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Court and Tribunal Decisions - Australia
Federal Court of Australia (Madgwick J)
31 March 2004
Application for a determination of native title — granting of previous State ‘land rights claim’ probably had extinguished native title of the subject land — respondents seeking a determination of the non-existence of native title in relation to the subject land — whether requisite continuity of society in claimant group — insufficient evidence to establish that the claimants constitute a society observing traditional laws and customs — no acceptable evidence to identify relevant native title rights and interests — no native title in relation to the claimed land
In 1999, the Deerubbin Local Aboriginal Land Council (‘Deerubbin’) had made a claim to ownership of land in the greater Sydney area under the Aboriginal Land Rights Act 1983 (NSW) (‘NSW Act’). The NSW Minister for Land and Water Conservation approved that claim in 2000. As provided by the NSW Act, native title is extinguished once a claim has been approved and compensation is payable to those with Native Title rights or interests.
In this case, Dennis Charles Gale (the applicant) brought a native title claim before the Federal Court on behalf of the Darug People, claiming an interest in a larger area of land comprising most of metropolitan Sydney, from the coast between Sydney Harbour and Botany Bay tending westward to the Blue Mountains (‘the larger claimed area’).
Following submissions by Deerubbin and the NSW Minister for Land and Water Conservation, it was generally agreed among the parties that Native Title had been extinguished. The applicant sought that the court make a ruling under the Native Title Act 1993 (Cth) (‘Native Title Act’) that native title would have otherwise existed. The applicant did so on the understanding that such a ruling could only, and at most, provide grounds for compensation. The primary objective of the applicant was to seek legal recognition of the historical existence of his community, the Darug people.
1. In order to make out a native title claim under s 223(1)(b) of the Native Title Act, the claimants must have a present connection with the claimed area by way of the traditional law they acknowledge and the traditional customs they observe. This test allows for some interruptions to enjoyment of native title rights and interests insofar as it is possible for these laws and customs to adapt over time [108]. Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 534 (‘Yorta Yorta’) followed.
2. Native title claimants must also show that they have continued to exist as a society since before sovereignty, and that this society was and is united by its acknowledgment of traditional laws and observance of traditional customs [118].
3. In this case, even if a such a society did once exist, the scale and intensity of post-sovereignty rearrangements in the larger claimed area resulted in the effective destruction of all traditional Aboriginal societies in the area [127].
4. A few beliefs, stories, values, family traditions and some surviving practical bush knowledge are not enough to amount to a ‘body of knowledge and customs’ for the purposes of the Native Title Act s 223(1). Further, the fact of Aboriginal descent, either alone or with the survival of some remnants of pre-sovereignty culture, is not enough to demonstrate the survival of a people with live traditional laws and customs connected to any such original people [127], [129].
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14. It is now clear, following that decision [in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 534 (‘Yorta Yorta’)], that the native title rights and interests which are the subject of the Native Title Act are those which existed at the time of British sovereignty over Australia, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected: Yorta Yorta at [77] and [134]. Such native title rights and interests derive from traditional laws and customs in the sense that they survived the acquisition of sovereignty over Australia: Yorta Yorta at [75].
15. The origins of the contents of the laws or customs concerned are to be found in the normative rules of aboriginal societies that existed before the assertion of sovereignty by the British Crown.
16. The rights and interests must be presently ‘possessed’ under traditional laws and customs. This requires that the normative system under which those rights or interest are possessed, namely the traditional laws and customs, be a system that has had a ‘continuous existence and vitality’ since sovereignty: Yorta Yorta at [47].
17. Yorta Yorta at [83]-[89] is also authority for the following propositions relevant to this case:
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49. A number of basic assumptions underpin the applicant’s native title claim. Most importantly, there is the assumption of a common language, Darug [among Aboriginal people in the greater Sydney area], and the related assumption that there was an identifiable social formation, ‘the Darug people’ who spoke that language. ...
51. The early observations suggest that before 1788, the various clans certainly had a strong sense of belonging to particular territories. But other clans might also, by custom, have been able to exercise rights within the principal territory of adjacent clans. There would have been a network of intersecting, recognised rights to resources between the clans, connected by marriage, ritual and political alliance. The question is: did this make the interacting clans members of a single over-arching people meriting the proper name ‘Eora’ (now a name commonly used in society generally for original Sydney coastal people) or ‘Darug’? Furthermore, even if there were such a social group, are its social or territorial boundaries discernable?
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65. ... Prof Ward [an historian with a background in the interaction of indigenous cultures and institutions with those of European colonists in Oceania] points out that great care must be taken not to ‘read back’ upon the past, the developments of more recent times – not to label as ‘customary’ or ‘traditional’ developments in the post-contact period which were major structural changes, rather than mere evolutions of traditional institutions.
66. The contemporary evidence suggests that, in the late 18th and early 19th centuries, the primary, functioning reality was and remained the cluster of interacting clans, with a wider Darug ‘tribe’ yet to emerge, both conceptually and functionally.
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67. Contemporary evidence frequently attested to the co-habitation of convicts and free settlers with Aboriginal women and the birth of mixed race children. ... It was mixed-race children who tended to be sent off to the institutions founded by the British for the education of young Aborigines.
68. In 1814 Macquarie gazetted the establishment of the ‘Native Institution’, a school for the education of Aboriginal children. Macquarie actively encouraged Aboriginal parents to hand over their children for education in the Native Institution.
69. The Institution opened with 6 boys and 6 girls, including Maria from Richmond, who was said to be then 8 years of age. Maria (Lock) is the progenitor of many of the present claimants, including Dennis Gale, the named applicant and Colin Gale. She seems to have been, as will be seen, a brilliant and outstanding woman.
70. Maria was officially recognised as the daughter of an Aborigine called Yarramundi, who gave her over to the Native Institution in December 1814. ... While there is some reason to think that Maria Lock’s biological father may have been white, not Aboriginal, there seems to be no doubt that she had an Aboriginal mother and was at least accepted as his child by her Aboriginal father.
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73. It appears that earlier ‘functionalist’ anthropologists believed in the total collapse of cultures when they are disturbed. Such opinion, apparently, no longer obtains. Cultures appear to show a remarkable persistence, a capacity to shape new patterns compounded of much of the old and some of the new. In particular, while a people’s material appearances can change, their thoughts and values may remain highly traditional in fundamental matters. Thus, here, even the loss of control of most of the land was not immediately totally devastating. The old life could and did continue in and amongst the invaders, on the bits of land remaining, in the hills, valleys and waterways that lay to the west and south of Sydney, or even in Sydney itself. Consequently, in the 1820s and 1830s the Europeans could observe the continuance of initiation rituals and tribal fighting to avenge injury based on traditional beliefs.
74. The evidence suggests that, despite the loss of land, smallpox and shootings, despite growing drunkenness and begging for handouts in Sydney streets, surviving Aboriginal groups in the 1820s remained essentially controlled by the male adults and the value systems of the past. That is, while the British could invade, seize the land, kill Aboriginal resisters and generally control the territory they occupied, they could not yet shape the minds of Aborigines to any marked extent. Almost none took any serious interest in Christian teachings, a European-style work ethic and other values prized by the British
75. Prof Ward concludes that, although the Aborigines sought to remain autonomous and engage with the Europeans very selectively, ultimately the effects of a succession of epidemic diseases commencing in the late 1820s and ending in the 1840s broke down their independence. A new wave of diseases swept through Aboriginal communities in the 1820s. ... Measles, whooping cough, influenza and dysentery also took a heavy toll at this time among people who had no natural or acquired immunity. Mounting conflict with settlers and massacres of Aborigines also took many lives as settlement spread outside the Sydney basin. It seems that there was a rapid decline, in the order of one third to one half, of the remaining Aboriginal population between 1830 and 1840.
76. Prof Ward concludes that, as the elders died and people lost heart in the efficacy of traditional lore and ritual, there came, for the first time, something like a genuine revolution in Aboriginal society. It was marked by two features: a willingness to adopt new ways and the coming into prominence of the formerly despised ‘half-castes’ (the then common term).
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90. From about 1910 and during the First World War, many residents of the Sackville Reach Reserve and many of the extended Lock family dispersed into, and found employment, spouses and education within, the general community. Some joined the armed forces and served overseas.
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95. The Black Town and Sackville communities, in general, seem to have ‘aspired’ to attain the lifestyle of the wider community. Many succeeded, in large measure, despite the very limited economic opportunities. They were, of course, recognizably Aboriginal social formations, but of new and different kinds. Prof Ward concludes that, all in all, there is little to suggest on-going traditional values and practices, other than a strong sense of kinship bolstered by a practical reliance upon each other’s support. There were probably some vestiges of other traditional values and beliefs. The significance of even this needs to be carefully judged: most rural societies have some residual beliefs from the pre-Christian spiritual order. Ward concludes, however, that there is nothing in the documentary record so far researched or disclosed to suggest that people’s lives were greatly affected by such remnant, traditional values and beliefs. There is instead a good deal of information confirming their work in the wider community, their schooling, their church-going and their use of the regular medical services.
96. In my opinion, Maria Lock’s family and the other families of Aboriginal descent from the Hawkesbury region, were a remarkable group of people, forebears of whom anyone who values courage, endurance and capacity to adapt might be proud. However, Prof Ward considers that they were really remarkable for their rapid assimilation into the broader community ...
[Madgwick J then proceeded to discuss various aspects of the applicants’ evidence that was introduced to support their native title claim.]
108. The question asked by s 223(1)(b) of the Native Title Act is whether the claimants, by traditional laws acknowledged and traditional customs observed, have a present connection with the claim area. This test allows for some interruptions to enjoyment of native title rights and interests: Yorta Yorta [83]–[89]; De Rose v South Australia [2003] FCAFC 286 [303]ff.
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109. There is scant evidence of any considerable, actual link possessed by any member of the claimant group to the claimed land or the land surrounding it that might have significance for a claim to native title rights and interests. ...
111. While there is some oral tradition of some Aboriginal words among some of the claimant group, apparently there is no evidence that anyone now alive speaks even an impoverished (or even a remnant) version of anything that could be said to be a Darug language. No one living had ‘heard’ ‘Blacktown talk’, what Dr Kohen acknowledges is ‘possibly a late 19th century version of Darug’ (emphasis added), since at the very latest the 1950s. A living society may of course with time change its language, but the inference of immense change causative of virtually complete loss of a language confirms every other indicator that the changes since sovereignty have amounted to a complete rupture with traditional ways, not their live maintenance through adaptation.
112. Some members of the claimant group have a knowledge of [bush foods and medicines.] ... This kind of knowledge is very likely to have been handed down from generation to generation of people of at least partially Aboriginal descent. ... There was, however, no suggestion that the present knowledge is accompanied by an actual sense of any right, privilege, liberty or immunity in relation to entering or being upon any particular land for the purpose of putting the knowledge to use, nor did I get any impression of a live sense of actual and immediate deprivation arising out of exclusion from any particular land, except that in the Plumpton area, which was long ago alienated from the Crown.
113. There was, in any case, nothing to set that knowledge in a wider framework of related knowledge so as to amount even to a remnant system of thought which might be expected in a living society bound by traditional laws and practising traditional customs which any claimant could access.
114. There are some oral traditions that may well have been handed down from before 1788. An example is the tradition of a bird of ill omen, the Duwan. Such may be accepted as a remnant of an Aboriginal belief. But any real detail of the belief seems to have been lost. Was the Duwan entirely mythical, like the bunyip familiar to many non-Aboriginal Australians, or was it an actual bird about which there was a traditional belief? The evidence does not seem to permit a confident answer. More importantly, the scarcity of such stories in the evidence is remarkable.
115. Colin Gale has two stone artefacts which were ‘passed down’ to him, an engraving tool and a tooth evulsion instrument. Tooth evulsion was common in the Sydney region. Perhaps the greatest significance of the matter is that so few artefacts survive in the hands of the applicants. Likewise the evidence as to places of special significance, particularly of great spiritual significance, is very sparse.
116. ... That Mr Gale is living a suburban way of life largely indistinguishable from that of many non-Aboriginal Australians could, of itself, hardly be decisive. Mr Gale has, for many years, set out to learn and to teach, whenever he can, and so much as he deems appropriate, what he knows of the culture of his forebears. ... He knows and believes some things from family sources that would likely not be available to a non-Aboriginal person. Mr Gale is conscious of historical loss and injustice, of both material and non-material kinds, to Aboriginal people, including his own extended family and other people whose understanding is that they are descendants of Darug people. He has spent many years trying to recover some of so much that has been lost. He essentially seeks for the claimant group and himself recognition that they are the authentic descendants of people who, before the coming of the British, lived in some part or parts of the Sydney basin and that, accordingly, they have a moral right to be consulted as to use of unalienated Crown lands in that region and as to issues of local aboriginal heritage. But the overall impression is firmly not of a man actually acknowledging traditional laws or observing traditional customs (including in relation to land rights and interests). Inescapably, what is essential for a native title claim appears to have been irretrievably lost.
117. Further, should what has been lost now or in the future somehow be substantially recovered, according to Yorta Yorta the severance with the past could not be thereby undone.
118. On the available evidence, the claimants do not constitute, nor is any of them a member, not even the last member, of a society that in any presently relevant sense observes traditional laws or customs. I do not doubt their Aboriginality, their descent (biological or otherwise) from at least one pre-sovereignty Aboriginal ancestor, their self-identification as an Aboriginal people and their acceptance as Aboriginal people descended from the original inhabitants of at least some parts of their larger claimed area (roughly the Sydney basin) by at least some other people generally recognised as Aborigines, their knowledge of and regard to some traditional lore, skills and customs, or their aspirations for factual and moral recognition as descendants of the original owners of Sydney lands. However, that is not enough to found a native title claim. There must be shown a society that has continued to exist since before sovereignty and which was and is united by its acknowledgement of traditional laws and observance of traditional customs, allowing that the laws and customs may have adapted. It must further be shown that the governing laws and the identifying customs have had a ‘continuous existence and vitality’ since sovereignty.
119. Thus, there is no reason on the evidence before me to believe that any of the applicant group is presently a member of a society, in the sense of a people, such that the society and its members could be said to acknowledge traditional laws or observe traditional customs. There is a modern association of Aboriginal people who wish to have recognition of their claims to be, and who have a sense of themselves as, direct descendants of Aboriginal people who lived in the Sydney basin before the coming of the British. But, by reason of the devastating and thoroughly pervasive effects of the coming of the British and of subsequent Australian history, they do not constitute a ‘society sufficiently organised to create [or] sustain rights and duties’ (per Toohey J in Mabo at 187). Even if they now did so, that would not be a continuation by tradition, but at best an attempted re-creation, of a society which may well have had native title rights and interests.
120. There is no acceptable evidence, even taking a generous view of possible inferences of kinds exemplified in [110], of what any such rights or interests actually were, before sovereignty, in relation to the claimed land except in terms of the greatest vagueness. The inferences which may be drawn from habitation or occupancy alone may not take a native title claim far: Western Australia v Ward [1997] FCA 585; (1997) 76 FCR 492; The Lardil Peoples v State of Queensland [2004] FCA 298. Nor is there any evidence of the actual traditional laws or customs, in relation to land use custodianship of any group, which embodied the norms that supported any such right or interest.
121. There is no evidence that there is now anything like a body of traditional laws and customs, having a normative content in relation to rights or interests in land, which any member of the claimant group now acknowledges or observes. ...
124. In short, the inference does not appear warranted that the rise of any felt primary identity as Darug people in the 19th and 20th centuries among the claimants and their forebears is of a kind with traditional pre-sovereignty regroupings. On any view, the scale and intensity of the post-sovereignty re-arrangements seem to have been quite unprecedented. There is a point where even what are only quantitative differences signify qualitative change. The clear impression is that there have been re-arrangements of a kind quite different from what occurred before sovereignty, so as to indicate not the survival of traditional kinds of laws and customs concerning periodic necessities for clan adaptations, but a break with anything previously known. The re-arrangements have, after all, occurred in what is undoubtedly a radically different context: (a) the ouster of all Aboriginal people from the great bulk of the lands in the Sydney region and environs; (b) inter-marriage with non-Aboriginal people; and (c) the cessation of (or, at the very least, fundamental change to) traditional ways of living – economic, political, social and spiritual.
127. More fundamentally, the coming of the British and their colonisation of New South Wales meant in time the destruction of all traditional Aboriginal societies, in the sense of peoples, in those parts of New South Wales relevant to this claim, though fortunately not of people of degrees of Aboriginal descent. The evidence suggests that this had largely occurred by the middle of the 19th century. That may overstate the matter: as late as the 1950s there may have been one or more Darug-speakers still living; as between different families and individuals, change in ideation and ways of living is hardly likely to have been uniform. Nonetheless, there is now no real doubt that for a long time there has been no acknowledgement or observance by any known person, including members of the claimant group of anything like the body of traditional laws and customs that regulated pre-1788 Aboriginal life, including people’s relations to and in respect of land. A few beliefs, stories, values and family traditions, which it is fair to call vestigial, and some surviving practical bush knowledge in relation to gleaning food and medicine from the land and any still unpolluted streams, do not begin to amount to such a body.
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129. ... [I]t appears that the claimants have viewed their claimed authentic descent from Aboriginal people who were identified in viewing written records very soon after British colonisation, together with the survival of vestigial elements of traditional culture, as more or less sufficient to show both (a) the survival of a people, rather than of descendants of one or more peoples, and (b) in large part, continued connection for the purposes of establishing legal recognition of their claimed native title in respect of the claimed and associated lands. Rather, what those things may well show, along with the facts of uncompensated historical dispossession, is a claim telling in fact and morality for due recognition as the historical descendants of the original owners and occupiers, in a generic sense, of the lands that have become greater Sydney, and for reparation for the effects of that dispossession. However, the fact of Aboriginal descent, either alone or taken with the survival of some remnants of Aboriginal people’s pre-1788 culture, falls both wide and short of showing the survival of a people with live traditional laws and customs stemming from any such original people.
130. The decision in Mabo was regarded in various quarters as heralding a new dawn for at least a modest degree of reparation to Aboriginal people generally, by way of according them an ability to reclaim unalienated Crown lands. The decision in Yorta Yorta has confirmed that such was not the effect of Mabo. The ability to obtain a declaration of native title under the Native Title Act is, at least after Yorta Yorta, strictly limited.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2004/11.html