Fuller & Anor v De Rose & Ors [2006] HCATrans 49 (10 February 2006)

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Fuller & Anor v De Rose & Ors [2006] HCATrans 49 (10 February 2006)

Last Updated: 15 February 2006

[2006] HCATrans 049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A37 of 2005

B e t w e e n -

DOUGLAS CLARENCE FULLER AND R D FULLER PTY LTD

Applicants

and

PETER DE ROSE, PETER TJUTATJA, RINI KULYURU, PUNA YANIMA, JULIE TJAMI, SADIE SINGER AND WHISKEY TJUKANKU

First Respondents

THE STATE OF SOUTH AUSTRALIA

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 FEBRUARY 2006, AT 9.34 AM

Copyright in the High Court of Australia

__________________

MR R.J. WHITINGTON, QC: May it please the Court, I appear with my learned friend, MR C.H. GOODALL, for the applicants. (instructed by Rosemary H. Craddock)

MR S.J. GAGELER, SC: If the Court pleases, I appear with my learned friend, MR A.C. COLLETT, for the first respondent. (instructed by Aboriginal Legal Rights Movement Inc)

MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS G.A. BROWN, for the second respondent. (instructed by Crown Solicitor for the State of South Australia)

GUMMOW J: Yes, Mr Whitington.

MR WHITINGTON: The applicants say that this case raised the problem created by Aboriginal migration across country post-European settlement in the context of the Native Title Act. There does not seem to be any issue over the fact that each of the claimants or their immediate forebears migrated to the claim area in about the 1920s from country well to the west of the claimed land, De Rose Hill station. That on the evidence was part of a pattern of migration or movement from at least the late 1800s which was affected by the opening up of the pastoral lands in northern South Australia and the arrival of European settlement.

This phenomenon raised a threefold issue or problem for the claimants in the conduct of their case. First, they sought to prove that the society to which the native titleholder at sovereignty had belonged and under whose laws and customs the claimed native title rights and interests had been conferred were still in existence and that they belonged to that society. The trial judge described the confusion in the applicants’ case on this point at his reasons at paragraphs 30 to 38. For reference the Court has paragraph 30 at application book page 24 and his Honour details the shifting
nature of the case through to paragraph 38 on application book page 27 and then indicates the final basis upon which he considered that the claimants settled in seeking to present their case.

The trial judge found that while the occupants of the claimed land at sovereignty were Western Desert people, he could not make any specific finding as to which Western Desert people. On the evidence there was I think something like at least 25 separate groupings or dialectal groups within the broader Western Desert Bloc and that bloc itself occupied an area of Australia approximately one-fifth of the continental land mass. So, while his Honour was prepared to find that the original occupants of the land at sovereignty were members of that broader class of people, he could not make any specific finding as to which of them they were. The prime candidate on our case was that they were Antikirinya people. The claimants at trial initially challenged the very existence of Antikirinya people but his Honour found Antikirinya people existed. The ethnographic evidence suggested that they did occupy this area prior to the claimants, but in the end his Honour was not prepared to make a specific finding as to that, but nor did he make a specific finding that the Yankunytjatjara or the Pitjantjatjara or any other people occupied the claimed land.

The fact of the matter was that the claimant group were almost exclusively Pitjantjatjara people and, as we have said, they came to the claimed land in the 1920s from well to the west, including as far away as the Western Australia border. I should tell the Court that the claimed land, the station De Rose Hill, sits a little bit south of the Northern Territory border and is bisected by the Stuart Highway and the north-south railway line and therefore it sits virtually in the middle of that part of South Australia. The Full Court appeared to find that the claimants had proved - - -

GUMMOW J: What was the first date of European land grant of any sort in that area?

MR WHITINGTON: My memory is, your Honour, it was in the 1880s under the original form of the Pastoral Lands Act and that it was in a region to the west and slightly north of the station. The first European occupation of this particular station itself commenced in about 1923 when a - - -

GUMMOW J: I thought it was quite late actually.

MR WHITINGTON: Quite right, your Honour, yes. What happened was that a man called Thomas O’Donoghue was granted a licence under the Pastoral Lands Act to look for water and he found water and established a permanent well at a place called Kantja or known otherwise as Mick’s Well on the southwestern corner of what became the station property and it appears that he then established a flock of sheep there and provided rations and that was an attraction to Aboriginal people who came and were occupied as shepherds and were provided with rations. I think about 10 years later he then obtained the lease of part of what is now the station property under the Pastoral Lands Act and that lease was subsequently conveyed to his brother and one of the present applicants, Mr Douglas Fuller, in the 1940s and then Mr Douglas Fuller obtained it solely in I think 1944. There was the accretion of some other land under two other leases, and so now the property is about some 600 square miles or a little under 1000 square kilometres in area.

GUMMOW J: What is the use of the property?

MR WHITINGTON: Originally sheep were run on it but from the 1950s it was used to run cattle and now it is used to run cattle exclusively.

GUMMOW J: How many?

MR WHITINGTON: In the thousands, your Honour, a good number. It was described by his Honour as one of the best-developed pastoral properties in South Australia and it is run on what is called a self-mustering basis. In other words, there are yards built around waterholes and cattle come in to drink and the gates close behind them, so it requires very little labour. There are a number of airstrips around the property and so the pastoralist flies round and inspects the waterholes and so on. But there are thousands of cattle on the property.

Returning to the first issue, the question of society, the Full Court appeared to find that the claimants had proved the existence of Western Desert Bloc society. That was notwithstanding the conduct of their case and the absence of any finding of such a society by the trial judge. The Full Court’s approach, we say, involved an utterly strained interpretation of the very limited evidence on the topic. This issue also raises, as the first respondent’s submissions demonstrate, the question of what is a society united by laws and customs for these purposes.

This was an issue touched upon by this Court in the majority judgment in Yorta Yorta but it is a matter that has not been completely developed. On the claimants’ own case as pleaded, the Western Desert Bloc was not a society at all but merely what they called a network of shared classical and contemporary cultural relationships. On the evidence, as I say, there were a large number of different groups of people who spoke different dialects of the broader language and the cognacy rate between dialects was low except for adjacent groups, and so there were communication problems between all except neighbouring groups.

We say on the evidence it could not seriously be suggested that the Western Desert Bloc is a society, but that was only the first of the claimants’ difficulties. The second difficulty confronting them was to demonstrate that the fourfold Nguraritja rule was a traditional rule. His Honour found that Professor Berndt, an ethnographer working in the thirties and forties, had described the original landowning or land title rule and that was a rule that he described as patrilineal and patrilocal. Essentially it required birth by son on his father’s country and by that he would acquire title.

However, this group of claimants put forward their own Nguraritja rule. “Nguraritja” was their word for landowning rule. It was a fourfold rule. It involved birth on country or ancestor’s birth on country or long association with the country or religious or spiritual or geographic knowledge of the country. His Honour found at paragraph 102 of his reasons on the evidence of the Aboriginal claimants that this was an evolutionary rule. Apparently on his finding evolved by the claimants, it was a departure and adaptation of the earlier traditional rule. It is not an easy paragraph but the effect of what his Honour is saying is that the new rule was evolutionary and he so finds on the basis of the Aboriginal witnesses who in effect were the claimant group.

The Full Court held that the trial judge intended to make a finding, although he did not, that population shifts in the Western Desert Bloc were recognised by or in accordance with traditional laws and customs of the Western Desert Bloc. The Full Court’s approach begs the question of what is properly to be characterised as traditional. In this context, how far a - - -

GUMMOW J: What is the particular paragraph in the Full Court, Mr Whitington?

MR WHITINGTON: Paragraph 259, your Honour, at page 502, starting about halfway through, “Bearing that in mind”. It is in the first Full Court judgment. That takes one back then to paragraph 240 which is where the Full Court speaks of what the trial judge intended to find, 240 to 241. This is in what we have called the first judgment.

So that raises this question: how can a group of people migrate across large distances, come to new country – and there is no evidence as to what precisely happened to the prior occupants – take up occupation on that new country - - -

GUMMOW J: Prior occupants, if any.

MR WHITINGTON: Yes, that is right – take up residence on the new country, create a Nguraritja rule which in effect authorises and confirms their occupancy of that country, and then call that rule traditional? That brings us then finally to perhaps the most important and critical issue in the case and that is this, that the Full Court appeared – this leads to the third difficulty facing the claimants. Because they were newcomers to the claimed land from quite different country, there arose the issue as to the identity of the prior occupants. The claimants in this case were completely unable to establish the identity of the occupants or holder of native title of the claimed land at sovereignty and of course they were therefore completely unable to establish the identity of the original pre-sovereign title.

In other words, their present claimed title owes absolutely nothing to the title created and determined by the intersection between the common law and traditional law at sovereignty, which was the requirement of the majority in Yorta Yorta. As this Court as presently constituted knows, the majority of the Court in Yorta Yorta - - -

GUMMOW J: Yorta Yorta was a very different geographical situation, was it not?

MR WHITINGTON: It was but it - - -

GUMMOW J: It certainly was not the desert.

MR WHITINGTON: No, quite so, but it did raise this issue. It said that the title which was to be recognised now under the Native Title Act was that title which was created at sovereignty by the intersection of the common law with the traditional law and that thereafter there could be no parallel lawmaking systems. Only the common law or the constitutional system was capable of creating new title rights and interests.

The claimants here were completely unable to identify any descent of the pre-sovereign title. What they have purported to do by their Nguraritja rule is bestow upon themselves entirely new title. We say that is a denial of this Court’s decision in Yorta Yorta which said that it was impossible now for anything except the constitutional system to create new property rights. The Full Court appeared to try and step around that by referring to transmission but that begs the question, transmission of what? There must be a title identified to be transmitted. This was not a case of transmission at all because no title ever descended to these claimants. This was a case of creation of new title.

On the Full Court’s analysis De Rose Hill station could have been unoccupied by Aboriginal people, say, in the 1920s or even the 1950s. Western Desert people from as far away as Broome could have descended on the property. They could have then created their own self-serving title-conferring rule and said, “We now have native title to this property”, and that is all entirely consistent and permitted by the Full Court’s analysis. We say that that simply cannot be right. A question then arises under Yorta Yorta as to what is required in respect of the original existence of a pre-sovereign title and the continuity of that title down through the generations.

HAYNE J: Where do we most conveniently find what you say is the error of the Full Court in this particular respect?

MR WHITINGTON: It is in their reasoning on the notice of contention starting at application book volume 2, page 495, starting at paragraph 229. The reasoning is fairly long and not always linear but in relation, for instance, to transmission the Full Court refers to - - -

HAYNE J: Can I interrupt you. What is wrong with what the Full Court says at paragraph 233, first sentence, and paragraph 234, first sentence?

MR WHITINGTON: Nothing at all but, your Honour, there is a further requirement, and that is 223(1)(c). The court very early in the piece said that no issue arose under 223(1)(c) but this Court in Yorta Yorta said a very real issue arises under 223(1)(c) and that is - - -

GUMMOW J: Where did the Full Court say that?

MR WHITINGTON: No issue arises under - - -

GUMMOW J: Yes.

MR WHITINGTON: It is early in the piece at paragraph 8 in the first - - -

HAYNE J: That suggests it was a matter of acceptance at trial and an issue that was put aside by the parties.

MR WHITINGTON: No, that was never so. The Full Court makes a number of statements about the conduct for trial which we - - -

GUMMOW J: It was 68 days, was it not?

MR WHITINGTON: Yes, and we contest that. We said from start to finish that what these claims are purporting to do is to create their own title. Indeed, the court later recounts our arguments in quite some detail and correctly recounts the very propositions I am now putting but nonetheless said in that place and another place which I am just trying to pick up that there was no issue in the case under 223(1)(c). Because of that, we say
that – they addressed 223(1)(c) again, and we say correctly, at 172 by reference to Yorta Yorta but then do not see the implications fully in their reasoning of what they have done. It is 172, for instance, the second bullet point at application book 480. But this case posed the question, how can a claimant group move to new country and by a rule that they evolved there now say, “This is our title, this is our country”, when there was no original title found which could be the subject of descent or transmission?

GUMMOW J: Yes, I think we are seized of that. The red light is on, Mr Whitington.

MR WHITINGTON: If the Court pleases.

GUMMOW J: Yes, Mr Gageler. What do you say about 223(1)(c)?

MR GAGELER: We say what the Full Court said, your Honour, and that is it was common ground between the parties in this case that if paragraphs (a) and (b) were satisfied - - -

GUMMOW J: The sound is not too good.

HAYNE J: You will have to speak up, Mr Gageler.

MR GAGELER: I thought your Honours were saying that the substance of what I was saying was a problem.

GUMMOW J: No, that is why we are straining to get it.

MR GAGELER: I am actually straining to see your Honours; I am glad you can hear me. We say what the Full Court said and that is that it was common ground between the parties the way in which the case was fought at trial and before the Full Court that if paragraphs (a) and (b) were satisfied in the particular circumstances of this case, there was no separate issue that arose under paragraph (c).

Your Honours, can I say this. I will come to the merits. I am not at all shy of the merits but can I say that, in our respectful submission, there are in the circumstances of this case particularly strong discretionary reasons why special leave would be refused. First, as your Honours have seen, the applicants strain to point to any particular passage in the unanimous judgment of the Full Court.

GUMMOW J: We are losing you again, Mr Gageler. You will have to shout, I am afraid. It is modern technology and therefore defective.

MR GAGELER: I am happy to take up your Honour’s invitation to shout at you.

HAYNE J: Through the leather speaking trumpet.

MR GAGELER: Your Honours, the applicants strain to find any particular error in the judgment of the unanimous Full Court save for what they now say is the wrong treatment of things as common ground that they say were in fact in issue. The area of land in question - as your Honours have heard, it is some 600 square miles – butts up against the vast area of the Pitjantjatjara lands which are preserved under State legislation and it is about 4 per cent of the size of that vast area of Pitjantjatjara land. Your Honours might note it is about 25 per cent of the area that was in issue in Ward.

It is Crown land and, significantly, the Crown now accepts the outcome in the Full Court. It is held by the applicants under a pastoral lease subject to a statutory right created under South Australian law for Aboriginal persons to enter the land, to stay there, to walk across it all for the purpose of pursuing traditional pursuits. It has already occupied 75 days of court time, 68 days at the trial, seven days on the appeal. The proceedings have now been on foot for some 11 years and during that time five out of the 12 original claimants have died.

In our respectful submission, this is a case where enough is enough. It would be different if there were some point of principle in the case but, in our respectful submission, there is no point of principle in this case that was not settled by your Honours in Yorta Yorta. For the purposes of section 223(a) and (b), which were the paragraphs that were critically in play here, consistently with Yorta Yorta, what the claimants had to demonstrate and what the Full Court found to have been demonstrated on the evidence before the trial judge was that there was a system of Aboriginal law and custom that was traditional in the sense that it had been in existence since sovereignty and that was the traditional laws and customs of the Western Desert Bloc and then under that traditional system as it had evolved, Aboriginal persons who were Nguraritja, that is of the land, the owners or custodians, have rights or interests in connection with land in this particular claim area.

Your Honours said in Yorta Yorta in the joint judgment, paragraphs 82 to 83, that what is traditional is a matter of fact and degree. Your Honours said tradition can evolve and your Honours said that there is no bright line test. The case here falls within that grey area. It was made all the more difficult by the unfortunate procedural history of the case, and that is that the judgment at first instance was delivered one month before your Honours’ judgment in Yorta Yorta and the findings of primary fact in the judgment at first instance in terms of applying the principles in Yorta Yorta were unfortunately diffuse and in many critical respects unclear.

When one looks at the way in which the Full Court in the light of Yorta Yorta approached the vast amount of material that was before the trial judge and the findings that his Honour made in respect of that material, in our respectful submission, the approach adopted by the Full Court was not only orthodox but entirely open on the evidence.

As to the existence of a body of traditional law and custom within the Western Desert Bloc, your Honours only need to look at page 509 of volume 2, about line 40:

It is impossible to summarise the great volume of evidence that was before the primary judge. For present purposes, it is enough to quote from Professor Maddock’s report, which included a survey of the published literature . . .

the largest cultural bloc in Australia. There are striking similarities throughout the area in terms of social organization, behavioural patterns, and ideology –

and so on. That is just one snippet of a discussion on that topic in the Full Court’s reasoning.

As to that body of traditional law and custom encompassing both population movements – and we are talking about the movements of small groups of nomads across a desert – and the acquisition of the status of Nguraritja, owner or custodian by means other than patrilineal descent, again there is a very extensive discussion, in our submission, cogently reasoned and adequately supported by the.....beginning at page 497 through in particular page 502 in respect of the movement.....peoples and in particular there your Honours might note page 499, paragraph 247, about line 35. There was nothing new, there was nothing usurping about people within the Pitjantjatjara area moving around.....in progress - - -

GUMMOW J: What Professor Elkin was saying in 1939 is obviously very significant, I would have thought.

MR GAGELER: Highly significant, yes. In relation to the acquisition of the status of Nguraritja, if your Honours turn over to page 502, paragraph 260, the bottom of the page:

In contrast to his findings on the nature of population shifts in the Western Desert, the primary judge explicitly found that the four methods by which a person could become Nguraritja for particular country were recognised by the traditional laws and customs of the Western Desert Bloc.

There the four areas are set out:

His Honour acknowledged that the rules determining the identity of Nguraritja had changed over time . . . But while place of birth remained important, it no longer commanded as great a status as in former times. As we have noted, his Honour went on to accept the evidence of the Aboriginal witnesses concerning Nguraritja as “an example of evolutionary traditional law”. In reaching this conclusion, the primary juge was influenced by evidence suggesting that the traditional laws and customs asserted by the appellants were “essentially the same as those that exist throughout the Western Desert”.

Can I just take your Honours to the evidence concerning how this claimant group came to be on the land, just the evidence concerning the first of them, the older Mr Peter Tjutatja. Your Honours have been told they came from well to the west. Mr Peter Tjutatja came from about 200 kilometres to the west in the 1920s and no one would suggest that he got there by bus or plane. If your Honours go to the first volume of the application book at page 386, it is a statement of conclusion but there is a reference at the top of that page, again an unfortunately diffuse reference which was distilled elsewhere to the fact that under the traditional laws a person could become Nguraritja by means other than patrilineal descent. If you go to paragraph 898 about two-thirds of the way down the page:

I am satisfied that there was a time (somewhere in the early part of the twentieth century and before) when a group of Aboriginal people possessed, occupied, used and enjoyed the claim area - - -

GUMMOW J: We are talking of rather small groups, are we not?

MR GAGELER: We are talking in essence about family groups of nomads moving around an arid area.

GUMMOW J: A strict patrilineal requirement would be genetically dangerous and reality is accommodated to that. That seems to be the idea.

MR GAGELER: Your Honour is absolutely right. If you look at the evidence then against that background of Mr Peter Tjutatja, if your Honours go to page 297 towards the bottom of the page, he:

travelled to Kantja with his father and some others when he was about ten or twelve years of age. If he was born in 1912 . . . this would mean that he travelled to Kantja somewhere between 1922 and 1924.

Can I just pause there for a moment. Your Honours have been given some maps by both parties. If your Honours were to locate – I hope it is in a yellow folder a map that looks - your Honours will see a map that has no colour on it. There is a - - -

GUMMOW J: Is this location map No 2?

MR GAGELER: It is S1, your Honour. I am looking at the applicants’ maps. We have provided the same thing but I am using the version in the applicants’ maps. There is the claim area shown by a box in the middle of the page and your Honours will locate on it the Musgrave Ranges which is in the Pitjantjatjara lands. When it is said these people came from well to the west, where Peter came from was the eastern part of the Musgrave Ranges about 200 kilometres. As I said, he would have more likely than not got there by walking. Going back to page 297:

He said that when he arrived at Kantja, there were Aboriginal people but “there were no whitefellas”; he said that he later saw the “whitefella” shearing sheep.

Then over the page at page 298, and this is really quite important:

Tjutatja said that, among the people whom he could remember as being as Kantja when he arrived there were his uncles –

and then he named them. Then about line 6:

These men, who had been named by Tjutatja, were said by him to be Nguraritja for the place. Asked why were they Nguraritja for that place he answered:

A “Because they become owner of this place.

Q Why are they an owner of this place?

A From the . . . stories.”

Your Honours can see lines 20 and following.

So we are not talking about some group of usurpers trucked in from the Kimberley. We are talking about nomads moving within a traditional pattern, albeit by reference no doubt to the exigencies created by the circumstances of the 1920s, and we are not talking about them coming to an
area where there was no Aboriginal presence. We are talking about them coming to an area where they had not only other Aboriginal presence at the time, they had relatives who were then recognised as traditional owners and fitting in, if you like – we do not particularly like the terminology, but being incorporated. It really was just part of the pattern of tradition and culture of the Western Desert people. If the Court pleases.

GUMMOW J: Thank you, Mr Gageler. Yes, Mr Solicitor.

MR KOURAKIS: If the Court pleases. The question of the factual findings that have been made by the Full Court and in particular whether they found that the claimants’ ancestors had been accepted into the group that held native title rights and interests in this particular land at sovereignty can, in my submission, first be approached by considering the Nguraritja rule as it was found to be by the Full Court in the second application book at page 586. Importantly, your Honours, the rule there stated was accepted on more than enough evidence to be the traditional rule of the society whose normative rules are relevant here. In the second paragraph of the determination your Honours will see there the various preconditions in terms of birth or association or knowledge, but importantly the final concluding condition is recognition by persons already Nguraritja of the people who have the connections listed above.

So it was very much part of the claimants’ case. The claimants’ case must have depended on a finding that their ancestors were similarly recognised by the landholding group that was there when they arrived from the west. In those circumstances it is hardly likely that their claim would have been accepted as it was by the Full Court unless there was evidence that made that good. Your Honours, the Full Court’s consideration - - -

GUMMOW J: What stance did South Australia take in the Full Court?

MR KOURAKIS: At the time of the first hearing that the evidence did not establish that connection, that acceptance by the landholding group and that nor did the claimants continue to practise and recognise Aboriginal law and custom. By the time it came back for hearing on the second occasion the State simply reserved its position as to whether the ancestors had been accepted into the landholding group intending to reserve a question to this Court as to the proper foundation of the claim.

The position we take now is that on the evidence the findings of the Full Court are amply supported that the ancestors of these claimants were accepted into a landholding group and that accordingly the question of law that we told the Full Court we wished to reserve simply does not arise, or at least does not arise unless concurrent findings of fact, findings made by the trial judge and by the Full Court, are set aside.

Can I put it another way, if your Honours please. If there was no evidence to support acceptance of the ancestors of the claimants, they could only maintain their claim to native title rights and interests by asserting the continued operation of indigenous law post-sovereignty. It is that question that the State had reserved. The position we take here is as I have just indicated, that the evidence supported the findings of acceptance by the landholding group of the ancestors of the claimants.

Your Honours, the Full Court’s consideration of that question commences at application book 490 in paragraph 211. There they simply state the proposition put by the applicants on appeal that the claimants’ ancestors moved into empty land. As your Honours will see from 211, that proposition was put by the applicants not to suggest there was not acceptance into a group but to suggest that in fact the previous inhabitants belonged to a completely different society. It matters not for my purposes. Paragraph 211 is simply the starting point of the question whether the evidence established acceptance of the ancestors of the claimants.

Can I next take your Honours to paragraph 213. That simply is a finding as to the historical position of population shifts in this arid area of Australia. Can I ask your Honours to turn over though to page 492 and to paragraph 217. That is a reference to both historical evidence and the evidence of one of the claimants, Mr Tjutatja, of the existence of people other than the far west Pitjantjatjara people in the area at the relevant time in the early 20^th century, that is that there were Antikirinya and Yankunytjatjara people there who remained there when the ancestors of the claimants moved from the west. Indeed, there is in that paragraph a reference to acceptance by process of marriage, which of course fits precisely with the Nguraritja rule to which I took your Honours.

Can I next ask your Honours to go to paragraph 236 at application book 496. The first sentences in those paragraphs show the court’s holding that there was no need to establish biological connection. The court then went on to say that nor was there any necessity to show any other link with the particular landholding group which, if read alone, might be suggestive of error. But then their Honours completed the sentence by saying other than showing a connection through:

traditional laws and customs to establish that a person had acquired the status of Nguraritja for the claim area.

That of course takes us back to the content of the Nguraritja rule which requires acceptance by existing Nguraritja. So, in my submission, ultimately no error there. Their Honours are proceeding on the basis that there needs to be a link that would be recognised by the common law between the claimants of the ancestors and the original landholding group.

Your Honours, similarly paragraphs 239 and 240 are premised on an acceptance of there being evidence of movements in accordance with Nguraritja law which again, if those movements are to be in accordance with Nguraritja law, mean acceptance by existing Nguraritja and by that process one goes back to the – and has a relevant connection recognised by the common law to the original landholding group. If I can just read the last few lines of 240 - - -

GUMMOW J: We have been taken to that, I think.

MR KOURAKIS: Yes. Your Honours, importantly, in my submission, that does not show error. One understands that the court is still turning its attention to the particular content of the Nguraritja rule to which I have adverted. Over the page in paragraphs 243 and 244, the references to the evidence of Professor Maddock show that population shifts in this desert area could result in the acquisition of native title rights and interests if there was an acceptance into the group that was already there by marriage and by other means.

At page 499 in paragraph 246, the last passage commencing at line 25, “The above passages”, are a conclusion in effect that the evidence supported the finding that the Full Court made – and I will come to the particular finding in a moment – that the movement of the claimants’ ancestors was in accordance with traditional law, which meant that their movement, their migration was accepted by the landholding group at sovereignty. That conclusion can be found in paragraph 259 at page 502 immediately before the passage your Honours were taken to by my friend Mr Gageler.

The Full Court in that paragraph recognised the difficulty in making findings, given the paucity of evidence that one would expect, but nonetheless find that a finding could nonetheless be made by process of inference that the ancestors of the claimants migrated and were accepted by the landholding groups in the area of De Rose Hill - landholding groups, that given the evidence of longstanding Aboriginal connection, themselves had a connection back to the time of sovereignty.

Can I conclude just by making brief references to some of the passages in the learned trial judge’s reasons which show that the Full Court was quite right in concluding that he intended to make the finding of acceptance in accordance with the traditional Nguraritja rules by the sovereignty landholding group in the first application book at page 98 at about line 15. The evidence of an Aboriginal claimant, Mr Owen, was
accepted without criticism as to there being a confluence of peoples in the area when he arrived there, again suggesting that there was no void, that the claimants’ ancestors did not move into an empty or abandoned area.

Can I take your Honours to page 151, paragraph 315, which deals with the archaeological evidence that there was indigenous occupation over a long term. In 316:

Migratory movements from the west occurred at different times –

His Honour refers to movement because of drought, therefore in search of food and also for the purposes of marriage. Of course, that also feeds into the concept of Nguraritja which I have accepted, being able to forage by consent, being able to marry and have children leads to the acceptance into that area in accordance with the traditional Nguraritja rule.

Finally, your Honours, at application book 161 at paragraph 346 at about line 18, halfway down that paragraph, the learned trial judge finds:

Even though the evidence has not disclosed a biological connection between the claimants and those who inhabited the area pre-sovereignty, there was evidence that, in my opinion, was sufficient to establish a form of connection between the claimants and those Aboriginal people who occupied the land pre-sovereignty. It was a connection that was achieved through a process of incorporation that reflected the pattern of migratory movements.

Again, in my submission, the word “incorporation” is shorthand for acceptance by the original landholding group in accordance with the traditional Nguraritja rules and, in my submission, that then establishes a sufficient connection for the claims of the claimants to be recognised by the common law as those rights that arose from the intersection of the legal systems at the time of sovereignty. If the Court pleases.

GUMMOW J: Thank you, Mr Solicitor. Yes, Mr Whitington.

MR WHITINGTON: May it please the Court. In relation to my learned friend Mr Gageler’s submission first of all, my client cannot be responsible for the lapse of time taken by this action and the fact that unfortunately some of the claimants have died.

Secondly, my learned friend suggested repeatedly that the Aboriginal people in the Western Desert area were nomads. That was not the evidence at all. The evidence was they were patrilocal and tended to remain in small groups and at times there were fights, even wars, over defined territory. Indeed, his Honour made an express finding of the boundary line between Pitjantjatjara and Yankunytjatjara country which he found ran between Amata. As for whether or not we put the argument about section 223(1)(c), I can only say without taking too much time that our argument is recounted by the Full Court at paragraphs 191 and 202 to 203, 211 and 222. At 211 particularly, the court puts the argument in the very term we have put it in a way which demanded consideration of section 223(1)(a).

Next, my learned friend Mr Gageler may have appeared to suggest that his Honour found at paragraph 102 that the Nguraritja rules were in some way common. What his Honour found as a process of reasoning was that there was evidence that by and large the traditional rules may be common but the Nguraritja rules of these claimants were different and he had to work out whether that was because they had come from a different subset of people who had a different original rule or whether this rule was an adaptation, variation, and he found the latter.

In relation to the evidence of Peter Tjutatja, my learned friend took the Court to application book 298. All the other people that Peter Tjutatja identifies – and they are referred to in paragraph 664 of the reasons of the trial judge – the evidence was these people came as part of the same migratory movement in about the 1920s. When Peter Tjutatja said at one point “there were no whitefellas” there, that was contradicted by his other evidence that there was evidence of European settlement there and he received European rations. So clearly, when he said “there were no whitefellas” there, he meant at the very time he arrived because the Aboriginal people were collecting there around a well dug by a European and to shepherd the European sheep.

Can I come to the State’s submissions. My learned friend says the evidence supported a finding of acceptance by the landholding group of the claimants. That flies in the face of the trial judge’s findings at 315 and 346, where he simply says he is not able to identify who the prior occupants were. There was no firm evidence of who they were. His finding at 346 is no finding at all; it is a vague and generalised statement about the possibility of a process of incorporation reflecting migratory movements which (a) reflects the very factual question, was there some acceptance; and (b) what is its significance in law?

Your Honour Justice Gummow asked my learned friend the Solicitor-General a very pertinent question. Your Honour asked what was the position of the Crown on this issue below. That is answered at the second volume, 494 in the Full Court reasons at paragraph 225, the first sentence. So this Court can now see that the Solicitor-General has changed horses and is riding in exactly the opposite direction.

Moreover, as to the reservation that the Crown made, it was not a reservation over incorporation; it was a different reservation. If the Court comes to application book second volume 623 in the submissions of the Crown, one has the reservation they made on the adjourned appeal in paragraph 4b. That really does state the question very nicely. It is the point we have been trying to make and it is recognised by the Crown there. There is no descent of title here, there is no proof of original title, so how can it be that these claimants can have title?

My learned friend took the Court to a reference by Professor Maddock in his evidence to the possibility of incorporation but he there put a hypothetical example about whether or not one individual moving into an existing group was capable of acceptance and capable of acquiring title. That is not this case at all. If the Court pleases.

GUMMOW J: Thank you, Mr Whitington. We will take a short adjournment.

AT 10.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.41 AM:

GUMMOW J: The orders of the Full Court of the Federal Court of Australia which the applicants seek to challenge were seen by that court as depending in significant respects upon what had been in issue at trial. The applicants would wish to contend that the Full Court’s conclusions about what had been in issue at trial were wrong.

Be that as it may, the correctness of the orders made by the Full Court depends upon the correctness of the factual findings upon which the Full Court acted. It is to be noted that the decision of this Court in Yorta Yorta v Victoria [2002] HCA 58; (2002) 214 CLR 422 had supervened. In particular, significance attaches to the findings by the Full Court about the content and application of traditional laws and customs. In that respect it is important to recognise what is said by this Court in Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422 at 443-444, paragraphs 43 and 44, and 455, paragraphs 82 to 84.

There are insufficient prospects of success of the applicants disturbing those findings of the Full Court to warrant a grant of special leave by this Court. Special leave is refused with costs.

AT 10.43 AM THE MATTER WAS CONCLUDED