty population shifts and associated changes in transmission laws — whether biological descent necessary — whether claimants must live together as discrete community
The appellants had sought a determination of native title in relation to an area contained in three pastoral leases comprising De Rose Hill Station in far north-west South Australia. The trial judge found that there had been population shifts in and around the claim area in the early twentieth century, as in pre-sovereignty times, involving movements of the Yankunytjatjara, Pitjantjatjara and Antikirinya peoples, all of whom formed part of the broader Aboriginal community identified by anthropologists as the ’Western Desert Bloc’. The trial judge accepted that the claim area is today within Yankunytjatjara country, and the appellants are descendants of Pitjantjatjara and Yankunytjatjara people. However, in claiming native title rights and interests as Nguraritja (traditional owners) for the claim area, the appellants did so by reference to the traditional laws and customs acknowledged and observed by the broader Western Desert Bloc community.
The trial judge found that one of the appellants was, and other appellants ’may be’, Nguraritja for the claim area under the traditional laws and customs of the Western Desert Bloc. Any relevant post-sovereignty changes in those laws and customs were found to constitute examples of ‘evolutionary traditional law’, and the post-sovereignty population shifts were found to be consistent with that law. To that extent, the trial judge found, the appellants may have satisfied the s 223(1)(a) Native Title Act 1993 (Cth) requirement of acknowledgement and observance of traditional laws and customs.
Nevertheless, the trial judge found that although the claimant group had once held native title rights and interests in the claim area, all of the appellants had, since 1978, abandoned their prior connection with the area, and therefore did not now possess a connection to the area, by traditional laws and customs acknowledged and observed by them, sufficient to satisfy s 223(1)(b) of the Native Title Act. He based this conclusion on several findings: although some of the appellants were born on the claim area, and many had lived or worked there in the past, none had lived or worked on the claim area since 1978; since that time, the appellants’ physical connection with the claim area had been limited to occasional hunting and food gathering visits, and to field trips associated with the native title claim; no appellant had attended to sites or performed traditional ceremonies in the claim area since that time; none of the appellants had, since that time, lived together or met to participate in group activities; the appellants’ claim that they were too frightened to return to the claim area because of the conduct of the station owners was unreasonable and undercut by there being little evidence of traditional activity on other parts of their country outside the boundaries of the claim area.
Accordingly, the trial judge rejected the application and determined that native title did not exist in the claim area. The appellants appealed, arguing that the trial judge had erred in:
(1) unduly emphasising the need for the applicants to demonstrate a continued physical connection with the claim area, and in regarding their continued physical absence as amounting to ‘abandonment’, inconsistent with a connection under s 223(1)(b);
(2) inquiring into the reasonableness (rather than the genuineness) of the applicants’ reasons for not maintaining closer contact with the claim area;
(3) assuming, without clear evidence of the nature of the traditional Western Desert Bloc rights and responsibilities of Nguraritja, that those laws and customs required the applicants to look after or care for sites in order to maintain a connection with the claim area;
(4) insisting that the applicants themselves (as opposed to Western Desert Bloc society generally) constitute a cohesive social, communal or political group engaged in acknowledgement and observance of traditional law and custom; and
(5) giving insufficient weight to evidence that the applicants had, since 1978, maintained connection with the claim area through hunting visits and complaints about threats to the integrity of particular sites.
1. In determining whether s 223(1)(b) was satisfied, the question to be asked was whether the claimants, by the traditional laws acknowledged and the traditional customs observed by them, have a connection with the claim area. The trial judge therefore erred in asking, instead, whether the claimants had ‘abandoned’ their connection to the claim area, and in assessing this by reference to the question of whether the claimants had a reasonable excuse for ‘failing’ since 1978 to observe their traditional responsibilities as Nguraritja (eg, to care for sites). This imported an objective standard which was not sourced in the traditional laws and customs of the Western Desert Bloc. The proper course was, by contrast, to identify the content of those traditional laws and customs observed and acknowledged by the claimants, and to asses whether by those traditional laws and customs they possessed a connection to the claim area. On this approach, the appellants’ inactivity in the claim area would be determinative only if, under those traditional laws and customs, the appellants lost their status and/or rights and responsibilities as Nguraritja in the claim area because of their inactivity. No such finding had been made by the trial judge. Rather, he found that at least one of the appellants was currently Nguraritja for the claim area: [303], [309]–[315], [320]. Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1, 16–17, 32 followed; Members of the Yorta Yorta Community v Victoria [2002] HCA 58; (2002) 194 ALR 538, 563 referred to.
2. A spiritual connection can be maintained in circumstances where it is no longer practicable to visit the claim area or where access to the area is prevented or restricted by European settlers. Just as it may be relevant, in determining whether there has been substantial continuity in acknowledgement and observance of traditional laws and customs under s 223(1)(a), to consider the reasons why the claimants’ acknowledgement and observance of those laws and customs have been adversely affected, so too may it be relevant, in determining whether there is a continuing connection with the claim area under s 223(1)(b), to consider the claimants’ reasons for not seeking to maintain a physical association with the claim area: [316]–[319], [326]. Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 at 382 followed; Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 considered; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 194 ALR 538 at 563 referred to.
3. Because the trial judge, in deciding whether such a connection existed here, did not address the relevant question posed by s 223(1)(b), he placed too much emphasis on the appellants’ lack of physical contact with the claim area since 1978, and too little emphasis on the evidence supporting the existence of a spiritual connection and the reasons for not seeking to maintain a physical association with the claim area. In particular, the trial judge erred:
a) in giving insufficient weight to a number of aspects of the evidence: the detailed knowledge held by at least one of the appellants (Peter De Rose) of the content of traditional laws and customs (which knowledge must go some way to establishing connection); Peter’s actions in establishing a homeland close to (but not on) his traditional country and the claim area; the appellants’ assertion of their traditional rights in relation to the claim area by bringing the native title claim; and their involvement, after instituting these proceedings, in disputes with the station owners about the latter’s actions in parts of the claim area: [317]–[320]; Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 at 382 followed; and
b) in discounting the significance of his finding that the appellants decisions to leave the claim area were influenced by their perception that they faced a hostile response from the station owners if they returned to the claim area without the latter’s permission: even if this perception was, as the trial judge found, unreasonable (a finding which was difficult to reconcile with his other findings about the respondents’ negative attitudes and intimidating behaviour), the unreasonableness of the perception was not found to negate its genuineness and was therefore irrelevant: [321]–[325].
4. It is only necessary, under s 223(1), to prove the continued existence, since sovereignty was acquired, of the society under whose traditional laws and customs the native title rights and interests are claimed (here, the Western Desert Bloc society). The evidence demonstrated that Western Desert Bloc society had continued to exist since European settlement, and that the appellants were members of that society. The evidence did not establish, and the trial judge had not found, that the laws and customs of that society required that the appellants themselves constitute a discrete social group or community in order to possess rights and interests as Nguraritja for the claim area. The trial judge therefore erred to the extent that he had based his conclusion that a connection was not established pursuant to s 223(1)(b) on his finding that the appellants did not live or come together for traditional purposes so as to constitute a distinct social, communal or political organisation on or near the claim area. This finding should have been regarded as similarly irrelevant to any application of s 223(1)(a): [273]–[283], [340]. Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 194 ALR 538 distinguished.
5. The respondents’ contention that, even if the trial judge had erred in his approach to s 223(1)(b), the appellants’ claim was bound to fail because the trial judge had made findings indicating that they were unable to satisfy the requirements of s 223(1)(a), should be rejected. Although the trial judge found at one point that there had been a breakdown in the appellants’ acknowledgement and observance of traditional laws and customs, he made no express finding that s 223(1)(a) was not satisfied, and appeared to make a contrary finding at another point. Further, the finding of a breakdown was affected by several errors and omissions, including:
a) a failure to identify the criteria applied in reaching this finding and, in particular, in finding that the appellants’ knowledge of their traditional law, customs and ceremonies, and their apparently genuine belief in the significance of these, were not probative of their acknowledgement of those laws and customs: [335]; and
b) a failure to relate this finding to the specific evidence relating to each of the appellants: in particular, the evidence of knowledge of traditional law and custom, observance of aspects of it during the trial, activities on or in relation to the claim area before and after 1978 (including attempts to protect sites after native title proceedings commenced), and the appellants’ own beliefs as to the significance of and their commitment to the traditional laws and customs: [336]–[338].
6. The evidence supported the trial judge’s findings that the post-sovereignty population shifts in the claim area and post-sovereignty changes in the rules concerning who could become Nguraritja for particular country were contemplated by the traditional laws and customs of the Western Desert Bloc. The trial judge’s associated finding that these changes constituted a traditional ‘evolution’ of those laws and customs, for the purposes of s 223(1)(a), was consistent with the decision in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 194 ALR 538: [238]–[268].
7. The trial judge had not erred in failing to require that the appellants prove themselves to be biological descendants of the Aboriginal people who held native title at sovereignty, as he had not found this to be a requirement under the traditional Western Desert Bloc laws and customs concerning who could become Nguraritja for particular country. Native title claimants need only prove, under s 223(1)(a), that they possess the claimed rights and interests under the traditional laws and customs of the relevant society acknowledged and observed by them. There is no additional statutory or common law requirement to prove biological descent: [200], [236]. Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 61 considered; Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316, 378–379 followed.
8. Clause 5 of Div 3 of the Schedule to the Pastoral Land Management and Conservation Act 1989 (SA) merely converted existing pastoral leases (granted under earlier legislation) into pastoral leases under that new Act, and did not amount to the grant of a new pastoral lease, so as to have constituted a ‘past act’ extinguishing native title, within the meaning of s 228 of the Native Title Act: [396]–[404].
9. Without the benefit of submissions concerning evidence bearing on the significance, under the traditional laws and customs of the Western Desert Bloc, of the claimants’ failure to discharge their responsibilities in relation to the claim area, the Full Court could not determine the questions critical to deciding for itself whether a connection had been established under s 223(1)(b) – with a view, if necessary, to substituting its own finding for that of the trial judge. Similarly, the question of whether the appellants, or some of them, acknowledged the traditional laws and customs of the Western Desert Bloc required further consideration. These matters could not, however, be remitted to the trial judge, who had since retired. The appropriate course was therefore to direct the parties to identify the issues remaining in dispute, and to provide an opportunity for further submissions and argument on those issues: [330]–[331], [341], [410]–[413].
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196. The appellants interpreted the State and the Fullers [the respondent owners of De Rose Hill Station] as arguing that, as a matter of law, native title rights and interests can be held only by persons who can be identified as biological descendants of the society whose members held the rights and interests at sovereignty. It is not entirely clear that either of the respondents put an argument in this bald form; rather they concentrated on what was said to be the absence of evidence of transmission to the appellants of native title rights and interests under traditional laws and customs. There is also a question, assuming the argument to be correct, as to the identity of the society whose members held native title rights and interests at sovereignty. Nonetheless, the argument attributed to the respondents should be addressed because the primary Judge found (at [346]) that the evidence did not disclose any biological connection between the appellants and those who inhabited the claim area pre-sovereignty.
197. In a passage we have cited ([157] above), Brennan J in Mabo (No 2) said that membership of the indigenous people entitled to native title depends on biological descent from the indigenous people who, by traditional laws and customs, held native title at the time the Crown acquired sovereignty. However, as Beaumont and von Doussa JJ observed in Ward (FC), at 378 [231], this passage needs to be read with another passage in Mabo (No 2) where Brennan J addressed the question of inheritance and transmission of native title rights. His Honour said this (at 61):
The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants ... But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.
198. Beaumont and von Doussa JJ considered (at 378–379 [232]) that when the two passages from Brennan J’s judgment were read together:
we think it plain that his Honour was not intending to lay down as an invariable requirement that there be strict ‘biological descent’. Rather, we understand Brennan J to be expressing a requirement that there be an identifiable community with an entitlement to the present enjoyment of native title rights in relation to land arising from the adherence to traditionally based laws and customs. A substantial degree of ancestral connection between the original native title holders and the present community would be necessary to enable a group to be identified as one acknowledging and observing the traditional laws and customs under which the native title rights were possessed at sovereignty.
199. More importantly for present purposes, the High Court in Ward (HC), at 19 [25], made it clear that following the enactment of the NTA: ‘it is to the terms of the NTA that primary regard must be had, and not the decisions in Mabo (No 2) or Wik’.
It was of course open to Parliament to define ‘native title’ in the NTA so as to incorporate a requirement of biological descent before such title could be recognised. The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), for example, seems to adopt such an approach. Section 3 of that Act defines ‘traditional Aboriginal owners, in relation to land’ to mean:
a local descent group of Aboriginals who:
(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and
(b) are entitled by Aboriginal tradition to forage as of right over that land. (Emphasis added.)
200. There is, however, nothing in the definition of ‘native title’ in s 223(1) of the NTA that incorporates a requirement of a biological link between the claimants and the holders of native title at sovereignty. Native title rights and interests in relation to land must be possessed under the traditional laws acknowledged and traditional customs observed by the Aboriginal peoples (s 223(1)(a)) and the Aboriginal peoples, by those laws and customs, must have a connection with the land (s 223(1)(b)). Apart from the requirement in s 223(1)(c) that the rights and interests must be capable of recognition under the common law, s 223(1) does not impose limits on the content of traditional laws and customs. In particular, it 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. As the appellants contended, on the assumption that traditional laws and customs continue to be acknowledged and observed, it is to those laws and customs that the inquiry must be directed to identify the current holders of native title rights and interests.
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230. The appellants advanced their claim as one brought on behalf of all those Aboriginal people holding native title rights and interests in the claim area as Nguraritja. They identified the relevant society whose laws and customs were acknowledged and observed at sovereignty as the Western Desert Bloc. (Alternatively, the appellants identified the society as the Aboriginal peoples of the eastern region of the Western Desert Bloc embracing, as Professor Elkin’s writings suggested, the western part of South Australia, the south western corner of the Northern Territory and the south eastern desert area of Western Australia. Nothing turns on this alternative formulation.) The appellants said that they were Nguraritja for the claim area under the traditional laws acknowledged and traditional customs observed of the Western Desert Bloc.
231. As Ward (HC) makes clear (at 17 [18]), in any given case it is necessary for the claimants to identify the traditional laws and customs under which native title rights and interests are said to be possessed. The appellants did this by identifying the traditional laws and customs as those of the Western Desert Bloc. They did not suggest that the traditional laws and customs were those acknowledged and observed by a specific dialect group or clan within the Western Desert society. In particular, their claim was not founded on traditional laws and customs unique to the Aboriginal people occupying the claim area at sovereignty. Rather, the appellants contended that the original holders of native title rights and interests in relation to the claim area held their interests by virtue of the traditional laws and customs of the Western Desert Bloc and that they (the appellants) were acknowledged by those traditional laws and customs as the successors to the original native title holders by virtue of their status as Nguraritja for sites and tracks in the claim area.
232. Ward (HC) also makes it clear that it is necessary for native title claimants to identify the rights and interests in relation to land or waters possessed under the traditional laws and customs acknowledged and observed by them. In this case, the appellants asserted that they possessed rights and interests in relation to the claim area by virtue of being recognised under the traditional laws and customs of the Western Desert Bloc as Nguraritja for sites or tracks on the claim area. They identified the rights and interests as those that flowed from the status of Nguraritja under the traditional laws and customs of the Western Desert Bloc.
233. To satisfy s 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 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. 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. Just as the Yorta Yorta claimants failed notwithstanding that they had genuinely attempted ‘to revive the lost culture of their ancestors’ (Yorta Yorta (HC) at 558 [69]), the appellants’ claim would fail unless they could show that any rights or interests asserted by them were derived from the traditional laws and customs of the Western Desert Bloc and that the Western Desert society had continued since sovereignty.
234. Similarly, the appellants would fail if their claim to be Nguraritja for the claim area was founded on rules or norms that never formed part of the traditional laws and customs of the Western Desert Bloc. If, for example, the appellants’ forebears had formulated new and expanded Nguraritja rules in the 1920s or later specifically in order to accommodate unprecedented population shifts, and this form of accommodation did not form part of, or was not recognised by, the traditional laws and customs of the Western Desert Bloc, the appellants would be unable to satisfy the requirements of s 223(1)(a) of the NTA. This would be so even if the appellants were regarded by other members of the Western Desert Bloc as part of that society, although in practice the two issues (membership of the society, and recognition by the traditional laws and customs of that society of the broader Nguraritja rules) are likely to be closely related.
235. Nor would it be enough for the appellants simply to show that they were descended in some way from Western Desert people who followed traditional laws and customs at sovereignty. That of itself would not demonstrate that they had interests in the claim area possessed under the traditional laws and customs acknowledged and observed by the people of the Western Desert Bloc. The primary Judge was therefore correct to reject a submission to that effect made by the appellants.
236. By the same token, it was not necessary for the appellants to show that they had biological or other links with the particular group of Aboriginal people who held native title over the claim area at sovereignty, other than those required by traditional laws and customs to establish that a person had acquired the status of Nguraritja for the claim area. There was no suggestion in the present case that the Western Desert Bloc society had ceased to exist at any time between European settlement and the trial. Nor was it suggested that the appellants themselves, whether or not they constituted a discrete social, communal or political group, were not members of that society. Moreover, the respondents did not challenge the primary Judge’s finding that the traditional laws and customs asserted by the appellants were essentially the same as those that existed throughout the Western Desert region (at [102]).
237. The critical question was whether the appellants possessed rights and interests in the claim area under the traditional laws acknowledged and customs observed of the Western Desert Bloc. If by those traditional laws and customs the appellants had sufficient links to the original native title holders as to acquire the status of Nguraritja for the claim area, that would be enough, provided that they retained, by those laws and customs, a connection with the claim area.
238. As we have remarked, there is a close relationship between the approach taken under the traditional laws and customs of the Western Desert Bloc to population shifts and the appellants’ claim to possess native title rights and interests in relation to the claim area by virtue of their status as Nguraritja. Most of the appellants came to the claim area from country to the west, by reason of drought, the search for food or shelter or because of marriage. For those few who were born on or near the claim area (like Peter De Rose), at least some of their forebears came from the west earlier in the twentieth century.
239. Unless Aboriginal people coming to the claim area from the west could ultimately be recognised under Western Desert traditional laws and customs as Nguraritja for sites or tracks within that area, they could not succeed in a native title claim (at least not one founded on their status as Nguraritja). Similarly, their descendants could not succeed in such a claim in the absence of a traditional law or custom recognising descendants of ‘migrants’ as Nguraritja for country on which, or near where, they were born. The significance of the approach taken by the traditional laws and customs of the Western Desert Bloc to population shifts, for present purposes, lies in the extent to which those laws and customs recognised ‘newcomers’ or their descendants as Nguraritja for sites or tracks on the claim area.
240. It is not entirely clear whether the primary Judge regarded the significance of population shifts for the traditional laws and customs of the Western Desert Bloc as a separate question from that of the Nguraritja rules under those laws and customs. His Honour described the migratory movements of the Pitjantjatjara to the east as part of the ‘history and social structure of the Aboriginal people of the Western Desert Bloc’ (at [372]). He also accepted, by reference to the language of Beaumont and von Doussa JJ in Ward (FC), that the appellants had established ‘a substantial degree of ancestral connection’ with the original inhabitants, apparently because of the ‘process of incorporation that reflected the pattern of migratory movements’ (at [897], [346]). His Honour did not explicitly find that the population shifts that occurred in the early to mid twentieth century were recognised by, or were in accordance with, the traditional laws and customs of the Western Desert Bloc, in the sense that newcomers could become Nguraritja for the claim area, depending on the circumstances.
241. In our view, however, a fair reading of the judgment as a whole suggests that the primary Judge did intend to make a finding to this effect. For example, his Honour found (at [102]) that the Nguraritja rules of which the appellants had given evidence were examples of evolutionary development of traditional laws and customs. This finding was expressly linked to the fact that the appellants’ ancestors ‘[p]resumably ... brought their traditional laws and customs with them’. The analysis suggests that his Honour intended to find that the population shifts to and from the claim area had taken place in accordance with the traditional laws and customs of the Western Desert Bloc and that newcomers to the claim area, depending on the circumstances, could become Nguraritja for the claim area under those traditional laws and customs.
242. In our opinion, notwithstanding the respondents’ submissions to the contrary, the evidence supports such a finding. Professor Maddock [anthropological witness for the respondents], whom the primary Judge regarded as well qualified to comment on anthropological matters, acknowledged in his report that the
literature shows that migratory movements induced by a range of causes have been important in parts of Australia this [twentieth] century and also earlier. The region within which De Rose Hill is situated has evidently seen a good deal of this phenomenon. (Emphasis added.)
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266. In their submissions to this Court, the respondents did not attempt to analyse the evidence of the Aboriginal witnesses in detail with a view to establishing that his Honour’s reliance on that evidence was misplaced. Nor did they argue that his Honour was not entitled to take account of the evidence of Dr Willis [anthropological witness for the appellants, initiated into Pitjantjatjara/Yankunytjatjara restricted men’s ceremonial law], whose evidence, according to the primary Judge, ‘constituted very strong support’ for the appellants’ position that one could become Nguraritja for land through a long-term association (at [339]). In these circumstances, we think that it was open to the primary Judge to infer, as he did, that the four methods of becoming Nguraritja for particular country reflected the pattern of population shifts that not only formed part of the pre-sovereignty history of the Western Desert peoples but was also acknowledged and contemplated by the traditional laws and customs of the Western Desert Bloc. The respondents’ submission that the primary Judge’s finding lacks a sufficient evidentiary foundation must therefore be rejected.
267. Nor do we think that the primary Judge misapplied the relevant principles in making the finding concerning the Nguraritja rules. The joint judgment of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta (HC), pointed out (at [44]) that the rights and interests in land recognised by ‘the new sovereign order’ include the rules of traditional laws and customs which deal with the transmission of those interests. Their Honours accepted that account could be taken of post-sovereignty alterations to, or development of, the traditional laws and customs, at least of a kind contemplated by those traditional laws and customs. Indeed, their Honours appeared not to dissent from the proposition, accepted by both the claimants and the respondents in Yorta Yorta, that there could be ‘significant adaptations’ of traditional laws and customs.
268. Judgment in the present case was delivered shortly before the High Court handed down its decision in Yorta Yorta (HC). His Honour therefore did not have the advantage of the High Court’s judgment in that case. Nonetheless, we see no inconsistency between the reasoning of the High Court in Yorta Yorta (HC) and the reasoning of the primary Judge on the question of the Nguraritja rules. Clearly enough, his Honour saw the post-sovereignty adaptation of the Nguraritja rules as contemplated by the traditional laws and customs of the Western Desert Bloc. As we have observed, his Honour found that population shifts to and from the vicinity of the claim area to be consistent with the traditional laws and customs of the Western Desert Bloc. He also characterised the changes to the Nguraritja rules as an ‘evolutionary process’ and as an example of ‘evolutionary traditional law’. In our view, these findings are consistent with the approach taken by the joint judgment in Yorta Yorta (HC).
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275. It was no part of the present appellants’ case, as ultimately presented, that they, or any other persons who might be Nguraritja for the claim area, constituted a discrete cohesive society or community at any given time. As the primary Judge recognised, their claim was that they possessed native title rights and interests by virtue of their status as Nguraritja for the claim area under the system of laws and customs they shared with other Aboriginal people of the Western Desert Bloc. The normative system on which they relied was that acknowledged and observed throughout the Western Desert region.
276. In order to succeed, 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. They also had to show that Western Desert Bloc society has had a ‘continuous existence and vitality since sovereignty’: Yorta Yorta (HC), at 553 [47].
277. The present case does not raise the same issue as Yorta Yorta. There the claimants failed because, on the trial Judge’s findings, the traditional laws and customs of the Yorta Yorta community had not been acknowledged and observed substantially uninterrupted since sovereignty. The trial Judge in Yorta Yorta found that the claimants and their ancestors had not continued to acknowledge and observe traditional laws and customs in relation to the land of their forebears. His Honour also found that, before the end of the nineteenth century, the ancestors through whom the claimants claimed title had ceased to occupy their traditional lands in accordance with their traditional laws and customs: Yorta Yorta (HC), at [94]. These findings were found to be fatal to the claim because (at [95]) they demonstrated that
the society which had once observed traditional laws and customs had ceased to do so and, by ceasing to do so, no longer constituted the society out of which the traditional laws and customs sprang.
278. In the present case, it does not appear that the respondents contended at trial that the Western Desert Bloc society did not exist at sovereignty or that the traditional laws and customs of that society did not provide for persons recognised as Nguraritja to possess rights and interests in relation to land. Nor does it appear to have been contended that the Western Desert Bloc society had ceased to exist or that members of that society had ceased to observe traditional laws and customs, at any time between sovereignty and the trial. In any event, the findings made by the primary Judge, which we have summarised at the beginning of this section, indicate that the traditional laws and customs of the Western Desert Bloc, which recognised the rights and interests of those who were Nguraritja for land, existed at sovereignty. The findings are also inconsistent with any contention that the traditional laws and customs of the Western Desert Bloc had not been continuously acknowledged and observed since that time. It will be recalled, for example, that his Honour found that the Nguraritja rules which determined rights and interests in the claim area at the date of the trial were those recognised by the traditional laws and customs of the Western Desert Bloc.
279. If it were necessary to go back to the evidence, there is ample support for the proposition that, whatever the degree of acknowledgement or observance of traditional laws and customs by the appellants themselves, Western Desert society has continued to exist since sovereignty and the traditional laws and customs of that society have continued substantially uninterrupted throughout that period. ...
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282. 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.
283. It follows that the 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.
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303. The finding made by the primary Judge that Peter De Rose [the dominant figure in the presentation of the claimants’ case] abandoned his connection to the claim area does not conform to the language of s 223(1)(b) of the NTA. The question posed by that provision is not whether the appellants, or any of them, have abandoned their connection to the claim area. It is whether the appellants, by their traditional laws acknowledged and traditional customs observed, have a connection with the claim area.
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305. At first glance, it may not be evident what par (b) of s 223(1) adds to par (a). If Aboriginal people possess rights and interests in relation to land under the traditional laws acknowledged and the traditional customs observed by them, it would seem to be a small step to conclude that the people, by those laws and customs, have a connection with the land. In the present case, for example, the evidence suggests that where Aboriginal people, under the traditional laws and customs of the Western Desert Bloc acknowledged and observed by them, are recognised as Nguraritja for particular land, they have certain ‘rights’ and responsibilities under those traditional laws and customs. Thus, as his Honour found, the Nguraritja are able to live and hunt on the land and also have a special responsibility for the ‘constellation’ of sacred locations on the site. Given that these rights and responsibilities are referable to particular land or sites, it would seem to follow that there is a ‘connection’ by the traditional laws and customs between the Nguraritja and ‘their’ land. It is difficult to conceive of a construction of the word ‘connection’ that would not be satisfied in these circumstances.
306. Nonetheless, the High Court in Ward (HC) expressed the view (at [19]) that the distinction between pars (a) and (b) of s 223(1) can be ‘critical’ to the resolution of a particular case. The relevant issue in Ward (HC) was whether the NTA is concerned with the maintenance and protection of cultural knowledge. Their Honours pointed out that cultural knowledge may be possessed under the traditional laws acknowledged and traditional customs observed by the relevant people. However, they held (at [60]) that the asserted right to maintain, protect and prevent the misuse of ‘cultural knowledge’ did not satisfy the requirement of connection with the land imposed by s 223(1)(b) of the NTA. This was so because recognition of the asserted right would extend beyond denial or control of access to land held under native title and would amount to acknowledgement of a new species of intellectual property: see at [59].
307. Their Honours did not explicitly address whether the asserted right, insofar as it went beyond permitting or controlling access to sites where artworks were located or ceremonies performed, could be said to be a right possessed under traditional laws and customs ‘in relation to land’. It may be implicit in their Honours’ reasoning that the asserted right was possessed ‘in relation to land’. If so, that fact was not enough, in their Honours’ view, to establish that the claimants had a ‘connection’ with the land for the purposes of s 223(1)(b). The explanation may be that a right can exist ‘in relation to land’ for the purposes of s 223(1)(a), even if the ‘right’ carries with it no entitlement to do or prevent anything from being done on the land; but that such a right is not of itself necessarily sufficient to establish that, by traditional laws and customs, the holder of the right has a ‘connection’ with the land for the purposes of s 223(1)(b).
308. One of the difficulties in the present case is that the primary Judge appears to have approached the question of ‘connection’ on the basis that at least some of the appellants, by virtue of their status as Nguraritja for sites on the claim area, possessed rights and interests in relation to the claim area under the traditional laws and customs acknowledged and observed by them. This would seem to follow from the findings that Peter De Rose was, and some of the other appellants may well be, Nguraritja for the claim area under their traditional laws acknowledged and traditional customs observed and may thereby satisfy s 223(1)(a) of the NTA. His Honour nonetheless rejected the appellants’ claims and did so squarely on the basis that they had failed to establish the connection with the claim area required by s 223(1)(b) of the NTA. It is true that later in the judgment the primary Judge made findings that appear to suggest that the appellants may no longer have acknowledged or observed traditional laws and customs. It will be necessary to return to these findings. But nowhere in the judgment does his Honour expressly base his rejection of the appellants’ claim for a determination of native title on their failure to satisfy s 223(1)(a) of the NTA, rather than their failure to satisfy s 223(1)(b).
309. The primary Judge did not explain in terms why he appeared to accept that the appellants (or some of them) had satisfied s 223(1)(a) of the NTA, yet concluded that they had failed to show that they had a connection to the claim area. In particular, his Honour made no finding that by reason of the appellants’ failure to continue to observe the traditional laws and customs of the Western Desert Bloc, they were regarded by those laws and customs as ceasing to have the requisite connection with the claim area. Rather, as his Honour stated (at [916]) his conclusion was that ‘those claimants who once had a relevant connection with the claim area have all abandoned that prior connection’.
310. It may be accepted, if only as a matter of inference, that his Honour identified the traditional laws and customs relevant to the question of ‘connection’ as those of the Western Desert Bloc. He did not, however, explicitly ask, in relation to Peter De Rose or any of the other appellants, whether by those traditional laws and customs, they had retained a connection with the claim area. As Ward suggests, such an inquiry would have required the primary Judge to ascertain the content of the traditional laws and customs, to characterise the effect of those laws and then to determine whether the characterisation constituted a connection between Peter De Rose (and the other appellants) and the claim area.
311. It is fair to say that his Honour had in mind, in considering the question of connection, aspects of the traditional laws and customs of the Western Desert Bloc. His reasoning shows that he proceeded on the basis that the traditional laws and customs required persons who were Nguraritja for particular tracks or sites to pass on knowledge to the younger generations, to care for secret and sacred places and engage in ‘cultural activities’ (presumably ceremonies and the like) at important sites. In the case of Peter De Rose, for example, his Honour appears to have given considerable weight to his own assessment of the significance of Peter’s failure to measure up to the standards of adherence to traditional obligations that he (the primary Judge) thought appropriate. It was that failure which played a large part in his Honour’s conclusion that Peter De Rose had abandoned his connection with the claim area.
312. In Yorta Yorta (HC), the joint judgment (at [90]) counselled against describing the consequences of interruption in the acknowledgment and observance of traditional laws and customs as ‘abandonment’ of native title. As we have explained (at [277]–[278]), the issue in the present case is not the same as that in Yorta Yorta. But the fact that his Honour used the language of ‘abandonment’ suggests that he was very much influenced by his own assessment of whether the appellants had a reasonable excuse for their failure (as his Honour saw it) to do more to perform the obligations imposed or exercise the rights conferred by traditional laws and customs. In other words, his Honour appears to have applied a standard that was not sourced in the traditional laws and customs of the Western Desert Bloc, but was rather a construct of his own.
313. In our view, s 223(1)(b) of the NTA required the primary Judge to identify the content of the traditional laws acknowledged, and customs observed, of the Western Desert Bloc and to inquire whether the effect of those laws and customs constituted a ‘connection’ between the appellants and the claim area: Ward (HC), at 32 [64]. If the traditional laws and customs of the Western Desert Bloc continued to recognise Peter De Rose, for example, as Nguraritja for the claim area notwithstanding his ‘failure’ for a significant time to observe his responsibilities in relation to sites on the land, that would be a powerful indication that the effect of those traditional laws and customs was to constitute a connection between Peter De Rose and the claim area. That would be so because Peter De Rose, by the traditional laws acknowledged, and traditional customs observed, of the Western Desert Bloc had rights and responsibilities in relation to the claim area.
314. On the other hand, if the traditional laws and customs of the Western Desert Bloc no longer recognised Peter De Rose as Nguraritja or, although acknowledging that status, regarded him as deprived of his rights and responsibilities in relation to the claim area, that would be a powerful, perhaps determinative, indication that by the laws and customs he did not have a connection with the claim area. No such finding was made by his Honour. (Of course, had such a finding been made, it might also suggest that Peter De Rose no longer acknowledged or observed traditional laws and customs, or possessed rights and interests under those laws or customs. If that conclusion is correct, he presumably would have been unable to satisfy s 223(1)(a) of the NTA.)
315. The test the primary Judge applied seems to us to have accorded undue weight to the appellants’ failure (as his Honour saw matters) to discharge their responsibilities as Nguraritja for the claim area, regardless of the view taken by the traditional laws and customs of the Western Desert Bloc of that failure. In other words, his Honour did not ask whether, according to the traditional laws acknowledged and customs observed by him, Peter De Rose had a connection with the land. Rather his Honour apparently considered that Peter De Rose’s failure over a period of time to discharge his responsibilities as Nguraritja, as his Honour understood them, demonstrated an absence of connection between Peter De Rose and the claim area for the purpose of s 223(1)(b) of the NTA.
316. We think, too, that because his Honour did not address the question posed by s 223(1)(b) of the NTA, he placed too much emphasis on the absence of physical contact with the claim area after 1978. The Full Court in Ward (FC), in a passage (at 382 [243]) not dissented from in the High Court, held that a spiritual connection and the performance of responsibility for land can be maintained even where Aboriginal people have been hunted off the land or it has become impracticable for them to visit. The Full Court said that physical presence is not essential in circumstances where it is no longer practicable or access to traditional lands is prevented or restricted by European settlers. We see no reason to depart from these propositions and indeed we were not invited to do so.
317. Although his Honour referred to the judgments in Ward (FC), he clearly gave considerable weight to what he regarded as Peter De Rose’s ‘absence from the claim area’ after 1978. Leaving aside the fact that Peter De Rose (as his Honour found) made ‘the occasional hunting visit’ to De Rose Hill Station, his Honour appears to have given little weight to Peter’s spiritual links with the land in the manner contemplated by Ward (FC).
318. Peter De Rose plainly had a detailed knowledge not only of the concept of Nguraritja but of the Tjukurpa. It was his evidence, after all, that provided the foundation for the primary Judge’s findings on these matters. As the Full Court suggested in Ward (FC), at 382 [243], knowledge of this kind must go some way to establishing a connection with land through traditional laws acknowledged and customs observed by the person having the knowledge. Peter De Rose participated in the ritual ceremonies, stories, dances and songs that established to his Honour’s satisfaction (at [380]) that the participants ‘once had a religious or spiritual connection with the site at which the particular activity was performed’. Peter De Rose gave evidence at Ilpalka, a rock hole and semi-permanent source of water, which his Honour accepted was an important site on the Kalaya (Emu) Dreaming track – that is, Peter De Rose’s own Tjukurpa. After the proceedings had been instituted, he was one of those who engaged in a dispute with the Fullers about the disturbance of boulders and the construction of a fence around the rock hole at Ilpalka. He was also engaged with other appellants in a similar dispute with the Fullers after the proceedings began about the clearing of trees and the insertion of a line of posts and star pickets in the Apu Maru area [a site in the claim area]. The rights and wrongs of the disputes matter less than the fact that Peter De Rose and other appellants asserted their rights and discharged their responsibilities in relation to those sites, which were of special significance to them. Indeed, they had asserted their rights in relation to the claim area by December 1994, when the application for a determination of native title was filed with the Native Title Tribunal.
319. It is also of some significance that in about 1990 Peter De Rose was involved in establishing a homeland at Railway Bore, very close to De Rose Hill Station, because (as his Honour found) he wanted a homeland close to his country. It is difficult to see this as anything other than strong evidence of a spiritual connection with the claim area. In the final section of the judgment, his Honour made a general observation (at [910]) that the appellants had been ‘scattered to the four winds’. Whatever might have been the case with some of the other appellants, Peter De Rose seems to have gone to a great deal of trouble to set up residence close to his traditional country for spiritual reasons. If ‘scattered to the four winds’ means having left one’s own country and gone to distant parts, the expression cannot fairly be applied to Peter De Rose.
320. Further, his Honour did not find that Peter De Rose’s spiritual connection with the secret and sacred places on his country was not genuine, even though he was critical of Peter De Rose’s failure to discharge his responsibilities to the extent his Honour thought appropriate, particularly his obligation as Nguraritja to visit sacred sites and ensure they are clean and maintained. Even in relation to that matter, before reaching a conclusion on the significance of Peter De Rose’s failure to discharge his responsibilities, we would have expected consideration to have been given to the manner in which the responsibilities were required to be discharged in accordance with traditional laws and customs. For example, it would be relevant to consider whether, by those laws and customs, when a Nguraritja was not residing on his or her country the duty was to be pro-active or re-active. If, for example, the latter situation applied in the Western Desert his Honour might have taken a different view to the relevant conduct or the lack thereof, of the appellants. However, as already explained, his Honour appears to have reached his conclusion by reference to his own assessment of Peter De Rose’s conduct or inaction.
321. The primary Judge seems to have been influenced by his view that Peter De Rose and the other appellants had not provided satisfactory reasons or excuses for their failure to discharge their responsibilities as Nguraritja or to maintain contact with the claim area. His Honour recorded, however, that the evidence of the Aboriginal witnesses contained (at [907]) a ‘persistent theme’ that they were too frightened to return to De Rose Hill Station because of the hostility displaced by the Fullers.
322. The primary Judge accepted (at [893]) that the conduct of Doug Fuller was ‘a factor’ in the decision of the Aboriginal people to leave De Rose Hill Station, but found that it was not a ‘major factor’. Although there were plainly other factors at work, the finding is perhaps not easy to reconcile with an earlier finding (at [436]) that Doug Fuller had a demeaning attitude towards Aboriginal people and did not hesitate to intimidate Aboriginal people by the use of firearms. Nor is it entirely easy to reconcile with the description (at [895]), of Doug Fuller as a simple and predictable character who was
mostly well disposed towards his Aboriginal workers and their families, but [who] was a strict disciplinarian and would not hesitate to physically assault people when he, in his sole judgment, thought it appropriate to do so.
Be that as it may, clearly the conduct of the Fullers played a part in the decision of the Aboriginal people to leave the Station.
323. His Honour’s findings are also consistent with fear of the Fullers playing a part in the failure of the appellants to maintain contact with the claim area after leaving De Rose Hill Station. It is true that his Honour did not accept the evidence of all of the Aboriginal witnesses as to the reason for their leaving or not returning to the Station. But in some cases, despite expressions of scepticism, his Honour appears to have accepted that the appellants had genuine concerns about what the Fullers would do if they attempted to return to the claim area. It will be recalled, for example, that Peter De Rose and Tim De Rose [another of the appellants] left the Station because (as his Honour found) they genuinely believed, albeit erroneously, that Doug Fuller deliberately delayed telling them about Bobby’s [Peter De Rose’s half-brother’s] death. Tim De Rose, whom his Honour regarded as Nguraritja for the claim area because of his place of birth, gave evidence that he did not want to return to the Station because ‘I was frightened if I go back I might get hunted out’. While his Honour thought that Tim’s association with the claim area was ‘tenuous’, he did not reject Tim’s evidence as to his fears.
324. Similarly, his Honour observed that there was ‘some difficulty’ reconciling Peter De Rose’s evidence that he was frightened of Doug Fuller with the statement that he had ‘continued going back to visit Doug’. Even so, his Honour did not reject Peter’s evidence that he harboured fears. Instead, his Honour found (at [595]) that it was difficult to sustain the idea that Peter De Rose or any other Aboriginal people ‘had any reason to be afraid to enter the property to hunt or carry on traditional activities because of the conduct of Doug or Rex Fuller’. His Honour did not explain how this finding could be reconciled with the findings about Doug Fuller’s attitudes and behaviour and we have considerable difficulty seeing how it can be reconciled. Even if the finding stands, it does not negate the appellant’s perceptions that they faced the prospect of a hostile response, perhaps even a violent one, if they returned to De Rose Hill Station without the Fullers’ permission.
325. The fact that some of the appellants genuinely feared the response of the Fullers if they attempted to visit De Rose Hill Station without permission does not demonstrate that they maintained a connection with the claim area by the traditional laws acknowledged, and the traditional customs observed, of the Western Desert Bloc. But it is a factor to consider in determining whether, despite the lack of physical contact with the claim area, the appellants, or some of them, maintained such a connection.
326. Yorta Yorta (HC), at 563 [90], makes it clear that if continuity of acknowledgement and observance of traditional laws and customs has been interrupted, the reasons for the interruption are irrelevant. But the judgment also indicates that the reasons why acknowledgement and observance has been affected might influence the fact-finder’s decision as to whether there was an absence of continuity. So it is in relation to the question of connection. If the requisite connection does not exist or has ended, it does not matter why this has occurred. But in determining whether there is a connection for the purposes of s 223(1)(b) of the NTA the reason why claimants have not sought to maintain a physical association with the land may be relevant.
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330. While there are obvious virtues in this Court making its own evaluation of the evidence relevant to the question of ‘connection’, there is a difficulty in adopting this course. We were not taken to any evidence bearing on the significance, under the traditional laws and customs of the Western Desert Bloc, of a failure by persons who, under these laws, are Nguraritja for land, to discharge their responsibilities in relation to that land. If the evidence does address that question, we are not in a position to evaluate it at least without the benefit of detailed additional submissions. At this stage of the litigation, at least without the benefit of further submissions, we therefore cannot determine the questions that we think are critical to the application of s 223(1)(b) of the NTA.
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332. Although it was not at the forefront of their submissions, the State and perhaps the Fullers contended that even if the primary Judge had erred in his approach to s 223(1)(b) of the NTA, the appellants’ claim was bound to fail because his Honour had made findings indicating that they were unable to satisfy the requirements of s 223(1)(a) of the NTA (that is, they could not show that they had rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by them).
333. The Solicitor-General pointed out that the primary Judge had concluded (at [907]) from the fact that Anangu [Aboriginal] witnesses had not visited sacred sites in their country outside the boundaries of De Rose Hill Station, that their ‘adherence to (as distinct from knowledge of) traditional laws and traditional customs has eroded away’. His Honour also said (at [909]) that the appellants had failed to convince him ‘that they continue to acknowledge traditional laws and observe traditional customs in connection with the claim area’. And, after observing that there was no community that had a physical or spiritual connection with the claim area, his Honour found (at [911]) that there had been a breakdown in their acknowledgement and observance of traditional laws and customs. The Solicitor-General submitted that these findings were fatal to the appellants’ ability to satisfy s 223(1)(a) of the NTA.
334. There are several difficulties with this argument. First, the primary Judge made no express finding that the appellants had failed to satisfy s 223(1)(a) of the NTA. Indeed, as we have noted, at one point in his judgment he appears to have accepted that Peter De Rose and other appellants were able to satisfy s 223(1)(a) by reason of their status as Nguraritja under traditional laws acknowledged and traditional customs observed by them. The only reason they failed, on his Honour’s reasoning, was their inability to show that they had maintained their connection with the land. Despite the language used at [911] of the judgment, it is by no means clear that his Honour intended to conclude that the appellants had not satisfied the requirements of s 223(1)(a).
335. Secondly, since his Honour did not make a finding that the appellants were unable to satisfy s 223(1)(a) of the NTA, the judgment does not analyse the statutory concept of ‘traditional laws acknowledged and ... traditional customs observed’. It is therefore difficult to determine the criteria applied by his Honour in making the general finding (at [911]) that there had been a breakdown in the acknowledgement of the traditional laws and in the observance of traditional customs. In this respect, his Honour drew a sharp distinction between knowledge of traditional laws and traditional customs (which he accepted was present) and adherence to these laws and customs (which he thought had eroded away). It is not clear why his Honour did not regard the ‘knowledge’ of the appellants, which was reflected in their performance of traditional site specific ceremonies and songs, and their apparently genuine belief in the significance of those ceremonies and songs, as probative of the appellants’ continuing acknowledgement of traditional laws and customs.
336. Thirdly, the primary Judge expressed his conclusions about the breakdown in traditional laws and customs in general terms, without relating that general finding to his examination of the position of each of the Aboriginal witnesses. It will be remembered that his Honour had undertaken that task ‘for the purpose of determining whether the necessary connection [for the purposes of s 223(1)(b)] exists’ (at [571]). In our opinion, the findings made in relation to the individual appellants do not necessarily support his Honour’s ultimate conclusion. This point can be illustrated by reference to the findings concerning Peter De Rose.
337. As we have noted, his Honour was critical of Peter De Rose’s failure to teach his children and grandchildren the Tjukurpa for his country or to care for the secret and sacred places. His Honour also noted Peter De Rose’s failure to give evidence of substantial adherence to traditional laws and customs on his country beyond the boundaries of De Rose Hill Station. However, while finding that Peter De Rose had not engaged in any cultural activities on any part of his country since 1978, his Honour did not find that Peter De Rose no longer acknowledged traditional laws or observed traditional customs. If such a finding was to be made, it would need to take account of Peter De Rose’s knowledge of the Tjukurpa, and of his rights and responsibilities as Nguraritja for the claim area; his observance during the course of the hearing of traditional laws and customs in relation to gender and other restrictions in relation to the persons who were permitted, and were not permitted, to ‘speak for’ or tell stories in relation to sites and to participate in ceremonies at sites; his participation in ceremonies and songs (which, although taking place after the commencement of proceedings, in the absence of a finding to the contrary, would seem to be capable of being regarded as ‘cultural activities’ in relation to his country); his association with the claim area from his birth until his departure in 1978; his continued, albeit limited, physical association with the claim area after 1978; and his decision to establish a homeland at Railway Bore in order to remain close to his traditional country on De Rose Hill Station. It would also be necessary to take account of Peter De Rose’s own beliefs as to the significance of, and his commitment to, the traditional laws and customs of the Western Desert Bloc, a matter in respect of which his Honour did not make express findings.
338. Of particular significance in this regard were the steps taken by Peter De Rose and other appellants to protect the sites at Ilpalka and Apu Maru after the bringing of their native title claim. Although (at [206]) his Honour expressed some caution about acts of observance of traditional laws and customs since the commencement of the claim he made no finding that such acts were not genuine. The steps taken by Peter De Rose and other appellants to protect the sacred sites at Ilpalka and Apu Maru were said by them to have been in discharge of their duties as Nguraritja. His Honour appeared to accept the evidence (at [402]) that Nguraritja ‘who are accountable to the wider groups of the Western Desert Bloc for the protection and maintenance’ of the sites of special significance at Ilpalka would be ‘open to censure should they not vigorously act to protect’ such sites. There would seem to be no reason why the same accountability, under the traditional laws and customs of the Western Desert Bloc, would not also apply to the special sites in the Apu Maru area. When Peter De Rose and other appellants became aware of the activities of the Fullers in relation to the two sites, which they regarded as damaging or interfering with the sites and their spiritual significance, they appeared to discharge their responsibility to take steps to protect the sites from being damaged or interfered with.
339. Curiously, his Honour (at [402]) appeared to accept that the events concerning Ilpalka represented the expression of genuine spiritual beliefs concerning the site but stated that what he had to determine was whether those beliefs were ‘things of the past or whether they remain as evidence of a continuing connection with the claim area’. Further, although evidence was given of similar protective steps being taken in respect of Apu Maru, to which his Honour briefly adverted (at [420]), he appeared (at [383]) to regard the main relevance of such disputes about the way land can be used as ‘showing how lack of knowledge and understanding can create a clash between competing cultures’.
340. Fourthly, the finding (at [911]) made by his Honour that most closely corresponds to the language of s 223(1)(a) of the NTA, was clearly influenced by the finding in the same paragraph that there had not been for many years a group of Anangu who could be described as having, as a community, or as a group, a physical or spiritual connection with the claim area. For the reasons we have given (at [273]–[283] above), his Honour erred in regarding the latter finding as significant on the question of connection. He was equally in error to regard it as significant on the question whether there had been a breakdown on the part of the appellants in the acknowledgement of traditional laws and the observance of traditional customs.
341. The difficulties we have identified preclude us upholding his Honour’s orders on the basis that his findings justify concluding that the appellants had failed to satisfy s 223(1)(a) of the NTA. These findings, contrary to the State’s submissions, cannot be regarded as credit-based findings of fact that are entitled to deference on appeal. Rather, they are inferences drawn from other findings of fact and are flawed by the errors and omissions to which we have referred. As a consequence, the question of whether the appellants, or some of them, acknowledged the traditional laws and observed the traditional customs of the Western Desert Bloc, like that of the appellants’ connection with the claim area by those laws and customs, requires further consideration.
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410. In the ordinary course, we would be inclined to allow the appeal, set aside the orders made by the primary Judge and remit the matter to him for further proceedings consistent with this judgment. While it is never satisfactory to expose the parties to the costs and burdens of a fresh trial, even if limited, in effect, to a reassessment of the existing evidence, there are difficulties about a Full Court attempting to revisit the voluminous evidence, even with the benefit of additional submissions.
411. Since the primary Judge has now retired, it is not feasible to remit the proceedings to him. If the proceedings were remitted to another Judge, that Judge would face the formidable task of familiarising himself or herself with a vast amount of evidence. Inevitably, this would involve delay and expense to the parties.
412. In our view, the most appropriate course is for the parties, having considered these reasons for judgment, to identify what issues, if any, remain in dispute. We shall then provide an opportunity for further written submissions and, if necessary, oral argument on those issues. We have in mind that this Court will address and resolve any outstanding issues, by reference to these reasons for judgment, the primary Judge’s findings (so far as they are consistent with this judgment) and any additional evidence to which the parties wish to direct our attention. With some cooperation among the parties, we would expect that the scope of the remaining issues could be kept within relatively narrow limits.
Counsel for the Appellants:
Mr J Basten QC with Mr A Collett
Solicitor for the Appellants:
Aboriginal Legal Rights Movement Inc
Counsel for the first Respondent:
Mr CJ Kourakis QC with Ms RJ Webb and Ms GA Brown
Solicitor for the first Respondent:
Crown Solicitors Office for the State of South Australia
Counsel for the second Respondent:
Mr R Whitington QC with Mr CH Goodall
Solicitor for the second Respondent:
Rosemary H Craddock
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2003/40.html