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* BA(ANU) LLB(Qld) LLM(QUT); Solicitor of the Supreme Court of Queensland;
Lecturer in Law, James Cook University.
The communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.
Relying on passages from the judgments in Mabo,[6] Olney J held[7] that there were four avenues of inquiry in establishing a claim for native title, namely:
17. that members of the claimant group are descendants of the original occupiers; 18. establishing the nature of the traditional laws and customs [of those ancestors[8] ]; 19. that the traditional connection with land has been substantially maintained[9] ; 20. the rights and interests must be rights and interests recognised by the common law.
In relation to the first of those avenues of inquiry, Olney J concluded that the descendants of two known ancestors (amounting to a significant number of the claimant group) were descended from the original inhabitants.[10] In establishing the nature of the traditional laws and customs of those ancestors, the trial judge found the contemporary writings of a squatter to be the most credible source of evidence, and gave less weight to oral testimony.[11] He inferred that the traditional laws and customs (identified by the evidence from settlers) from the 1840s were similar to those at the time of settlement.[12]
To satisfy the third step, that the traditional connection with land has been substantially maintained, the trial judge required continuity of a society with physical occupancy[13] and continuity in the nature of the laws and customs. In assessing this, his Honour placed considerable weight upon an 1881 petition,[14] by a group of Aboriginal men, for a grant of land. In it, the petitioners described themselves as members of certain tribes, and stated that ‘all the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are used for sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious’.[15] They went on to state that they ‘feel that our old mode of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry, that we may form homes for our families’.[16] The trial judge relied upon this petition as evidence that by 1881 the descendants of the original inhabitants were no longer in possession of the land and had ceased to observe laws and customs based on tradition. [17] He found that this failed Toohey J’s test of occupation by a traditional society. The trial judge then inquired into whether those customs or traditional lifestyle, as described by the settlers in the 1840s, had continued substantially unchanged to the present. His Honour compared contemporary activities of the claimant group to those described by the early settlers.[18] Because these were different, he concluded that the contemporary activities were of recent origin, and did not owe their origin to traditional laws and customs.
Olney J concluded[19] that the evidence did not support a finding that the descendants of the original inhabitants had occupied the land in the relevant sense, nor that they had continued to observe and acknowledge the traditional laws and customs. He found that native title had expired, and that the Crown’s radical title had expanded to full beneficial title. He said that the claimant group’s efforts now to revive the lost culture of their forebears was not sufficient to revive native title rights and interest.
In relation to the fourth requirement, that the rights and interests be recognised by the common law, Olney J said that this amounted to a requirement that the rights and interests had not been extinguished.[20]
Because the existence of native title had not been established, it was unnecessary for his Honour to go into this issue.
The trial judge concluded that native title did not exist in relation to the claimed land and waters.[21]
On appeal to the Full Court of the Federal Court, the appellants argued[22] that the trial judge’s approach of identifying first the content of traditional laws and customs at the time of the Crown’s assumption of sovereignty, and then tracing forward to assess whether this traditional connection (as determined) had been substantially maintained, was erroneous. They argued that this resulted in a ‘frozen in time’ approach, and did not allow for adaptation and change. Instead, they argued, the Native Title Act required the assessment of present laws and customs as the appropriate starting point. The appellants argued that the trial judge had erred in adopting a ‘frozen in time’ approach, wrongly equating native title with the existence of a ‘traditional society’ or ‘traditional lifestyle’.
Accordingly, they held that it was open to Olney J on the evidence to find that ‘there was a period of time between 1788 and the date of the appellants’ claim during which the relevant indigenous community lost its character as a traditional community’.[26]
In his dissenting judgment, Black CJ held that Olney J had applied too restrictive an approach to the word ‘traditional’.[27]
In their appeal to the High Court, the appellants argued that the majority of the Full Court erred in requiring positive proof of continuous acknowledgment and observance of traditional laws and customs, and that this resulted in misconstruction and misapplication of the definition in s 223(1).
Gleeson CJ, Gummow and Hayne JJ (McHugh J concurring on this point[30] ) held that s 223(1)(c) does not incorporate a pre-existing body of common law into the Native Title Act.[31] In their judgment, Gleeson CJ, Gummow and Hayne JJ held that the significance of s 223(1)(c), recognition by the common law, is that it points to the relevant intersection between legal systems occurring at the time of settlement. The native title rights and interests that are recognised by the common law are those that existed at sovereignty and can now be enforced and protected.[32] Gaudron and Kirby JJ held that recognition and protection of native title depends upon native title not having been extinguished.[33]
The court confirmed [34] that s 223(1)(c) required that the rights and interests claimed must not be repugnant to the common law.[35] Callinan J held that for native title rights and interests to be recognised by the common law, they must be sufficiently precise, as to boundaries, persons entitled, traditional laws and customs.[36] He also seemed to imply that a physical presence is therefore required by s 223(1)(c).[37]
In their discussion of what is meant by ‘traditional laws and customs’, Gleeson CJ, Gummow and Hayne JJ drew upon concepts and terminology from analytical jurisprudence. Their Honours said that the fact that the rights and interests owe their existence not to the common law, but to traditional laws and customs, infers the existence of a normative system other than the common law. The recognition of those rights and interests by the common law points to an intersection between the common law and the traditional laws and customs, an intersection of two normative systems. This intersection occurred at the time of sovereignty. Only those rights and interests which owe their existence to the normative system that intersected with the common law at the time of sovereignty will be protected by the Native Title Act.
Therefore, their Honours held, the ‘traditional laws and customs’ presently possessed must have their origin in the normative Aboriginal and Torres Strait Islander rules existing prior to sovereignty,[40] and the normative system under which the rights and interests are possessed must have had a continuous existence and vitality since sovereignty.[41] What is required is continuity of the normative system, not of the actual content of the laws and customs, thus allowing for change in the content of those laws and customs.
Their Honours held that the requirement of continuity of the normative system leads to a requirement that the society has continued to exist throughout the period as a body united by its acknowledgment and observance of the laws and customs.[42] Their Honours concluded that, as the trial judge’s findings were that the society which had once observed the traditional laws and customs had ceased to do so and no longer constituted the society out of which the traditional laws and customs sprang,[43] there was therefore no error of law by the trial judge. They held that the appeal must be dismissed.
With all due respect to their Honours, the conclusion of the judgment does not follow from their reasoning. The reasoning may be restated thus: the traditional laws and customs under which the rights and interests are presently possessed must be possessed under a normative system which existed and has continuously existed since sovereignty. The inquiry as to the existence and continuity of that normative system is an inquiry into the society or community which constitutes and gives rise to the normative system. What is necessary is to prove the continuity of society in the sense of the normative system, not the content of the laws and customs. The trial judge, however, did not make any inquiry into the continuing existence of the society in the sense of a normative system, and so did not find absence of society in the sense required by their Honours. Instead, Olney J found absence of traditional society because radical change had occurred in the physical use and occupation, by the society, of the land.
In their judgment, Gleeson CJ, Gummow and Hayne JJ clearly state that it is the normativity of the traditional laws and customs that must be continuing, not the content of those laws and customs. But the trial judge assessed continuity of content, not continuity of normativity. Olney J undertook an inquiry into the content of the customs and laws, and decided that because the contemporary activities were different from those described by the settlers in the 1800s, the former could not have had their origin in the latter. Olney J did not inquire into whether the norms of this group of claimants, according to which they based their claim, owed their validity to the same rule of recognition, to use Hart’s terminology,[44] as those of their forebears. Instead, he inquired into whether the present norms had substantially the same content as the former.
With all due respect, the leap of logic may have occurred due to a slight shift in language in parts of the judgment. Throughout the judgment, Gleeson CJ, Gummow and Hayne JJ are at pains to demonstrate that it is the normativity of the system, not the content of the laws and customs that must be demonstrated to have continued. It is the relevant rule of recognition which must have remained constant, not the content of the laws and customs themselves.[45] The shift in language occurs when their Honours reason that, in order to have continuity of a normative system, there must be continuity of the society that constitutes or gives rise to that normative system. The shift in language is most evident in [89] and in an earlier passage from [54]–[56]. At [89], they state:
It is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society. To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.
In this passage, as long as the latter sentence is read in conjunction with the former, the sense remains the same. However the latter sentence on its own could be understood as requiring continuity of the laws and customs themselves, in the sense of content rather than normativity.
A similar shift in language occurs at [54]–[56],[46] where their Honours state:
The relevant rule of recognition of a traditional law or custom is a rule of recognition found in the social structures of the relevant indigenous society as those structures existed at sovereignty. It is not some later created rule of recognition rooted in the social structures of a society, even an indigenous society, if those structures were structures newly created after, or even because of, the change in sovereignty.[47]
…
[I]t will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs.[48] .
Again, unless the latter passage is read in conjunction with the former, the sense of normativity is lost and one could be forgiven for thinking that the relevant test was one of content rather than normativity.
The reasoning of the dissenting judges (Gaudron and Kirby JJ) was similar to that in the leading judgment. Their conclusion, however, was very different. According to Gaudron and Kirby JJ, what is necessary for laws and customs to be identified as traditional is that they should have their origins in the past, and any changes must have been made in accordance with the shared values or customs of the people who observe them.[49] What is necessary is that the community or society must be sufficiently organised and cohesive to sustain and adapt traditional laws — this is the requirement of continuity of community.[50] To this point, the reasoning of Gaudron and Kirby JJ appears to adopt the same test of continuity of society as Gleeson CJ, Gummow and Hayne JJ: continuity of society in the sense of a continuing normative system. It is at this point, however, that the reasoning in the judgments diverges.
Gaudron and Kirby JJ went on to say that the question whether there has been continuity of community then is answered by asking whether, throughout the period, there have been persons who have identified themselves and each other as members of the community in question, not by reference to physical presence in a particular place. Their Honours held that Olney J did not find lack of continuity of community in that sense. The trial judge did not answer these questions but was concerned solely with identification of laws or customs with respect to utilisation or occupation of land.[51] Their Honours held that Olney J erred in holding that the traditional connection with the land must have been substantially maintained since the time sovereignty was asserted.[52] They concluded that the appeal should be allowed and the matter remitted to Olney J to be determined in accordance with their reasons.[53]
McHugh J held, without revealing his reasoning,[54] that the findings of the trial judge were not influenced by any error of law. His Honour held that therefore the appeal should be dismissed.
Callinan J held that the traditional laws and customs must be ones which were in existence on settlement.[55] It is clear, from his discussion at [187]–[188], that his Honour is referring to the content of those laws and customs, not the normativity of the system. Callinan J requires a high degree of continuity[56] and makes minimal allowance for evolution.[57]
Callinan J held that s 223 as a whole requires a recognisable group, exercising identifiable relevant laws and customs, themselves reasonably certain, on and relating to defined land, involving physical presence on it, and continuity of these until and at the time of the determination.[58] He held that the trial judge did not err and that the appeal should be dismissed.
Given the absence of reasoning on this issue in the judgment of McHugh J, and the considerable differences between the reasoning of Gleeson CJ, Gummow and Hayne JJ and that of Callinan J, there is no clear ratio on this issue. Although they reach opposite conclusions, the reasoning of the dissenting judgment is strikingly similar to that of the leading judgment. What both judgments make clear is that the traditional laws and customs under which the rights and interests are presently possessed must be possessed under the same normative system as that which existed in the past.[59] The inquiry as to the existence and continuity of that normative system is an inquiry into the society or community by which the normative system is constructed and maintained.
[1] Members of the Yorta Yorta Community v Victoria [2002] HCA 58 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 12 December 2002) (‘Yorta Yorta’).
[2] Native Title Act 1993 (Cth), (‘NTA’).
[3] Yorta Yorta [2002] HCA 58, [4].
[4] Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 (Unreported, Olney J, 18 December 1998).
[5] Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (2001) 180 ALR 655.
[6] Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1.
[7] Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606, [4].
[8] That what is referred to (ibid) are the laws and customs of the ancestors is not expressly stated by Olney J, but is apparent from the discussion of this requirement at [59] and [105].
[9] His Honour relied upon references to ‘traditional connexion with the land’ in the judgment of Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1, 59–60: see Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606, [3].
[10] Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606, [104].
[11] Ibid [106].
[12] Ibid.
[13] In requiring this, his Honour relied on the judgment of Toohey J in Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1, 187–8, 192: Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606, [3].
[14] The petition is reproduced at Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606, [119].
[15] Ibid.
[16] Ibid.
[17] Ibid [121].
[18] Ibid [122]–[128].
[19] Ibid [129].
[20] Ibid [130].
[21] Ibid [134].
[22] Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (2001) 180 ALR 655, [11].
[23] Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (2001) 180 ALR 655 (Branson and Katz JJ, Black CJ dissenting).
[24] Ibid [67] (Black CJ), [171]–[182] (Branson and Katz JJ).
[25] Ibid [108].
[26] Ibid [194].
[27] Ibid [91].
[28] Yorta Yorta [2002] HCA 58, [92] (Gleeson CJ, Gummow and Hayne JJ), [134]
(McHugh J), [111] (Gaudron and Kirby JJ).
[29] Ibid [92] (Gleeson CJ, Gummow and Hayne JJ), [111] (Gaudron and Kirby JJ).
[30] Ibid [128]. His Honour did, however, express personal reservations about this approach — see [129]–[134].
[31] Ibid [76].
[32] Ibid [77].
[33] Ibid [110].
[34] Obiter, since it was not in issue in this case.
[35] Yorta Yorta [2002] HCA 58, [77] (Gleeson CJ, Gummow and Hayne JJ), [110]
(Gaudron and Kirby JJ), [176] (Callinan J).
[36] His Honour was clearly referring to the content of those laws and customs.
[37] Yorta Yorta [2002] HCA 58, [186].
[38] NTA, s 223(1)(a).
[39] NTA, s 223(1)(b).
[40] Yorta Yorta [2002] HCA 58, [46].
[41] Ibid [47].
[42] Ibid [89].
[43] Ibid [95].
[44] The rule of recognition, put simply, is the ultimate criteria for, or test of, validity of all laws in a legal system. See HLA Hart, The Concept of Law (2nd ed 1996) ch 6.
[45] See Yorta Yorta [2002] HCA 58, [54].
[46] Although their Honours enter a ‘caveat’ here as to the utility of jurisprudential analysis, this caveat does not explain the shift in language, and hence logic, that occurs.
[47] Members of the Yorta Yorta Community v Victoria [2002] HCA 58, [54].
[48] Ibid [56] (emphasis added).
[49] Ibid [114].
[50] Ibid [116].
[51] Ibid [121]–[122].
[52] Ibid [123].
[53] Ibid [125].
[54] Although his Honour did refer in his judgment (ibid [135]) to the judgment of Gleeson CJ, Gummow and Hayne JJ, the reference is only to their Honours’ setting out of the trial judge’s findings.
[55] Yorta Yorta [2002] HCA 58, [186].
[56] Ibid.
[57] See Ibid [187]–[188].
[58] Ibid [186].
[59] For Gleeson CJ, Gummow and Hayne JJ, the relevant point of time is sovereignty.
[60] Western Australia v Ward [2002] HCA 28 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 8 August 2002).
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