De Rose v State of South Australia [2003] FCAFC 286 (16 December 2003)

Last Updated: 16 December 2003

FEDERAL COURT OF AUSTRALIA
De Rose v State of South Australia [2003] FCAFC 286

NATIVE TITLE – claim for determination of native title over claim area comprised of pastoral leases granted under State legislation – appellants claim to hold native title rights and interests as Nguraritja (custodians) under the laws and customs of the Western Desert Bloc – Primary Judge found that some of the appellants had abandoned the connection they previously had with the claim area and dismissed the claim on the ground that the appellants failed to satisfy him that they now have any connection with the land and waters within the claim area – whether the Primary Judge erred in failing to address the question of whether, by the traditional laws acknowledged and traditional customs observed by the people of the Western Desert Bloc, the appellants have a connection with the land and waters within the claim area for the purposes of s 223(1)(b) of the Native Title Act 1993 (Cth) – consideration of consequences of pre-sovereignty and post-sovereignty indigenous population shifts in relation to the claim area –whether the group of persons claiming native title rights and interests was required to be a discrete society or community - whether State legislation, by extending the terms of the relevant pastoral leases, effected the grant of pastoral leases and thereby extinguished any native title rights and interests in relation to the claim area.

WORDS AND PHRASES – “native title rights and interests”, “rights and interests... possessed under the traditional laws acknowledged and the traditional customs observed”, “connection with the land or waters”

Native Title Act 1993 (Cth), ss 4, 10, 13, 14, 15, 19, 23A, 23B, 23C, 23D, 23E, 23F, 23G, 23H, 23I, 61, 223, 223(1)(a), 223(1)(b), 225, 226, 228, 229, 239, 248, 248A, 248B, 251B, 253, Pt 2 Div 2, Div 2B
Native Title Amendment Act 1998 (Cth), Table A Sch 5 cll 5, 6, 24
Racial Discrimination Act 1975 (Cth), s 10

Native Title (South Australia) Act 1994 (SA), s 31, 32, 32C, 33, 36F, 36I, Pt 6 Div 3, Div 5
Pastoral Land Management and Conservation Act 1989 (SA), s 47, Sch cl 5
Native Title (South Australia) (Validation and Confirmation) Act 2000 (SA)

Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 cited
Western Australia v Ward (2002) 191 ALR 1; [2002] HCA 28 followed
Western Australia v Ward (2000) 99 FCR 316; [2000] FCA 191 cited
Yorta Yorta Aboriginal Community v Victoria (2001) 110 FCR 244; [2001] FCA 45 cited
Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538; [2002] HCA 58 followed
Commonwealth v Yarmirr (2001) 208 CLR 1; [2001] HCA 56 cited
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 cited
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 distinguished
Re Waanyi People’s Native Title Application (1995) 129 ALR 118 cited
Re Southern Rhodesia [1919] AC 211 cited
Wilson v Anderson (2002) 190 ALR 313; [2002] HCA 29 cited
Chelsea Investments Pty Ltd v Federal Commissioner of Taxation [1966] HCA 15; (1966) 115 CLR 1 cited
Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209 cited
Trade Practices Commission v Tooth & Co Ltd [1979] HCA 47; (1979) 142 CLR 397 cited
Donellan v Read (1832) 3 B & Ad 899; 110 ER 330 cited
Re Savile Settled Estates [1931] 2 Ch 210 cited
Stedman (Agent for Olgade Pty Ltd) v Shaw (1970) 91 WN (NSW) 190 cited
Re Bruce; Brudenell v Brudenell [1932] 1 Ch 316 cited
Re Arkwright’s Settlement; Phoenix Assurance Company Ltd v Arkwright [1945] Ch 195 cited
Wirral Estates Ltd v Shaw [1932] 2 KB 247 cited
Jenkin R Lewis Ltd v Kerman [1971] Ch 477 cited
Pascoe-Webbe v Nusuna Pty Ltd (1985) 3 BPR 9620 cited

RM Berndt, “The Concept of “the Tribe” in the Western Desert of Australia” (1959) 30 Oceania 81
DA Vachon, “Political Consciousness and Land Rights Among the Australian Western Desert People,” (1982)
RM Berndt “Tribal Migrations and Myths Centering on Ooldea, South Australia” (1941) 12 Oceania 1
AP Elkin, “Kinship in South Australia” (1939) 10 Oceania 196
Woodfall’s Law of Landlord and Tenant (1978 -)
Halsbury’s Laws of England (4^th ed Reissue)











DE ROSE & ORS v STATE OF SOUTH AUSTRALIA
S 253 of 2002

WILCOX, SACKVILLE & MERKEL JJ
ADELAIDE (BY VIDEO-LINK FROM SYDNEY AND MELBOURNE)
16 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 253 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PETER DE ROSE, OWEN KUNMANARA, PETER TJUTATJA, JOHNNY WIMITJA DE ROSE, MICHAEL MITAKIKI, RINI KULYURU, PUNA YANIMA, JULIE TJAMI, SADIE SINGER AND WHISKEY TJUKANKU APPELLANTS
AND:	STATE OF SOUTH AUSTRALIA FIRST RESPONDENT DOUGLAS CLARENCE FULLER AND R D FULLER PTY LTD SECOND RESPONDENTS

JUDGES:	WILCOX, SACKVILLE AND MERKEL JJ
DATE:	16 DECEMBER 2003
PLACE:	ADELAIDE (BY VIDEO-LINK FROM SYDNEY & MELBOURNE

THE COURT DIRECTS THAT:

1.	Not later than 31 January 2004, the parties attend a conference in Adelaide, to be convened and conducted by a Registrar of the Court, for the purposes of considering in the light of the reasons of the Court, expressed today:

(a) what issues remain for determination; and
(b) the findings and evidence upon which any of the parties wish to rely, that are relevant to such issues.

2.	The Registrar who convenes the said conference shall:

(a) convene and conduct such further conferences of the parties as may be desirable for the identification and resolution of the outstanding issues and the identification of additional evidence; and
(b) give directions for the filing of such further written submissions as may be necessary.

3.	All matters of costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 253 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	PETER DE ROSE, OWEN KUNMANARA, PETER TJUTATJA, JOHNNY WIMITJA DE ROSE, MICHAEL MITAKIKI, RINI KULYURU, PUNA YANIMA, JULIE TJAMI, SADIE SINGER AND WHISKEY TJUKANKU APPELLANTS
AND:	STATE OF SOUTH AUSTRALIA FIRST RESPONDENT DOUGLAS CLARENCE FULLER AND R D FULLER PTY LTD SECOND RESPONDENTS

JUDGES:	WILCOX, SACKVILLE AND MERKEL JJ
DATE:	16 DECEMBER 2003
PLACE:	ADELAIDE (BY VIDEO-LINK FROM SYDNEY & MELBOURNE

TABLE OF CONTENTS

Par

THE PROCEEDINGS	[1]
THE CLAIM AREA]	[12
THE APPLICABLE LEGISLATION	[26]
THE PRIMARY JUDGE’S REASONS FOR JUDGMENT	[31]
THE CLAIM	[31]
THE CONCEPT OF NGURARITJA	[37]
WHOSE TRADITIONAL LAWS AND CUSTOMS?	[41]
METHODS OF BECOMING NGURARITJA	[58]
CONNECTION TO THE CLAIM AREA	[62]
ABANDONMENT OF CONNECTION	[82]
Peter De Rose	[88]
Riley Tjayrany	[92]
Whiskey Tjukanku	[94]
Witjawara Curtis	[96]
Peter Tjutatja	[98]
Tim De Rose	[100]
Mabel Pearson	[102]
Owen Kunmanara	[104]
Michael Mitakiki	[106]
Johnny Wimitja De Rose	[107]
Cissie Riley	[108]
Minnie Nyanu	[109]
Edie Angkaliya	[113]
Carlene Thompson	[116]
Lilly Yupuna Baker	[119]
Jeannie Kampukuta Inpiti	[122]
Tillie Yaltjangki	[123]
WHY DID THE APPELLANTS LEAVE DE ROSE HILL STATION?	[125]
PRIMARY JUDGE’S CONCLUSIONS	[133]
EXTINGUISHMENT	[146]
A PROPOSED DETERMINATION	[154]
CONSTRUCTION OF S 223(1) OF THE NATIVE TITLE ACT	[155]
SUBMISSIONS ON THE EXISTENCE OF NATIVE TITLE	[178]
THE APPELLANTS’ CONTENTIONS	[178]
THE STATE’S CONTENTIONS	[182]
THE FULLERS’ CONTENTIONS	[191]
THE NOTICES OF CONTENTION	[195]
BIOLOGICAL DESCENT	[196]
THE ANTIKIRINYA AS THE ORIGINAL LANDHOLDING GROUP	[202]
THE POST	SOVEREIGNTY “USURPATION” HYPOTHESIS [211]
CONTINUITY WITH ORIGINAL INHABITANTS	[220]
The Contentions	[220]
Reasoning	[229]
THE APPEAL	[269]
THE PRINCIPAL FINDINGS	[269]
THE ISSUES	[272]
The Need for a Cohesive Local Community or Group	[273]
The Question of Connection	[284]
Should We Make a Finding as to “Connection”?	[330]
Acknowledgement and Observance of Traditional Laws and Customs: NTA, s 223(1)(a)	[332]
THE EXTINGUISHMENT ARGUMENT	[342]
THE FULLERS’ CONTENTIONS	[343]
THE LEGISLATIVE SCHEME	[348]
General	[348]
The NTA Provisions	[353]
The Racial Discrimination Act	[370]
The NTA (SA) Act	[371]
THE SUBMISSIONS	[376]
REASONING	[388]
THE PROPOSED DETERMINATION	[406]
CONCLUSION	[410]

REASONS FOR JUDGMENT OF THE COURT

THE PROCEEDINGS

1 This is an appeal from an order made by a Judge of this Court (O’Loughlin J) dismissing an application for a determination of native title.

2 The appellants applied to this Court pursuant to s 61 of the Native Title Act 1993 (Cth) (“NTA”) for a determination of native title in relation to the land that is presently within the boundaries of three pastoral leases that together comprise the De Rose Hill Station (“the Station” or “the claim area”). The claim area is in the far north west of South Australia and is within the eastern extremity of a large area of land described by the early ethnographers as the Western Desert region. Each of the appellants is an Aboriginal person who claims to have a connection with the claim area under the traditional laws and customs acknowledged and observed by that person.

3 The application which commenced the proceedings was lodged with the National Native Title Tribunal on 9 December 1994. The claim was not resolved by mediation and an application was filed in this Court on 1 November 1996. The application was eventually heard by O’Loughlin J between June 2001 and February 2002.

4 There were originally twelve applicants in the proceedings commenced in this Court. However, two of the applicants died before the hearing and their names were removed from the title of the proceedings. The application was said to be made on behalf of the applicants and also on behalf of:

“Those other Aboriginal persons acknowledged in accordance with traditional laws and customs to be owners of the claim area predominantly through historical, spiritual and ancestral relationship[s] to the land”.

5 On 1 November 2002, O’Loughlin J delivered a judgment dismissing the claim: De Rose v South Australia [2002] FCA 1342. His Honour found that, although native title had once existed in respect of the claim area, the appellants, and the other persons for whom they claimed native title in relation to the claim area, had failed to prove that “they have retained a connection to the claim area by traditional laws and customs acknowledged and observed by them sufficient to satisfy s 223(1)(b) [of the NTA]”. His Honour decided that “those claimants who once had a relevant connection with the claim area have all abandoned that prior connection”. He concluded (at [915]):

“As a consequence of the failure of the claimants to satisfy me that they now have any connection with the land and waters within the claim area, I determine that no native title exists in the claim area. The application for a determination of native title is therefore dismissed.”

6 The appellants appealed against that decision. They named as respondents the three respondents at trial: the State of South Australia (“the State”) as first respondent, and Douglas Clarence Fuller (“Doug Fuller”) and R D Fuller Pty Ltd (collectively “the Fullers”) as second respondents. Each respondent filed a notice of contention in respect of certain findings by the primary Judge that were favourable to the appellants.

7 The critical issue before the primary Judge, and on appeal, was whether the appellants held “native title rights and interests” in relation to the claim area as defined in s 223(1) and (2) of the NTA. That provision, which has not been amended since the NTA commenced, is as follows:

“Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(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.”

Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.”

8 At the trial, the appellants claimed, and the respondents disputed, that the appellants as a group possessed rights and interests in relation to the claim area under the traditional laws acknowledged, and the traditional customs observed, by them and that, by those laws and customs, they have a connection with that area. The dispute between the parties at trial concerned sub-sections (a) and (b), rather than sub-section (c), of s 223(1). It was accepted that, if the criteria in s 223(1)(a) and (b) were satisfied, the rights and interests claimed would be recognised by the common law of Australia.

9 The trial proceeded for 68 hearing days. The evidence included oral histories of seven of the ten surviving applicants, and of other Aboriginal witnesses called by them, as well as extensive historical, archaeological and anthropological evidence. All but four of the 26 Aboriginal witnesses who gave evidence as part of the appellants’ case relied, “properly” in the primary Judge’s opinion, upon one of the three interpreters used during the trial. In his reasons for judgment, which extended over 391 pages, the primary Judge made numerous findings of fact based upon his assessment of that evidence and of the reliability or creditworthiness of a number of significant witnesses. Although there were challenges by each of the parties to certain factual findings of the primary Judge, in the circumstances set out above the challenging party has a difficult task in establishing that his Honour erred in making findings of primary fact. Whether his Honour drew the correct inferences from those findings is another matter.

10 It was common ground, at trial and on the appeal, that the Crown acquired sovereignty over the Colony of South Australia in 1834, by virtue of an Imperial Act, 4 and 5 William IV, c 95, entitled “An Act to Empower his Majesty to enact South Australia into a British Province or Provinces, and to provide for the Colonisation and Government thereof” (“1834 Act”). The legislation, in its recitals, referred to the land mass now incorporated into the State of South Australia as “waste and unoccupied lands”. At one stage, the respondents argued that the 1834 Act, which was repealed and replaced by the South Australia Act 1842 (5 and 6 Vict, c 61), had the effect of wholly extinguishing native title. However, the contention was abandoned at trial.

11 The respondents thereafter accepted, subject to one qualification, that, if the appellants could establish that the group on whose behalf they claimed held native title rights and interests in relation to the claim area, those rights and interests had not been extinguished. The qualification concerns the combined effect of the NTA, the Native Title (South Australia) Act 1994 (SA) (“NTA (SA)”) and the Pastoral Land Management and Conservation Act 1989 (SA) (“Pastoral Act 1989”) on native title rights and interests (if any) subsisting over the three pastoral leases comprising De Rose Hill Station. The primary Judge held that, had the appellants shown they were otherwise entitled to a determination of native title, that title would not have been extinguished by the legislative scheme. The Fullers (but not the State) challenged that holding.

THE CLAIM AREA

12 The claim area is wholly within South Australia, abutting parts of the eastern and northern boundaries of the lands that have been vested in the Anangu Pitjantjatjara pursuant to the Pitjantjatjara Land Rights Act 1981 (SA). The claim area comprises the whole of the land and waters within three pastoral leases respectively known as “Agnes Creek”, “Paxton Bluff North” and “Paxton Bluff South”. The area within the three pastoral leases is now collectively known as De Rose Hill Station. The name is apparently taken from a prominent nearby mesa, probably named after William De Rose, an army sergeant who was a member of a survey party in the 1880s. There seems to be no biological connection between Sergeant De Rose and the two appellants who also bear the name “De Rose”. Although the appellants confined their claim to the land and waters within De Rose Hill Station, they did not thereby concede that the boundaries of the Station represent the limits of their country.

13 De Rose Hill Station is to the north of the small town of Marla in north-western South Australia, but is separated from it by the former Granite Downs Station (now part of the Anangu Pitjantjatjara lands). The Anangu Pitjantjatjara lands are predominantly to the west of the Stuart Highway, which links Adelaide to Alice Springs, and of the Tarcoola to Alice Springs railway line. De Rose Hill Station is bisected by the highway and railway line, both of which run in an approximately north-south direction. It is also bisected by a large creek that drains from the north-west to the south-east, referred to in the judgment as Alberga Creek.

14 The first pastoral lease of part of what is now De Rose Hill Station was the Agnes Creek pastoral lease. It was granted in 1932, for a term of 21 years, to Tom O’Donoghue who ran sheep on the property. This lease, which was in respect of an area comprising about 450 square miles, was granted pursuant to the South Australian Pastoral Act 1904 (SA). The pastoral lease contained a reservation in favour of Aboriginal people as follows:

“AND reserving to Aboriginal Inhabitants of the said State and their descendants during the continuance of this lease full and free right of egress and regress into upon and over the said lands and every part thereof and in and to the springs and surface waters thereon and to make and erect such wurlies and other dwellings as the said Aboriginal Natives have been heretofore accustomed to make and erect and to take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this lease had not been made.”

15 In 1943, Tom O’Donoghue transferred his interest in the lease to his brother, Mick O’Donoghue, and Doug Fuller, as tenants in common. After Mick O’Donoghue’s death in 1944, his undivided moiety in the lease was transferred to Doug Fuller. On 13 August 1953, the Minister for Lands issued a fresh lease, pursuant to the Pastoral Act 1936 (SA), to Doug Fuller for a term of 42 years expiring on 9 February 1995. This lease contained the same reservation in favour of Aboriginal people as the 1932 lease.

16 The Pastoral Act 1989 repealed the Pastoral Act 1936. Clause 5(1) of the transitional provisions of the Pastoral Act 1989 provided that a lease in force under the repealed Act was to become and continue in force as a pastoral lease under the Pastoral Act 1989 with a term of 42 years running from the commencement of the later Act. It will be necessary to consider cl 5(1) further, since the Fullers contend its effect was to grant a new lease which permanently extinguished native title by force of s 33 of the NTA (SA).

17 The first pastoral lease relevant to Paxton Bluff North was granted on 20 July 1932 to James Alfred Smith. The lease, which was for a term of 21 years, covered 151 square miles. James Alfred Smith assigned his interest in the lease in 1944 to Francis Smith, Jessie Smith and Robert Smith (“the Smiths”). On 7 August 1953, a fresh pastoral lease over the same area was granted to the Smiths for a term of 42 years, expiring on 9 February 1995. Both the 1932 and 1953 leases contained a reservation in favour of Aboriginal people in the same terms as the Agnes Creek leases. In October 1959, the Smiths assigned their interest in the Paxton Bluff North lease to Tieyon Pastoral Company Ltd (“Tieyon”).

18 In 1973, Tieyon surrendered its lease so that part of it, consisting of 66 square miles, could be the subject of the grant of a pastoral lease to Doug Fuller. On 27 February 1975, a lease of that area of land, known as Paxton Bluff North, was granted to Doug Fuller. The fresh lease was expressed to commence on 3 October 1974 and to expire on 9 February 1995. This lease, too, contained the reservation in favour of Aboriginal people. The 1975 lease was subsequently affected by cl 5(1) of the transitional provisions of the Pastoral Act 1989.

19 The first lease relevant to Paxton Bluff South was issued on 15 January 1940 in favour of James Alfred Smith, subject to a reservation in favour of Aboriginal people. The lease was for a term of 21 years, expiring on 24 July 1960. This lease was assigned to the Smiths in 1944 and they, in turn, assigned it to Tieyon in October 1959.

20 In 1973, Tieyon surrendered this lease, apparently so that a portion of it, comprising 134 square miles, could be the subject of a fresh lease to Doug Fuller. The new lease was duly issued to him on 27 February 1975, for a term that was described as being from 3 October 1974 to 24 July 2002. Like the Agnes Creek and Paxton Bluff North leases, the new Paxton Bluff South lease contained a reservation in favour of Aboriginal people and was subsequently affected by cl 5(1) of the transitional provisions of the Pastoral Act 1989.

21 On 27 June 1989, Doug Fuller assigned an undivided moiety in all three leases to R D Fuller Pty Ltd. On 30 August 1993, Doug Fuller and R D Fuller Pty Ltd assigned the three leases (presumably subject to the effect of the Pastoral Act 1989) from themselves as tenants in common to themselves as joint tenants.

22 Doug Fuller introduced cattle onto the Station and by the late 1950s the Station had wholly converted to cattle. At the time of the trial, Doug Fuller was 92 years of age and the Station was managed by his son, Rex. Rex Fuller controls R D Fuller Pty Ltd.

23 The primary Judge found that De Rose Hill Station, which is smaller than its neighbours, is “one of the better developed pastoral properties” in the north-west of South Australia. The property is said to be “self-mustering”. It is capital intensive but labour efficient. It operates around a number of watering points, with well-maintained cattle yards centred on those waters. The Station has a network of airstrips.

24 Endorsements on the three pastoral leases indicate that minor alterations have been made to the boundaries of the leased areas. Consequently, the plans annexed to the leases do not coincide with the fenced boundaries of De Rose Hill Station. His Honour found the areas that were the subject of the application for determination of native title were those lands and waters within the boundaries disclosed in the three pastoral leases, as distinct from the lands and waters enclosed by the Station’s outer boundary fencelines. There is no challenge to this finding, nor to his Honour’s holding that s 64(1) of the NTA prevented any amendment of the application to include any area of land not covered by the original application.

25 The application for a determination of native title excludes four areas of land within the claim area. These are:

• the Stuart Highway, a 100 metre wide strip comprising 3.97 square kilometres;
• the railway line and its associated corridor, comprising 9.62 square kilometres;
• an area of 0.65 square kilometres known as Noel Coulthard’s block, apparently used as a bulk fuel agency depot, which was the subject of a grant of fee simple in 1992; and
• an area known as the Wayside Station adjacent to the Stuart Highway, any native title to which was regarded as having been extinguished by operation of the NTA and its South Australian counterpart.

THE APPLICABLE LEGISLATION

26 Although the issue had not been raised by any party, the primary Judge considered in his judgment (at [924] ff) whether the appellants had possessed the necessary authority from the native title group to present the application to the Court, as required by ss 61(1) and 251B of the NTA. His Honour said that it was arguable that the appellants had not complied with the requirement, but refrained from expressing a final view because he had not had the benefit of argument.

27 It was common ground on the appeal that s 61(1) of the NTA, in the form quoted by his Honour, and s 251B of the NTA, had no application to the proceedings. This was because s 61(1) was amended by the Native Title Amendment Act 1998 (Cth) (“NTAA 1998”), and s 251B was introduced by the same enactment. However, the NTAA 1998 did not come into force until some years after the present proceedings were commenced.

28 At the time the proceedings were commenced, s 13(1) of the NTA provided that an application could be made to the Native Title Registrar for a determination of native title in relation to an area for which there was an approved determination. Such an application could be made (among others) by a person or persons claiming to hold the native title either alone or with others: s 61(1). An application by a person or persons claiming to hold native title with others had to describe or otherwise identify those others, but it was not necessary to name them or say how many there were: s 61(3).

29 The transitional provisions of the NTAA 1998 provide that where, on the date the NTAA 1998 commenced, an application for a native title determination was being processed, the application was taken to have been made to the Federal Court: NTAA 1998, Table A, Sch 5, cll 5, 6. This provision was required because s 13(1), as amended by the NTAA 1998, now requires an application to be made to the Federal Court.

30 As we have noted ([7] above), the definition of “native title” and “native title rights and interests” in s 223 of the NTA was not amended by the NTAA 1998. However, s 225, which deals with a determination of native title, was amended by that Act. It is the amended version of s 225 that applies to the current proceedings: NTAA 1998, Table A, Sched 5, cl 24. That version provides as follows:

“A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area;
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.”

THE PRIMARY JUDGE’S REASONS FOR JUDGMENT

THE CLAIM

31 The primary Judge observed (at [33]) that the appellants had sought to place themselves within the larger “Western Desert Bloc”. His Honour quoted a number of paragraphs from their Outline of Facts and Contentions at trial, as follows:

“[10] The ‘wider region’ generally refers to the regional networks of traditional and contemporary relationships which integrate the claimed land and water with other parts of the Western Desert, especially the land of Anangu Pitjantjatjara (AP Lands) in northwest South Australia, Ngaanyatjarra Lands (in eastern central Western Australia), as well as lands in southwest Northern Territory. Aboriginal people residing within this wider region speak dialects of the ‘Western Desert’ language which include Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara.

[11] Claimants and the claimed land and water are a part of a regional network of classical and contemporary relationships shared with other Aboriginal people and land within what is known in anthropological writings as the ‘Western Desert bloc’ of Australian Aboriginal culture.

[12] The system of rules binding upon the claimants in respect of the claimed land and water is the system of rules shared with other Aboriginal people within the ‘Western Desert bloc’ of Australian Aboriginal culture. The particular content of the rules may vary within the broader region.

...

[79] The system of rules applicable to the wider social and cultural network integrates the claimed land and water with the wider region. The claimants and their land and water are recognised as being an integral component of the wider social and cultural network.”

(We have included the whole of [10], although his Honour quoted only the second sentence).

32 As his Honour noted, the claimant group was not described as the Yankunytjatjara people, but a group within the Western Desert Bloc the members of which adhered to the same set of rules that prevailed throughout that Bloc. Their case was that there are groups within the Bloc connected by language, myth and the environment.

33 The primary Judge pointed out that the appellants had not always presented their case in this way and he commented that there were some confusing aspects of their claim. He summarised their contentions as follows (at [37]-[38]):

“At the end of the day, the claimants seemed to be arguing that each member of the claimant group is Nguraritja for the claim area and that the application for a determination of native title has been made by named individuals in their own right and on behalf of all other individuals who fulfil the criteria of Nguraritja according to traditional law and custom. In par 1.6 of their principal submissions the claimants submitted that the claimants are:

‘... a group of people seeking a determination of their rights and interests as a group or aggregation of persons. The rights and interests claimed are not a communal title.’

Confusing as the claimants’ case was, it would appear that, in the end, they sought to establish the following propositions:

• the claim area is and always has been Yankunytjatjara country;
• Antikirinya and Yankunytjatjara are different names that are used to refer to the same people;
• the claimant group comprises those individual Anangu (Aboriginal people) who are Nguraritja (traditional owners) and who are connected with the claim area: that is, there is no claim on behalf of the entire Yankunytjatjara people; and
• the Nguraritja are part of the greater western desert culture.”

34 The primary Judge noted (at [49]) that the appellants accepted that their native title rights had to be compatible with the rights, interests and obligations of the Fullers as Crown lessees: The Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 (“Wik”), at 132-133, per Toohey J. His Honour also noted that the appellants were seeking more extensive rights than those to which they were entitled under s 47 of the Pastoral Act 1989. That provision is as follows:

“47(1) Despite this Act or any pastoral lease granted under this Act or the repealed Act, but subject to subsection (2), an Aborigine may enter, travel across or stay on pastoral land for the purpose of following the traditional pursuits of the Aboriginal people.

(2) Subsection (1) does not give an Aborigine a right to camp -

(a) within a radius of one kilometre of any house, shed or other outbuilding on pastoral land; or

(b) within a radius of 500 metres of a dam or any other constructed stock watering point.”

“Aborigine” is defined in the Pastoral Act 1989 as meaning:

“... a descendant of the Aboriginal people who is accepted as a member by a group in the community who claim descent from the Aboriginal people.”

“Aboriginal people” is also a term that is defined in that Act. It means:

“... the people who inhabited Australia before European colonisation.”

It was common ground before the primary Judge and on the appeal that the three relevant leases were pastoral leases to which s 47 of the Pastoral Act 1989 applied.

35 It was not made clear in the judgment precisely how the appellants’ claims, if successful, would confer more extensive rights on the appellants than their statutory entitlements under s 47 of the Pastoral Act 1989. Counsel’s response to questioning during the appeal on that question was to the effect that if the appellants are successful they, rather than “the Aboriginal people” generally, may be entitled to pursue traditional pursuits and to make decisions about the enjoyment of the claim area, or at least particular sites or tracks on the claim area. Counsel also observed that the determination would be of significance to the appellants.

36 Be that as it may, his Honour identified the issues before him as follows (at [49]):

(i) whether the appellants ever had a connection with the claim area;
(ii) if they did, whether they retained that connection; and

(iii) if they retained their connection, what (if any) rights or interests would be available to the appellants if a determination of native title were to be made in their favour.

THE CONCEPT OF NGURARITJA

37 His Honour described Nguraritja as the “traditional owners” of the claim area. He adopted (at [99]) the following definition provided by Professor Goddard, who gave linguistic evidence for the appellants and who is the compiler of a Pitjantjatjara/Yankunytjatjara to English dictionary:

“Nguraritja (noun)

Someone that belongs to a place, traditional owner, custodian (from ngurara plus – (i)tja ‘of, from’)”.

38 In the passage reproduced below, his Honour (at [75]-[78]) outlined the description of the role of Nguraritja given by Peter De Rose, who was the “dominant figure in the presentation of the claimants’ case”. In this passage, the word “Anangu” appears. It is the word for “person” or “people” in the Pitjantjatjara language, but has acquired an extended meaning. It is now also used by Yankunytjatjara people to refer to themselves and other Aboriginal people. The word “Tjukurpa”, which also appears in the passage, refers to what are commonly described as the Dreamings for country.

“Peter De Rose explained that the Nguraritja look after their country; they are able to live and hunt and look for bush tucker on their country; they can move around to all the places that are located on their country. Mr Howie [senior counsel for the claimants] asked Peter about visitors to his country under his Tjakangka - his Anangu Law. Peter answered that the visitors would always be welcomed and looked after; they would be given food and water, shown the places and told the stories, but if the visitors did not listen to the Nguraritja, if they did their own thing, such as getting their own firewood or breaking down a wind break, it could have led, in the old days, to a spear fight. If, for example, a visitor were to go hunting without the invitation of the Nguraritja, the Nguraritja ‘will get angry and get hold of him and do something, kill him’. The role of the Nguraritja is therefore highly significant. A visitor from another country would have to ask the Nguraritja whether he or she can enter upon the land; the visitor would have to receive instructions on where he or she could go and where he or she could not go. The visitor would also be instructed on where he or she could hunt and where he or she could get water. The visitor would be told of the places that had to be avoided. Peter said that, as Nguraritja, he was able to do all the things that were needed for his country; he could hunt and he could collect food, water and other resources; he could camp and travel wherever he wanted to go; he could do all these things so long as he did not offend the Tjukurpa.

The Nguraritja can erect shelters on the land, and today, according to Peter, they could even erect a house on the country. The country will also supply bushes and shrubs to the Nguraritja that can be used for medicinal purposes. In addition, the Nguraritja can get bush tobacco from the country. The bush tobacco grows at Alalyitja (site 11) and Kulpitjara (site 10) [both sites on the claim area]. The Nguraritja can use the timber on the land to make miru (a spear-thrower) and the women can make wana (the digging stick) which they use to dig for tjala (the honey ant) and for goannas.

...

The Nguraritja teach their young people about the country: about special places and water points and about food and bush tucker; they teach them how to dress the malu, the red kangaroo. As malu is very sacred, the young people have to ‘learn the proper way, right way’ to kill it, dismember it and prepare it for cooking... ”.

39 Although his Honour found that persons may be Nguraritja in relation to particular sites and tracks in the claim area it does not follow that those persons do not possess native title rights and interests in relation to areas beyond those particular sites or tracks. As his Honour outlined in the passages set out (at [38]) above, Nguraritja, inter alia, “look after their country; they are able to live and hunt and look for bush tucker on their country; they can move around to all the places that are located on their country”.

40 The primary Judge accepted (at [99]) the “overwhelming thrust of the claimants’ evidence” that it was the Nguraritja who were the traditional owners: they had the rights and responsibilities in relation to the land. He explained (at [100]) the concept of Nguraritja in relation to particular places as follows:

“Many Aboriginal witnesses identified themselves as being Nguraritja with respect to named locations. Their evidence leads me to conclude that the correct approach to the concept of ‘Nguraritja’ is to accept that a person is Nguraritja for a particular place or places – not Nguraritja for a larger area which includes that or those places. Thus Owen Kunmanara said that he was Nguraritja for Yuta [a location on De Rose Hill Station] – not Nguraritja for the Station. Mr Whitington [senior counsel for the Fullers] submitted, and in my opinion, correctly so, that the Aboriginal concept of territory is a ‘constellation’ of locations, often along a Dreaming track for which those who are Nguraritja have responsibility. For example, Peter De Rose said that his land extended from Yura to Arapa, along the Malu (kangaroo) Dreaming track. It would not, in my opinion be appropriate to use that passage in his evidence as a basis for asserting that Peter thereby claimed to be Nguraritja for the whole of the land that is represented by De Rose Hill Station. That, however, is not to say that the role of Nguraritja is limited to isolated locations. For example, a person could be Nguraritja for a creek, or a part of a creek. An example was the karu-karu (watercourse) at Apu Maru, which was said to be the path that the Malu, Kanyala and Tjurki took as they travelled across the landscape. Although taken in closed session, it was made clear that women and children would know that fact. There was, unfortunately, no evidence led as to how far that watercourse went, but the implication is that it would not be a short distance and a perusal of the map, Ex A2, suggests that there would be no difficulty in finding a path through the watercourse joining most, if not all of the Malu sites on De Rose Hill Station. I am prepared to accept that Peter is Nguraritja for the watercourse and that he conceptualised it as more than a mere point. It would probably be an important part of the Tjukurpa to protect.”

WHOSE TRADITIONAL LAWS AND CUSTOMS?

41 Identification of the Aboriginal people whose traditional laws and customs related to the claim area at sovereignty, and at the date of judgment, proved to be a complex task at the trial. Over time, members of the Antikirinya, Pitjantjatjara and Yankunytjatjara peoples have all had a connection with the claim area. In general, the appellants appeared to be Pitjantjatjara or Yankunytjatjara people, whose traditional laws and customs were claimed to be those acknowledged and observed by the broader Aboriginal community known as the Western Desert Bloc. According to the appellants’ case, the Western Desert Bloc community was the community under whose traditional laws and customs Nguraritja for the claim area derived their native title rights and interests. The Western Desert Bloc community included a number of Aboriginal peoples from the Western Desert region, who spoke different languages or dialects but shared a system of rules. The appellants, so it was contended, were descendants, according to traditional laws and customs, of the Aboriginal peoples who inhabited the Western Desert region, and were Nguraritja in relation to the claim area, at sovereignty.

42 The primary Judge made no findings as to the limits, geographic or social, of the Western Desert Bloc. However, both the appellants and the respondents referred in argument on the appeal to an article by Professor R M Berndt, “The Concept of ‘the Tribe’ in the Western Desert of Australia” (1959) 30 Oceania 81, which was in evidence. Professor Berndt identified the Western Desert as extending from Kalgoorlie, Laverton and Leonora (in Western Australia), to Oodnadatta (in north-central South Australia). It extended south from the central mountainous core, including the Warburton and Rawlinson Ranges (in Western Australia), the Petermann Ranges (in the Northern Territory) and the Musgrave and Everard Ranges (in north-western South Australia), to the trans-continental railway line. This part he referred to as the Great Victoria Desert. In addition, he identified another area extending north-west from the Rawlinsons, which was bounded on the north by the southern and eastern Kimberleys.

43 Professor Berndt estimated that the population of the Western Desert prior to European contact may have been 18,000 persons, living and moving over an area of some 250,000 square miles. At the time he wrote, Professor Berndt put the population of the Western Desert at less than 3,200. He identified a number of dialects spoken in the region, including (adopting uniform spelling) Pitjantjatjara, Antikirinya and Yankunytjatjara. Professor Berndt expressed the view (cited by the primary Judge) that

“[d]iagrammatically the whole of the Western Desert could be seen as a series of overlapping interactory zones or as small communities”.

44 The respondents contended that the only people capable of claiming native title rights and interests in relation to the claim area were descendants of the Antikirinya people. They said the claim area had been occupied, probably at sovereignty but at least until the early part of the twentieth century, by the Antikirinya people. According to the respondents, the arrival in the claim area of the Pitjantjatjara and Yankunytjatjara peoples, as recent migrants from the west of the claim area particularly during the early part of the twentieth century, precluded them from claiming native title rights and interests. This was because native title can only be claimed by descendants of the community or group that possessed such rights and interests at sovereignty. As the appellants were predominantly, if not entirely, descendants of migrants, they had no entitlement to native title rights or interests in respect of the claim area.

45 An associated issue was whether the claim area fell within Yankunytjatjara, Pitjantjatjara or Antikirinya “country”, traditionally occupied by the Yankunytjatjara, Pitjantjatjara or Antikirinya peoples respectively; or whether, in the context of the Western Desert Bloc, no meaningful distinction could be drawn between those peoples and their traditional country. The State’s contention was that the Antikirinya people had populated the claim area at sovereignty and had been displaced during the early part of the twentieth century. The State claimed that the Antikirinya and Yankunytjatjara were distinct and separate groups.

46 The primary Judge did not accept that linguistic boundaries and “country” were synonymous in the Western Desert region. He rejected the respondents’ contention that the recent migration of the Pitjantjatjara or Yankunytjatjara people to the claim area was a bar to their claim. In substance, he accepted that territorial shifts and population movements, together with associated changes to traditional laws and customs, had occurred as part of the acknowledgement and observance of pre-sovereignty and post-sovereignty traditional laws and customs of the peoples who formed part of the Western Desert Bloc. Relevantly for present purposes, his Honour also accepted that the Pitjantjatjara, Yankunytjatjara and Antikirinya peoples were part of that Bloc.

47 The primary Judge observed that there was a preponderance of evidence from Aboriginal witnesses to the effect that De Rose Hill Station was in Yankunytjatjara country, although the evidence was insufficient to locate a finite boundary that separated Pitjantjatjara land from Yankunytjatjara land. The most that could be said was that the boundary was probably a north-south line somewhere to the west of Amata (Musgrave Park), which itself is some 200 kilometres to the west of the Station.

48 His Honour characterised the evidence as to whether there was a separate group of Anangu, who should properly be referred to as Antikirinya, as “contradictory and confusing”. He concluded, however (at [144]), that

“there were (and maybe are) two closely related Aboriginal groups speaking the same language and dialect – the Antikirinya and the Yankunytjatjara. I am not, however, able to make a finding to the effect that the Antikirinya people once inhabited the claim area but were dispossessed by the Yankunytjatjara. The evidence that was adduced during the course of the trial dos not permit me to make findings about the historical movements of the Antikirinya people”.

49 Later in his reasons, his Honour commented on the evidence of Professor Goddard, who had expressed the opinion that the differences between the Yankunytjatjara and Antikirinya languages were so minor that it was questionable whether they should be thought of as different dialects. His view, in summary, was that the Western Desert language was used with minor variations throughout the area.

50 His Honour considered Professor Goddard’s evidence to be of little assistance in rebutting the suggestion that the Antikirinya, at sovereignty, were a separate and distinct people who occupied the claim area. In large measure, this was because Professor Goddard had acknowledged that, since European contact, there had been “dialect mixing”, making it difficult to obtain a clear picture of the linguistic differences (if any) before such contact. His Honour reiterated the conclusion (at [313]) that the two peoples were separate, albeit clearly related. However, that conclusion did not resolve the primary question raised by the arguments of each side:

“did the Yankunytjatjara people, in a migration from the west, push the Antikirinya out of the claim area?”

51 The primary Judge considered that the evidence did not answer that question either. All parties had accepted, in closing submissions, that the claim area had been occupied by Aboriginal people prior to sovereignty and his Honour made a finding that archaeological remains within the claim area were those of Western Desert Bloc Aboriginals. But the evidence did not identify who those people were – whether they were Yankunytjatjara, Antikirinya or Pitjantjatjara. Further, while there was a great deal of evidence that Pitjantjatjara people had come from the west, there was no evidence that the Yankunytjatjara had come from that direction.

52 His Honour addressed the question of migratory movements at different points in the judgment. He found (at [190]) that, although the evidence was “sketchy”, there had been a migratory movement of Pitjantjatjara people to the east:

“Drought was one reason; looking for wives was another. There was fighting but it is not possible to say when this occurred save that ... it could have occurred sixty or seventy years ago. ... [I]t is clear, and I find that many of the Aboriginal witnesses in this litigation trace their origins to Pitjantjatjara country which is well to the west of the claim area. The personal histories of the claimants show that most of them are either Pitjantjatjara people or have a parent or grandparent who was a Pitjantjatjara person.”

53 Later in the judgment, the primary Judge again recorded that migratory movements from the west had occurred at different times for different reasons. He found that on occasions this had led to fighting between the Pitjantjatjara people and the Yankunytjatjara people. He did not see (at [316]):

“why these events should not be treated as part of the social and cultural history of the Aboriginal people. Since wars (perhaps better described as tribal disputes), droughts and the search for brides were part of their lives, it is permissible, in my opinion, to accept such migratory movements as traditional. There is no need for native title claimants to establish strict biological descent back to the time of sovereignty.”

54 The primary Judge noted the appellants’ submission that they needed only to establish that they were descended from people from the wider Western Desert region and that those people followed traditional laws and customs. His Honour accepted that since (as he found) under traditional law and custom acquisition of land in this region is not solely the product of transmission through biological descendants, the appellants did not have to show biological descent from those inhabiting the claim area at sovereignty. He also accepted, in an important finding (at [345]), that the traditional laws and customs that once applied to the claim area “were essentially the same as those of the Western Desert region”. But his Honour was not prepared to make such a “broad-based finding” as that sought by the appellants, apparently a reference to the appellants’ contention that they had only to show descent from Western Desert people who followed traditional laws and customs. His Honour considered (at [345]) that:

“Although it is not necessary for the claimants to prove biological descent from those who occupied the land at the time of sovereignty, I do feel that there has to be some continuity – even though it might be through migration, marriage or even tribal dispute – between those who formerly occupied the land at sovereignty and the present claimants.”

55 The primary Judge found (at [346]) that there was the requisite degree of continuity:

“The evidence in this case has disclosed that many of the claimants or their parents or grandparents had migrated to the claim area from the west. It would be reasonable to conclude that the archaeological remains within the claim area which were identified by Professor Veth are those of Western Desert Bloc Aboriginals. The next and more difficult question is whether those Anangu followed the same traditional laws and customs as the claimants’ ancestors and as the claimants do today? 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.”

56 His Honour rejected the evidence of Mr Elliott, the main anthropological witness for the appellants, that the Yankunytjatjara, Pitjantjatjara and Antikirinya could be regarded as a “composite community” within the wider Western Desert area. But his Honour accepted (at [360]) that within the Western Desert

“there is a marked similarity of language, laws, customs, religious and spiritual matters that are used, applied or followed by the various ‘groups’, ‘tribes’ or ‘hordes’ (as they have been variously labelled) that have been identified by ethnographers and anthropologists. These groups have been identified in a number of the writings that were tendered by the claimants and also in the maps that were tendered by the State. They include the Yankunytjatjara, Pitjantjatjara, Antikirinya, Ngaatjatjarra and Ngaanyatjarra.”

57 The primary Judge stated his conclusion as follows (at [372], [376]):

“[H]istorical, archaeological and anthropological materials have also placed Anangu in the De Rose Hill area post-sovereignty. Anthropologists, operating subsequent to the acquisition of sovereignty, have clearly considered the Station to be part of the Western Desert Bloc (albeit generally, in the opinion of the early ethnographers, in Antikirinya territory). Now there can be added to those opinions, the archaeological evidence that places Aboriginal people on the claim area prior to sovereignty. There is no reason why it should not be accepted that the occupants at sovereignty followed the same traditional laws and customs as those that the claimants’ forebears did, even though there was no clear evidence that the current claimants and those who were present at the time of sovereignty have any direct biological connection. I see no reason why the migratory movements of the Pitjantjatjara to the east – whether as a result of drought or war or marriage – should not be accepted as part of the history and social structure of the Aboriginal people of the Western Desert Bloc. This conclusion, which is no more than an inference that is based more on the evidence of Anangu witnesses than it is on the opinions of the experts, gains some support from the frequency of intermarriage and the consequential movement between the Pitjantjatjara and Yankunytjatjara people. In my opinion, the conclusion reached by Professor Maddock [anthropologist called by the State] in his first report is an appropriate assessment of the anthropological evidence:

‘Although the applicants, like Western Desert people generally, are well removed from the baseline of sovereignty, the available evidence does not suggest a total rupture of continuity with the pre-contact culture, in spite of territorial shifts, population movements and probable changes in law and custom. Accordingly, Aboriginal evidence in the case will be important. It will, on one hand, throw light on the time depth of the applicants’ association with the claim area (ie on their continuity with previous occupants); on whether there is much more than spiritual affiliations to their association with the land; and on their laws and customs.’

...

Given my view that ‘recent’ migration is not a bar to native title, I need not further consider this matter in any detail. It is clear that a large majority of the claimants are either recent migrants from the west to the claim area or are descendants of migrants from the west ...”.

METHODS OF BECOMING NGURARITJA

58 There was a dispute about the manner in which a person became Nguraritja in relation to the claim area, or sites within that area. Indeed, much of the evidence of the 26 Aboriginal witnesses was directed towards establishing that the appellants and other witnesses were Nguraritja for the claim area. His Honour found that although patrilineal descent was originally the factor of prime importance in defining Nguraritja, it did not command as great a stature as in former times. Place of birth remained of greatest importance, illustrated by the fact that Peter De Rose and Tim De Rose (not blood relations) were universally regarded as Nguraritja for De Rose Hill because they had each been born on the Station. However, while place of birth was important, there were other means by which a person could become Nguraritja for country. His Honour stated his conclusion as follows (at [562]):

“In this case, I have satisfied myself that the evidence has disclosed a number of methods by which a person may be both Nguraritja for the land and have a connection to the land through traditional laws and customs. The criteria, as relied upon by the claimants in their closing submissions, which I accept, were the following four-fold propositions: that a claimant had been born of the claim area; that the claimant had a long-term physical association with the claim area; that his or her ancestors had been born on the claim area; or that the claimants had a geographical and religious knowledge of the claim area. To these must then be added the additional requirement that the claimant is recognised as Nguraritja for the claim area by the other Nguraritja.”

59 In explaining that finding his Honour later said this (at [897]):

“I have concluded that I should accept the evidence that a person may become Nguraritja for any one of the reasons that were identified by Mr Elliott. If I were to insist on strict biological descent I would, in effect, be adhering to a view that only birth coupled with ancestral connection would create the status of Nguraritja. Although I am bound to proceed upon the premise that the claimants for native title must establish ‘a substantial degree of ancestral connection’ [Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316, at 379, per Beaumont and von Doussa JJ], I see no reason why their traditional laws and customs should not allow for a person to become Nguraritja if he or she is born on the land (irrespective of the parents’ place of birth). Likewise, there would be nothing offensive or contradictory to there being a substantial degree of ancestral connection if the traditional laws and customs allowed for adoption or allowed for a person to be ‘incorporated’ into the status of Nguraritja because of his or her long association with the land or because of his or her geographical and religious knowledge of the land. It seems to me, therefore, that it would be open for me to hold that those persons who are found to be Nguraritja for the claim area have the potential to be the persons who are entitled to apply for a determination of native title over the claim area. That, of course, is not the end of the matter. The claimants must still prove that their rights and interests are possessed under traditional laws and customs acknowledged and observed: see par 223(1)(a) of the NTA; they must also prove that those laws and customs have a connection with the claim area: see par 223(1)(b); and finally, they must prove that their rights and interests are recognised by the common law of Australia: see par 223(1)(c).”

60 The primary Judge rejected the Fullers’ submission that the appellants’ use of the word Nguraritja, and the value that they ascribed to it, were not traditional. That submission was based on the opinion expressed by Professor Berndt that in Western Desert society there were two groups, a “land-owning group” and a “land-occupying group”. According to Professor Berndt, only one male person could be Nguraritja for a particular piece of country.

61 His Honour said that he was bound to act on evidence adduced in the case and that there had been no evidence at the trial of two separate groups as suggested by Professor Berndt. His Honour considered (at [102]) that he should

“accept the evidence of the Aboriginal witnesses, either as an example of evolutionary traditional law, or as an example of a sub-culture that was at variance with the culture or sub-culture that Professor Berndt examined. For much the same reason, I find myself unable to make findings that would be consistent with the tradition of patrilineal descent. Some of the ethnographic literature that was tendered during the course of the trial made much of patrilineal descent, a factor that was absent in the evidence of the Aboriginal witnesses in this trial. I do not necessarily regard the evidence of the witnesses as a contradiction of the earlier literature; rather it is explainable, either on the grounds of the evolutionary process, or because the traditional laws and customs of this area are and were at variance with the traditional laws and customs upon which the early writers had based their opinions. Most likely it is a question of evolution as the evidence in the case suggests that the traditional laws and customs that were asserted by the claimants are essentially the same as those that exist throughout the Western Desert. Furthermore, most of the claimants, through their parents and grandparents, are in relative terms, recent migrants. Presumably their ancestors brought their traditional laws and customs with them. It seems hard therefore to accept the ‘variance’ model”.

CONNECTION TO THE CLAIM AREA

62 The primary Judge noted (at [375]) that Professor Maddock had expressed the view, after reading the appellants’ expert reports, that there were “three areas of doubt” that had to be addressed by the claimants’ evidence:

• the “time depth” of the appellants’ association to the land;
• whether there was more to the association than spiritual affiliation; and
• the degree to which traditional laws and customs were acknowledged and observed.

63 Given his Honour’s view that “recent” migration to the claim area was not a bar to native title, he had no need to consider the first issue in any detail.

64 The second issue was more important. Although the High Court in Western Australia v Ward (2002) 191 ALR 1; [2002] HCA 28 (“Ward (HC))”, at 32 [64], had held that a physical connection to the land is not a requirement for a grant of native title, it remained a relevant matter in assessing whether the appellants retained a connection sufficient to satisfy the requirements of the NTA. His Honour agreed with Professor Maddock that for some time there had been only “occasional physical connection with the country for food gathering purposes”.

65 As to the third matter, the primary Judge observed that it was necessary to examine the evidence of each of the Aboriginal witnesses “to test, inter alia, his or her connection to the claim area”. That evidence included references to the appellants’ experiences during the “field trips”, being occasions on which witnesses for the appellants visited the claim area in the company of a legal advisor or anthropologist (or both) to prepare the case for trial. His Honour said (at [206]) that

“their observations on those occasions is relevant and is to be taken into account, but it is to be remembered that those visits did not occur as part of their traditional culture but in the unusual atmosphere of preparing a native title claim for trial”.

66 In the course of discussing the evidence of Dr Willis, an initiated Anangu and a highly qualified anthropologist, his Honour was critical of aspects of the appellants’ evidence. It is convenient to refer first to that criticism.

67 Dr Willis was a Wati Pulka, a senior man who was initiated into Pitjantjatjara/Yankunytjatjara restricted men’s ceremonial law in 1991. The primary Judge regarded Dr Willis as uniquely qualified to comment on the traditional laws and customs of the Western Desert region. His Honour said that Dr Willis’ evidence filled some gaps in the appellants’ case and in other instances provided much greater detail, insight and explanation into traditional laws and customs of the region. In particular, Dr Willis’ account of how one became Nguraritja for land through long-term association provided very strong support for the appellants’ position, which his Honour ultimately accepted.

68 Dr Willis, in closed session, explained in detail the concept of Kurunitja, which he described as “a spirit or essence which inheres in the landscape”. The appellants submitted at trial that Dr Willis’ explanation enabled the evidence of Aboriginal witnesses to be properly understood. For example, one of the elderly witnesses, Peter Tjutatja, said that Tjukurpa had been “passed on from generation to generation. It came from the ground and all things associated with it”. But his Honour considered (at [342]) that

“that is not good enough. The onus is upon the claimants, if they wish to establish their right to a determination of native title, to give the evidence that will establish that right. They had the opportunity to do that in closed session but they failed to do so. Dr Willis was the only witness in the trial to refer to and explain the kurunitja. Oblique references, such as that found in Peter Tjutatja’s statement serve no useful purpose. Dr Willis, although an initiated man, was not a claimant nor was he Nguraritja for the claim area. His evidence was of value in its application, generally, to the Western Desert. What was needed from the claimants was evidence that applied Dr Willis’ evidence to the claim area. That was not forthcoming.” (Original emphasis.)

69 Before making this observation, his Honour had found (at [302]) that there was evidence that the appellants were familiar with “practices concerning some aspects of traditional life”. Some of the Aboriginal witnesses, for example, had given evidence of adhering to traditional customs associated with the birth of a child, such as “smoking” the child and smoking the mother’s breasts to ensure a plentiful supply of milk. His Honour noted that there had been no evidence given about adherence to other traditional practices, such as the burying of afterbirth or the practice of singeing the mother’s pubic hair. He did not regard the absence of this evidence to be “overly important”. While there was no onus on the respondents, “they had the opportunity to lead evidence that such practices still exist”, presumably in some other communities (see [302]). Evidence of this kind:

“would have given [the respondents] the right to argue that the [appellants] were no longer adhering to traditional customs”.

70 Later, the judgment records that the Court visited and took evidence at thirteen sites of significance to the appellants. The purpose of this evidence (at [379]) was

“to establish that the claimants had, and continued to have, rights and interests in relation to the claim area where, in terms of s 223 of the NTA, the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the claimants and the claimants, by those laws and customs, have a connection with the claim area”.

71 His Honour accepted that the witnesses “once had a religious or spiritual connection” with the site concerned. He expressed his conclusion this way (at [380]-[382]):

“I accept the claimants’ submissions that significant aspects of certain rituals and ceremonies were revealed in this evidence. Most of that evidence was, however, given at particular sites during the course of restricted evidence. It established, to my satisfaction, that the witnesses who gave the evidence and the people who participated in the ceremonies, stories, dances and songs once had a religious or spiritual connection with the site at which the particular activity was performed. One such site was Kulpitjara where the spiritual significance of the physical features of the site was explained in evidence. The unusual rock formation at Wipa was another example: and to those places may be added Wantjapila, Intalka, Alalyitja, Kirara, Kumpalyitja and Maku. There are a number of sites on the claim area and on lands that surround the claim area that are associated with one or another Tjukurpa. I accept the submission of counsel for the claimants that a considerable body of evidence was given concerning those sites.

Whilst I am not able to give a detailed description of the ceremonies, stories, dances and songs that were revealed at those sites, that has not affected what I would wish to state in these reasons, for I consider that I can make a finding that what I saw and observed satisfied me that the witnesses and participants showed that they possessed knowledge of the particular sites and knowledge of the activities in which they engaged at those sites. That knowledge would have, in turn, gone a long way towards satisfying me that there was a relevant connection between those people and the claim area were it not for the fact that there has been a virtual absence of all Aboriginal people from the claim area for twenty years or so.

There was sufficient evidence given - particularly during the restricted sessions - to justify a finding (which I make) that relevant witnesses knew the ceremonies, stories, dances and songs associated with one or more of the Tjukurpa. Different witnesses were able to give evidence about sections of the narratives concerning the Dreamings; others performed significant dances and sang significant songs. I am satisfied and I find that the evidence on these subjects was sufficient to establish that those witnesses still retain a knowledge of those activities, many of which are site specific. Nevertheless, the question still remains: can it be said that the claimants’ knowledge of those activities means that the claimants have retained a connection to the claim area?” (Emphasis added.)

72 It is unnecessary to reproduce the primary Judge’s account of the visits to each site. Nonetheless, it assists in understanding the evidence to reproduce his Honour’s summary of the visits to two sites, Wantjapila and Intalka (at [384]-[390]):

“The first two sites that were visited, Wantjapila (site 23) and Intalka (site 24), were both to the south of De Rose Hill Station. As the evidence that was given at both places was received in closed session, what follows is a neutral summary of what the Court saw and heard without resorting to detail or identifying the witnesses. Wantjapila, which was only about a kilometre or so to the east of the Stuart Highway, is a large, dry claypan that is partially surrounded by a grove of coolibah trees. Intalka, to the south-west of the Aboriginal community of Indulkana, was the original source of water for that community. It is a rocky gorge of spectacular beauty, spoilt by the presence of three large rusted water tanks. A witness, who said that he was Nguraritja for Intalka, said that the water-tanks and pipes had damaged the place; he claimed that Intalka was miil-miilpa, meaning a secret sacred place.

At Wantjapila one of the witnesses explained the significance of the area, describing it as ‘strong law’ and that, even today, death might occur if a woman were to hear the sacred songs. In evidence that had earlier been given in open Court, witnesses had discussed their belief and acceptance of the Malu [the red kangaroo], Kanyala [the euro] and Tjurki [the owl] Tjukurpa. Some of the witnesses had also said that the Tjukurpa travelled through the Wantjapila location. On site, however, more detailed evidence was given about that Dreaming and the inter-relationship between Malu, Kanyala and Tjurki. For example, a particular location to the west was identified as a point from which Malu, Kanyala and Tjurki travelled. The name of that place and its significance, as believed by the witness, was disclosed. There was an ominous note to its name, as is evident from the English translation, which concerns death and supernatural powers.

According to the witnesses for the claimants, the ability of an individual to discuss a Tjukurpa is limited by territorial constraints. Thus the witness at Wantjapila was able to give evidence about the Tjukurpa’s activities as far as Iwantja but no further, even though the witness was well aware that the Tjukurpa travelled beyond Iwantja to other locations. The witness proceeded to name the person (another witness) who was able to take up the story of the Tjukurpa after Iwantja.

Malu, Kanyala and Tjurki were said to be present (or, at least, represented) at Wantjapila by three identified natural objects. The association of Tjukurpa with natural features was a feature of this trial that was repeated at other locations (Alalyitja for example).

The restrictions that are imposed in this and other secret sacred places are not always total. For example, women are permitted to visit Wantjapila – they are not barred from entering the location. The prohibition is directed principally to the songs (the Inma). There is a total prohibition of women, children and uninitiated men hearing the Inma.

From Wantjapila, the Court moved to Intalka, which is also on the track of the Malu, Kanyala and Tjurki Dreaming. The story was much the same as that for Wantjapila: the Tjukurpa stopped at this site and created songs that only initiated men can sing and hear. Women and children can visit but they cannot listen to the Inma under pain of death. As was the case at Wantjapila, there were natural features in the location that were separately identified with Malu, Kanyala and Tjurki.

In addition to the songs, there was a dance at Intalka that was only for men. The witness who gave this evidence (he also gave evidence at Wantjapila) said that his song line and story ended at Iwantja. He knew that Malu, Kanyala and Tjurki continued on to Yura (site 19) but it was someone else’s story.”

73 It will be recalled that his Honour identified as the critical question whether the appellants’ knowledge of the activities performed on the various sites meant that they had retained a connection to the claim area. His Honour explained (at [561]-[563]) how he approached that issue, as follows:

“I should make it clear, at the outset, that I am of the opinion that a finding that a person is Nguraritja for the claim area will not necessarily lead to that person satisfying subs 223(1) of the NTA and thereby being entitled to a determination of native title. Some of the claimants may well be Nguraritja under their traditional laws acknowledged and traditional customs observed, and may thereby satisfy the requirements of par 223(1)(a) of the Act. However, par 223(1)(b) requires that, by those laws and customs acknowledged and observed, those claimants must have a connection with the claim area. Whether or not a particular claimant has a connection with the claim area sufficient to justify a finding of native title is, inevitably, a question of fact that must be determined in each case. Given that native title can give rise to significant rights and interests in land, there should be, in my opinion, more than a mere trifling connection to the claim area for an individual, group or community to be entitled to a determination of native title in his, her or their favour.
...
It became clear during the course of the trial that, although some of the claimants may be Nguraritja (or, at least may have at one stage been Nguraritja) some of them had a much stronger claim to a connection to the claim area than others. Thus, in my opinion, it is incumbent upon me to assess the degree of connection to the claim area of each witness who has been put forward as Nguraritja so that the Court can establish whether that person or those persons have the requisite connection that the NTA requires. Only then will the Court be in a position to assess the connection of the claimants as a whole.” (Emphasis added.)

74 It should be noted that the appellants were seeking group native title rights and interests in a representative capacity, in the sense that they were making their claims on behalf of all persons who are, or may become, Nguraritja in relation to the claim area. Accordingly, it may well have been sufficient for his Honour to have determined that:

• there were persons who were Nguraritja for the claim area and who possessed rights and interests under the traditional laws acknowledged and the traditional customs observed by those persons (s 223(1)(a)); and
• by those laws and customs those persons had a connection with the claim area (s 223(1)(b)).

If both those matters were determined favourably to the appellants, his Honour would then have had to determine the native title rights and interests possessed by Nguraritja in relation to the claim area (s 225).

75 Rather than approach his task in that way, the primary Judge determined, in respect of each person put forward as Nguraritja, whether that person ever had a traditional connection with the claim area and, if so, whether that person had abandoned that connection. The issue of “abandonment” arose because of the departure of Aboriginal persons from the De Rose Hill Station progressively until 1978, when the last of those persons, Peter and Tim De Rose, left the Station. His Honour treated the failure of the appellants to perform their “duties” in the claim area since their departure from it as weighing heavily against those persons having retained their traditional connection with that area.

76 His Honour found, for example, that the cleansing of secret or sacred sites is one of the major duties of Nguraritja with respect to their land. Yet, he found (at [104]) that

“neither Peter De Rose nor any of the other Aboriginal witnesses gave any evidence of significance that they maintained or cleaned any secret or sacred sites when they lived on De Rose Hill”.

Indeed, his Honour said that he was unable to accept Peter De Rose’s evidence that he had been to at least one secret site on De Rose Hill in order to clean it.

77 The primary Judge continued as follows (at [106]):

“The strength of Aboriginal culture is well-known; the attachment to land is intense; the importance that is attached to secret and sacred places is exceptionally strong. If Peter and the other witnesses who said that they were Nguraritja for De Rose Hill were intent on performing their duties as Nguraritja, I am quite satisfied that they would have entered upon the land - even surreptitiously if necessary - to perform their duties. Save for some occasional hunting trips, not one witness for the claimants has attended to any religious, cultural or traditional ceremony or duty on De Rose Hill Station in almost twenty years”.

78 His Honour found unconvincing the claim by Peter and Tim De Rose that they would have been sacked by Doug Fuller if they had cleaned the sacred sites during working hours:

“They would have known that they could have done the work that was necessary outside normal working hours. Their lament of ‘work or be sacked’ did not have a ring of truth to it. The implication is that in choosing between traditional Aboriginal values and European values, Peter and Tim De Rose and the other stockmen appear to have chosen the latter. That this is understandable in the circumstances does not avoid the fact that their choice does not aid their claim for native title in any way. It is hard to see this as an ’evolution’ of the traditional law under the pressure of changing times. The evidence was that ’cleaning’ sites was, and still is, an important responsibility of the Nguraritja”.

79 His Honour also characterised as a “paltry excuse” Peter De Rose’s evidence that, although he continued to hunt on the Station while he lived at Railway Bore (which is situated on Anangu Pitjantjatjara land close to the claim area) from 1990 to 1996, he became uneasy about visiting De Rose Hill because he had been warned that he might frighten the cattle.

80 In the course of considering the writings of the better known ethnographers who worked in the Western Desert area, such as Professor A P Elkin, Professor R M Berndt, Dr C H Berndt and Professor T G H Strehlow, the primary Judge observed (at [296]) that the State had submitted

“and the totality of the evidence supported its submission, that there was minimal detail from the Aboriginal witnesses about their contemporary observance – as distinct from their recognition – of traditional laws and customs.”

81 Later in the judgment, his Honour referred to the changes in the environment in which the appellants lived, including natural phenomena (such as drought) and the impact of European settlement. He did not consider, however, that these matters advanced the appellants’ case (at [888]):

“it must be recognised that natural calamities such as droughts, floods and sickness may well be matters that militate against the Aboriginal claimants. Far from evoking an attitude of sympathy and leniency to an application, they may constitute the very reason for explaining why the Aboriginal people have left a particular area and, in so doing, have broken their connection with that land. This is and will continue to be an ongoing problem in the pursuit of native title. Aboriginal claimants must be ready to maintain and assert their rights and interests in relation to land and waters where those ‘rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by’ the Aboriginal people. Thus it is that many native title claimants will have to overcome such matters as the introduction of livestock, the availability of rations, the establishment of Missions and the other matters to which reference has been made. Neither the common law nor the provisions of the NTA constitute a bulwark against the presence of these European influences. Any of them, may, in a given case, have such an effect as to break the necessary connection with the claim area. Even so, counsel for the claimants have submitted that those changes that have occurred:

‘... have not disrupted the traditional spiritual beliefs of the claimants concerning the origins and character of the land, or caused the loss or cessation of the ceremonial life which is the religious expression of those beliefs.’

In so far as that submission infers [sic] that the claimants continue to maintain traditional spiritual beliefs concerning the origins and character of the claim area, it would be true of a few of the older claimants; but in so far as it also infers [sic] that there has been no cessation of the ceremonial life which is the religious expression of those beliefs, it must be rejected. The summaries of the evidence of the claimants have shown, in respect of all of them, a lack of any physical or spiritual connection with the claim area, and an abandonment of any such connection with the claim area as may have once existed.” (Emphasis added.)

ABANDONMENT OF CONNECTION

82 The summaries of the evidence of the appellants referred to by his Honour were set out at some length in the reasons for judgment ([572]-[887]). They include findings and conclusions in respect of “abandonment” of connection.

83 Before embarking on that analysis, his Honour examined the authorities bearing on the question of “connection” for the purposes of s 223(1)(b) of the NTA. He said (at [561]) that a finding that some of the appellants were Nguraritja for land under their traditional laws and customs might mean that the requirements of s 223(1)(a) had been satisfied, but that it would still be necessary to establish that, by these laws and customs acknowledged and observed, they had a connection with the claim area. This was a question of fact, but in his Honour’s view, a “mere trifling connection” was not enough.

84 His Honour considered (at [563]) that he was obliged to assess the connection with the claim area of each witness who had been put forward as Nguraritja in order to establish whether that person or persons had the connection required by the NTA. He observed that the majority in the Full Court of this Court in Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (“Ward (FC)”) at 383 [245], had rejected a submission that physical occupation of land is a necessary requirement for continuing connection with the land. He also noted that the joint judgment of the High Court in Ward (HC) had emphasised (at [64]) that the absence of evidence of recent use does not, of itself, require the conclusion that there can be no relevant connection with the land.

85 The primary Judge emphasised the significance of the spiritual connection that an Aboriginal person has to his or her land, pointing out that the High Court joint judgment in Ward (HC) (at 15 [14]) had described the connection as “essentially spiritual”. His Honour adopted the proposition stated by Beaumont and von Doussa JJ in the Full Court in Ward (FC), that the spiritual connection with land can be maintained even where physical presence has ceased. While he accepted that a spiritual or cultural connection could suffice for the purposes of s 223(1)(b) of the NTA, he noted that the assessment of whether the requirement had been met was always a question of fact. But it was clear from the authorities that what is important “is the connection that currently exists”: (at [569]).

86 His Honour pointed out that Branson and Katz JJ in the Full Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (2001) 110 FCR 244 (“Yorta Yorta (FC)”), at 288 [169] had rejected a contention by the Aboriginal appellants in that case that the NTA does not require proof that the connection has been substantially maintained from the date of sovereignty until the present day. The primary Judge noted that this imposed a “heavy burden” on the present appellants. He considered (at [570]) that

“having regard to the nature of evidence that is prevalent in native title cases (being only oral histories of cultures supplemented to a very limited degree by rock art and artefacts) I would be entitled to draw the necessary inferences in favour of the claimants, provided there was a proper foundation for me to do so.... That is, if I were to be satisfied that the claimants currently have a connection with the claim area through traditional laws and customs observed and acknowledged, and the best evidence available provides some support for the presence of that connection in the past (traceable by various means such as ancestors, marriage, migration and incorporation and even tribal disputes and wars), it might be open to me to make a finding of substantial maintenance of continuity of connection from sovereignty to the date of the application for a determination of native title; this might even be so notwithstanding significant gaps in the chronology in the historical timeline for the claim area. To place any higher burden of proof on the claimants, who have a wholly oral tradition that reaches back reliably no further than three or (in a few cases) four generations, would be manifestly oppressive.”

87 His Honour then turned to a consideration of the evidence of each of the twenty-six witnesses “for the purpose of determining whether the necessary connection exists”.

Peter De Rose

88 Peter De Rose was born in 1949. His mother, Katjiwala, and stepfather, Snowy De Rose, were living and working on De Rose Hill Station when Peter was born. His biological father was not identified. Peter was born under an ironwood tree on the track of the Kalaya (emu) Tjukurpa and, by virtue of his birth, the Kalaya Tjukurpa became his Dreaming. According to Peter, his mother spoke only Pitjantjatjara, but Snowy De Rose spoke Yankunytjatjara.

89 In the section of the judgment dealing with Peter De Rose’s connection with the claim area, his Honour does not specifically state whether he regarded Peter De Rose as Nguraritja for the claim area. However, as we have noted, earlier in the judgment (at [100]), the primary Judge found that Peter De Rose was Nguraritja for the karu-karu (watercourse) at Apu Maru which joined most if not all the Malu sites on De Rose Station.

90 His Honour’s findings in relation to Peter De Rose on the issue of abandonment are as follows (at [598]-[599]):

“Peter De Rose, of all the witnesses, established the strongest association with the claim area. ... He had isolated absences from the claim area but, by and large, Peter grew up, married and worked on De Rose Hill. He left the Station after Bobby’s death in 1978 [Bobby was Peter’s younger half-brother] and has not, since then, re-established any meaningful association with the claim area. It is true that he has made the occasional hunting visit but I am satisfied that he has not attended to any of the duties or responsibilities of the Nguraritja in respect of any of the sacred or secret sites on or near the claim area.

... Peter said that all his grandchildren are Nguraritja for his country because he is their grandfather. He agreed that he had not taken his daughters nor any of his grandchildren to any of the special sites on De Rose Hill Station that are accessible to women and children. Nevertheless, Peter maintained that he will teach his grandsons the Tjukurpa for his country because that is the Anangu way and when they become men he will take them and show them the secret and sacred places. These may be his intentions, but, so far, he has done nothing to implement them. His inactivity in respect of his children and grandchildren, his absence from the claim area, his failure to care for the secret and sacred places, his failure to give evidence of a substantial adherence to traditional laws and customs on his country which is beyond the boundaries of De Rose Hill Station and his failure (apart from one visit to Wipa) to engage in any cultural activities on any part of his country (whether within or without the boundaries of the Station) since 1978 have led me to the conclusion that Peter De Rose abandoned his connection to the claim area long ago.”

91 It will be necessary to return in more detail to his Honour’s findings in relation to Peter De Rose.

Riley Tjayrany

92 Riley Tjayrany was described by the primary Judge as a very elderly man, who was confined to a wheelchair. Both his father and mother were born in Pitjantjatjara country. Riley Tjayrany was himself born near Kunamuta, in Pitjantjatjara country. As a child Riley visited sites on or near De Rose Hill Station. As a young man he worked at Mount Cavenagh and Kulgera Station . He also worked at De Rose Hill Station for a number of years. He left De Rose Hill Station in the early 1970s to live nearby on the then newly established Indulkana Aboriginal Reserve

93 His Honour made the following findings (at [615]-[620]):

“Riley gave evidence about visiting De Rose Hill to hunt for meat after moving to Indulkana. However, he said that he turned back after coming across a locked gate on the Stuart Highway. He said that, although he would go to the boundary of De Rose Hill, he would not enter it as he was frightened he might get hunted away by Doug Fuller. Other than the fact that the Fullers did not appear very friendly, Riley did not provide any acceptable reason for this alleged fear. In any event, many years passed after he left De Rose Hill before any locks were installed. He could have entered the Station without difficulty during that earlier period of time if it had been his genuine desire to return. Whilst I am prepared to accept most of Riley’s evidence, I do not accept what he said about locked gates.

...

Riley Tjayrany did not satisfactorily explain why he has had no contact with places of importance on De Rose Hill Station between his leaving to live in Indulkana and the commencement of the field trips. He was asked in cross-examination:

‘Q And have you done any of those things at De Rose Hill Station?

A Yes.

Q When have you done those things?

A We were seeing the place before from Indulkana, but now we were frightened to go there any more.’

That statement seems to suggest that there was a period when people could enter the land and that the fear (whether based in reality or not) came later. I infer that the main reason that Riley stopped living at De Rose Hill was that he preferred the facilities that were available to him in Indulkana, as opposed to living on the claim area. This conclusion is aided by the fact that he has done little, if anything, to visit or maintain connection with the claim area since moving permanently to Indulkana. I am satisfied that Riley has abandoned his connection to the claim area.”

Whiskey Tjukanku

94 Whiskey Tjukanku is the biological brother of Riley Tjayrany and was born near Fregon, to the west of De Rose Hill Station. Both his parents were born in Pitjanjatjara country, but Riley claimed that he himself had been born on Yankunytjatjara land. While still a child, Whiskey Tjukanku worked as a stockman on De Rose Hill Station under Owen Kunmanara, then the head stockman. When he became a Nyiinka (a boy in the state of seclusion that precedes the ceremony whereby he becomes a Wati (initiated man)), he moved to Granite Downs.

95 The primary Judge’s findings in relation to Whiskey Tjukanku were as follows (at [637]):

“ It would appear, from his evidence, that Whiskey Tjukanku came to De Rose Hill as a young child, left as a Nyiinka and did not return until the native title field trips commenced. The greater part of his working life was spent at Granite Downs. If he ever established a connection with the claim area, which I doubt, I am satisfied that he abandoned it long ago.”

Witjawara Curtis

96 Witjawarra Curtis was born to the west of Amata in about 1931. She said she was Pitjantjatjara because both of her parents were Pitjantjatjara. She grew up around Ernaballa, but used to go to other places on or near De Rose Hill. Her first son was born in about 1948 or 1949 at Tiilkatjara in the north west section of De Rose Hill Station. She described the birthplace as “right on Kalaya Tjukurpa”. Her second son, Bob, was born a year or two later on the track of the Kalaya Tjukurpa. Witjawarra said that she “smoked” both children after they were born, in accordance with custom, so that they would grow up healthy and she could produce plentiful milk. Witjawarra claimed that her children’s Ngura was the whole area of De Rose Hill Station, because they were born there.

97 His Honour’s findings were as follows (at [657]):

“Witjawara left De Rose Hill Station when Bob was about five years old. If Sandy was born in about 1948 or 1949, and if Bob was born a year or two after Sandy, and if Witjawara left De Rose Hill when Bob was five, it would mean that she left the Station in the mid 1950s. She agreed that until the time of the preparation of the native title claim, she had never returned to De Rose Hill. That is a gap of almost forty years. She stayed at Ernabella most of the time and then moved to Mutitjulu. Witjawara did not seek to establish any connection with the claim area. She did not hold herself out as Nguraritja for De Rose Hill. If however, it could be said that she was nevertheless Nguraritja because of her long association with the claim area, it is quite clear, in my opinion, that she has abandoned any connection that she might have once had with the claim area.”

Peter Tjutatja

98 Peter Tjutatja was a very old man, aged about 90, when he gave evidence. He was born at Iranytjirany, to the north west of De Rose Hill. He said that his mother was a Yankunytjatjara woman, while his father come from the west and was a Pitjantjatjara man. As a young wati, he worked on De Rose Hill. Peter Tjutatja claimed to be “the keeper” of his country, which included sites on De Rose Hill Station but extended much further. He also said that he was Mayatja (“boss”) for the Malu and Kalaya Inma (Inma is a corroboree for people tracking a Dreaming). In his witness statement, Peter Tjutatja said that he was made a man at Ernaballa, west of De Rose Hill, and that afterwards he went to ceremonial places like Indulkana and Granite Downs (both near the southern boundary of De Rose Hill Station) “learning as we went”.

99 The primary Judge, after stating that Peter Tjutatja was “one of the better Aboriginal witnesses”, expressed his findings as follows (at [673]-[682]):

“When Panma [his first child] was about eleven or twelve years of age, Tjutatja returned to work on De Rose Hill again. At that stage, other workers who were there included Johnny Wimitja De Rose, Owen Kunmanara, Minnie Nyanu, Edie Angkaliya and Riley Tjayrany; Michael Mitakiki was a boy and Peter De Rose was a small boy on the station. Tjutatja worked with the bullocks at De Rose Hill until his second child, Yuminiya, was about ten or eleven. He then left so that she could go to school at Ernabella. He also said, however, that another reason for his leaving was because there was no further work for him on the Station; he did not offer any criticism of the Fullers.

When his eldest son, Panma, became a Wati Pulka (senior man) and his youngest son, Kelly, was a Wati Katarara (young man), he went back to De Rose Hill with them to work with the bullocks. Peter De Rose, his parents Katjiwala and Snowy, Tim De Rose and Wimitja were there and Owen Kunmanara was ‘the boss’.

Tjutatja said that, as a young man, he worked in order to get paid as he needed the money to buy food. In that period of time, the people also trapped dingoes in the vicinity of Ilpalka and traded the scalps with Doug Fuller for flour, tea, sugar and treacle. They would get the scalps by catching the dingo pups in the springtime. This evidence strongly suggested that his presence in the De Rose Hill area was governed, to some degree, by matters of practical economics as distinct from traditional customs.

...

Tjutatja’s claim to being Nguraritja for De Rose Hill is, in my opinion, suspect. He was given the opportunity in cross-examination, in simple concise terms that could not have caused confusion, to identify his country. His answer did not say much for him being Nguraritja for De Rose Hill, even though his reasons for coming to De Rose Hill could be regarded as “traditional”:

‘Q Why did you move to Kantja?

A We come for food, ngatji – begging for food’

The word ‘begging’ does not, in my opinion, have any significance. It is well known that Aboriginal groups in the Western Desert moved from location to location as and when food and water supplies were exhausted. But then he said ‘We didn’t know before, then we come to Kantja and we learn to eat that at Kantja’. That comment seems to suggest that he did not go there looking for rations, but realised he could get them once he got there. It must be acknowledged that Tjutatja had a reasonably long association with the claim area even though he had been born elsewhere. However, like so many other witnesses, he left De Rose Hill, not in accordance with or because of Aboriginal culture but because of Western culture. In his case, it was the education of his daughter. In my opinion, De Rose Hill Station was merely one of several cattle Stations on which Tjutatja lived and worked during his lifetime. Non-Aboriginal factors such as work and wages and his daughter’s education, rather than Aboriginal law or customs, dictated his life and his lifestyle. I find that Tjutatja never did have the necessary connection to the claim area. Although I accept that he has returned to De Rose Hill on occasions to hunt, he has not otherwise retained any connection with the claim area through traditional laws and customs. However, if I am wrong and if he did once have that connection, I am satisfied that he abandoned it long ago.

Tjutatja said that he visited De Rose Hill with Ms Susan Woenne-Green, Mr Craig Elliott and other people in preparation for the native title case. However, he also said that after he finished working at De Rose Hill, and before he went back for the native title case, he had returned to visit De Rose Hill ‘living there and hunting for kangaroos’...”.

Tim De Rose

100 Tim De Rose was born near De Rose Hill homestead in 1948. His mother was a Yankunytjatjara woman. Both her parents died at De Rose Hill and are buried there. Tim De Rose claimed to be Nguraritja for De Rose Hill because he was born there and because his maternal grandparents were Yankunytjatjara people who lived on the area and were buried there.

101 His Honour thought (at [699]) that Tim De Rose’s association with the claim area was “tenuous”:

“He was born on De Rose Hill Station and because of his birth he can rightly be regarded as Nguraritja. His mother Edie, and her father Tjaapan Tjaapan had lived and died on the Station. He had grown up and worked on the Station, but he had learnt only a little about the Tjukurpa. His marriage to his promised wife showed an adherence to traditional laws and customs but he went with her to her country. He did not take her back to De Rose Hill. Despite his short return to De Rose Hill in 1977 and 1978, it would seem that such connection as he may have had to the claim area through his birth and early years was thereafter abandoned in 1978 when he left the Station after Bobby’s death. He showed no interest thereafter in returning to the claim area until the start of the preparations for the native title claim.”

Mabel Pearson

102 Mabel Pearson was born in 1935 near Ernaballa. Her parents were both Pitjantjatjara people. Mabel Pearson initially claimed to be Nguraritja for a number of areas of country, including De Rose Hill Station, by reason of her family connections. But, as his Honour found, she repudiated in cross-examination the suggestion that she was Nguraritja for the claim area. Nonetheless, she spent some time at De Rose Hill, visiting sites there with her grandmother as a “big girl” and living there with her second husband, Pompey. They were sent away by Doug Fuller in about 1968 because Pompey was not regarded as a good worker.

103 The primary Judge made these findings (at [734]-[735]):

“It is not possible to establish, with confidence, the extent of Mabel’s connection with the claim area. Her evidence about her grandmother teaching her how to collect bush tucker exhibits a connection through traditional customs but the connection lacked duration. She initially claimed that she was Nguraritja for De Rose Hill but under cross-examination, she accepted that she was not Nguraritja for the Station; her evidence on the subject was rather confusing. What is clear is that De Rose Hill was but one of several pastoral stations at which she worked in her younger years. The most that can be said is that her first contact with De Rose Hill was as ‘a big girl’ – perhaps in her late teens – and her last contact was when she and Pompey moved to Indulkana. As there is evidence that Indulkana was opened in 1968, she would have then been aged about thirty-three. In that intervening period of time, she had worked at a variety of places. Finally, there is no evidence of her attempting to maintain any connection with De Rose Hill since she and Pompey moved to Indulkana over thirty years ago.

Mabel Pearson was put forward by the applicants as Nguraritja on the basis of her physical association with the country; others have claimed on the same ground. I accept that physical association can be one of the grounds for being Nguraritja. Witnesses have also said they are Nguraritja for a particular country because ‘senior people agree’ (ie other Nguraritja acknowledge them as such). Although this was not explicitly stated in evidence (ie no witness said that Mabel was Nguraritja) it is a fair implication from her evidence that other people did consider her Nguraritja for De Rose Hill. Ultimately, however, whether she is Nguraritja or not according to the laws observed by the group to which she belongs does not necessarily mean that she has native title rights pursuant to s 223 of the NTA. I am doubtful that Mabel ever had a sufficient connection with the claim area to satisfy the requirements of that section. But if I am wrong, I find that her long absence from the claim area means that she has, long ago, abandoned her connection.”

Owen Kunmanara

104 Owen Kunmanara was a very old man, probably about 91 when he gave evidence. He described himself as a Yankunytjatjara man. He was born at Wirmalya, north of De Rose Hill Station. Owen Kunmanara said that his father was born near Fregon, to the west of De Rose Hill, and that Fregon was his place because it was his father’s place. Owen Kunmanara’s first contact with Europeans occurred when he was a young teenager. He worked on a large number of stations. These included De Rose Hill Station, where he worked for a long period and became head stockman with Doug Fuller as his boss.

105 The primary Judge dealt with Owen Kunmanara’s position as follows (at [756]-[760]):

“Owen claimed that he is Nguraritja for the places on the Dreaming tracks. However, he said that he is too old now and he cannot do much. It is his family’s responsibility to take care of those places. Owen said that he was Nguraritja for the places on the Honey Ant’s Dreaming track through his father, that he was Nguraritja for the Seven Sisters Dreaming track because he was ‘born on the track and that he was Nguraritja for the Malu, Kanyala and Tjurki Dreaming track’. No evidence was led that would enable me to identify the tracks of the Honey Ant and the Seven Sisters Dreamings, however. The scope of Owen’s beliefs was best explained in the following question and answer:

‘Q So you consider yourself Nguraritja for all lands you considered to be properly Aboriginal lands. Is that right?

A Yes, it is our land. The Dreamtime gave it to us, this land.’

...

Alec Baker considered that Owen was Nguraritja for the whole of De Rose Hill Station. Peter De Rose, during the course of restricted evidence, referred to Owen as being Nguraritja for another nominated locality. Curiously however, Owen did not, either in his written statement, or in his oral evidence assert that he was Nguraritja for the claim area. Owen, arguably, has limited his claim to being Nguraritja for the site at Yuta and for the places on his Dreaming tracks. Although he called De Rose Hill ‘our country’, he did not claim to be Nguraritja for the Station or for some larger area of which De Rose Hill Station is a part. Yet he had worked on the Station as its head stockman for many years and, for a time at least, had enjoyed the additional benefit of some undefined right of residence at Yuta. Then again, the following extract from his witness statement might suggest that he was claiming Nguraritja status for the claim area. He said:

‘Malu, Kanyala, Tjurki – heavy law that one. It is under that law that we make boys into men. And it’s our land. The sky and the land are ours. If Rex got out of the way we could go in there.’

Owen remembered going to the Ilpalka Rock Hole with Mr Craig Elliott as part of the preparations for the native title case. He agreed that he told Mr Elliott that ‘the right people for that place all passed away’. He said during his cross-examination:

‘Yes, poor things, they weak in the heart and they finish up’.

I cannot find, with certainty, when Owen left De Rose Hill Station; nor can I say whether, and to what extent, he has ever returned to the claim area. Despite his own evidence to the contrary, his physical association with De Rose Hill and the evidence of the Aboriginal witnesses who regard him as Nguraritja, might be sufficient to justify a finding that there was a time when he was the Nguraritja for the claim area. However, that was quite some time ago and there was no evidence that pointed to Owen having maintained the necessary connection through the traditional laws and customs. As a matter of probability, I feel that I am able to find, at the least, that there was no evidence that he has returned to De Rose Hill since he became entitled to the old-age pension. That is an absence of up to twenty-six years if he was ninety-one when he gave his evidence. The disconcerting feature about Owen and his relationship to De Rose Hill – indeed his relationship to pastoral stations in general – was that it was highly orientated to European work practices and wages. More than once, he proudly told of his habit of depositing his money in the bank. He chose to live separately from the community so as to avoid fights and arguments. He has shown no interest in De Rose Hill for an undefined but substantial period of time. I find that he has abandoned such connection as he may have had to the claim area.”

Michael Mitakiki

106 The primary Judge’s findings were as follows (at [771]):

“Without knowing Mitakiki’s age when he became a Wati, and without knowing when he first made a field trip to De Rose Hill Station, it is not possible to state with certainty the length of his absence from the claim area. However, on the basis that he was born in about 1944 and was made a man (say) twenty years later in 1964 and returned to De Rose Hill in about 1995 to prepare for the case, it would seem that he was absent for over thirty years during which time he showed no interest in the claim area. I am satisfied that if he ever had a relevant connection with the claim area as required by s 223 of the NTA – and that is open to doubt – he abandoned it long ago.”

Johnny Wimitja De Rose

107 The primary Judge noted (at [786]) that, unlike most of the other Aboriginal witnesses, Johnny Wimitja De Rose had not even made use of the field trips to visit the claim area. Despite Wimitja’s protestations, having regard to his total lack of interest, his Honour did not accept (at [788]) that Wimitja wished to return to De Rose Hill to visit any place of significance. His Honour also made these findings (at [794]):

“Wimitja left De Rose Hill Station in the mid 1950s when he was in his early twenties. He had lived and worked on the Station since first arriving there as a young man. It is obvious that in that short space of time, he would not have matured sufficiently to have acquired advanced knowledge in matters of traditional laws and custom. That is not to say that he did not have any connection with the claim area, but, whatever he might have had by way of a connection has, in my view, been clearly abandoned after an absence of forty years. The fact that Aboriginal people, of whom Wimitja was one, were prepared to leave De Rose Hill Station and go – not to another part of the Station where they would be less likely to run into Doug Fuller but – to a different location altogether says little for their connection to the claim area. There were several locations on the Station where there were soakages and other natural watering points; it was not necessary for the Anangu to live in the vicinity of the homestead if they wished to remain on their land. The fact of the matter was that it was the work and wages that brought the Anangu into contact with Doug – not their traditional laws and customs – and when they fell out with Doug, it was work and wages which caused them to leave the Station and to look for alternative work. Their attachment to their land was not sufficient to hold them.”

Cissie Riley

108 The findings as to Cissie Riley were as follows (at [808]):

“Cissie’s evidence and her antecedents gave her a much stronger claim to be called Nguraritja for De Rose Hill than many of the Aboriginal witnesses. But, she, like so many, elected to leave their country and take up residence elsewhere; she made no attempt to return to De Rose Hill and although she was deeply steeped in Aboriginal culture, I have been unable to associate it presently with the claim area so as to give that measure of connection that is required by s 223 of the NTA. I have therefore come to the conclusion that Cissie has abandoned any connection that she may have once enjoyed to the claim area.”

Minnie Nyanu

109 Minnie Nyanu was born near Mimili, south-west of the claim area but relatively close, in the early 1930s. Her mother, Ilpulya, was a Pitjantjatjara woman, who died on De Rose Hill and is buried there. Her biological father was a Pitjantjatjara man, as was her stepfather, Peter Paltatjiratja, who came from Ernabella. Minnie Nyanu said that she had travelled east with her mother and stepfather and other family members when she was a teenager. She said that Yankunytjatjara people were living at Kantja, on De Rose Hill, when they arrived and that the only permanent European presence in the De Rose Hill area during her teenage years was that of the O’Donoghue brothers (see [14] above). Otherwise there were only occasional itinerants. According to Minnie Nyanu, the Aboriginal people ranged over a wide section of the claim area and adjoining areas.

110 Nyanu married Billy Ilpilitja who later, in a polygamous union, also married Nyanu’s sister. Billy worked on various stations, including De Rose Hill. Their two children were born and smoked on Watju (Mount Cavenagh). Nevertheless, they always went back to De Rose Hill “because that was home”.

111 Nyanu moved from De Rose Hill to Ernabella with her family in 1958, after a measles outbreak. She said that her Ngura included Kantja and other locations on De Rose Hill. She also said that

“Even though I left De Rose Hill a long time ago I often think about De Rose Hill and about going back to visit but we haven’t got a car.”

112 The primary Judge made the following findings (at [816]):

“The outbreak of measles might be thought to be the dominant reason for Nyanu and her family leaving De Rose Hill Station. However, some of her answers to questions during the course of her cross-examination suggest that work and the availability of rations, rather than matters of culture and tradition were also important factors. For example, rather than moving on from Kantja, for traditional reasons, the family stayed because of the availability of work and rations. Later, Nyanu agreed that she had earlier told Mr Craig Elliott that she had left De Rose Hill when the rations and the work finished. The conclusion at which I have arrived is that such connection as Nyanu might have had with the claim area has been long abandoned. She left De Rose Hill sometime in 1958, over forty years ago. Her claim that the lack of a car is her reason for not visiting her land is preposterous. I do not accept that explanation.”

Edie Angkaliya

113 Edie Angkaliya is Minnie Nyanu’s younger sister. Her account was similar to that of Nyanu. Edie Angkaliya had seven children, four of whom survived. The oldest of these, Lucky, was born under ironwood trees to the north-west of De Rose Hill homestead in about 1960. The other three surviving children were born, respectively, at Wapirka, Ernabella and Alice Springs.

114 Edie Angkaliya said that she and her family “walked off” De Rose Hill in the early 1960s and went to Kenmore. She said that they had left De Rose Hill because Doug Fuller was shooting and poisoning the Aboriginals’ dogs, although she had not seen any such conduct on Doug Fuller’s part. She also said that it was the custom to move away from the place where family members die.

115 His Honour dealt with Edie Angkaliya’s position as follows (at [822]-[823]):

“The death of her mother might well have amounted, by itself, to a justifiable reason, in Aboriginal tradition, for leaving a particular location but it was not made clear that it would justify a movement of such large dimensions.

Angkaliya said that her Ngura (country) was Midi where she was born and smoked and Mimili ‘because my mother and father took me around there’. She then referred to De Rose Hill as her ‘place’ (or her Ngura) asserting that it was her place because:

‘... I grew up there, I was married there, had children who were born there, and have my mother and first child buried there.’

As best as I can calculate, Angkaliya and her family left De Rose Hill Station almost forty years ago. She has made no attempt to return there save, perhaps, for the preparation of this case. Allowing for her claim that one of her reasons for leaving the claim area was the killing of the dogs – and accepting the truth of that statement – it does no more than mean that the death of some dogs had a greater influence on her than such connection as she might have had through tradition and custom to the claim area. That does not, in my opinion, suggest a strong connection. But if there was such a connection to the claim area I am satisfied that it was abandoned long ago.”

Carlene Thompson

116 Carlene Thompson was born at Finke and described herself as a Yankunytjatjara woman. She is Tim De Rose’s younger sister, born in about 1950. Her father died when she was a small child and thereafter she, Tim and her mother, Edie De Rose, lived on De Rose Hill Station where they all worked.

117 Carlene Thompson was at De Rose Hill Station when she first met her husband, Punch, but they moved almost immediately to Ernabella and had lived there ever since. She did not return thereafter to De Rose Hill. She claimed, however, to be Nguraritja for De Rose Hill because she grew up there, but she acknowledged that she did not know where the important places were.

118 The primary Judge made the following finding in relation to Carlene Thompson’s connection with the claim area:

“The evidence does not permit me to state when Carlene and her husband left De Rose Hill nor does it permit me to find the reasons for their leaving. The probabilities are that she would have married in her late teens or early twenties and if she was born in about 1950, it would mean that she left De Rose Hill at least thirty years ago. Her evidence failed, in my opinion, to establish that she ever had any meaningful connection with the claim area. As she conceded in her witness statement:

‘...I don’t know where the important places are’.

Nevertheless, if she ever did have any such connection, I am satisfied that she abandoned it long ago.”

Lilly Yupuna Baker

119 Lilly Yupuna Baker was born at the Watatjara Rock Hole near Mimili, in about 1938. She married an Anangu man, Ernie Baker. Prior to her marriage, when she was living on De Rose Hill Station, she left and went to Marla with a European man, also named Ernie Baker. It was only after his death that she married her Aboriginal husband, who happened to have the same name.

120 The primary Judge found it difficult to determine precisely when Yupuna had left De Rose Hill Station or for how long she had lived on the Station. While events were reasonably clear, dates and times were not. The primary Judge found that, prior to the field trips, there had been only one occasion when Yupuna had returned to De Rose Hill. That occurred when her son, Toby, was “grabbed” by the Tjilkatja party for his initiation. Yupuna travelled with the party as it passed through De Rose Hill. Although the timing was uncertain, his Honour appears to have placed this in about the early 1970s.

121 His Honour made these findings about Lilly Yupuna Baker (at [848]):

“All of this could mean that Yupuna spent, perhaps, fifteen years on the station. It would also mean that, apart for the Tjilkatja party, about forty years passed before she returned to De Rose Hill for the site visits. She did not show any degree of association with the claim area until the preparations for this case began. Yupuna presently lives at Indulkana and has lived there for a long time. In my opinion, she has failed to establish that she has the required connection to the claim area. If I am wrong and if she did at some stage in her life have the necessary connection, I am satisfied that she abandoned it long ago.”

Jeannie Kampukuta Inpiti

122 The primary Judge made these findings in relation to Jeannie Kampukuta Inpiti (at [856]-[857]):

“Kampukuta did not explain in her witness statement when she left De Rose Hill. She said that ‘when Nyanu’s son was old enough for business we took him to Ernabella’, but in cross-examination she also said that she went to Ernabella and stayed there because of the Health Services. She agreed that, after she stopped living at De Rose Hill, she never went back there to work nor did she go back to visit, even though Doug Fuller had attempted to induce her to return to work. She said that ‘we heard Doug Fuller wanted us to go back to De Rose Hill. He used to ask us by letter ...’. She concluded by saying:

‘We wanted to go back to De Rose Hill but could not organise a lift so we just stayed at Ernabella.’

I can no more accept that explanation than the explanation of Minnie Nyanu; it is equally preposterous.

Her first visit to De Rose Hill was for the purpose of preparing for the native title case. Such an attitude says little for maintaining any connection with the land. Like so many other Aboriginal witnesses, Kampukuta has, in my opinion, abandoned any claim to ever having had a connection to De Rose Hill Station.”

Tillie Yaltjangki

123 The findings as to Tillie Yaltjangki were as follows (at [859]):

“I find that I cannot place any reliance on Tillie’s evidence. The health of her child was her reason for leaving. Perhaps she is, as she claimed, now frightened about returning to De Rose Hill because of the lock [sic] gates, but the error in her evidence [that is, her claim that she left De Rose Hill in 1977 because the gates were locked, when in fact they were not locked until the early 1990s] has made it impossible for me to rely on what she has said. She did not go back to De Rose Hill until the native title field trips. I cannot accept that she has retained a connection with the claim area through the acknowledgment and observance of traditional laws and traditional customs.”

124 His Honour also made findings that the other witnesses, Alec Baker, Sandy Panma Williams, Alan Wilson (Mantjakura), Roley Mintuma, Maggie Ward, Sadie Singer, Tanya Singer–Ducasse, Mona Tur and Bernard Singer, had not established that they ever had the requisite connection as Nguraritja in relation to the claim area.

WHY DID THE APPELLANTS LEAVE DE ROSE HILL STATION?

125 It is clear from the above extracts that his Honour treated the reasons given by the appellants for their departure from, and failure to return to, the De Rose Hill Station as a matter of significance. Each of the appellants who gave evidence stated his or her reasons for departing from and not returning to the Station. Many of the appellants’ reasons related to perceived acts of hostility towards them by Doug Fuller and his son, Rex Fuller. His Honour found that the Fullers “lack[ed] appreciation of Aboriginal culture” and “had no interest in the practices and beliefs of the Aboriginal people and, as a result, the Aboriginal people had no inclination to volunteer any information to them”. The primary Judge also made findings in relation to the various events relied upon by the various appellants. He appeared to regard the issue as involving an objective inquiry into the reasonableness or sufficiency of the explanation. If the explanation was considered not to be reasonable or sufficient, his Honour seemed to regard that finding as unhelpful to the appellants’ case.

126 The point can be illustrated by his Honour’s approach to two events: Snowy De Rose’s accident in June 1977 and the death of Peter De Rose’s half-brother Bobby in February 1978. The first involved an incident between Doug Fuller and Snowy De Rose in which Snowy suffered a broken ankle. Snowy instituted civil proceedings against Doug Fuller and ultimately received a payment of $17,000 plus costs in settlement of his claim. The second event, on Peter De Rose’s account (which Doug Fuller denied), involved Doug Fuller deliberately withholding news he had received of Bobby’s death in an accident so as to avoid interrupting workers on the Station during a particular job. Peter said that he and others had left De Rose Hill Station because Doug Fuller failed to tell him of Bobby’s death at the first opportunity. The primary Judge accepted that Peter “may well have thought, albeit incorrectly, that there had been some delay on Doug’s part”.

127 The primary Judge addressed the significance of the two events as follows (at [291]):

“The claimants have not asked the Court to make findings of fact as to what actually occurred with respect to either Snowy’s accident or Bobby’s death. What they have said is that the interpretation of the events by Peter and Tim De Rose has provided an explanation as to why they did not return to De Rose Hill Station after Bobby’s funeral. Similarly, the claimants did not suggest that the Court should make findings as to who was the aggressor in the incident involving Snowy. It was enough, said the applicants, that Snowy and Katjiwala, his wife, perceived Doug Fuller’s behaviour to be an act of hostility. I cannot agree. If the Aboriginal people left De Rose Hill Station for an unreasonable or illogical reason (even though subjectively they may have thought their departure was necessary) they cannot now turn their lack of reasonableness and lack of logic to their advantage. Sadly, there are, in our Colonial history, numerous accounts of Aborigines having been driven off their land against their will. One can easily imagine, in such circumstances, how an Aboriginal person would retain a yearning for his or her country; and that yearning could easily translate into a retention of a spiritual connection with the country. But, as will become apparent when I discuss the evidence of the Aboriginal witnesses, there was no suggestion that the conduct of the Fullers was so extreme that it forced the Aboriginal people to leave De Rose Hill Station against their will.” (Emphasis added.)

128 His Honour later considered whether, as many of the Aboriginal witnesses had claimed, they had been deterred from returning to De Rose Hill because the Fullers adopted the practice of locking the gates to the Station. His Honour found (at [491]) that this claim was not convincing:

“I find, on the basis of this evidence, that some gates on De Rose Hill Station were first locked somewhere between 1991 and 1994. Even then, not all gates were locked. Indeed there was ample access to the eastern areas of De Rose Hill Station via the railway access road. Elsewhere there were grids which permitted access. The significance of these findings is that the presence of locked gates could only have served as some form of deterrent to entry to the Station since the early 1990s. Those witnesses who left De Rose Hill in earlier times cannot use locked gates as their excuse or explanation for not returning to De Rose Hill to care for their country prior to the early 1990s. In some cases, bearing in mind Snowy’s accident in 1977 and Bobby’s death in 1978, more than thirteen years had elapsed since people chose to leave the Station and the earliest possible appearance of the first locks. The presence of locked gates has not been either a legal or a practical bar to those Aboriginal people who wish to follow their traditional pursuits on De Rose Hill Station. As a matter of law, s 47 of the 1989 Pastoral Act entitles them to have access and, as a matter of fact, there are ample points of entry where the gates are not locked. The evidence of Bernard Singer satisfies me that the claimants could, if they wished to do so, enter De Rose Hill Station to follow their traditional pursuits.”

129 As we have noted, s 47 of the Pastoral Act 1989, to which his Honour referred in the above extract, provides that an “Aborigine” (a defined term) may, subject to certain restrictions, enter, travel across or stay in pastoral land for the purposes of following the traditional pursuits of “Aboriginal people” (also a defined term) (see [34] above). Elsewhere in his reasons, his Honour stated the appellants “would” have known of their statutory rights of access. However, it appears to have been common ground on the appeal that there was no evidence that any of the appellants were aware, prior to the commencement of the Native Title claim, that they may have been entitled to access to De Rose Hill Station under s 47 of the Pastoral Act 1989.

130 Perhaps two other points might be noted in relation to his Honour’s findings concerning the significance of the locked gates. These points are also relevant when considering his Honour’s findings as to why the appellants left De Rose Hill Station, to which we refer shortly. The first point arises out of a conflict of evidence between Doug Fuller and several Aboriginal witnesses as to whether Doug Fuller had a practice of limiting the number of Aboriginal people on the Station and, in particular, whether his practice was to exclude any Aboriginal people who were not workers or the immediate family of workers. His Honour preferred the evidence of the Aboriginal witnesses. He made these findings (at [436]):

“I do not accept that Doug adopted an attitude of benevolence towards all Aboriginal people in general. I believe his attitude was to drive away those who were not workers or members of the immediate family of workers. Doug did not appreciate that he had an aggressive bullying demeanour. He told the story of ‘the wine flagon incident’, an incident that had not been referred to by any of the Aboriginal witnesses, in the following terms:

‘I recall one occasion when some aboriginal people who were strangers to De Rose Hill brought flagons of wine near to the aboriginal camp around the homestead. I was asked by the local aboriginals to sort it out. They were worried that they would cause trouble with their women folk and start fights. I went out and shot their flagons. They didn’t hang around. It was as simple as that.’

Such conduct can only be described as high-handed in the extreme. He made no attempt to engage in a conciliatory exercise. By what right did he consider himself able to use firearms and destroy the property of strangers? The incident is indicative of the demeaning attitude that he had towards Aboriginal people. I find that Doug did not hesitate to intimidate the Aboriginal people by the use of firearms.”

131 The second point arises out of another conflict in the evidence. Several Aboriginal witnesses gave evidence that Doug and Rex Fuller had shot dogs belonging to Aboriginal people without their consent. Doug and Rex Fuller denied these claims. His Honour preferred the evidence of the Aboriginal witnesses and found that there were occasions when dogs belonging to the Aborigines were shot and killed without the owners’ consent. His Honour regarded this as “an example of the clash between the Aboriginal and European cultures”. The Aborigines liked their dogs, while the pastoralists thought of them as a nuisance. But his Honour did not think that the Fullers’ conduct in shooting dogs was a material reason for most of the Anangu leaving De Rose Hill Station. He formed this view largely because many of the incidents had occurred well before the Anangu left the Station. His Honour added this observation (at [462]):

“ The evidence...satisfies me that the shooting of dogs was not a practice that was limited to the Fullers. The Aboriginal people would have known of police involvement in shooting dogs. The fact that the police did this, whilst still a matter of distress to the Aboriginal owners, would have slightly diminished the conduct of Doug in the eyes of the Aborigines; he would have been seen to have had the backing of the authorities when he shot the dogs. Their evidence does not warrant a finding that the conduct of the Fullers was malicious, unnecessary or abnormal.”

132 The primary Judge’s findings as to why the appellants left De Rose Hill Station were as follows ([893]-[896]):

“There were many reasons why the Aboriginal people left De Rose Hill Station. The conduct of Doug Fuller was a factor but it was not, in my assessment of all the evidence, a major factor. Johnny Wimitja De Rose left because of his fight with Doug Fuller even though Doug asked him not to leave. Peter and Tim De Rose left because of their belief (most probably an erroneous belief) about the delay in Doug handing over the telegram. But Tim first left when he married and went to live in his wife’s country at Docker River. After an absence of many years, he had returned to the Station only a few months before Bobby’s death. Riley Tjayrany chose to leave because he was attracted to the newly established community at Indulkana. His brother, Whiskey Tjukanku left De Rose Hill Station as a Nyiinka to work on Granite Downs Station. Peter Tjutatja left so that his daughter could have a Western education. It was faintly suggested that Sandy Panma Williams left the claim area because of the conduct of Doug Fuller when he frightened Panma, Mitakiki and Clem Toby. But at that time Panma was only a Nyiinka; he had not started to work; and, as he acknowledged in his witness statement, although he was frightened at the time, he continued, at least for a while, to visit De Rose Hill Station. Roley Mintuma left the claim area when he went to Ernabella to be made a Wati; he never returned. Owen Kunmanara left because, he said, he was sick of work.

From a reading of his witness statement, it would appear that the reasons why Mitakiki left De Rose Hill were two-fold. In the first place, it was to become a Wati but, secondly, it was to work at Amata where he helped his brother on construction work for the new community. There was no suggestion that anything had happened at De Rose Hill Station that might have been the cause of him leaving. However, during the course of his evidence in chief, Mitakiki was asked by his counsel:

‘Was there any reason why you did not go back to De Rose Hill Station?’

Mitakiki replied:

‘Because they shot my grandfather’s and grandmother’s dogs.’

That was a most important omission from his witness statement. I do not accept that the shooting of the dogs was his reason for leaving. It is not clear whether Witjawara Curtis left De Rose Hill because of Doug Fuller shooting her family’s dogs (as she said in her witness statement) or whether she left for a holiday and ended up staying away for good (as she said in her oral evidence). Either way, her contradictory evidence means that I cannot rely on what she has said. Cissie Riley did not offer a reason for leaving De Rose Hill Station other than to say that she went on a holiday and did not return. Minnie Nyanu left, either because of a measles outbreak or because of a lack of rations and work. In either case, Aboriginal traditional laws and customs and their connection to the claim area were not sufficient to hold her. Her sister, Edie Angkaliya, left because of her reaction to the stories about Doug shooting the Aborigines’ dogs but also because of the death of her mother. The evidence of Carlene Thompson did not reveal why she left De Rose Hill Station whilst Maggie Ward disclaimed any suggestion that she was Nguraritja for the claim area. Lilly Yupuna Baker left the Station to live with ‘the whitefella’ Ernie Baker whilst Jeannie Kampukuta Inpiti went to Ernabella because of the Health Services. The final witness to whom I will refer is Tillie Yaltjangki. She left the Station because her child, Pimpi, was sick.

The evidence showed Doug Fuller to be a simple and predictable character. He was mostly well disposed towards his Aboriginal workers and their families, but he was a strict disciplinarian and would not hesitate to physically assault people when he, in his sole judgment, thought it appropriate to do so. He would not tolerate Aboriginal people who wished to visit friends and relatives who were living on the station. He, of course, knew nothing of native culture, nor did he care about the customs and traditions of the indigenous people; only those who worked for him and their families were, in his assessment of the situation, entitled to be on ‘his property’. Hence, he was quick to assert his ‘rights’ and he would not hesitate to resort to the occasional use of firearms to make his point. Dictatorial though his conduct may have been, it was, in the main, directed towards those whom he regarded as trespassers. I do not understand that any of those so-called ‘trespassers’ have been advanced by the claimants as Nguraritja for the claim area. Even allowing for his shooting of the dogs, his conduct was not such as to justify a claim from the resident Aboriginal people that he was the cause of them having to leave their land. His son Rex, possessed of a somewhat dour and unfriendly personality, like his father, neither understood nor cared about Aboriginal custom and culture. However, those weaknesses in his character and attitude cannot be converted into justifiable causes for the Aboriginal people leaving the claim area.

There were, in my opinion, two main reasons why the Aboriginal people left De Rose Hill Station and both of those reasons deny the presence of a continuing native title connection with the claim area. The first of those reasons was the opening of the community centre at Indulkana in 1968. It was like a magnet, offering easy accessibility to food and water coupled with the community facilities that were available. Part of this ‘magnet’, was the later grant of pension rights and the attraction of ‘the sit down money’ as it was called. Indulkana became the location for pension payments. The second reason for leaving De Rose Hill was that the opportunities for work began to dry up. When the country was initially opened up to run sheep, there was a lot of work for the Aboriginal people as they were used as shepherds. With the switch from sheep to cattle, the work of the station became less labour intensive. Unlike the sheep, the cattle were not easy prey to the dingoes and they did not have to be protected to the same extent as the sheep. In addition, there were the changes to the Pastoral Award in 1968 which required station owners to pay award rates to their Aboriginal employees. Then there was the subsequent introduction of the brucellosis campaign. It led to the demise of the ‘open range’ and the erection of fencing on the pastoral properties. The combined effect of these features meant that the opportunities for Aboriginal stockmen were substantially reduced. Of the two factors, the factor of greatest significance was the loss of work. That resulted in the Aboriginal people leaving De Rose Hill; they did not attempt to stay in the area and maintain a physical or spiritual connection with the land in accordance with the traditional laws acknowledged and the traditional customs observed. In a lifestyle that was more in line with European practice, the loss of employment in one location led to a re-location in another place, preferably in the hope of obtaining paid work. The movement of the Aboriginal people away from De Rose Hill Station was not associated with their Aboriginal lifestyle, traditions or customs; it was governed by aspects of European social and work practices.”

PRIMARY JUDGE’S CONCLUSIONS

133 In the penultimate section of the judgment headed “CONCLUSION”, the primary Judge restated his findings as to how a person acquired the status of Nguraritja. He expressed himself satisfied (at [898]) that there was a time, somewhere in the early part of the twentieth century and before, when a group of Aboriginal people possessed, occupied and used the claim area to the exclusion of all others. He was also satisfied that the traditional owners at that time were those who were recognised and accepted by others as Nguraritja.

134 His Honour referred (at [899]) to passages in the evidence of Aboriginal witnesses pointing strongly to the Nguraritja once having had a connection with various parts of the claim area and other nearby locations. His Honour also considered (at [900]) that the rock art at Inyata on the Station, songs, ceremonies and dances performed at other sites (including Wantjapila, Alaylitja and Maku) and the restricted stories associated with Wipa (also on the Station):

“are all examples of facts or events which would have, at one stage, answered the requirement of connection with the claim area that is found in par (b) of the definition of “native title” and “native title rights and interests” in subs 223(1) of the NTA”.

135 Nonetheless, he considered that the evidence led about the lifestyle, culture and traditional laws and custom of the claimants who once lived on De Rose Hill was limited. An overview of the evidence of the 26 Aboriginal witnesses made it apparent that (at [901]):

“ there were substantial gaps in the evidence about communal and social life and religious, social and ritualistic activities. There was mention of the identity of other people who were present on the claim area at different times; there was also evidence of the identities of members of older generations who have passed on information about the Tjukurpa. But, on the whole, there was no sufficient evidence that would point to the presence, at any time, of a social, communal or political organisation on or near the claim area”.

136 The primary Judge recognised (at [902]) that the colonisation of the country had done much to “disenfranchise” many Aboriginal people. He stated that the connection the Aboriginal people enjoyed with the claim area was one that was orientated towards European-style work practices.

137 His Honour accepted that many of the Aboriginal witnesses exhibited sensitivities about cultural matters when giving evidence. He also acknowledged (at [903]) that the findings he had made “do not mean that the Aboriginal witnesses have lost their culture – far from it”. His Honour gave a number of examples to show that “the Aboriginal witnesses still retain knowledge of their traditional laws and customs”. But this was not sufficient since, in his Honour’s view, the evidence on the continuance of traditional laws and customs was inadequate and did not reveal the necessary connection with the claim area. While the evidence about the Tjukurpa and the demonstrations of songs, dances and ceremonies showed that these matters had not been forgotten, they did not establish as a matter of probability that a particular individual still maintained a spiritual connection to the claim area.

138 The primary Judge considered that the evidence about the cultural, traditional and social activities of the Aboriginal people was significant in two respects (at [905]):

“In the first place, the physical activities that would have been tangible evidence of a spiritual connection to the claim area occurred long ago; the participants in those activities are now either dead or are limited to the older witnesses. Ongoing physical connection with the claim area ceased in 1978 when Peter and Tim De Rose left because of Doug’s alleged delay in telling them about Bobby’s death. But cultural, traditional and social activities had ceased before then. Secondly, there was inadequate evidence from members of the present generation about their connection to the claim area. I am aware, of course, of the evidence of Bernard Singer and his sister, Tanya, but where were the other Aboriginal people of their generation? Where, in particular, were the three applicants Rini Kulyuru, Puna Yanima and Julie Tjami? It would seem from what little evidence there was about them, that they could be described as belonging to the present generation. Many of the Aboriginal witnesses referred to the fact that they had children, but apart from Bernard Singer and Tanya, none of that younger generation came forward to assert a claim that they were entitled to a determination of native title in their favour over De Rose Hill Station”

139 His Honour next reiterated that after the departure of Peter and Tim De Rose from De Rose Hill Station in 1978, apart from some occasional hunting, there had been a complete absence of contact with the claim area. In his view (at [906]):

“Not only does that establish a loss of physical connection with the claim area, but the evidence in this case failed to establish the retention of any spiritual connection with the claim area”.

140 His Honour thought it significant that the Aboriginal witnesses gave no evidence of visiting sacred sites outside De Rose Hill Station (at [907]):

“One of the most persistent themes in the evidence of the Aboriginal witnesses was to the effect that they would like to return to De Rose Hill but that they are too frightened to do so. The consequence of that proposition, if it were to be accepted, would be that the Anangu have been deprived of visiting sacred and secret sites and they have been deprived of conducting ceremonies on the claim area. However, it is to be borne in mind at all times that the pastoral property of De Rose Hill Station is but part only of the claimants’ land. Where was the evidence from the Anangu witnesses that, during the period when they were supposedly deprived of access to De Rose Hill, they visited sacred and secret sites on other parts of their country and conducted ceremonies on those other parts of their country? The answer is that there was little or no such evidence from them. At different stages of the trial, songs and dances were performed at different locations. Some, but not all, of those activities were site specific. However, no evidence was led, either in open or restricted hearings, from the Aboriginal witnesses that those songs and dances - or like songs and dances - have been performed in the last twenty years on parts of their country other than De Rose Hill. It would be a difficult exercise, having regard to the evidence that was given in this trial, to define the outer limits of the claimants’ territory and, for the purpose of these reasons, it is not necessary to do so. It is sufficient to note that the former Kenmore Park abuts De Rose Hill Station to the west and the former Granite Downs abuts it to the south. Both those stations are now part of the AP [Anangu Pitjantjatjara] Lands; both those stations - or at least some greater part of them - would presumably form part of the claimants’ country. The likelihood of the Anangu claimants having difficulty in gaining access to those parts of their country that are on either of those properties would be remote. Despite that, however, the Anangu witnesses failed to establish any meaningful connection with any part of their country which was outside the leasehold boundaries of De Rose Hill Station. I can only conclude from this that the adherence to (as distinct from knowledge of) traditional laws and traditional customs has eroded away.” (Emphasis added.)

141 The primary Judge found (at [908]) other aspects of the claim “disturbing”. These were

• the absence of a concrete perception on the part of the appellants, with the possible exception of Riley Tjayrany, concerning their intended use of the claim area;
• that there was no consensus among the witnesses that would permit a “general understanding of the outer perimeters of their country”; and
• that there had been a total failure to care for any of the sacred sites.

142 In the light of the decision of the Full Court in Yorta Yorta (FC), his Honour held (at [909]) that the correct question was:

“whether there is, having regard to the facts of this case, [a] continuous connection between the claimants and their predecessors in title on the one hand, and the claim land on the other hand, from the date of acquisition of sovereignty by the Crown to the present time. In my opinion, the evidence did not make out that connection”.

143 His Honour noted there was a view that the proper approach was to ask whether the claimants continued to acknowledge traditional laws and observe traditional customs and, if so, whether the laws and customs, as so acknowledged and observed, remain connected to the particular land. On this alternative, less rigorous test, his Honour concluded that the appellants had failed to convince him, as a matter of probability that they continue to acknowledge traditional laws and observe traditional customs in connection with the claim area.

144 The primary Judge then summarised his reasons for concluding that the appellants had failed to show the necessary connection required by s 223(1)(b) of the NTA (at [910]-[915]):

“Since at least 1978 there has been a material change in the circumstances of the claimants. They, their witnesses and the other Aboriginal people who were said to be Nguraritja for the claim area, have been scattered to the four winds. There was no evidence that they - or even a significant number of them - meet with each other or participate in communal or group ceremonies, discussions or projects. In the language of subs 223(1) of the NTA, there was no evidence that amounted to communal or group acknowledgment of traditional laws or a communal or group observance of traditional customs. That is not to deny the possibility of some individual rights but, as an aggregate of individuals who claim to be Nguraritja for the claim area, there was no evidence of them having, in the last twenty years or so, participated in ceremonies, songs, dances or other cultural activities. Even the evidence of hunting on the claim area in that period was insubstantial and limited to the participation of a few individuals such as Peter De Rose, Bernard Singer and one or two others. Indeed, there was almost no evidence from the witnesses that they have, in the last twenty years or so, participated elsewhere (ie outside the boundaries of De Rose Hill) in any such traditional Aboriginal activities.

The claimants have submitted that the Aboriginal people, who are properly described as Nguraritja in respect of the claim area, still maintain a spiritual and physical connection with the land. I have concluded that there is not now, and there has not been, any such physical connection to the claim area for the last twenty years or so. I realise that an ongoing physical connection is not necessary; a spiritual connection to a relevant piece of land can still be used to identify a retention of native title. I accept that many of the witnesses, notably Peter De Rose, have claimed that they have retained some affinity with the land. However, their actions belie their words. The occasional hunt for kangaroos, whilst no doubt traditional, stands out in isolation. No other physical or spiritual activity has taken place in the last twenty or so years. The Nguraritja are presently individual people who, if they did once form part of a community or a group, no longer do so. There is not now and there has not been for many many years, an Anangu community or a group of Anangu who could properly be described as having, as a community, or as a group, a physical or a spiritual connection with the claim area. In my opinion, it is appropriate to conclude that there is a lack of connection between the claimants and the claim area; the claimants have lost their physical and spiritual connection and, because of that loss, there has been a breakdown in the acknowledgment of the traditional laws and in the observance of the traditional customs; that breakdown is fatal to their claim.

The evidence in this case did not reveal anything like the cohesive society which Blackburn J described in Milirrpum v Nabalco [Pty Ltd (1971) 17 FLR 141], at 267:

‘The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence.’

That is not to say that the measure of achievement in Milirrpum is a standard that must be achieved in every case; far from it. But it constitutes a working example of the type of communal or group rights and the degree of connection with the land that would go towards establishing the entitlement to a determination of native title.

The ultimate burden of proof rests on the claimants: Coe v Commonwealth [1993] HCA 42; (1993) 118 ALR 193 per Mason CJ at 206. Although there may be an evidentiary burden on a respondent who is alleging extinguishment because of abandonment to raise the issue, it is not for the respondents to prove that extinguishment has occurred - the claimants must establish that extinguishment has not occurred; they must show that there currently exists native title rights and interests and they will fail if the rights and interests that they once possessed have been abandoned. In the present case there are certain incontrovertible facts. The first of them is that the last of the claimants physically left De Rose Hill Station in 1978. The second is that none of those who identified himself or herself as Nguraritja for the claim area has, since that time, lived together or joined together as a cohesive community or group. Thirdly, most of the claimants, having left De Rose Hill Station (for whatever reason) have made no attempt, until the native title field trips, to return to the claim area. Finally, in the last twenty years or so, no claimant has attended to or cared for any sacred site on the claim area and no ceremony of any nature has been organised or performed on the claim area. That failure is exacerbated by the fact that the claimants, through their various advisers, must be taken to have known of the rights of access to the claim area that they have always enjoyed, first through the terms of the pastoral leases and, more recently, in the last decade or so, through the provisions of the 1989 Pastoral Act.

The claimants have been unable to prove that they have retained a connection to the claim area by traditional laws and customs acknowledged and observed by them sufficient to satisfy s 223(1)(b). There was insufficient evidence that any of the claimants had combined their work duties on De Rose Hill Station with their responsibilities as Nguraritja for the land and waters. The evidence revealed that many of the Aboriginal witnesses chose to work on the various stations in the north-west area of the State so that they could earn money and obtain rations rather than caring for the land in the traditional ways of the Nguraritja. Native title has ceased to exist because those who have asserted title have not established to my satisfaction ‘the present subsistence of the necessary connection required by par (b) of s 223(1) ...’ (Ward [(HC)], per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [26]).

As a consequence of the failure of the claimants to satisfy me that they now have any connection with the land and waters within the claim area, I determine that no native title exists in the claim area. The application for a determination of native title is therefore dismissed.” (Emphasis added.)

145 His Honour’s unqualified findings on “abandonment” by the appellants, since at least 1978, of their prior connection with the claim area are somewhat surprising. There was evidence of a continuing connection with the claim area in respect of hunting. In recent years active steps had been taken by or on behalf of the appellants to protect important sites at Ilpalka and Apu Maru in the claim area. There was evidence of observance of traditional laws and customs in the course of the hearing and of the persons who were permitted, and were not permitted, to “speak” for sites and to participate in ceremonies at sites. Also, his Honour appeared to accept that traditional laws and customs had continued to provide for the rights and responsibilities of persons who were Nguraritja in relation to the claim area and he found that Peter De Rose was, and some of the other appellants “may well be” Nguraritja in respect of parts of the claim area under those laws and customs. Further, the bringing of the native title proceeding itself might have afforded some evidence of the appellants taking steps to enable them to fulfil their duties as Nguraritja in relation to the claim area. We shall return to the significance of these matters in the context of our consideration of the requirements of s 223(1)(a) and (b) of the NTA.

EXTINGUISHMENT

146 In view of his Honour’s conclusion that the appellants’ claim for a determination of native title failed, there was no need for him to address the question of extinguishment of native title. However, he did that earlier in the judgment, on the hypothesis that the appellants might be able to make out their claim.

147 His Honour first addressed the Fullers’ contention that the effect of a transitional provision, cl 5(1) of the Schedule to the Pastoral Act 1989 (see [16] above) was to grant three new pastoral leases over the claim area. The consequence, according to the Fullers, was that the fresh leases extinguished native title by virtue of s 33 of the NTA (SA).

148 In order to understand this contention, it is necessary to follow very complex interlocking provisions of the NTA and the NTA (SA). We undertake this task later (see [342]-[405], below). It is enough to note at present that the underlying premise of the Fullers’ submission was that cl 5(1) had the effect of granting a new lease. The primary Judge rejected that premise (at [246]):

“In my opinion, however, the transitional provisions contained in the 1989 Act did not create a new lease. The language simply does not support such a construction; in fact, it strongly supports the contrary conclusion – that the legislation intended that existing pastoral leases should be continued, albeit with some altered conditions. As a result of cl 5, a lease in force under the repealed Act immediately prior to the commencement of the 1989 Pastoral Act became, on that commencement, and continues thereafter in force as, a pastoral lease with a term of forty-two years as from that commencement. The matter is made clear by cl 5(2)....

The language of the clause is conversion. It is not replacement, nor is there anything that might indicate that the intention of the Parliament was to create a new lease; rather it indicates the modification of the existing leases so that they could be adapted to the new legislation.” (Emphasis in original.)

149 His Honour observed that it was difficult to see how the Pastoral Act 1989 had extinguished native title by legislative intent. In his view, the legislation was intended to preserve it, even though s 47 of the Pastoral Act 1989 might have had the effect of curtailing some native title rights.

150 Later in the judgment, the primary Judge addressed other extinguishment issues that had been raised in argument. The State had argued that the leases of De Rose Hill Station that predated the enactment of the Racial Discrimination Act 1975 (Cth) (“RDA”) had extinguished native title. The primary Judge rejected the argument on the ground (at [515]) that the reservations in the leases in favour of Aboriginal people were not rights derived from statute in place of native title (as the State had argued), but were intended to reserve from the pastoral lessee native title rights.

151 His Honour noted that the appellants had rightly conceded that partial extinguishment of native title rights and interests had occurred by reason of the leases. That concession was supported by the view expressed in the judgment of Beaumont and von Doussa JJ in Ward (FC), at 345 [91], 349-350 [109] and by the majority in the High Court: Ward (HC), at 35 [76], 121 [417].

152 His Honour, after a review of the authorities, concluded (at [541] that native title in respect of De Rose Hill Station had not been extinguished by the pastoral leases granted over the claim area. On the other hand, the respective pastoral leases were inconsistent with the continued existence of native title rights to control and make decisions about the claim area. Those rights were inconsistent with the rights of the Fullers to use the claim area for pastoral purposes.

153 The primary Judge addressed an argument advanced by the State that any native title rights of the appellants to control access to the claim area or how the land should be used had been extinguished by reason of “operational inconsistency” between the terms of the pastoral leases and those native title rights and interests. After analysing the reasoning of the majority in Ward (HC), at 55 [151], 73 [215], 121 [417], his Honour dealt with the submissions as follows (at [556]-[558]):

“The Fullers submitted, and I agree, that the process for determining the extent of operational inconsistency is to compare and contrast the particular native title rights that have been claimed on the one hand with the pastoral legislation under which the grants were made, the terms and conditions of the grants in question and the evidence as to the nature and the scope of improvements that have been undertaken by the Fullers on the claim area on the other hand. In light of the extensive improvements that had been made to De Rose Hill Station, the Fullers submitted that operational inconsistency must affect adversely the interests of the claimants. They submitted that it would be fundamentally inconsistent with their rights as the Crown lessees to allow the claimants to use or have access to those improvements. They argued that some of the improvements, such as waters, sheds and, in particular, the homestead, must, by their very nature, wholly extinguish native title as they are totally incompatible with the exercise of native title rights in the physical space that they occupy and the use to which they are put by the lessees. This was especially the case, given the extensive rights that the claimants originally sought, such as a general right of occupation, albeit jointly with the lessees, to the whole of the claim area and the joint right to control the access, use and enjoyment of all others – not just Aboriginal people – to the claim area.

The submission that was made on behalf of the Fullers is not, in my opinion, affected by the provisions of the 1989 Pastoral Act. Its objective, bearing in mind that it was enacted before the decision of the High Court in Mabo (No 2) [(1992) [1992] HCA 23; 175 CLR 1] may be taken to mean that it intended to preserve and protect Aboriginal rights and interests in a manner that was compatible, so far as was possible, with the common law rights with respect to native title. Although the language and the detail differed, the provisions of s 47 of the 1989 Pastoral Act continued the Crown’s intention to preserve and protect (with modifications) the rights that had earlier been reserved in the pastoral leases in favour of the Aboriginal people. Native title will only be extinguished as a consequence of the legislative or administrative act of the Crown if the Crown has displayed a clear and plain intention to extinguish it. Whether the Crown has extinguished it is to be ascertained by evaluating the inconsistency between the retention of native title rights and interests on the one hand and the extent of the grant by the Crown, or the implementation of the terms of the grant (as the case may be) on the other. It is only when the inconsistency is clearly apparent that it will become necessary to conclude that native title has been extinguished.

The process that I have just described would, in my opinion, permit some conclusions to be reached with relative ease; others would be more difficult. For example, it would seem clear to me that improvements in the nature of the homestead and all sheds and outbuildings would be the subject of exclusive possession in favour of the Fullers. In addition, I am of the opinion that it would also be reasonable to recognise that the Fullers would enjoy exclusive possession to a “buffer” zone around such improvements; that buffer zone around the homestead would be a radius of one kilometre so as to accord with the provisions of par 47(2)(a) of the 1989 Pastoral Act. That is not a conclusion at which I have arrived by force of law: rather, it is a pragmatic conclusion so that there is no conflict with the provisions of s 47. The legislature obviously thought that a kilometre was a reasonable radius and I see no reason why I should not arrive at the same decision. The Fullers would, likewise, be entitled to recognition that they enjoy exclusive possession of all man-made dams, bores and stock watering points and the land within a radius of 500 metres: the distance referred to in par 47(2)(b) of the 1989 Pastoral Act. In respect of these improvements and their buffer zones, native title has been extinguished. On the other hand, I do not see how improvements such as fences and roads would wholly, or even partially, extinguish native title; they are clear examples of improvements which are capable of joint use. Airstrips represent a particular problem because of issues of safety. Because of that factor, I would deny the claimants all rights of access with a buffer zone of 500 metres. In respect of airstrips and their buffer zones, native title has been extinguished. Control of access by third parties to the claim area is no longer a matter of difficulty. In view of the decision of the High Court in Ward, the native title holders could not exercise any control over any person who was present on the claim area as a lawful invitee or licencee of the lessee; no question of competing decisions will arise. If the lessee were to refuse entry to an Aboriginal person who had been invited onto the claim area by the native title holders, the decision of the lessee would prevail. As to the balance of the claim area, the pastoral leases, whilst not extinguishing native title, nevertheless constitute an interest that, in the case of conflict with native title rights, is the dominant interest.”

A PROPOSED DETERMINATION

154 Finally the primary Judge, cognisant of the difficulties that would arise if his decision was reversed on appeal, outlined the determination that he regarded as appropriate if that should happen. He said this (at [916], [917], [922]):

“Should the decision at which I have arrived (namely that those claimants who once had a relevant connection with the claim area have all abandoned that prior connection) be reversed on appeal and should the claimants be otherwise successful in their application for a determination of native title, it would then be necessary to consider the nature of the determination that should be made in their favour. ...

The determination that I would consider most appropriate (if it were to be found that the claimants, or some of them, are entitled to a determination) is based, in part, on the proposal that was advanced by the State but I have made certain amendments, most notably to give, as the claimants have proposed, certain controls to the claimants over their members and other Aboriginal people. ...

...

The proposed determination would therefore be in the following terms:

‘THE COURT DETERMINES:

1. Native title exists in relation to the land and waters covered by Crown Least [sic] Pastoral No. 2133, Crown Lease Pastoral No. 2138A and Crown Lease No. 2190A (“the claim area”).

2. A person who holds the group rights comprising native title is a person who is Nguraritja for the claim area because:

(a) it is his or her country of birth;

(b) he or she has a long-term physical association with the claim area:

(c) he or she possesses an ancestral connection to the claim area; or

(d) he or she possesses geographical and religious knowledge of the claim area.

and such person is recognised as Nguraritja by the other Nguraritja.

3. Subject to paragraphs 4, 5, 6, 7 and 8 below:

(a) The nature and extent of the native title rights and interests in relation to the claim area are the rights to access and use the land and waters of the claim area for the following purposes in accordance with traditional laws acknowledged and the traditional customs observed of the native title holders:

(1) the right to hunt on the claim area, to gather and use the products of the claim area such as food, medicinal plants, wild tobacco, timber, stone and resin, and to use the natural water resources on the land,
(2) the right to live on the claim area, to camp, to erect shelters and to move about the claim area;
(3) the right to engage in cultural activities on the claim area, to conduct ceremonies and to hold meetings thereon, to teach the physical and spiritual attributes of locations and sites on the claim area and to participate in cultural practices relating to births and deaths on the claim area;
(4) the right to make decisions about the use and enjoyment of the claim area by Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders;
(5) the right to control the use and enjoyment of the claim area and the resources of the claim area by Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders;
(6) the right to grant access to the claim area to Aboriginal people who are governed by the traditional laws and customs acknowledged and observed by the native title holders;
(7) the right to refuse access to the claim area to Aboriginal people who are governed by the traditional laws and customs acknowledged and observe (sic) by the native title holders;
(8) the right to be acknowledged as the holders of the native title in respect of the claim area in accordance with traditional laws and customs.

(b) The native title rights and interests are held, and are exercisable, in accordance with the traditional laws and customs of the native title holders.

(c) The rights that are described in subpars (4), (5), (6) and (7) hereof do not apply to or affect:

(i) any pastoral leaseholder or his or her employees, agents and invitees who have rights of access to and use of the claim area for pastoral purposes; or
(ii) any person who has a statutory right of access to the claim area.

4. Native title rights and interests do not exist in respect of those parts of the claim area being:

(a) any house, shed or other outbuilding or airstrip and the land within a radius of one kilometre; and
(b) any dam or any other constructed stock watering point and the land within a radius of 500 metres therefrom.

5. Native title rights do not exist in minerals as defined in s.6 of the Mining Act 1971 (SA) or petroleum as defined in s.4 of the Petroleum Act 2000 (SA).

6. Native title rights and interests are subject to and exercisable in accordance with the laws of the State and the Commonwealth, including the common law.

7. The native title rights and interests are subject to regulation, control, curtailment or restriction by the valid laws of Australia.

8. The nature and extent of other interests to the claim area are as follows:

(a) the interests of Douglas Clarence Fuller and R D Fuller Pty Ltd as the Crown lessees of Crown Lease No. 2133, Crown Lease No. 2138A, and Crown Lease No. 2190A;
(b) the present and reversionary interests of the Crown in right of the State of South Australia under the leases that are identified in par (a) hereof;
(c) the other interests of the Crown pursuant to statute or otherwise in exercise of its executive power or held as the result of the assertion of sovereignty;
(d) the rights or interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power;
(e) the rights of access to the land by agents, employees or instrumentalities of the Crown (in right of the State or the Commonwealth) as required in the performance of their statutory or common law duties;
(f) the rights and interests of members of the public arising under statute or the common law.

9. The relationship between the native title rights and interests in the claim area that are described in paragraph 3 and the other rights and interests that are referred to in paragraph 8 (‘the other rights and interests’), is that the other rights and interests (and the doing of any activity in exercise of the rights conferred by or held under the other rights and interests) co-exist with the native title rights and interests except to the extent that the other rights and interests conflict with the native title rights and interests. In the case of conflict, the native title rights and interests yield to the other rights and interests, which prevail over the native title rights and interests to the extent of the conflict but do not extinguish them.

10. Liberty to any party to apply to a single judge of the Court in connection with the establishment of a prescribed body corporate.”

CONSTRUCTION OF S 223(1) OF THE NATIVE TITLE ACT

155 As we have noted, the appellants applied pursuant to s 61 of the NTA for a determination of native title in relation to the land contained in the three pastoral leases that together comprise De Rose Hill station. Consideration of a claim for determination of native title must begin with an examination of the NTA: Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 194 ALR 538 (“Yorta Yorta (HC)”), at 549 [32] per Gleeson CJ, Gummow and Hayne JJ; Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 (“Yarmirr”) at 35 [7], per Gleeson CJ, Gaudron, Gummow and Hayne JJ. This is because the claim is made for a determination of rights that are defined under the statute: Ward (HC) at 16 [16].

156 The expressions “native title” and “native title rights and interests” are defined in s 223 of the NTA which, for convenience, we again reproduce here:

“Common law rights and interests

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(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.

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.”

157 Paragraphs (a) and (b) of s 223(1) of the NTA are based on the language used by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (“Mabo (No 2)”): see Ward (HC), at 16 [16]; Yarmirr, at 73 [116], [117], per McHugh J. In Mabo (No 2), Brennan J stated (at 58-59) that

“Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory ... Native title, though recognized by the common law, is not an institution of the common law...”.

After holding that native title survived the Crown’s acquisition of sovereignty and radical title unless extinguished by sovereign exercise of sovereign power (at 69), his Honour said this (at 70):

“Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.

Native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connexion with the land or on the death of the last of the members of the group or clan.”

158 Despite the provenance of the statutory language, the High Court has emphasised that primary regard must be had to the terms of the NTA, although what was said in Mabo (No 2) can be taken into account in considering the meaning and effect of the legislation: Ward (HC), at 19 [25]. The definition in s 223 makes it clear that the rights and interests may be communal, group or individual rights and interests and that they must be “in relation to land or waters”: Ward (HC), at 16 [17]. The High Court joint judgment acknowledged the difficulty of expressing the “essentially spiritual” connection which Aboriginal peoples have with country in terms of rights and interests: Ward (HC) at 15 [14]. Yet, as their Honours pointed out:

“that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them”.

159 The rights and interests must have the three characteristics specified in pars (a), (b) and (c) of s 223(1) of the NTA:

(a) they must be rights and interests which are “possessed under the traditional laws acknowledged, and the traditional customs observed” by the Aboriginal peoples;

(b) the Aboriginal peoples, by those laws and customs, must have “a connection with the land or waters”; and

(c) the rights and interests must be “recognised by the common law of Australia”.

See Ward (HC), at 16 [17]; and Yarmirr, at 37 [9].

160 The inquiry in relation to par (a) may depend on the same evidence as is used to establish connection of the relevant peoples with the land or waters. That is because the connection must be “by those laws and customs”. Nonetheless, s 223(1) requires two distinct inquiries – one as to the rights and interests possessed under traditional laws and customs and the other as to the connection with the land by those laws and customs: Ward (HC), at 17 [18].

161 The question, in a given case, of whether par (a) is satisfied is a question of fact. It requires the identification of

• laws and customs said to be traditional laws and customs; and
• the rights and interests in relation to land or waters which are possessed under those laws and customs.

See Ward (HC), at 17 [18]. The NTA proceeds on the basis that the rights and interests with which it deals can be possessed under traditional laws and customs: Yorta Yorta (HC), at 551 [40].

162 The native title rights and interests recognised by the NTA derive from the traditional laws and customs, not the common law: Ward (HC), at 17 [20]; Yorta Yorta (HC), at 550 [37], 552 [45]. The role of the common law is that stated in s 223(1)(c) – that is, the recognition of the rights and interests: Ward (HC), at 17 [20]. It follows that the claimed rights and interests must find their origin in a body of norms or a normative system that existed before the Crown acquired sovereignty over the claimed land: Yorta Yorta (HC), at 550 [38]; Ward (HC), at [84], [85]. However, the norms or normative system need not have the characteristics of a developed European system: Yorta Yorta (HC), at 550 [39]. The rights and interests possessed under traditional laws and customs often will not correspond to common law or European concepts: Yarmirr, at 37 [11], 38-39 [14]. But, as was said in the joint judgment in Yorta Yorta (HC) at 551 [40], this is not to deny

“the normative quality of the laws and customs of the indigenous societies. It is only if the rich complexity of indigenous societies is denied that reference to traditional laws and customs as a normative system jars the ear of the listener”.

Since s 223(1)(a) uses “and” rather than “or”, there is no need to distinguish between what is a matter of traditional law and what is a matter of custom, provided that the rules which constitute those traditional laws and customs have normative content: Yorta Yorta (HC), at 551 [42]. Nonetheless, because the subject matter comprises rights and interests, the rules which together constitute the traditional laws and customs under which the rights or interests are said to be possessed must be rules having normative content. Observable patterns of behaviour do not necessarily involve rights or interests in relation to land: Yorta Yorta (HC), at 551 [42].

163 Upon the Crown acquiring sovereignty, the normative or law-making systems which then existed could not thereafter validly create new rights or interests. As was said by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta (HC), at 552 [43]:

“Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign”.

164 However, their Honours said at 552 [44] that that proposition does not deny:

“the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be ‘significant adaptations’ [Yorta Yorta (FC) at 264 [67]]. But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom”. (Emphasis added.)

165 The word “traditional” in s 223(1)(a) is apt to refer to a means of transmission of a law or custom from generation to generation usually by word of mouth and common practice. But it follows from Yorta Yorta (HC) (at 552 [46], 553 [47]) that the concept of “traditional” laws and customs carries with it two other elements:

• an understanding of the age of the traditions, in particular a requirement that the origins of the law or custom lie in pre-sovereignty norms; and
• the requirement, flowing from the reference to rights or interests being possessed under traditional laws, that the normative system under which the rights and interests are possessed “has had a continuous existence and vitality since sovereignty”.

166 In Yorta Yorta (HC), the joint judgment pointed to the inextricable link between a society, in the sense of a body of persons united in and by its acknowledgement and observance of a body of law and customs, and the law and customs themselves. As their Honours said (at 554 [50]):

“To speak of rights and interests possessed under an identified body of laws and customs is...to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs. And if the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, those laws and customs cease to have continued existence and vitality. Their content may be known but if there is no society which acknowledges and observes them, it ceases to be useful, even meaningful, to speak of them as a body of laws and customs acknowledged and observed, or productive of existing rights or interests, whether in relation to land or waters or otherwise.”

167 Paragraph (b) of s 223(1) of the Native Title Act does not in terms direct attention to how Aboriginal people use or occupy land or waters. The paragraph requires

• an identification of the content of traditional laws and customs; and
• the “characterisation of the effect of those laws and customs as constituting a ‘connection’ of the peoples with the land or waters in question” (Ward (HC), at [64]).

168 The Full Court in Ward (FC) considered the significance of the fact that it had become impracticable after European settlement for members of the indigenous population to maintain a traditional presence on substantial parts of the determination area. Beaumont and von Doussa JJ, with whom North J relevantly agreed, said this (at 382 [243]):

“Actual physical presence upon the land in pursuit of traditional rights to live and forage there, and for the performance of traditional ceremonies and customs, would provide clear evidence of the maintenance of a connection with the land. However, the spiritual connection, and the performance of responsibility for the land can be maintained even where physical presence has ceased, either because the indigenous people have been hunted off the land, or because their numbers have become so thinned that it is impracticable to visit the area. The connection can be maintained by the continued acknowledgment of traditional laws, and by the observance of traditional customs. Acknowledgment and observance may be established by evidence that traditional practices and ceremonies are maintained by the community, insofar as that is possible, off the land, and that ritual knowledge including knowledge of the Dreamings which underlie the traditional laws and customs, continue to be maintained and passed down from generation to generation. Evidence of present members of the community, which demonstrates a knowledge of the boundaries to their traditional lands, in itself provides evidence of continuing connection through adherence to their traditional laws and customs.” (Emphasis added.)

169 Their Honours rejected the contention that actual physical presence is essential to the maintenance of a connection by traditional laws and customs, in circumstances where that physical presence is no longer practicable or where access to traditional lands is restricted or prevented by European settlers. Their Honours made this comment (Ward (FC), at 383 [244]-[245]):

“In circumstances where it is impracticable for the descendant community to continue a physical presence, it may nevertheless maintain its spiritual and cultural connection with the land in other ways. Whether it has done so will be a question of fact, involving matters of degree, to be assessed in all the circumstances of the particular case.

In the present case, insofar as the State’s submissions maintain that physical occupation of the land is a necessary requirement for continuing connection with the land, those submissions cannot be accepted.”

170 In the High Court, Western Australia maintained its submission that proof of continued use of land and waters was essential to establishment of connection with that land or those waters. In a passage to which we have already referred (at [64]), the joint judgment (Ward (HC), at 32 [64]) rejected the submission:

“In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a ‘connection’ with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a ‘connection’ of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by ‘connection’ by those laws and customs.”

Since the latter question was not the subject of submissions, their Honours expressed no view on the nature of the “connection” that must exist. In particular, they expressed no view on when a “spiritual connection” with the land could suffice: cf at 184 [644], [645] per Callinan J.

171 However, the joint judgment in Ward (HC) rejected a contention that a determination of native title can include a right or interest exercisable by reason of the existence of native title to protect and prevent the misuse of “cultural knowledge of the ... holders associated with the ‘determination area’”. A recognition of such a right “akin to a new species of intellectual property” went beyond the content of the definition in s 223(1), specifically the requirement of “connection” in s 223(1)(b): Ward (HC), at [59], [60].

172 Paragraph (c) of s 223(1) is not to be understood as incorporating a pre-existing body of common law defining native title. This is because native title is not a creature of the common law, but is rooted in traditional law and custom: Yorta Yorta (HC), at 560 [75], [76], 572 [128]. Paragraph (c) serves two purposes:

• recognition may be refused to rights and interests which are “antithetical to fundamental tenets of the common law” (Yorta Yorta (HC), at 560 [77]; Ward (HC), at 17 [21]); and
• the requirement of recognition by the common law emphasises that the native title rights or interests must have existed at sovereignty, that is, at the time of “intersection” of the two legal systems (Yorta Yorta (HC), at 560 [77]).

As we have noted, no issue arises about para (c) in the present case if the appellants otherwise establish that they hold native title rights and interests in relation to the claim area.

173 Demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases where the laws and customs have been adapted in response to the impact of European settlement. In such cases difficult questions of fact and degree emerge in determining what significance should be attached to the fact of change and in deciding what was changed: Yorta Yorta (HC), at 561 [82].

174 It is important to appreciate, however, that some change to or adaptation of traditional law or custom, or some interruption of enjoyment or exercise of native title rights is not fatal to a claim: Yorta Yorta (HC), at 562 [83]. The relevant criterion to be applied in determining the significance of a change or adaptation of traditional law or custom is whether

“the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples?” (Yorta Yorta (HC), at 562 [83]).

175 According to the joint judgment in Yorta Yorta (HC), (at 562 [84], [85], [87]), interruption of use or enjoyment presents more difficult questions:

“First, the exercise of native title rights or interests may constitute powerful evidence of both the existence of those rights and their content. Evidence that at some time, since sovereignty, some of those who now assert that they have that native title have not exercised those rights, or evidence that some of those through whom those now claiming native title rights or interests contend to be entitled to them have not exercised those rights or interests, does not inevitably answer the relevant statutory questions. Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.

Secondly, account must no doubt be taken of the fact that both paras (a) and (b) of the definition of native title are cast in the present tense. The questions thus presented are about present possession of rights or interests and present connection of claimants with the land or waters. That is not to say, however, that the continuity of the chain of possession and the continuity of the connection is irrelevant.

...

[A]cknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned. They would be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe laws and customs of content similar to, perhaps even identical with, those of an earlier and different society”. (Emphasis added.)

176 Their Honours emphasised that the word “substantially” in this passage is important, since it recognises that proof of continuous acknowledgement and observance since sovereignty of oral traditions is very difficult. Specifically, the qualification recognises the impact of European settlement and the profound impact it has had on the structures and practices of Aboriginal society. Even so, it is necessary to show that the society under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist since sovereignty “as a body united by its acknowledgement and observance of the laws and customs”: Yorta Yorta (HC), at 563 [89].

177 Describing the consequences of interruption in acknowledgment and observance of traditional laws and customs as “abandonment” or “expiry” of native title is “apt to mislead”. As the joint judgment explained (at [90]):

“‘Abandonment’ might be understood as suggesting that there has been some conscious decision to abandon the old ways, or to give up rights and interests in relation to the land or waters. Demonstrating continuous acknowledgment and observance of traditional laws and customs would, of course, negate any suggestion of conscious decision to abandon rights or interests. But the inquiry about continuity of acknowledgment and observance does not require consideration of why, if acknowledgment and observance stopped, that happened. That is, continuity of acknowledgment and observance is a condition for establishing native title. If it is not demonstrated that that condition was met, examining why that is so is important only to the extent that the presence or absence of reasons might influence the fact-finder’s decision about whether there was such an interruption.”

SUBMISSIONS ON THE EXISTENCE OF NATIVE TITLE

THE APPELLANTS’ CONTENTIONS

178 Counsel for the appellants made it clear that the appellants’ case, as recorded by the primary Judge, was that each of them was Nguraritja for the claim area and that the application was for a determination by individuals in their own right and on behalf of all other individuals who fulfil the criteria of Nguraritja according to the traditional laws and customs of the Western Desert Bloc. The appellants submitted that the primary Judge made a number of important findings favourable to their case. These included the following:

(i) There was a group of Aboriginal people, both at sovereignty and in more recent times, who could be identified as constituting the Western Desert Bloc. The Anangu belonging to this Bloc ranged over an area extending throughout much of northern South Australia, part of the Northern Territory and into Western Australia.
(ii) There were specific criteria identifiable under the traditional laws and customs of the Western Desert Bloc by which the traditional holders of land could be ascertained. The persons satisfying those criteria were Nguraritja for the land. The criteria gave primacy to place of birth, but allowed for other means by which a person could become Nguraritja for particular land.
(iii) There was a time, in the early twentieth century and before, when those recognised as Nguraritja possessed and enjoyed the claim area to the exclusion of all others.
(iv) While the evidence did not disclose a biological connection between the appellants and those who inhabited the claim area pre-sovereignty, there was a sufficient form of connection between the two groups. This came about by virtue of a process of incorporation reflecting migratory movements of Aboriginal people, both to the east and the west, that have taken place since colonisation. These movements should be treated as a traditional part of the social and cultural history of the Aboriginal people of the Western Desert Bloc.
(v) The witnesses participating in ceremonies and songs at particular sites “once had a religious or spiritual connection with the site at which the particular activity was performed”. The knowledge of the participants of those activities would have gone a long way towards satisfying the primary Judge that there was a relevant connection between those people and the claims area “were it not for the fact that there ha[d] been a virtual absence of all Aboriginal people from the claim area for twenty years or so”.

179 The appellants argued that, having regard to these findings, the primary Judge made a number of errors in concluding that they lacked the necessary connection with the claim area. These were as follows:

(i) The primary Judge placed undue emphasis on the need for the appellants to demonstrate a physical connection with the claim area. His Honour erroneously regarded a physical absence for some twenty years as inconsistent with continuing connection. This was so notwithstanding that the primary Judge referred to relevant passages in the judgment of Beaumont and von Doussa JJ in Ward (FC). According to Mr Basten QC, senior counsel for the appellants, the error was reflected in the primary Judge’s references to individual appellants having “abandoned” their connection to the land, the very approach said by the High Court in Yorta Yorta to be apt to mislead.
(ii) The primary Judge erroneously inquired into the reasonableness or otherwise of the “excuses” offered by the appellants for not maintaining closer contact with the claim area. This was not relevant. His Honour did not reject the genuineness of the appellants’ reasons for not maintaining such contact. It was not to the point that their conduct, judged by standards other than traditional laws and custom, might be characterised in some respects as unreasonable.
(iii) The primary Judge failed to identify clearly the rights and responsibilities of Nguraritja under the traditional laws and customs of the Western Desert Bloc in relation to the claim area and nearby lands. This led his Honour, for example, to assume without clear evidence that traditional laws and customs required Nguraritja to look after or care for sites in order to maintain a connection with the land on which the sites were located.
(iv) The primary Judge erroneously imposed a requirement on the appellants which was not found in the traditional laws and customs of the Western Desert Bloc: that the appellants be part of a social, communal or political organisation that undertook activities amounting to an observance of traditional customs. The only relevant society was that which held to the traditional laws and customs giving rise to rights and interests in relation to land or waters, that is, the Western Desert Bloc.
(v) In any event, the primary Judge overlooked or paid insufficient regard to evidence concerning physical contact by the appellants with the claim area after 1978, including hunting visits and complaints about threats to the integrity of particular sites.

180 Mr Basten submitted that the correct approach to determine whether the appellants, or some of them, had the necessary “connection” to the claim area for the purposes of s 223(1)(b) of the NTA was as follows:

•	the connection had to be established by the traditional laws acknowledged and the traditional customs observed by the appellants;
•	if a person is Nguraritja for particular land by virtue of the traditional laws and customs of the Western Desert Bloc and if he or she, as Nguraritja, has responsibilities for the land, the connection is established;
•	the connection will remain unless, by the traditional laws and customs, it is lost by virtue of the person’s lack of contact with the land.

181 The appellants contended that the findings of primary fact made in relation to a number of appellants were sufficient to satisfy the statutory test of connection specified in s 223(1)(b) of the NTA. The appellants claimed that as long as any one of the appellants was Nguraritja in conformity with the traditional laws and customs of the Western Desert people, and that person maintained a sufficient connection with the claim area pursuant to those traditional laws and customs, the appellants were entitled to succeed. They argued that, given his Honour’s findings that those recognised as Nguraritja enjoyed exclusive possession and use of the claim area in the early twentieth century, a correct approach to the question of connection led to the conclusion that the appellants had established the necessary connection with the claim area.

THE STATE’S CONTENTIONS

182 The State accepted at the outset that the proposed determination recorded by his Honour was appropriate, if the finding as to loss of connection was overturned on appeal. However, the Solicitor-General for South Australia submitted that the primary Judge’s findings of fact required the appeal to be dismissed. In particular, it was said that his Honour had found that

(i)	there had been a breakdown in the acknowledgment and adherence to (as distinct from knowledge of) the traditional laws and customs ([907]-[911]);
(ii)	the appellants had lost physical connection with the claim area ([906]);
(iii)	the appellants had failed to establish the retention of any spiritual connection with the claim area ([906]); and
(iv)	the evidence did not establish a cohesive society of the kind described in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

183 According to counsel, some of these findings were credit based, in the sense that they depended on his Honour’s assessment of the claims made by the appellants. In particular, the finding that none of the appellants had a spiritual belief connecting them to the claim area was said to be such a finding. While there was evidence that some appellants had knowledge of ceremonies, songs and the like, his Honour’s conclusion, in effect, was that their behaviour was not influenced by those beliefs.

184 Counsel for the State argued that the finding (at [901]) that there was no evidence of a social, communal or political organisation on or near the claim area was significant because land, under the traditional laws and customs of the Western Desert Bloc, was held by local communities or landholding groups. It was said that since the appellants could not show that they operated as a local landholding group, they could not establish that they had interests in the claim area under traditional laws and customs. Counsel submitted that the obligations associated with Nguraritja could only be carried out by persons who lived “locally”, reinforcing the need for a local landholding group.

185 The State submitted that the primary Judge had taken an approach more favourable to the appellants than that required by Yorta Yorta (HC). His Honour had been prepared to accept that laws and customs could be traditional without evidence of continual observance. Moreover, he was prepared to allow for the evolution of laws and customs due to the interaction with European presence. The State contended that the appellants could only succeed if they could establish that

• the laws and customs observed today owed their origins to those in existence at sovereignty and that they had been continually observed since that time; and
• the connection of the claimant group had continued substantially uninterrupted.

186 The State contended that the evidence showed that neither the appellants nor their forebears had ever been a cohesive community or society adhering to traditional laws and customs. While an Aboriginal society had once lived in the claim area, there was no biological connection between the appellants and those who inhabited the area pre-sovereignty. Moreover, with perhaps one exception, the forebears of every appellant came from the west. The mere fact that the appellants or their parents migrated from Pitjantjatjara lands and elsewhere to an area where other Aboriginal people were present, did not provide a basis to conclude that the appellants formed part of a society that had existed since sovereignty as a body united by its acknowledgement and observance of a normative system of laws.

187 So far as connection was concerned, there was nothing to show there were rules of transmission which provided for the interests of those connected with the land at sovereignty to pass to a “group” or “aggregate” of people whose forebears came from elsewhere (that is, mainly from Pitjantjatjara lands to the west). The evidence did not support the proposition that the movement of people to the east was in accordance with or in pursuance of any traditional laws and customs.

188 Further, the criteria found by his Honour to become Nguraritja could not be regarded as part of traditional law and custom, in the sense of a body of law and customs acknowledged and observed by the appellants’ ancestors at sovereignty. The criteria accepted by his Honour were so broad as hardly to be rules at all. In any event, the “rules” had been developed post-sovereignty and thus amounted to the creation of new rights post-sovereignty. Since Yorta Yorta (HC) had held that the normative systems in existence at sovereignty cannot thereafter validly create new rights, duties and interests, the expanded Nguraritja rules could not be given effect by the legal order of the new sovereign. In substance, so the State argued, the transmission rule for Nguraritja was fixed at sovereignty.

189 Most of the appellants had been absent from the claim area for a period closer to 40 than 20 years (returning only for the purposes of preparing the case). Few of them lived in places within their country. They lacked any common intention with respect to the claim area. It followed, so the State argued, that his Honour had correctly found that, for a long period, there had not been a group of Anangu who could be described as having, as a group, a physical or spiritual connection with the claim area.

190 The Solicitor-General submitted that, on the primary Judge’s analysis, the appellants failed because they did not satisfy the requirements of s 223(1)(b) of the NTA. However, the findings could equally have supported the conclusion that none of the appellants possessed rights and interests under the traditional laws acknowledged and the traditional customs observed by them. Accordingly, so it was submitted, the appellants also failed because they could not satisfy the requirements of s 223(1)(a) of the NTA.

THE FULLERS’ CONTENTIONS

191 The Fullers pointed out that the appellants’ case focussed on the primary Judge’s finding that they lacked a current connection, both physical and spiritual, with the claim land. They argued, however, that there was an anterior question raised by their notice of contention, namely whether the appellants ever held or possessed native title rights and interests. According to Mr Whitington QC, senior counsel for the Fullers, the question arose because the appellants’ “cohort” had migrated to the country of the claim area in the early part of the twentieth century. The issue was whether

“an Aboriginal group or society can form on, or transport itself to, an area of country not previously occupied by it [post-sovereignty] and, by setting down spiritual roots, obtain native title through recent attachment”.

192 Mr Whitington argued that the appellants’ cohort could not demonstrate that they were part of a group that had, continuously since sovereignty, possessed rights and interests in the claim area under traditional laws and customs. The evidence established overwhelmingly that the appellants or their forebears had moved relatively recently to the area of the claim land. Thus the appellants were “immigrants” who could not show that they had acquired pre-sovereignty title either by descent or transmission.

193 Mr Whitington submitted this was so for two reasons:

• The land-owning unit in the Western Desert, under pre-sovereignty norms, was the local group, being a “local patrilineal clan, exogamous, usually patrilocal”. The local group was territorially anchored and did not include recent arrivals such as the forebears of the appellants.
• The “purported” Nguraritja rules, which allowed the acquisition of rights and interests otherwise than under the pre-sovereignty norms, were developed by the appellants’ own group. Thus the expanded Nguraritja rules created rights and interests post-sovereignty and, on the principles articulated in Yorta Yorta (HC), would not be recognised by the new sovereign. In effect the Nguraritja rules governing the transmission of rights and interests were the “usurper’s” rules of transmission.

194 In any event, the ethnographic evidence established that at sovereignty title to the claim area was vested in the Antikirinya people. This was a group distinct from the Yankunytjatjara people who were located further to the west in the eastern Musgrave and Everard Ranges, and from the Pitjantjatjara people who were located to the north-west of the Musgraves and in and around the Mann, Tomkinson and Rawlinson Ranges. In essence, the newcomers had taken the area including the claim area by conquest or occupation post-sovereignty. They had created new rights and interests in the claim area. There was no pre-sovereignty norm which recognised the transmission of rights and interests in these circumstances. Indeed, a rule which permitted the creation of entirely new rights and interests by conquest or occupation was not normative at all in the sense used in Yorta Yorta (HC). Rather, so it was argued, it was an act of sovereignty itself.

THE NOTICES OF CONTENTION

195 It is convenient to deal first with the arguments raised by the notices of contention filed by the State and the Fullers. If these arguments succeed, there is no occasion to address the other questions raised in the appeal.

BIOLOGICAL DESCENT

196 The appellants interpreted the State and the Fullers 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.

201 Of course, the claimant group must continue to acknowledge and observe the traditional laws and customs of the Aboriginal people who enjoyed native title rights and interests at sovereignty. For that to occur there must be a sufficient link between the claimant group and the members of the society on whose traditional laws and customs the claimants rely to establish their rights and interests in relation to land. We shall return to this issue later.

THE ANTIKIRINYA AS THE ORIGINAL LANDHOLDING GROUP

202 The Fullers submitted that the primary Judge erred in failing to find that the Antikirinya people inhabited the claim area at sovereignty. The Fullers’ principal case at trial was that the Antikirinya people, a group distinct from other peoples such as the Yankunytjatjara and Pitjantjatjara, had once inhabited the claim area, but had left that area some time early in the twentieth century. Newcomers from the west, mainly the Pitjantjatjara, had come into the claim area behind them and had developed their own laws and customs, including more liberal rules or norms for determining who were regarded as Nguraritja for particular country.

203 The significance of this contention, according to the Fullers, was that the broader Nguraritja rules of the newcomers were not part of the traditional laws and customs of the original land holding group, but were developed by the newcomers as “self-serving” rules. As such, the more liberal rules for determining who was Nguraritja in relation to particular sites or tracks amounted to a post-sovereignty construct. They contended that the rules could not be characterised as traditional laws acknowledged or traditional customs observed, in the sense of the body of laws and customs observed by the ancestors of the claimants at the time of sovereignty: cf Yorta Yorta (HC), at 562 [86].

204 The primary Judge found (at [346]) that the archaeological remains within the claim area which were identified by Professor Veth (an archaeologist) were those of Western Desert Bloc Aboriginals. His Honour noted (at [144]) that some evidence had been led to the effect that the Antikirinya had been pushed south from the claim area towards Ooldea in a movement that began in the late nineteenth century. He thought that this might have been correct, but considered that the evidence was insufficient to make a positive finding. He concluded that on the evidence he was unable to make a finding that “the Antikirinya people once inhabited the claim area but were dispossessed by the Yankunytjatjara”.

205 As Mr Whitington pointed out, the last finding was expressed by reference to the State’s submission at the trial, which was that the Antikirinya had been displaced by the Yankunytjatjara. As he also pointed out, the Fullers’ submission did not depend on displacement of the Antikirinya, but on the fact that the Antikirinya had been the original occupiers of the claim area and had simply left that area well after the date of sovereignty. The appellants’ forebears had thereafter moved in to the country previously occupied by the Antikirinya. Mr Whitington contended that the primary Judge should have made a specific finding that the Antikirinya people had occupied the claim area prior to the arrival of the appellants’ “cohort”.

206 It is important to appreciate that the primary Judge expressly addressed the contention advanced by the Fullers, although the relevant findings are not gathered together in the one section of the judgment. In particular, his Honour pointed out (at [315]) that the evidence of Professor Veth had established that the claim area had been occupied by Aboriginal people prior to sovereignty. But Professor Veth, whom his Honour found to be an impressive witness, did not identify the Aboriginal occupants at the time of sovereignty. His Honour found that

“[w]hether they were Yankunytjatjara, Pitjantjatjara, Antikirinya or some other group, cannot be ascertained by reference to his evidence – nor indeed by reference to any evidence in the trial”. (Emphasis added.)

His Honour later (at [372]) reiterated the significance of Professor Veth’s report on this issue.

207 The basis on which the Fullers sought to challenge his Honour’s finding is not entirely clear. It is true, as Mr Whitington pointed out, that the primary Judge found (at [313]) that the Antikirinya and Yankunytjatjara were separate, although closely related peoples. But that finding did not establish the identity of the original inhabitants of the claim area at sovereignty. Nor does the finding that population shifts took place after sovereignty, including the movement of people from the claim area and its surrounding region to the south, show that his Honour was wrong in concluding that he could not determine the identity of the original inhabitants (other than to conclude that they were Western Desert Bloc people).

208 Mr Whitington placed some reliance on a paper by Mr D A Vachon, an anthropologist called by the appellants who had conducted research in the late 1970s in the Indulkana area including De Rose Hill. In the article, “Political Consciousness and Land Rights Among the Australian Western Desert People” in Leacock and Lee (eds) Politics and History in Band Societies (1982), Mr Vachon commented on the movement since the turn of the twentieth century of Antikirinya people eastward from the area of the Alberga River towards Oodnadatta, citing in support a Report of the Chief Protector of Aboriginals (1902). But neither Mr Vachon’s article, nor his cross-examination at the trial, supports the proposition that the original inhabitants of the claim area were the Antikirinya people, as distinct from some other group or groups. Indeed, in cross-examination, Mr Vachon reaffirmed that he had not identified the original inhabitants of the area other than to describe them as “Aboriginal people”.

209 Mr Whitington also referred to evidence in the form of published works by Professor R M Berndt (“Tribal Migrations and Myths Centering on Ooldea, South Australia” (1941) 12 Oceania 1) and Professor A P Elkin (particularly “Kinship in South Australia” (1939) 10 Oceania 196). But these works do not support the Fullers’ submission that the occupiers at sovereignty were the Antikirinya people. For example, a map reproduced in Professor Elkin’s article suggests that at the time of publication of the article, the “Andekarinja” and the “Jangundjara” (to use his spelling) occupied much the same area in the vicinity of the Everard Ranges. There is nothing in the article to indicate that the Antikirinya had been the exclusive occupants of the claim area at sovereignty. The same can be said of Professor Berndt’s work.

210 It follows in our view that there is no foundation for the challenge to the primary Judge’s finding that he could not identify the original inhabitants of the claim area and that, in particular, he could not conclude that they comprised Antikirinya people as distinct from other Western Desert Bloc people. Accordingly, we reject the Fullers’ contention that the case should be approached on the basis that only the Antikirinya people held native title rights and interests at sovereignty.

THE POST-SOVEREIGNTY “USURPATION” HYPOTHESIS

211 The Fullers submitted that even if the primary Judge was correct in refusing to find that the inhabitants at sovereignty were the Antikirinya, the appellants could not establish that they held native title pursuant to traditional laws and customs which existed at sovereignty because their forebears had come to the claim area behind the original inhabitants who had already moved to the south. The newcomers, predominantly Pitjantjatjara from the west of the claim area, had arrived from the 1920s on, bringing their own rules governing the recognition of Nguraritja and providing for the rights and responsibilities of the Nguraritja. In essence, the Fullers contended that a new set of norms accompanied the newcomers and that these norms lacked the required link with the society whose laws and customs provided for native title rights and interests at sovereignty. At one stage in the argument, Mr Whitington described the newcomers as “usurpers”.

212 There might be a considerable force in the Fullers’ argument if the “usurpation” thesis was supported by the facts. Of course, the significance for a native title claim of the wholesale movement, or even extinction, of a particular group of Aboriginal people falls to be determined by reference to the traditional laws and customs of the relevant society. In Re Waanyi People’s Native Title Application (1995) 129 ALR 118, for example, French J, as President of the National Native Title Tribunal, dealt with a claim by the Waanyi people to land once occupied by the Injilarija people. The evidence indicated that the Injilarija people had disappeared or become extinct, but that there were principles which allowed local descent groups to succeed to interests previously held by others. The evidence also suggested that extinction of small local descent groups was an historically recurrent event in the southern Gulf Country of north-eastern Australia. Among French J’s findings (on a prima facie basis) were these (at 133):

“4. Upon the disappearance or extinction of the Injilarija people it was possible for the Waanyi people to acquire rights and interests in the land according to their own traditional laws and customs, and/or laws and customs common to themselves and the Injilarija.

5. The movement of Waanyi people eastwards into what were formerly Injilarija lands was consistent with the traditional laws and customs common to both groups.

6. The Waanyi people thereafter maintained a connection with the land from the 1890s to the present, albeit that connection may not have extended to physical occupation of the land in recent times”.

213 In the present case, there was a substantial body of evidence supporting the primary Judge’s finding that population shifts of Aboriginal people to and from the claim area and nearby regions had taken place since colonisation, although the evidence also suggested that population shifts occurred in pre-sovereignty times. (We prefer to use the expression “population shifts” rather than the primary Judge’s phrase “migratory movements”. In current terminology, the latter expression tends to suggest large-scale movements of people. The numbers of Aboriginal people involved in these population shifts were, by modern standards of non-indigenous migration, very small indeed.)

214 The historical report prepared by Dr R Foster (tendered by the appellants), for example, provided contemporary documentary evidence of population movements as early as 1886, when an Aboriginal group numbering about 400 was reported as having been driven south to Mt Vivian from the north-west by fear of drought and of a “stronger tribe...from the Far North West”. Papers by Professor Berndt and Professor Elkin support his Honour’s findings relating to population shifts. Professor Berndt’s paper on “Tribal Migrations and Myths Centering on Ooldea, South Australia” to which we have already referred (at [209]), records the fact that since about 1917 the Antikirinya had “gradually” moved south from the Everard and Musgrave Ranges. Mr Vachon identified other population movements, including an eastern migration by the Yankunytjatjara from the Everards and a movement towards the claim area by the Pitjantjatjara from the Mann and Tomkinson Ranges to the west. Indeed, as the respondents pointed out, the evidence of the Aboriginal witnesses themselves showed that their forebears, generally speaking, had moved to the vicinity of the claim area from the west at various times during the twentieth century.

215 It is, however, one thing to find, as his Honour did, that there were “migratory movements” of Western Desert Aboriginal people to and from the claim area and its environs; it is another to suggest, as the Fullers did, that the Pitjantjatjara had moved into the claim area from the west after the original inhabitants had departed, with the result that the Pitjantjatjara supplanted the original inhabitants by filling a void. His Honour made no such finding. Nor did Mr Whitington point to evidence that would warrant such a finding.

216 On the contrary, Professor Berndt’s 1959 paper, “The Concept of ‘the Tribe’ in the Western Desert of Australia” (see [42] above), lends scant support to the Fullers’ submission. He accepted that members of different linguistic groups had been in the habit of moving freely across the southern and eastern parts of the Western Desert (including the claim area) and that “most certainly...constant [population] shifts have taken place since [European contact]”. Professor Berndt also cited an observation by Professor Tindale that in 1933 the “Jangundjara” (Yankunytjatjara) were living in their “ancestral home” about the Musgrave and Everard Ranges, although some had moved south to Ooldea.

217 There is other evidence that is difficult to reconcile with the Fullers’ submission. For example, Professor Elkin in his 1939 paper “Kinship in South Australia” (see [209] above) observed that in 1930 there were “natives” at the stations on the Alberga who had drifted east from the Everards and were referred to locally as the “Anti-gerinya” (Antikirinya), a word denoting their language. Evidence from the older Aboriginal witnesses such as Peter Tjutatja indicated that Pitjantjatjara men had married Yankunytjatjara women from near the claim area and that the style of life they adopted was traditional. Peter Tjutatja himself grew up in his mother’s country in about the 1920s and observed Aboriginal people living in accordance with traditional laws and customs. None of this evidence suggests that the Pitjantjatjara simply occupied country that had been more or less abandoned by its original inhabitants, whether they were Antikirinya, Yankunytjatjara or some other group. Accordingly, the factual basis for the Fullers’ “usurpation” thesis is wanting.

218 We should add that the “usurpation” thesis perhaps carries with it overtones of a Eurocentric notion of “occupation”. The joint judgment in Ward (HC), at [14], pointed to a difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests because the “spiritual or religious is translated into the legal”. Their Honours also suggested (at [14]) that the

“difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer”.

219 Similarly, there is a danger that a term such as “occupation” of land, as applied to Aboriginal people of the Western Desert Bloc, may create a false reference point. Such language, which is not found in s 223 of the NTA, tends to convey an impression that the holders of native title must have enjoyed physical possession of defined tracts of land in ways not dissimilar from the European settlers who arrived in the twentieth century. It may be appropriate to apply the language of “occupation” to a freeholder or leaseholder, or even to the settled existence of the Meriam people whose claims were upheld in Mabo (No 2). But as the evidence in the present case makes clear, the Western Desert peoples were comparatively few in number and led a lifestyle that required adaptation to the extraordinarily harsh conditions of the land. The relationship between them and the sites or tracks of spiritual significance to them is not readily captured by the familiar language of Anglo-Australian property law.

CONTINUITY WITH ORIGINAL INHABITANTS

The Contentions

220 The State and the Fullers both argued that, independently of the contentions to which we have referred, the appellants’ native title claim should have failed because they could not demonstrate the necessary continuity between themselves and the original inhabitants of the claim area. Their arguments were similar, but not identical.

221 The Fullers contended that, regardless of the fate of their other submissions, the primary Judge had erred in finding that there had been the requisite degree of continuity between those who had occupied the claim area at sovereignty and the appellants. As we have noted ([54]-[55] above), his Honour reached that conclusion on the basis that the necessary connection was established through “a process of incorporation that reflected the pattern of migratory movements” ([346]). His Honour accepted (at [372]) that the Western Desert Bloc occupants at sovereignty followed the same traditional laws and customs as the appellants’ forebears, including the Pitjantjatjara people who had migrated from the west. He found, largely as an inference from the evidence of the Anangu witnesses, that the migratory movements were “part of the history and social structure of the Aboriginal people of the Western Desert Bloc”. He also found (at [897]) that there would

“be nothing offensive or contradictory to there being a substantial degree of ancestral connection if the traditional laws and customs allowed for adoption or allowed for a person to be ‘incorporated’ into the status of Nguraritja because of his or her long association with the land or because of his or her geographical and religious knowledge of the land”.

222 Mr Whitington’s principal criticism of this reasoning was that it conflated two distinct propositions. It was not enough for the primary Judge to characterise the post-sovereignty population shifts in the Western Desert as part of the traditional history and social structure of the Aboriginal people. The critical question, so it was argued, was whether the rules recognising that a person could become Nguraritja for particular places or country by virtue of long term physical association or geographical and religious knowledge were part of the traditional laws acknowledged or traditional customs observed by the Western Desert people. The historical fact of population shifts did not lead inexorably to the normative proposition that traditional laws or customs recognised the expanded Nguraritja rules. It was necessary for the appellants to demonstrate that the traditional laws and customs of the Aboriginal people allowed for the transmission of native title rights and interests in accordance with the rules identified by the primary Judge for determining who were to be regarded as Nguraritja for particular country or sites.

223 The State submitted that since the original inhabitants of the claim area were not the appellants’ forebears (presumably in the sense that there was no direct biological link), the appellants had to show that they acquired their rights in accordance with the traditional rules governing the transmission of native title rights and interests. The question was whether, by the traditional laws and customs of the Western Desert Bloc, there could be transmission of interests from the local community connected to the land at sovereignty to a group or aggregate of people whose forebears came from elsewhere. According to the Solicitor-General for South Australia, there was no evidence of any such traditional rule.

224 The Solicitor-General pointed out that his Honour had found that the vast majority of the appellants were either recent migrants from the west of the claim area or were descended from such migrants (at [376]). The migrants had arrived at different times from different places. They were a mixture of Pitjantjatjara and Yankunytjatjara people. Their reasons for coming were many and varied, but included searching for food, visiting relatives and seeking out missions for sustenance and shelter. He submitted that any society formed by the appellants was not a continuation of the pre-sovereignty society connected with the land. The evidence indicated that interests in land were dependent on the existence of a local landowning group. The appellants had to show that they were the successor community and this they could not do.

225 The State challenged the primary Judge’s finding that there was a sufficient connection between the appellants and the pre-sovereignty society by a process of incorporation reflecting the patterns of migratory movements. The evidence did not support such a finding. Movements of people in search of food, for example, would be temporary and the people would return to their own area. Similarly, while men might seek out brides in areas remote from their own, they would ordinarily return to their own country. If there was any “connection” between the appellants or their forebears and the occupants at sovereignty, it was forged by laws and customs that were not the normative system at sovereignty.

226 The State also criticised the primary Judge’s finding that a person could become Nguraritja for particular sites or tracks for any one of the four reasons found by the primary Judge. According to the Solicitor-General, the criteria were so broad “as to be hardly rules at all”. He submitted that the primary Judge should have held that the appellants were required to be substantially connected by descent with the pre-sovereignty community of the claim area: that is, the community of persons who were Nguraritja for the claim area at the time of acquisition of sovereignty.

227 The appellants supported the primary Judge’s finding that population movements over large areas were an integral part of traditional Western Desert culture. They contended that the imperatives of survival meant that traditional law and custom included rules and practices relating to obtaining food and water and avoiding drought and famine; arranging and effecting marriages; initiating men; performing ceremonies and rituals; and visiting country. In the course of such movements, some people returned, some stayed and links and alliances were created between individuals as a result of marriage and other relationships. However, it was said that the evidence did not suggest that the Western Desert Bloc society had been displaced in the claim area. The appellants argued that the findings as to the traditional character of population shifts established the link between the appellants and the Western Desert Bloc society of which they were part. They claimed that the system of laws and customs they acknowledged and observed was sufficiently related to the system which operated at sovereignty in the claim area.

228 According to the appellants, the correct object of inquiry as to continuity was the traditional laws and customs of the Western Desert Bloc. They contended that there was ample evidence to support the critical finding (at [897]) that the traditional laws and customs of the Western Desert Bloc allowed for a person to be incorporated into the status of Nguraritja because of his or her long association with the land or religious or geographical knowledge of the land.

Reasoning

229 In evaluating the competing arguments, it is necessary to appreciate the way in which the appellants ultimately put their case. There may well have been some variations in their approach during the trial and even on the appeal but, as the joint judgment in Yorta Yorta (HC) pointed out (at 548 [30]), shifts in emphasis in native title claims are not unusual and, when the issues are novel, are perhaps to be expected.

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.

Population Shifts

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, 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.)

243 In his examination in chief, Professor Maddock was asked what causes there might have been for the permanent movement of Aboriginal people in the Western Desert area. He replied as follows:

“The causes of permanent movement, I suppose you would be looking for not so much, perhaps, what caused people to move in the first place but what might have caused them to stay in the new area once they had arrived and not to go back, and I would suggest that one of the factors would be the adoption to some extent of the new way of life which could not be had in the area from which people had originated, so that they might enter into pastoral employment and be receiving a flow of goods through that. They might also be settling in to whatever local Aboriginal society existed in the new area. Marriages, for example, might be contracted. There might be ritual relationships entered into so that people become at home, so to speak, in the area to which they’ve gone and perhaps not looking upon it simply as a temporary place, and in the longer term it may be that the nature of the Aboriginal traditions is such that by residence there you can obtain rights of some sort, if not perhaps for yourself then at least in your children’s generation.” (Emphasis added.)

244 Professor Maddock was then asked to explain a reference he had made to migratory movements potentially leading to changes of, or disputes over, ownership. He replied as follows:

“I suppose when I think of using the word ‘ownership’ in relation to Aborigines and land I would be considering several strands. One is, I suppose, simply the economic realities of it, of people living on land, foraging on it, obtaining their livelihood from the land and being able to do so in a way which is accepted or comes to be accepted as rightful so that they’re not simply seen as trespassers or temporary visitors. The other is the kind of ritual side of ownership, where people through the dreaming stories have connections to places, where rituals are performed that refer to those dreaming figures and places, and it does seem common in Aboriginal Australia for that ritual side of life to be an important dimension when considering whether people have claims to land. So it’s not simply a right to perform ceremonies, for example, but this can spill over into rights in relation to the places and tracks that are referred to in ceremonies. It’s difficult, of course, to pinpoint anything neatly, so it’s not a matter of the kind of documentary record which might exist of rights to land in a European property system, but the ownership, I think, has to be seen as flowing from the economic and religious realities of that society.”

245 These answers suggest that population shifts in consequence of the “economic realities” of life in a harsh environment were not simply phenomena that post-dated European settlement. It is true, for example, that the primary Judge found that the severe drought of 1913 encouraged Aboriginal people to move east to make contact with pastoralists who, in turn, encouraged the men to work on their stations in return for a supply of goods or rations. But drought, famine and the search for marriage partners had led to population movements long before the coming of missions or stations. And when the population shifts occurred, they could lead to native title rights and interests being acquired under the traditional laws and customs of the Western Desert Bloc.

246 In his cross-examination, Professor Maddock was asked about a hypothetical case:

“And just to pursue his Honour’s example a little further and consider the father of the child to whom his Honour drew attention, if that man remains there on country B and lives there with the people who are otherwise there, hunts there, gathers there, takes something of the essence of the country by reason of taking something of the sustenance of the country, grows into a knowledge of the sites and the stories associated with the sites, forms relationships with other people there, learns the relevant ceremony and inma, is it not the position that he, under the system of laws and customs would obtain rights and interests in that area of land, country B?---In effect, in the example you are putting, he is becoming naturalised in another country because he has effectively forsaken his own and has settled on a permanent basis somewhere else and started functioning. As time goes by he is functioning more and more as though he had always been a member of the group in country [B].
...
You say ‘naturalised’. Would another way of saying that be ‘incorporated into that group’?---That would be another way of putting it. I was thinking of naturalisation, which is incorporation, I suppose. We use those terms, don’t we, of taking on citizenship of a country of which – originally an alien [?].

Yes?---So that’s what I had in mind. That would be – in effect the person is becoming more and more absorbed into country [B] or the group in country [B].

HIS HONOUR: Are you using the word ‘incorporated’ just as a term of convenience or as---?---Yes, yes.”

The above passages tend to reinforce the close link between population shifts in the traditional Aboriginal society of the Western Desert and the recognition under traditional laws and customs of native title rights and interests through the concept of Nguraritja. They also suggest, contrary to the submissions of the State, that pre- and post-sovereignty population shifts could be permanent and that traditional laws and customs would recognise that a person “incorporated” into another group could acquire native title rights and interests in relation to sites and tracks in the area occupied by that group.

247 In the 1939 article “Kinship in South Australia”, Professor A P Elkin expressed the view that

“the Aborigines of western South Australia have been in a continuous state of migration for some decades; a movement which I believe was in progress before the coming of the white man. This explains the similarities of dialects, kinship systems and mythology over such a vast area, and also the difficulty of fixing definite tribal boundaries and names”. (Emphasis added.)

248 In the article entitled “Tribal Migrations and Myths Centring on Ooldea, South Australia”, Professor Berndt reported on information collected during an expedition in 1939 to Ooldea, which is on the fringes of the Western Desert country. Ooldea was a natural soak and centre for the distribution of articles traded down the north-western and north-eastern routes. According to Professor Berndt, the area had been a meeting place for different tribes for centuries, as well as the destination of Antikirinya people from the north in the early part of the twentieth century.

249 Professor Berndt made these additional observations:

“On an examination of the myths and legends of this region, one notices that in the majority the culture heroes travelled down from the west or north-west, creating physiographical features in the country they passed through, and instituting rites and ceremonies among the people with whom they dwelt.

The culture of the Western Desert peoples has spread fanwise from the north-west, driving back or incorporating the different elements of the more southern region. Tribes, such as the ’Ngardadjara, Mandjindja, ’Nangatadjara, Wonggail, Ngalea, Tjeraridjal, Murunitja, ’Mirning, Pitjandjara, ’Jangkundjara, and ’Anta’kirinja are all allied to the one Desert culture, whereas the Wirangu inhabit, as they have for many years now, the southern region. As the Pitjandjara and other north-western and western tribes have come eastwards, the ’Jangkundjara and ’Anta’kirinja have come southwards.” (Emphasis added.)

He noted, too, that tribal migrations began long before European pressure in the north-west of Western Australia and suggested that a study of the myths of the Western Desert Aborigines would throw light on these movements and on cultural diffusion in the area.

250 According to Professor Berndt, the myths of the Western Desert are predominantly variations of the two cultural heroes, the Wati Kutjara (Wati, man; Kutjara, two). These were two ancestral men who lived in ’Tjukur times (the Dreamtime or ancestral past) and who came from the distant north-west. They were responsible for creating prominent physiographical features and also made the water holes on the route they travelled.

251 After describing the myths associated with the Wati Kutjara, Professor Berndt concluded as follows:

“The route of [cultural] diffusion was probably down through the coastal tribes from north-west Western Australia and then east into the Desert country and along other routes as has been suggested. But movements of tribes occurred before European contact and settlement, and the affinity of culture between the Western Desert peoples and those of the north-west is no new knowledge. It is also deeply rooted historically in their beliefs. In the mythology, details of utmost importance are reflected: it often commemorates important tribal events connected with the far distant ancestral times. Further, the myths tell of the wanderings of ancestral beings, giving the detailed routes along which the latter travelled. The culture hero is nearly always believed to have come from the west, and as several informants added to their tale, ‘from far up west – where the pearl-shell comes from’, that is, toward the north-west of Western Australia.

Trade is an important factor in the diffusion of culture. Along the water-hole routes of the Great Victoria Desert groups of natives from far distant regions have travelled to trade pearl-shell for objects and materials used for religious and secular purposes. In European times there is the attraction exercised by the mission station, with the white man and his goods, or the occupation of tribal territory by these same people that moves the aborigines from his ancestral tribal country. Still, it is only under extreme provocation, such as the necessity for water and food, that the native will move from a country he loves – a country, moreover, that is associated with his ancestors....

Even if the natives do move from their tribal country, away from the totemic centres of their fathers, they always expect to return before they die. In addition, as in the case of the ’Anta’kirinja people at Ooldea, the myths associated with their totemic religious life may be extended to include new physiographical features, thus having the effect of sacralizing certain places for totemic increase and legalizing the carrying on of the ritual and ceremonial life important to the integration of the aboriginal society.”

252 This analysis points to the dangers of characterising population shifts by Aboriginal people by reference to Eurocentric concepts of migration movements. Professor Berndt’s work suggests that the “diffusion of culture” as the result of population shifts is deeply rooted in the traditional laws and customs of the Western Desert peoples. His analysis also indicates that the myths of Western Desert society reflect population shifts in ancestral times and that the incorporation of elements of the culture of different regions into the mythology of the Western Desert Bloc is a phenomenon that long pre-dates European settlement.

253 In his 1959 article, “The Concept of ‘the Tribe’ in the Western Desert of Australia’, Professor Berndt expressed agreement with Professor Elkins’ contention that tribal boundaries in western South Australia counted for little. He also agreed that

“these [local] groups are not ‘tribes,’ that there are no strict boundaries, that movements were relatively frequent, and that what we are faced with is, rather, a cultural and social bloc”.

254 Mr Vachon in his oral evidence recognised that he had used the word “migration” in a published 1979 report, but pointed out that the movements of Aboriginal people had occurred in a variety of directions. In re-examination he said that he had reassessed the terminology used in his report:

“...I use the word ‘migration’ on page 470 – seen from one time frame it may look like migration in a single direction, perhaps even permanent relocation, but in another time frame it might be movement – it might be regarded as movement – a shift in orientation perhaps and occupation and then a shift in another direction later on. The other thing though that I came to appreciate, I suppose, more in looking at other cases in the Western Desert in regards to people moving out of the desert to various fringe camps, is that the whole idea of migration needed to be contextualised. These people were nomadic and they ranged over quite wide areas. To a European it might seem like it’s migration but, to an indigenous person, it might just seem movement within an expected range.”

255 In our view, contrary to the respondents’ submissions, the evidence of Aboriginal witnesses provides additional support for the finding that population shifts to and from the vicinity of the claim area took place in accordance with the traditional laws and customs of the Western Desert Bloc. Peter De Rose, for example, gave evidence of his belief that Jimmy Piti Piti, the father of Snowy De Rose (Peter’s stepfather) had moved east perhaps as long as 100 years earlier. The primary Judge observed (at [582]) that this

“could quite possibly be a pre-contact migration – a migration with no consideration for white man’s work or white man’s rations but, rather, a migration within a traditional environment and movement that was effected for social or cultural reasons”.

256 Peter De Rose also gave evidence, apparently unchallenged, that a number of his “cousins or brothers” had been Pitjantjatjara men who had came from the west to the area including De Rose Hill and Granite Downs and married Yankunytjatjara women. They had come for food “because it was a hard season out there” and had brought their sisters, as well as parents. The anthropological material suggests that this kind of population shift was by no means unique to the twentieth century. Peter De Rose’s evidence is also consistent with the newcomers being “incorporated” (to use Professor Maddock’s word) into the group, or one of the groups, then occupying the claim area or its environs.

257 On the primary Judge’s findings, Peter Tjutatja (a very old man when he gave evidence) travelled to Kantja from the west with his father and others when he was about ten or twelve years old. Given that it appears that he was born in about 1912, he had arrived near the claim area at some time between 1922 and 1924. At that time, according to Peter Tjutatja there were “no whitefellas” at Kantja, but there were many Anangu.

258 Peter Tjutatja claimed to be Nguraritja for a number of locations, not all of which were at or near De Rose Hill Station. He said he acquired that status because he had been taught the Tjukurpa by his uncle, Tjaapan Tjaapan, and because he had had a very long association with the various sites. The primary Judge considered Peter Tjututja’s claim to be Nguraritja for De Rose Hill to be “suspect”, apparently because in cross-examination he did not identify his country clearly. But his Honour seems to have accepted what was implicit in Peter Tjutatja’s evidence, namely that a person, such as a Pitjantjatjara man or boy, coming from the west to the vicinity of the claim area before European settlement, could acquire the status of Nguraritja under traditional laws and customs in relation to sites or tracks in that area by virtue of knowledge of the Tjukurpa and long association with the sites or tracks.

259 In Yorta Yorta (HC), the joint judgment endorsed (at [59]) an observation by the trial Judge in that case that the

“difficulties inherent in proving facts in relation to a time when for the most part the only record of events is oral tradition passed down from one generation to another, cannot be overstated”.

For obvious reasons, the Aboriginal witnesses could not give direct evidence of the way in which pre-sovereignty population shifts were viewed by the traditional laws and customs of the Western Desert Bloc. The primary Judge was therefore forced to rely on inferences from necessarily incomplete evidence. Bearing that in mind, in our view, the evidence was sufficient to support the inference he drew, namely that population shifts to and from the claim area that occurred in the twentieth century were consistent with and recognised by the traditional laws and customs of the Western Desert Bloc, in the sense that, under those laws and customs, the newcomers could acquire the status of Nguraritja in relation to sites or tracks on or near the claim area.

Methods of Becoming Nguraritja

260 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. It will be recalled that the four criteria accepted by his Honour were these (at [562]):

“that a claimant had been born of the claim area; that the claimant had a long-term physical association with the claim area; that his or her ancestors had been born on the claim area; or that the claimants had a geographical and religious knowledge of the claim area. To these must then be added the additional requirement that the claimant is recognised as Nguraritja for the claim area by the other Nguraritja.”

His Honour acknowledged that the rules determining the identity of Nguraritja had changed over time. For example, patrilineal descent was originally the factor of prime importance in defining Nguraritja. But while place of birth remained important, it no longer commanded as great a status as in former times (at [89]). As we have noted ([241] above), his Honour went on to accept the evidence of the Aboriginal witnesses concerning Nguraritja as “an example of evolutionary traditional law” (at [102]). In reaching this conclusion, the primary Judge 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” (at [102]).

261 The respondents challenged the primary Judge’s finding that the rules which bestowed the status of Nguraritja on at least some of the appellants were part of the traditional laws and customs of the Western Desert Bloc. Perhaps the principal obstacle in the path of this challenge, however, is the fact that his Honour’s finding was based on an evaluation of a very substantial body of evidence, only a small proportion of which was referred to in submissions on the appeal. Many Aboriginal witnesses gave evidence to the effect that place of birth was only one of several ways whereby a person might become Nguraritja for his or her country (at [85]). His Honour preferred this evidence to the extent that it conflicted with the published opinions of Professor Berndt. While Professor Berndt had expressed the opinion that only one male person could be Nguraritja for a particular piece of country, his Honour considered that the contrary evidence of the Aboriginal witnesses was persuasive. Similarly, the primary Judge did not accept Professor Berndt’s associated contention that there was a distinction between a “land-owning group” (an enlarged family, consisting of a man and his living descendants in the male line) and a “land-occupying group” (a “local horde” consisting of the land-owning group plus unmarried female members and the wives and children of married male members). As his Honour noted (at [102]), there was no evidence at the trial supporting the existence of two separate groups of the kind identified by Professor Berndt.

262 The care with which the primary Judge addressed this issue is underscored by his approach to the evidence of Mr Elliott, the anthropologist called by the appellants. Mr Elliott appended to his report a list of sixty persons, all of whom he identified as Nguraritja for the claim land. Mr Elliott said that he compiled the list by applying the four criteria ultimately accepted by the primary Judge as determining Nguraritja for particular country.

263 His Honour concluded that there were serious difficulties with Mr Elliott’s evidence, because he had identified too closely with the appellants and consequently had become an advocate for their cause rather than adopting the role of a neutral and objective expert. For this reason, the primary Judge was not prepared to accept any unsupported claims made by Mr Elliott insofar as they were inconsistent with Professor Maddock’s evidence. Nonetheless, where Mr Elliott’s research into traditional laws and customs was supported by the independent evidence of the Aboriginal witnesses, his Honour was prepared to accept the evidence as “corroborative” and as providing a “contextual background”.

264 As the primary Judge made clear at several points in the judgment, it was because of the testimony of the Aboriginal witnesses that he was prepared to find that the four-fold test for determining Nguraritja was acknowledged by the traditional laws and customs of the Western Desert Bloc. He plainly regarded that evidence as more cogent and persuasive than the writings of Professor Berndt on this particular issue.

265 His Honour took this view notwithstanding that he was by no means uncritical of the evidence of Aboriginal witnesses. As we have noted, he rejected the evidence of certain witnesses on important issues. His Honour’s acceptance of their evidence as to the ways of becoming Nguraritja plainly took account of his assessment of their reliability and understanding of the questions. His Honour must also have taken into account the fact that they were recounting elements of an oral tradition.

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, 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).

THE APPEAL

THE PRINCIPAL FINDINGS

269 The appeal challenges the primary Judge’s conclusion that the appellants’ case failed because they had been unable to prove that they retained a connection to the claim area by traditional laws and customs acknowledged and observed by them, sufficient to satisfy s 223(1)(b) of the NTA. At the risk of repetition, it is convenient to summarise the principal findings made by his Honour that appear to support or rebut, as the case may be, the appellants’ claim to a determination of native title in respect of the claim land.

270 The principal findings supporting the appellants’ case are the following:

• There was a time early in the twentieth century and before when a group of Aboriginals possessed, used and occupied the claim area to the exclusion of all others. The traditional owners at that time were those recognised and accepted by the others as Nguraritja for the claim area ([898]). The Nguraritja once had a connection with various parts of the claim area and other areas in close proximity ([899]).
• Under the traditional laws and customs of the Western Desert Bloc, a claimant could become Nguraritja for land and have a connection to land by any one of four means, provided the claimant was recognised as Nguraritja for the claim area by other Nguraritja ([562]). The four means were that a claimant had been born of the claim area; that the claimant had a long-term physical association with the claim area; that the claimant’s ancestors had been born on the claim area; and that the claimant had a geographical and religious knowledge of the claim area ([562]). To the extent that the rules for determining who was Nguraritja for land had developed since sovereignty, the changes constituted an example of evolutionary traditional law ([102]).
• The traditional laws and customs asserted by the appellants to support their claim to be Nguraritja for the claim area were essentially the same as those that exist throughout the Western Desert ([102]).
• The population shifts that had led to the appellants and their forebears coming to the vicinity of the claim area from the west were part of the history and social structure of the Aboriginal people of the Western Desert Bloc and thus (as we interpret his Honour’s findings) occurred in accordance with the traditional laws acknowledged and customs observed of the Western Desert Bloc ([346], [372]).
• Peter De Rose was Nguraritja for a path through a water course joining most, if not all, of the Malu sites on De Rose Hill Station ([100]).
• Other appellants “may well be” Nguraritja under the traditional laws acknowledged and the customs observed of the Western Desert Bloc and may thereby satisfy s 223(1)(a) of the NTA ([561]).
• The ceremonies and rituals conducted at thirteen sites of significance to the appellants established that the witnesses who gave the evidence and the people who participated in the ceremonies, stories, dances and songs once had a religious or spiritual connection with the site at which the particular activity was performed ([380]).
• The Aboriginal witnesses had not lost their culture. There were many examples of ceremonies and conduct that showed that the Aboriginal witnesses retained knowledge of their traditional laws and customs ([903]).
• The witnesses and participants in the ceremonies, stories, dances and songs showed that they possessed knowledge of the particular sites and of the activities in which they engaged at those sites ([380]). That knowledge would have satisfied the primary Judge that there was a relevant connection between those people and the claim area were it not for the fact that there had been a virtual absence of all Aboriginal people from the claim area for twenty years or more ([381]).
• The rock art at Inyata, the songs, dances and ceremonies performed for the Court at Wantjapila, Alaylitja and Maku, the significance of rock pools at Kirara and Ilpaka and the restricted stories associated with Wipa were all examples of facts or events which, at one stage, would have answered the requirement of connection with the claim area laid down by s 223(1)(b) of the NTA ([900]).

271 The principal findings that, on his Honour’s reasoning, were inimical to the appellants’ case, are as follows:

• While Peter De Rose was Nguraritja for the claim area and other appellants may have been Nguraritja for the claim area, all had abandoned any connection they may have had, mostly long ago ([599] (Peter De Rose)); ([620] (Riley Tjayrany)); ([637] (Whiskey Tjukanku)); ([657] (Witjawara Curtis)); ([681] (Peter Tjutatja)); ([699] (Tim De Rose)); ([735] (Mabel Pearson)); ([760] (Owen Kunmanara)); ([771] (Michael Mitakiki)); ([794] (Johnny Wimitja De Rose)); ([808] (Cissie Riley)); ([816] (Minnie Nyanu)); ([823] (Edie Angkaliya)); ([828] (Carlene Thompson)); ([848] (Lilly Yupuna Baker)); and ([857] (Jeannie Kampukuta Inpiti)).
• There were substantial gaps in the evidence of the Anangu witnesses about communal and social life and religious, social and ritualistic activities ([901]). There was not sufficient evidence that would point to the presence at any time of a social, communal or political organisation on or near the claim area ([901], [911]).
• While the Aboriginal witnesses had not lost their culture, the extent to which evidence was led on the continuance of traditional laws and customs was inadequate to reveal the necessary connection with the claim area ([903]). The evidence about the Tjukurpa and the songs, dances and ceremonies showed that these matters had not been forgotten, but they did not establish, as a matter of probability, that a particular individual still maintained a spiritual connection to the claim area ([904], [906]).
• Ongoing physical connection with the claim area, apart from occasional hunting, ceased in 1978 when Peter and Tim De Rose left because of Doug Fuller’s alleged delay in telling them of Bobby’s death. But cultural, traditional and social activities had ceased before then ([905], [906], [910], [911]).
• The Aboriginal witnesses had claimed that they were too frightened to return to De Rose Hill. But this claim was undercut because there was little evidence that during the period they were supposedly deprived of access to De Rose Hill they had visited sacred and secret sites on other parts of their country outside the boundaries of De Rose Hill ([907]). Accordingly, adherence to (as distinct from knowledge of) traditional laws and customs has eroded away ([907]).
• With the possible exception of Riley Tjayrany, the appellants had no concrete perception of their intended use of the claim area if they succeeded in the litigation ([908]). There had been a total failure to care for any of the sacred sites on the claim area ([908]).
• If the appellants had to demonstrate a continuous connection between the claimant community and the claim area from sovereignty to trial, they had failed to do so ([909]). If the test was whether the appellants had continued to acknowledge and observe traditional laws and customs and, if so, whether the laws and customs as so acknowledged and observed remained connected to the land, the appellants had failed to show that they continued to acknowledge and observe traditional laws and customs in connection with the claim area ([909]).
• Since 1978, the appellants have been scattered to the four winds. There was no evidence that they meet with each other. Thus there was no evidence that amounted to communal or group acknowledgement of traditional laws or group observance of customs ([910]).
• While a spiritual connection to land can support a native title claim, apart from the occasional hunting, no other physical or spiritual activity had taken place in the previous twenty years. Nor had there been for many years an Anangu community having a physical or spiritual connection with the claim area ([911]). Thus, there was a lack of connection between the appellants and the claim area; the appellants had lost their physical and spiritual connection in the claim area; and because of that loss there had been a breakdown in the acknowledgement and observance of traditional laws and customs ([911]).
• The evidence did not reveal anything like the cohesive society described in Milirrpum v Nabalco ([912]). Such a society constitutes a working example of the kind of communal or group rights and the degree of connection in the land that would establish native title ([912]).
• By reason of

(i) the physical departure of the last of the appellants from the claim area in 1978;
(ii) the fact that none of those who claim to be Nguraritja have since that time lived together as a cohesive group;
(iii) the failure of most appellants since leaving the claim area (apart from field trips to return); and
(iv) the failure by an appellant to care for any sacred site or perform any ceremony in the claim area,

the appellants could not prove that they retained a connection to the claim area by traditional laws and customs acknowledged and observed by them sufficient to satisfy s 223(1)(b) of the NTA ([913], [914]).

THE ISSUES

272 As we have seen, the appellants challenged a number of aspects of the primary Judge’s reasoning. Some of the challenges overlapped or were interrelated. We have identified the following issues:

(i) Did the primary Judge err in attributing importance to the absence of evidence of a cohesive community or group on or near the claim area?
(ii) Did the primary Judge err in concluding that the appellants had failed to prove the necessary connection to the claim area for the purposes of s 223(1)(b) of the NTA?
(iii) If the primary Judge erred, should the Court undertake its own evaluation of the evidence relating to the question of “connection”?
(iv) Should the judgment below be upheld on the ground that, on his Honour’s findings, the appellants failed to establish that they acknowledged traditional laws or observed traditional customs and accordingly did not satisfy s 223(1)(a) of the NTA?

The Need for a Cohesive Local Community or Group

273 The primary Judge emphasised the absence of evidence pointing to the presence, at least in recent times, of what he described (at [901]) as a social, communal or political organisation on or near the claim area or (at [913]) as a cohesive community or group. His Honour thought it important (at [911]) that there had not been for many years a group of Anangu who could properly be described as having, as a community, a physical or spiritual connection with the land. He contrasted the appellants’ case with the findings made by Blackburn J in Milirrpum v Nabalco concerning the social rules and customs of what were described in that case as the Rirratjingu, Gumatj and Djapu clans of north-eastern Arnhem Land.

274 The findings in Milirrpum v Nabalco were made in response to an argument that the proprietary rights claimed by the plaintiffs in that case could not be recognised because “in the aboriginal world there was nothing recognizable as law at all” and because the system claiming recognition was manifestly on the other side of the “unbridgeable gulf” to which reference had been made in Re Southern Rhodesia [1919] AC 211: see Milirrpum v Nabalco, at 263-266. Blackburn J’s finding (at 267) that there was a “subtle and elaborate system highly adapted to the country in which the people led their lives” provided a complete answer to that argument. He was not concerned to define the prerequisites for the existence of a normative system pre-dating sovereignty, the traditional laws and customs of which allowed for the possession of rights and interests in land: cf Yorta Yorta (HC), at 550 [38]. Nor was Blackburn J concerned with determining whether the interests and rights of the plaintiffs under traditional laws and customs were sufficiently connected with the area of Arnhem Land claimed by them.

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. 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.

280 Professor Maddock said this:

“Berndt stated that Western Desert culture forms

‘the largest cultural bloc in Australia. There are striking similarities throughout the area in terms of social organization, behavioural patterns, and ideology in general, despite many variations’ (1972:181).

Berndt was concerned on this occasion with the north and west of the bloc, but he emphasized that economic, domestic and religious activities exhibited

‘an essentially common core and [similarities] can easily be identified from one part of the region to another, sometimes hundreds of miles apart’ (pp. 181-2).

For example, Robert Tonkinson recorded songs at Jigalong in 1963 very like those Berndt obtained at Ooldea in 1940,

‘ a direct distance of some 750 miles, but much further if Aboriginal tracks are taken in [sic] account.’

The special features of Western Desert society are stressed also by more recent writers. For example, according to Annette Hamilton, names such as Pitjantjatjara and Yankunytjatjara denote

‘dialectical variants of a single language which is spread right across the south-central portion of Australia. This language, which is nameless to the Aborigines, has been called by various terms...across the Western Desert there is a general continuity of language and cultural forms, including religious and ceremonial life. But there are also differences, the most striking being the absence in the furthest eastern areas of the four section system, which has been diffusing across the desert rapidly’ (1979:64).

...

In the Lake Amadeus Land Claim, Maurice J, perhaps following the claimants’ anthropologists Annette Hamilton and Dan Vachon, stated that this bloc

‘is essentially composed of dialectal units, including speakers of Pintubi, Kukatja, Pitjantjatjara, Yankuntyjatjara and Matutjara. Theirs is a vast sweep of country, extending from the MacDonnell Ranges to the Nullarbor Plain and from Oodnadatta to Kalgoorlie’ (1989: para 76).

Among the unifying features of the people of this great area he noted:

1. Language;
2. Kinship of the Hawaiian type, in which generation levels are important and lines of descent not, and in which marriage prohibitions are stated in terms of degrees of individual relationship rather than of whole classes; and
3. Mythological linkages associated with ceremonial cycles (paras 77-8).

...

According to Hamilton and Vachon, there was a multiplicity of strategies for asserting a claim to land. The Land Commissioner quoted this passage (in his para 88):

‘From the viewpoint of any one individual, particular local areas of land, defined by the sites and tracks upon them, are considered to be his or her ngura by virtue of a number of criteria, including birth at the place, birth on a nearby place connected with the same ancestral traditions, as well as other criteria such as burial place of ancestors, conception place (in some areas), long residence in and knowledge of the ritual traditions of an area, and (in some places) birthplace of one’s children. These rights are all potentialities which must, to be fully realised, be asserted and confirmed by appropriate knowledge of the ritual traditions relating to the area. However, individuals do not forfeit these rights permanently unless they leave the area and show no further interest in it. Not until an individual dies without ever activating his/her links in the country could one say that that person’s rights have been extinguished’.” (Full citations omitted.)

281 This conclusion does not mean that the appellants were relieved from the obligation to prove that they had continued to acknowledge and observe the traditional laws and customs of the Western Desert Bloc and that they possessed rights and interests under those laws and customs. But the findings do mean that the appellants’ claim does not encounter the obstacle upon which the claim of the Yorta Yorta people foundered.

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.

The Question of Connection

284 As we understand the appellants’ submissions, they did not dispute that the primary Judge had correctly stated the principles governing the construction of s 223(1)(b) of the NTA. Rather, they contended that his Honour had applied those principles incorrectly, having regard to the findings we have summarised ([270]-[271] above). Accordingly, so they argued, his ultimate finding that the appellants had failed to prove the connection required by s 223(1)(b) of the NTA was flawed.

285 It is not an easy task to assess these submissions in a case where the primary Judge had to evaluate a very substantial body of evidence, both from Aboriginal witnesses and experts. In our view, the most convenient course is to consider the submissions, at least in the first instance, by reference to his Honour’s finding (at [599]) that Peter De Rose, the “dominant figure” in the presentation of the appellants’ case, had “abandoned his connection to the claim area long ago”. It seemed to be common ground on the appeal that if Peter De Rose could satisfy s 223(1) of the NTA, the basis for a determination of native title would be present even if the other appellants were unable to do so. While we recognise that this approach involves some repetition in describing his Honour’s findings and reasoning, it serves to expose the issues raised by the appellants’ submissions.

Peter De Rose: Evidence and Findings

286 The primary Judge did not accept all of Peter De Rose’s evidence. But his Honour did accept much of Peter’s evidence and cast no doubt on other aspects of his testimony. The following account reflects evidence either accepted or not doubted by the primary Judge.

287 Peter De Rose, like most of the Aboriginal witnesses, gave evidence through an interpreter. He spoke both Pitjantjatjara (the dialect of his mother) and Yankunytjatjara (the dialect of his stepfather, Snowy De Rose), although he was more inclined towards the former. Peter’s Aboriginal name was Wapala. The name means “white man” and indicates that Peter De Rose’s biological father was probably European. Some Anangu people still referred to him by that name.

288 Peter’s mother, Katjiwala, was a Pitjantjatjara woman, who had grown up at Kantja (on De Rose Hill) and Witjintitja (Granite Downs). Peter believed that his stepfather, Snowy, was a Yankunytjatjara man whose “cord dropped off De Rose Hill way”. Peter identified three sites in the north-eastern section of De Rose Hill as the area where Snowy had told him that the event had recurred. For these reasons, Peter considered Snowy, who was born at Lambina, a station to the east of De Rose Hill, to be Nguraritja for the De Rose Hill area. He also believed that the De Rose Hill area was the country of Snowy’s father (Jimmy Piti Piti) and grandfather. The primary Judge appeared to accept that Jimmy Piti Piti had moved east, perhaps as long as 100 years ago in a pre-contact migration. The primary Judge cast no doubt on the genuineness or accuracy of Peter’s beliefs on these matters.

289 Peter was born in about 1949. At that time his mother, Katjiwala, and his stepfather, Snowy, were working on De Rose Hill. Peter believed, and the primary Judge accepted, that he had been born under an ironwood tree on the track of the Kalaya Tjukurpa. For that reason, the Kalaya Tjukurpa had become his Tjukurpa.

290 Both Peter and his mother were “put in the smoke”, in accordance with tradition, at a spot to the north of the ironwood tree where he had been born. Peter was reluctant to expand on the practice of “smoking” because (he said) the Aboriginal women would not want him to talk about it. The primary Judge did not suggest that Peter’s reluctance reflected anything other than a genuine cultural belief.

291 As a young child, Peter lived with his family in a wiltja or “humpy”. Katjiwala worked at the homestead on De Rose Hill and Snowy worked on the Station. Peter’s younger sister, Lorna, was born on De Rose Hill in about 1954. In those years, there was a small camp of Aboriginals on the Station, all of whom lived in wiltja. They included both Pitjantjatjara and Yankunytjatjara people. The food in the Anangu camp included damper, kangaroo meat and goanna, as well as bush tucker. The men mostly hunted with spears and spear throwers, although a few had rifles.

292 As a small boy, aged between five and seven, Peter lived in the young men’s camp at De Rose Hill, which was separate from the main camp. A few years later, because Snowy had an argument with Doug Fuller, the family moved to Finke. Peter stayed there for eighteen months and received some schooling. He left Finke in about 1959 to join his parents at Mount Cavenagh. Shortly after, the family returned to De Rose Hill to live.

293 Peter said that before leaving for Finke, his family would go on holidays and visit sites within the claim area. Snowy taught him stories about different sacred and secret places that were only for men. He also learned the signs for water, where to hunt and where to collect bush tucker.

294 When Peter was a tjiranka (a child of either sex in early teenage years) he started helping in the stock camps. Later he worked with horses and cattle. He was taught about different places and was also shown where the soakages and rock-holes were. At this time, he went out hunting the malu (kangaroo) with the men and was introduced to the intricacies of the hunt. Owen Kunmanara, the head stockman, had taught him a little about the Tjukurpa. When Peter was still a boy of 14 or 15, a kungkatja (little beard), he became a nyiinka (a bush boy) in a kipara (wild turkey) ceremony. Subsequently, he was taken by an ulpuru (a special boy, a messenger who travels with others to call people from various locations to attend the man-making ceremonies) to a ceremony at Areyonga where he was made a man (a Wati Pukuti). As a man, Peter went with Owen and another man to Ilpaka, on De Rose Hill, where he was told about the Tjukurpa for the site. He had learned other stories from some of the elders. Subsequently, he became a Wati Katarara which was the stage prior to the final stage in the life of a male Anangu, namely - that of Tjilpi (old men). Tjilpi hold ultimate responsibility for passing on the sacred stories they have learnt in their lifetime and are treated with respect and as having considerable authority.

295 Peter became head stockman himself at De Rose Hill in about 1970, when he was about 21. He said that he would still visit Dreaming tracks out of working hours. The primary Judge observed that that claim contradicted other evidence by Peter that he would have been at risk of being sacked if he had taken time to attend the sites, but his Honour did not resolve the conflict. At about this time Snowy, who was living at Mount Cavenagh or Indulkana, visited De Rose Hill Station because it was “his country”. On those occasions Snowy would also hunt.

296 Work was not always constant at De Rose Hill Station. When he was laid off, Peter would live at Yuta, on the Station, and visit other sites to obtain wood for spears or gather mingkulpa (wild tobacco).

297 Peter De Rose left De Rose Hill in 1978, shortly after the death of his half brother Bobby. As we have explained, his Honour found that Peter “may have well thought, albeit incorrectly, that there had been some delay on Doug’s part” in telling him of Bobby’s death. His Honour also expressed the view that if the Aboriginal people left De Rose Hill for an unreasonable or illogical reason, they could not turn their lack of reasonableness to their advantage.

298 After Peter left De Rose Hill he worked as a builder’s labourer. About ten years later he was involved in establishing a homeland at Railway Bore, on AP Lands, a few kilometres to the south of De Rose Hill. This was Peter’s idea because he wanted a homeland close to De Rose Hill country. He stayed there for six years, from 1990 until 1996, until forced to leave because the quality of water was poor. During this time, he worked with young Aboriginal people from Indulkana who had a problem with petrol sniffing. Of course, by 1996, the claim for a determination of native title had already been lodged.

299 After he left De Rose Hill Station in 1978, Peter De Rose returned from time to time in order to hunt. He did not look after any sites on the Station. Peter explained his failure to visit the Station more often, or to camp there, as a consequence of his fear of Doug and Rex Fuller. The primary Judge noted that there was some difficulty reconciling this claim with his written statement that he had returned to the Station after Bobby’s death to visit Doug. His Honour did not, however, make a finding that Peter’s explanation was untrue. Rather, he found that Peter did not have any reason to be afraid to enter the property to hunt or to carry on traditional activities.

300 Peter De Rose also said that while at Railway Bore he became uneasy about visiting De Rose Hill Station because he was worried he might frighten the cattle. His Honour thought that this was a “paltry excuse”.

301 Peter claimed that, as Nguraritja, he had responsibilities for his country. He also had an obligation to teach appropriate people about the places on De Rose Hill. While his Honour accepted Peter’s claim to be Nguraritja for a watercourse on the claim area, he found that Peter had given little detail as to how he performed his duties, nor had he identified anyone who had benefited from his teaching.

302 However, it is important to note that Peter De Rose gave evidence as to the main Tjukurpa for his country and as to the role and responsibilities of Nguraritja. Thus Peter identified his own Tjukurpa, the Kalaya Tjukurpa, and four other Dreaming tracks: the Malu, Kanyala and Tjurki Tjukurpa; the Pakalira Tjukurpa; the Papa Itari Tjukurpa; and the Seven Sisters Tjukurpa. Peter De Rose gave detailed evidence in relation to the Kalaya Tjukurpa and the Malu, Kangyala and Tjurki Tjukurpa and Papa Itari Tjukurpa, the substance of which appears to have been accepted by his Honour as accurate. Peter De Rose said that he was unable to discuss the Pakalira Tjukurpa in mixed company because it was of great significance and secret to men, while the fifth Tjukurpa he regarded as only for women. The primary Judge cast no doubt on the genuineness of Peter’s reluctance to discuss the Pakalira Tjukurpa.

Was the Correct Question Asked?

303 The finding made by the primary Judge that Peter De Rose 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.

304 We have referred to the guidance given by the High Court to the construction of s 223(1) of the NTA (see [156]-[177] above). The following propositions, derived from the joint judgment in Ward (HC), at 16 [17], 17 [18], 32 [64], are particularly relevant for present purposes:

• the rights and interests claimed in relation to land must have the three characteristics specified in s 223(1)(a), (b) and (c);
• s 223(1)(a) presents a question of fact, which requires identification of the traditional laws and customs and identification of the rights and interests in relation to land possessed under those laws and customs;
• s 223(1)(b) also requires identification of the traditional laws and customs and, in addition:

“the characterisation of the effect of those laws and customs as constituting a ‘connection’ of the peoples with the land or waters in question”;

• the inquiries required by pars (a) and (b) of s 223(1) may well depend upon the same evidence, but there are two inquiries required by the definition:

“in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs”;

• the absence of evidence of recent use of land or waters does not require the conclusion that there can be no relevant connection; this will depend on the content of traditional laws and customs and what is meant by “connection” by those laws and customs; and
• so far as the High Court is concerned, no final view has been expressed as to whether a purely “spiritual connection” with land will suffice to satisfy s 223(1)(b) of the NTA.

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. 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 left the Station because (as his Honour found) they genuinely believed, albeit erroneously, that Doug Fuller deliberately delayed telling them about Bobby’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.

327 We should make a final point about his Honour’s reasoning on the question of connection. At various points in the judgment, his Honour appears to suggest that the appellants faced a choice between traditional Aboriginal values and European values and that they chose the latter (for example at [107], [681], [896], [902]). Consistently with this approach, his Honour identified (at [896]) two main reasons why the Aboriginal people left De Rose Hill Station, both of which were said to “deny the presence of a continuing native title connection with the claim area”. The first reason was the opening of the community centre at Indulkana in 1968; the second was that the opportunities for work, particularly for Aboriginal stockmen, dried up.

328 The primary Judge thought that the movement of Aboriginal people away from De Rose Hill was

“not associated with their Aboriginal lifestyle, traditions or customs; it was governed by aspects of European social and work practices”.

While this may be true, it is not apparent why the appellants’ reasons for leaving the Station necessarily denies “the presence of a continuing native title connection with the claim area”. Movement from traditional lands in search of regular food or shelter, as the evidence in this case shows, is not a new phenomenon or one unknown to traditional laws and customs of the Western Desert Bloc. Depending on the circumstances, it may well be possible for Aboriginal people, by their traditional laws and customs, to maintain a connection with land notwithstanding that they ceased to reside there because of the influence of “European social and work practices”.

329 The upshot is that, in our view, the primary Judge did not address the correct question posed by s 223(1)(b) of the NTA. His finding that Peter De Rose failed to satisfy s 223(1)(b) is therefore flawed. We think that the findings relating to the other appellants, even though their circumstances were each different, were also flawed for the same reason.

Should We Make a Finding as to “Connection”?

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.

331 Of course, if the evidence was such that on no view could any of the appellants satisfy s 223(1)(b) of the NTA, the ultimate findings of the primary Judge could be upheld notwithstanding the flaw we have identified in his Honour’s reasoning. We have referred earlier to the evidence relating to Peter De Rose’s connections with the claim area. Depending on the content of the traditional laws and customs of the Western Desert Bloc, the evidence may well be sufficient for a Court to conclude that Peter De Rose has satisfied s 223(1)(b) of the NTA. While we cannot say that that result is assured, we equally cannot say that his claim is bound to fail. The other appellants may or may not be in the same position, but there is little point in analysing their individual circumstances in depth if further consideration has to be given to Peter De Rose’s claim.

Acknowledgement and Observance of Traditional Laws and Customs: NTA, s 223(1)(a)

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 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.

THE EXTINGUISHMENT ARGUMENT

342 We have referred (at [11]) above) to the Fullers’ contention that if the appellants established that they were otherwise entitled to a determination of native title, that title had been extinguished by the combined operation of the NTA, the NTA (SA) and the Pastoral Act 1989. As we have seen, the primary Judge rejected the contention. On the appeal, the State did not support the Fullers’ challenge to the primary Judge’s holding and indeed argued against it. The appellants sought to uphold his Honour’s reasoning and conclusion.

THE FULLERS’ CONTENTIONS

343 It will be necessary to return in more detail to the argument advanced by the Fullers. It is enough at this stage to note their challenge to the primary Judge’s holding hinges on the effect of transitional provisions contained in Div 3 of the Schedule to the Pastoral Act 1989. Clause 5 of Div 3 is as follows:

“5(1) Subject to clause 6, a lease in force under the repealed Act immediately prior to the commencement of this Act becomes, on that commencement, and continues in force as, a pastoral lease under this Act with a term of 42 years running from that commencement.

(2) The conditions (including covenants) and reservations of such a lease are not affected by its conversion to a pastoral lease pursuant to subclause (1), with the following exceptions:

(a) rent is payable in accordance with this Act;
(b) no species of animal other than sheep or beef cattle can be pastured on the land as part of the commercial enterprise under the lease without the prior approval of the Board;
(c) the reservations relating to aboriginal persons and access to the land will be taken to have been revoked.

(3) Despite sections 25 and 26 of the Act –

(a) the question of the first extension of the term of a pastoral lease to which this clause applies and the variation (if at all) of its land management conditions must be dealt with, in accordance with those sections, no later than 31 December 2000;

and

(b) any such extension must be for such period as will bring the balance of the term of the lease to 42 years.”

344 Clause 6 is not material for present purposes. The revocation of the reservations relating to Aboriginal persons affected by cl 5(2)(c) must be read with s 47 of the Pastoral Act 1989, the terms of which have been reproduced earlier ([34] above).

345 It should be noted that cl 5(1) of Div 3 of the Schedule was originally numbered cl 4. This was apparently an error, which was corrected by the Pastoral Land Management and Conservation (Board Procedures, Rent, etc) Amendment Act 1998 (SA), s 8, Sch. We have adopted the revised numbering, as did the primary Judge. The amending Act also substituted the word “Despite” for “Notwithstanding” in cl 5(3), and “31 December 2000” for “eight years after the commencement of this Act”.

346 The Fullers argued that the effect of cl 5, in substance if not in form, was to grant a new statutory lease in place of each of the three pastoral leases over De Rose Hill Station that were in force at the commencement of the Pastoral Act 1989 (7 March 1990). According to Mr Whitington, cl 5 operated in each instance as the “grant of a pastoral lease”. That being so, the effect of s 33 of the NTA (SA), so the argument ran, was to extinguish any native title that otherwise may have existed over the claim area. Section 33 provides that a “category A past act” extinguishes the native title concerned. The Fullers’ contention was that cl 5 of the Pastoral Act 1989, insofar as it granted a lease, was a “category A past act” and thus attracted the extinguishing effect of s 33 of the NTA (SA).

347 In order to understand this contention it is necessary to follow the complex interlocking provisions of the NTA and the NTA (SA). The relevant provisions include some inserted into the NTA by the NTAA 1998 and some inserted into the NTA (SA) by the Native Title (South Australia) (Validation and Confirmation) Act 2000 (SA). We turn to the legislative scheme.

THE LEGISLATIVE SCHEME

General

348 As the High Court explained in Ward (HC), at 13-14 [5]-[6], the NTA contains provisions in Part 2, Div 2 which provide for the validation, by Div 2 itself (s 14) and corresponding provisions in State and Territory laws, of certain “past acts” attributable to the Commonwealth, a State or Territory. The past acts which are validated are those which, were it not for the NTA, would otherwise be invalid to any extent, in particular by the operation of the RDA.

349 Division 2 of Part 2 of the NTA provides not only for validation of “past acts” by s 14 and corresponding State and Territory laws, but also for the extinguishment, wholly or partly, of native title by particular categories of “past acts”. This is achieved by s 15 of the NTA and corresponding State and Territory laws. When the past act is the grant of a lease, including a pastoral lease, Div 2 applies if the grant was made before 1 January 1994 and the lease was in force on that date. The Fullers rely on Div 2 of Part 2 of the NTA as authorising the South Australian Parliament to enact laws extinguishing any native title rights and interests the appellants otherwise would have had.

350 The object of Div 2B of Part 2 of the NTA, which was introduced by the NTAA 1998, is to confirm past extinguishment of native title by certain acts which were valid when done or which were validated by the NTA, including by s 14 of Part 2 Div 2 and State and Territory analogues: NTA, s 4(6); Ward (HC), at 14 [8]. An example of an act valid when done is the grant of a pastoral lease that predated the enactment of the RDA in 1975.

351 The scheme of Div 2B of Part 2 of the NTA was summarised in the joint judgment of Gaudron, Gummow and Hayne JJ in Wilson v Anderson (2002) 190 ALR 313; [2002] HCA 29, at 326 [48]), as follows:

“The Division provides for the characterisation of certain ‘acts’ as either ‘previous exclusive possession acts’ or ‘previous non-exclusive possession acts’. That characterisation then has consequences respecting extinguishment of native title. By force of s 23C, a ‘previous exclusive possession act’ completely extinguishes all native title in relation to land (or waters) covered by that ‘act’. Section 23G, on the other hand, applies to ‘previous non-exclusive possession acts’ and, in broad terms, provides for the partial extinguishment of native title. It should be emphasised that, whilst the expressions ‘previous exclusive possession act’ and ‘previous non-exclusive possession act’ are defined so as to apply to Commonwealth, state and territory ‘acts’, ss 23C and 23G only have effect in respect of ‘acts’ attributable to the Commonwealth. Provision is then made for states and territories to legislate, subject to satisfaction of certain conditions, to the same effect as ss 23C and 23G in respect of all or any previous exclusive or non-exclusive possession acts attributable to the state or territory in question: ss 23E and 23I.”

352 With this introduction in mind, we turn to the relevant provisions of the Commonwealth and State legislation.

The NTA Provisions

353 Section 4 of the NTA, as amended by the NTAA 1998, provides an “Overview of Act”. Section 4(3) states that there are basically two kinds of acts affecting native title:

“(a) past acts (mainly acts done before the Act’s commencement on 1 January 1994 that were invalid because of native title); and
(b) future acts ...”.

For past acts, the NTA deals with their validity, their effect on native title and compensation for the acts: NTA, s 4(4).

354 Section 4(6) of the NTA provides as follows:

“This Act also confirms that many acts done before the High Court’s judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non-exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.” (Emphasis in original.)

355 Section 10 of the NTA provides that native title is recognised and protected in accordance with the Act. Native title cannot be extinguished contrary to the Act: NTA, s 11.

356 Section 14(1) of the NTA (which is in Div 2 of Part 2) provides as follows:

“If a past act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid.”

The expression “valid” includes “having full force and effect”: NTA, s 253. An act is attributable to the Commonwealth or a State, as the case may be, if the act is done by the Crown in right of the Commonwealth, State or Territory; by the Parliament of the Commonwealth, State or Territory; or by any person under a law of the Commonwealth, State or Territory: NTA, s 239.

357 Section 15(1) of the NTA also relates to a past act attributable to the Commonwealth. Subject to a presently immaterial exception, s 15(1)(a) provides that if the past act is a “category A past act”, the act “extinguishes the native title concerned”.

358 Of course, neither the grant of leases over the claim area nor the enactment of the Pastoral Act 1989 were acts attributable to the Commonwealth. Each act was attributable to the State. Accordingly, neither s 14 nor s 15 has any direct application to the grant of the leases or to the enactment of cl 5 of the Schedule to the Pastoral Act 1989. However, s 19 of the NTA provides for the validation of past acts attributable to a State or Territory:

“(1) If a law of a State or Territory contains provisions to the same effect as sections 15 and 16, the law of the State or Territory may provide that past acts attributable to the State or Territory are valid, and are taken always to have been valid.

Effect of validation of law
(2) To avoid any doubt, if a past act validated by subsection (1) is the making, amendment or repeal of legislation, subsection (1) does not validate:

(a) the grant or issue of any lease, licence, permit or authority; or
(b) the creation of any interest in relation to land or waters;

under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the State or Territory.”

359 The word “act” in relation to native title is defined to include, inter alia, the making or amendment of any legislation, the creation of any interest in relation to land or an act having any effect at common law or in equity: NTA, s 226(2). Section 228(2) of the NTA defines “past act” to include the following:

“Subject to subsection (10) [which is presently immaterial] if:
(a) either

(i)	at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or
(ii)	at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and

(b) apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist;

the act is a past act in relation to the land or waters.” (Emphasis in original.)

360 The qualification contained in s 228(2)(b) of the NTA is important. An act, including the making of legislation, is a “past act” only if, apart from the NTA itself, the act was invalid to any extent, but would have been valid to that extent if the native title did not exist. If native title existed over any part of the claim area, any lease granted over that area on or after 31 October 1975 (the date the RDA commenced) and before 1 January 1994, might have been invalid by reason of the operation of the RDA. If so, the grant of that lease would have been a “past act” in relation to the claim area and, if the act was attributable to the State, could be validated by State legislation enacted pursuant to s 19 of the NTA. But a lease granted over the claim area before 31 October 1975 could not have been invalid by reason of the operation of the RDA. The granting of such a lease could not have been a “past act” capable of being validated by State legislation enacted pursuant to s 19 of the NTA.

361 Section 229 of the NTA defines “category A past act”. The definition includes a past act consisting of the grant of a pastoral lease (subject to immaterial exceptions), where the grant was made before 1 January 1994 and the lease was in force on 1 January 1994: NTA, s 229(3).

362 A “pastoral lease” is a lease that permits the lessee to use the land covered by the lease solely or primarily for maintaining or breeding sheep, cattle or other animals or for any other pastoral purpose: s 248. There is no dispute that the leases granted over De Rose Hill Station prior to the enactment of the Pastoral Act 1989 were all “pastoral leases” within the meaning of the NTA.

363 The leases over each part of the claim area were granted before 31 October 1975 (in the cases of both Agnes Creek and Paxton Bluff North, in 1932 and 1953, while in the case of Paxton Bluff South, 1940 and February 1975). It follows, and this was common ground, that none of the grants of these leases was a “past act” within the meaning of s 228 of the NTA.

364 Section 23A of the NTA provides an overview of Div 2B of Part 2 of the NTA:

“(1) In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title.

(2) If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.

(3) If the acts were previous non-exclusive possession acts (involving grants of non-exclusive agricultural lease or non-exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency.

(4) This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts.” (Emphasis in original.)

365 A “previous exclusive possession act” includes an act that is valid (including one valid because of Div 2 of Part 2), that took place on or before 23 December 1996 and consisted of the grant or vesting of “an exclusive pastoral lease”: NTA, s 23B(2). An “exclusive pastoral lease” includes a pastoral lease that confers a right of exclusive possession over the land covered by the lease: NTA, s 248A(a).

366 If an act is a previous exclusive possession act and is attributable to the Commonwealth, the act extinguishes any native title in relation to the land covered by the lease and the extinguishment is taken to have happened when the act was done, subject to the preservation of reservations or conditions for the benefit of Aboriginal peoples: NTA, ss 23C(1), 23D. If a law of a State provides for the preservation of such reservations or conditions, it may make provision to the same effect as s 23C in respect of previous exclusive possession acts: NTA, s 23E.

367 A “previous non-exclusive possession act” is an act that is valid (including by Div 2 of Part 2), that took place on or before 23 December 1996 and consisted of the grant of a non-exclusive pastoral lease: NTA, s 23F(2). A “non-exclusive pastoral lease” is a pastoral lease that is not an exclusive pastoral lease: NTA, s 248B.

368 Section 23G(1) of the NTA provides that subject to subsection (2) (which excludes the application of the section to a pastoral lease to which s 15(1)(a) applies):

“if a previous non-exclusive possession act (see section 23F) is attributable to the Commonwealth:

(a) to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them; and
(b) to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned:

(a)	if, apart from this Act, the act extinguishes the native title rights and interests – the native title rights and interests are extinguished; and
(b)	in any other case – the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re-made, re-granted or extended, is in force; and

(5) any extinguishment under this subjection is taken to have happened when the act was done.”

Nothing in s 23G affects any reservation or condition for the benefit of Aboriginal peoples contained in a previous non-exclusive possession act attributable to the Commonwealth: NTA, s 23H.

369 If a law of a State contains provisions to the same effect as s 23H, the law of the State may make provision to the same effect as s 23G in respect of all or any previous non-exclusive possession acts attributable to the State: NTA, s 23I.

The Racial Discrimination Act

370 As will be seen, one question that may arise on the extinguishment issue is whether cl 5 of the Schedule to the Pastoral Act 1989 was invalid when enacted by reason of the RDA. Section 10(1) of the RDA provides as follows:

“If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.”

The NTA (SA) Act

371 Part 6 of the NTA (SA) is headed “Validation and the Effect of Certain Acts”. In Part 6, unless the contrary intention appears, a word or expression used in the NTA has the same meaning as it has in the NTA: NTA (SA), s 31(2).

372 Section 32 of the NTA (SA) provides that “[e]very past act attributable to the State is valid and is taken always to have been valid”.

373 Division 3 of Part 6 provides that certain past acts extinguish native title. The critical provisions are these:

“32C(1) This Division does not apply to a previous exclusive possession act.

(2) This Division does not apply to a previous non-exclusive possession act unless the act is a category A past act consisting of the grant of a pastoral lease or an agricultural lease.

33 A category A past act...extinguishes the native title concerned.”

374 Division 5 of Part 6 deals with previous exclusive and non-exclusive possession acts. Section 36F relevantly provides as follows:

“36F(1) A previous exclusive possession act (apart from an excepted act) attributable to the State extinguishes native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned.

(2) The extinguishment is taken to have happened when the act was done.”

An “excepted act” is defined by s 36F(4) to include:

“(c) a previous exclusive possession act that was subject to a reservation or connection expressly for the benefit of Aboriginal people”.

375 Section 36I of the NTA (SA) addresses the effect of previous non-exclusive possession acts attributable to the State. It provides as follows:

“(1) Subject to subsection (2), if a previous non-exclusive possession act is attributable to the State –

(a) to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them; and
(b) to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned –

(a)	if, apart from this Act, the act extinguishes the native title rights and interests – the native title rights and interests are extinguished; and
(b)	in any other case – the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re-made, re-granted or extended, is in force; and

(c) any extinguishment under this subsection is taken to have happened when the act was done.

(2) This section does not apply to a previous non-exclusive possession act that is a category A past act consisting of the grant of a pastoral lease or an agricultural lease.”

THE SUBMISSIONS

376 Subject to one qualification, to which we refer later, the Fullers did not rely on Div 5 of Part 6 of the NTA (SA). This appears to be because they accepted, both before the primary Judge and on appeal, that all leases over De Rose Hill Station, including any lease that may have come into force by virtue of cl 5 of the Schedule to the Pastoral Act 1989, were “non-exclusive pastoral leases” within s 248B of the NTA. On that basis, it would follow that neither the leases over De Rose Hill Station nor the enactment of cl 5 could have constituted a “previous exclusive possession act” within s 23B of the NTA. Accordingly, the Fullers could not rely on s 36F of the NTA (SA). (In any event, even if each lease could be regarded as a “previous exclusive possession act”, it would seem to fall within the definition of “excepted act” in s 36F(4)(c) of the NTA (SA). This is so because each lease contained a reservation in favour of Aboriginal people.)

377 The Fullers’ submission rested on s 33 of the NTA (SA). Mr Whitington’s reasoning in support of the submission was as follows:

(i)	cl 5 was an act which occurred before 1 July 1993 when (by hypothesis) native title existed in relation to the claim area (NTA, s 228(2)(a)(i));
(ii)	cl 5 was an act consisting of the making of legislation – that is, the enactment of the Pastoral Act 1989 (NTA, s 228(2)(a)(ii));
(iii)	apart from the NTA, cl 5 would have been invalid insofar as it granted a fresh lease over the claim area because of the operation of s 10(1) of the RDA (NTA, s 228(2)(b));
(iv)	cl 5 would not have been invalid to that extent if the native title did not exist in relation to the claim area (NTA, s 228(2)(b));
(v)	by reason of (i)-(iv), cl 5 was a “past act” within the NTA, s 228;
(vi)	cl 5 was a past act attributable to the State (NTA, s 239);
(vii)	by reason of (vi), cl 5 is valid and is taken always to have been valid (NTA (SA), s 32);
(viii)	cl 5 was a past act consisting of the grant of a pastoral lease (NTA, ss 229(3)(a), 248);
(ix)	the grant was made before 1 January 1994 (that is, it was made on 7 March 1990) and the lease so granted was in force on 1 January 1994 (NTA, s 229(3)(c));
(x)	by reason of (viii) and (ix), cl 5 was a “category A past act” within the NTA, s 229;
(xi)	cl 5 was valid (or validated) because of the operation of Div 2 of Part 2 of the NTA (NTA ss 23F(2)(a), 19 (authorising the validation by State law of past acts attributable to a State), NTA (SA), s 32);
(xii)	the act consisting of the enactment of cl 5 by the South Australian Parliament took place before 23 December 1996 (NTA s 23F(2)(b));
(xiii)	the act consisted of the grant of a non-exclusive pastoral lease (NTA, ss 23F(2)(c), 248B);
(xiv)	by reason of (xi)-(xiii), the enactment of cl 5 constituted a “previous non-exclusive possession act” within the meaning of NTA, s 23F.
(xv)	Part 6, Div 3 of the NTA (SA) applies to the enactment of cl 5 because it was a “category A past act consisting of the grant of a pastoral lease” (NTA (SA), s 32C(2));
(xvi)	since cl 5 was a category A past act, it extinguished any native title over the claim area (NTA (SA), s 33).

378 The Fullers did not contend that the pastoral leases granted in respect of the claim area prior to the coming into force of the Pastoral Act 1989 extinguished native title by reason of s 33 of the NTA (SA). Presumably they took the view that the leases could not be “category A past acts” because each lease was, at the time of the grant, a valid pastoral lease and thus did not satisfy the definition of “past act”: see NTA s 228(2)(b).

379 The Fullers, in their written submissions, argued that cl 5 of the Schedule to the Pastoral Act 1989:

“had the effect of granting new and materially different statutory leases to pastoralists in South Australia. The new Act provided significantly greater security of tenure for pastoralists by making provision for leases to be automatically extended (subject only to a limited discretion in the Pastoral Board not to extend in certain circumstances) by a period of 14 years at the expiration of each 14 year period of the term”.

380 Mr Whitington acknowledged that cl 5(1) provides that a lease in force under the repealed Act “continues in force” as a pastoral lease and that cl 5(2) refers to the “conversion” of the lease. Nonetheless, he submitted that cl 5 effected, in substance, a termination of the old lease and a grant of a new non-exclusive pastoral lease under the Pastoral Act 1989. Mr Whitington contended that this construction of cl 5 was consistent with the ordinary principle that the renewal of a lease constitutes a fresh grant of a lease. Section 33 of the NTA (SA) was to be construed as including a legislative “grant” of a lease, as well as a grant by administrative or private action.

381 Mr Whitington also acknowledged that the Fullers had to show that, apart from the NTA, cl 5, insofar as it operated to grant a new lease over the claim area, was invalid by reason of the inconsistency with the RDA: NTA, ss 228(2)(b), 229(3); NTA (SA), s 32C(2). He submitted that cl 5 was inconsistent with s 10(1) of the RDA, because it impaired the enjoyment of the rights of native title holders by extending the term of each lease. The leases created by cl 5 prevented the native title holders from enjoying rights enjoyed by persons of another race or ethnic origin because the leases could not have been created over Crown land already subject to proprietary interests vested in third parties under the general law. Clause 5 had the effect of curtailing the enjoyment and exercise of any surviving native title rights for an extended and indeterminate period without prior notice or compensation. It thus fell foul of s 10(1) of the RDA. The combined effect of s 10(1) of the RDA and s 109 of the Constitution was to invalidate cl 5 and the statutory leases created thereunder.

382 Mr Whitington supported his argument by reference to the legislative history of the NTA. He pointed out that one of the objects of the NTA, from the outset, was to provide for the validation of past acts invalidated because of the existence of native title: NTA, s 3(d). He also pointed out that the NTA, in its original form, was drafted on the assumption, stated in the preamble, that

“[t]he High Court has:
...

(c) held that native title is extinguished by valid governmental acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates”. (Emphasis added.)

That assumption was held in Wik, to “[read] too much into the judgments in Mabo [No 2] so far as the reference to leasehold estates is concerned”: at 125, per Toohey J.

383 According to the Fullers, the scheme of Div 2 of Part 2 of the NTA, in its original form, was to validate pastoral leases granted after the coming into force of the RDA in 1975. Prior to Wik, there was no need, so it was thought, to address pre-1975 pastoral leases because these were assumed to have extinguished native title. The statutory object was to place post-1975 pastoral leases in the same position as was thought to apply to pre-1975 pastoral leases.

384 While the NTAA 1998 amendments had introduced new concepts into the NTA, by the enactment of Div 2B of Part 2, the original scheme of statutory extinguishment was preserved: see NTA, s 23G(2) (providing that s 23G(1) does not apply if the previous non-exclusive possession act in the grant of a pastoral lease to which s 15(1)(a) applies). In essence, the NTA was designed to provide certainty to pastoralists whose leases were created between 1975 and 1993. This explained why it was possible to have a pre-RDA non-exclusive pastoral lease which did not extinguish native title, but a post-RDA non-exclusive pastoral lease which did.

385 The appellants submitted that cl 5 did not have the effect of creating a new lease for two principal reasons:

• the conclusion was inconsistent with the statutory language; and
• since pastoral leases were registrable instruments, it is unlikely that the Pastoral Act 1989 would have provided for fresh leases without making express provision for fresh instruments and their registration.

In any event, if the effect of the Pastoral Act 1989 was as the Fullers had asserted, the appellants’ native title rights and interests had been converted into rights protected by s 47(1) of that Act and thus constituted native title rights and interests by virtue of s 223(3) of the NTA.

386 The State essentially supported the appellants’ submissions. However, the Solicitor-General effectively turned one of the Fullers’ arguments on its head. He submitted that the reason the NTA and NTA (SA) had specifically addressed grants of leases (rather than renewals or extensions of existing leases) was that Parliament had assumed that pastoral leases granted before the enactment of the RDA had already extinguished any native title rights and interests.

387 The Solicitor-General further argued that even if cl 5 of the Schedule to the Pastoral Land Act 1989 effected the grant of a new lease, it was not inconsistent with s 10(1) of the RDA so as to invalidate the leases over the claim area. The State’s written submissions put the argument this way:

“There is no necessary invalidity in respect of post-RDA actions of the Crown. The precise operation and effect of any legislative or executive act upon native title rights and interests must be ascertained: [Ward (HC), at 46 [114]].

In each case previous grants of pastoral leases had extinguished at common law those native title rights and interests that might otherwise have been affected by the operation of the [Pastoral Act 1989]. That is to say, the extension of the terms of the pastoral leases did not give rise to any additional impact on native title, beyond that effected by the previous grants of pastoral leases over the land. Nor did the revocation of the reservations in the leases relating to Aboriginal persons and access to land impact upon the enjoyment of native title rights and interests, those reservations being replaced by statutory rights now contained in s 47 of the [Pastoral Act 1989].

In those circumstances, no invalidity because of the existence of native title arises out of the operation of the transitional provisions of the [Pastoral Act 1989]. [T]he ‘past act’ provisions of the NTA and the NTA (SA) Act are not engaged [since to come within the definition of ‘past act’ the act must be invalid due to the existence of native title: see s 228(2)(b).]”

REASONING

388 The threshold question is whether cl 5 of the Schedule to the Pastoral Act 1989 effected “the grant of a pastoral lease” within the meaning of s 32C(2) of the NTA (SA) and of the definition of “category A past act” in s 229(3) of the NTA. We have previously set out the terms of cl 5 (see [343] above).

389 As the joint judgment in Ward (HC) observed (at 55 [150]), the term “grant” is derived from old system conveyancing. If the question of whether cl 5 effected the grant of a pastoral lease turned exclusively on general law principles, the Fullers’ contention might have some force. However, for reasons explained later, the question does not turn on these principles.

390 The relationship of landlord and tenant under the general law may be created in a variety of ways. One way is an express grant by demise:

“the distinguishing feature of which is that the lessor, by suitable operative words, thereby grants and conveys to the lessee a leasehold estate in the land”.

Woodfall’s Law of Landlord and Tenant (1978 -), vol 1, at [1.006]. In Chelsea Investments Pty Ltd v Federal Commissioner of Taxation [1966] HCA 15; (1966) 115 CLR 1, Windeyer J observed (at 8) that a

“lease strictly means a species of conveyance, the grant of a right to the exclusive possession of land for a term less than that which the grantor has.”

See, too, Radaich v Smith [1959] HCA 45; (1959) 101 CLR 209, at 222, per Windeyer J.

391 Ordinarily, the concept of a “grant”, in the context of leases, refers to the creation of a new or fresh leasehold estate. In Trade Practices Commission v Tooth & Co Ltd [1979] HCA 47; (1979) 142 CLR 397, the High Court was concerned with a definition of “exclusive dealing” as a “refusal to grant or renew a lease” for a particular reason. Gibbs J said (at 406) that the:

“distinction drawn between the grant and the renewal of a lease suggests that ‘grant’ is intended to refer to a case in which no lease is in existence and ‘renew’ to the case in which there is an existing lease which the lessee seeks to have extended for a further period. Technically, the word ‘grant’ would have covered both cases, since a renewal will involve a new grant.”

392 A surrender of a lease by operation of law takes place, among other circumstances, where a tenant accepts a new interest inconsistent with the demise. Any arrangement between landlord and tenant which operates as a fresh demise will work a surrender of the old tenancy and this may result from a mere alteration in the amount of rent payable: Donellan v Read (1832) 3 B & Ad 899; 110 ER 330; Re Savile Settled Estates [1931] 2 Ch 210, at 216, per Maugham LJ.

393 The general principle, however, is that it is a question of fact as to whether a new tenancy is created by an alteration in the terms of a lease or whether the alteration merely continues the existing tenancy in an altered form: Stedman (Agent for Olgade Pty Ltd) v Shaw (1970) 91 WN (NSW) 190, at 196, per Sugerman P. In this connection, the intention of the parties will usually carry considerable weight: Re Bruce; Brudenell v Brudenell [1932] 1 Ch 316; Re Arkwright’s Settlement: Phoenix Assurance Company Ltd v Arkwright [1945] Ch 195; Wirral Estates Ltd v Shaw [1932] 2 KB 247, at 257, per Lord Hanworth MR.

394 Nonetheless, there is a body of authority to the effect that an alteration of an existing lease so that it will operate for a term extending beyond the original term, can operate in law only as a surrender of the old lease and the grant of a new one: Re Savile Settled Estates, at 217. In Jenkin R Lewis Ltd v Kerman [1971] Ch 477, Russell LJ said (at 496):

“It is not possible simply to convert the existing estate in the land into a different estate by adding more years to it, and even if the parties use words which indicate that this is what they wished to achieve the law will achieve the result at which they are aiming in the only way in which it can, namely by implying a fresh lease for the longer period and a surrender of the old lease.”

See, too, Halsbury’s Laws of England (4^th ed Reissue), vol 27(1), at [529].

395 On the other hand, in Pascoe-Webbe v Nusuna Pty Ltd (1985) 3 BPR 9620, Young J (at 9622) considered that the approach of the courts to alterations affecting leases was undergoing change. His Honour thought that until recently the courts would usually take the view that unless there was a relatively minor alteration in the terms of the lease the parties must have intended a surrender and re-grant. But in recent times courts had been more ready to “infer a mere variation”, although “normally where the term of the lease is altered it is difficult to satisfy the court that there has been a mere variation”.

396 It is not necessary to determine whether under the general law it is possible for the parties to a lease to extend the term of a lease without effecting a surrender of the existing lease and creating a fresh lease for the extended period. That is because the critical question is one of statutory construction. While the interpretation of the NTA, the NTA (SA) and the Pastoral Act 1989 can be informed by general law principles, in the end it is a matter of discerning the intention of Parliament from the language it has used, construed in accordance with established principles of construction.

397 The starting point is the language of cl 5. That language is clear and emphatic. A lease in force under the repealed Act immediately prior to the commencement of the Pastoral Act 1989

“becomes, on that commencement, and continues in force as, a pastoral lease under this Act with a term of 42 years running from that commencement”. (Emphasis added.)

Clause 5(2) provides that the conditions and reservations of such a lease are not affected by its “conversion to a pastoral lease pursuant to subclause (1)” subject to the three specified exceptions.

398 It is true that cl 5 had the effect of extending the term of each of the three leases affecting De Rose Hill Station which were in force at the date of commencement of the Pastoral Act 1989. Had the extension been effected by agreement between the Crown and the lessees, the consequences under the general law may have been to work a surrender of the existing lease and the grant of a fresh lease for the extended term. But cl 5 plainly contemplated that the existing leases would continue in force as pastoral leases under the Pastoral Act 1989. If the intent was to terminate the existing leases and create a fresh lease there would have been no point in using the expression “continues in force”.

399 Moreover, cl 5(2) is intended to ensure that the conditions and covenants of the existing lease are not affected by its “conversion” to a pastoral lease pursuant to cl 5(1). The legislation does not say that the existing leases are to be terminated and new leases are to come into force in their stead. Nor does the legislation say that the conditions and reservations of the existing lease will be incorporated in a lease granted or deemed to be granted under the Pastoral Act 1989. Rather, the conditions and reservations are “not affected” by the conversion.

400 In this respect the language of cl 5 contrasts with s 19 of the Pastoral Act 1989, which confers power on the Minister to “grant pastoral leases over Crown land”. Section 19 provides for an open competitive process except in certain circumstances. The exceptions include the case where “the land was subject to a pastoral lease that was surrendered upon condition that a further such lease be granted to the same lessee”: see s 19(2), (3). Had Parliament wished in cl 5 to use the language of surrender and re-grant it had a ready model at hand.

401 Of course, the operation of cl 5 is not necessarily determinative of the construction of ss 32C(2) and 33 of the NTA (SA) and s 229(3) of the NTA. Section 32C(2) of the NTA (SA) provides that Div 3 of Part 6 does not apply to a previous non-exclusive possession act unless, relevantly, the act is a category A past act consisting of the grant of a pastoral lease. Section 229(3) of the NTA defines a “category A past act” to include a past act consisting of the “grant of a pastoral lease” which satisfies certain conditions.

402 There is a clear distinction between the grant of a new leasehold estate and the continuation of an existing tenancy in an altered form. In adopting the expression “grant of... a pastoral lease”, both provisions use language that is apt to embrace the former, but not the latter. It would be a misuse of language to refer to an extension of the term of an existing lease, where the existing lease remains on foot, as the grant of a lease. The position is different where there is a renewal of a lease upon the expiry of the initial term, since the renewal operates as the grant of a fresh lease.

403 There is nothing in the legislative history to which the parties referred that suggests a contrary conclusion. The fact that the NTA was originally drafted on the assumption that pastoral leases necessarily extinguished native title does not justify giving its language and that of the NTA (SA) a meaning that the words do not bear. In any event, the legislative history is equivocal as to what Parliament might have intended to be the effect of the extension of the term of a lease granted before the commencement of the RDA, where the extension took place after the date of commencement. The only sure guide is the language of the statute.

404 It follows that the Fullers are unable to rely on s 33 of the NTA (SA) as extinguishing any native title rights and interests that may be held over the claim area.

405 In view of this conclusion, it is not necessary to address the State’s argument that neither cl 5 nor the leases over the claim area granted or extended pursuant to cl 5 were invalid by reason of the RDA. That argument would require a close analysis of the effect of the pre-1975 leases over the claim area on any native title rights and interests in the light of the principles adopted in Wik and Ward (HC). It would also require a comparison between the effect of the pre-1975 leases on native title and the further effect, if any, of cl 5 on native title rights and interests over the claim area. Since the argument did not address these matters in depth, it is preferable not to express an opinion.

THE PROPOSED DETERMINATION

406 The State accepted that if this Court allowed the appeal and found that native title rights and interests subsisted in the appellants, the primary Judge’s draft determination should be applied, subject to two matters.

407 First, the State challenged the primary Judge’s conclusion (at [588]) that improvements such as fences and roads did not even partially extinguish native title. The State contended that the determination should provide that native title rights and interests do not exist in respect of those parts of the claim area being

• any private road or vehicular track and the land [20 metres] either side of the road or track; and
• any fence and the land [10 metres] on either side of the fence.

408 Secondly, the State contended that, although the primary Judge had correctly held that the pastoral leases over the claim area had extinguished any exclusive right to possession in or general control of access by the appellants, he had erred in concluding that there was a separate right to control access and use by other Aboriginal people. This right was said to be inconsistent with the statement in the joint judgment in Ward (HC), at 30 [52], that

“without a right of possession [against the whole world], it may greatly be doubted that there is any right to control access to land or make binding decisions about the use to which it is put”.

409 We think it preferable for these contentions to be addressed after a final conclusion has been reached as to whether or not the appellants, or any of them, have native title rights and interests over the claim area. Further argument may be required before that question can be resolved.

CONCLUSION

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.

413 It may assist the parties in this task of identifying outstanding issues and the evidence relevant to them, for there to be an initial conference convened by a Registrar of the Court. This should take place as soon as conveniently possible and, in any event, not later than the end of January 2004. We envisage that, at that time and after consultation with the parties, the Registrar will fix a timetable for such further discussions as may seem to be desirable and for the filing of written submissions in relation to any unresolved issues. We propose to make directions accordingly.

414 All questions of costs are reserved.

I certify that the preceding four hundred and fourteen (414) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Sackville & Merkel.

Associate:

Dated: 16 December 2003

Counsel for the Appellant: Solicitor for the Appellant:	Mr J Basten QC with Mr A Collett Aboriginal Legal Rights Movement Inc
Counsel for the First Respondent: Solicitor for the First Respondent: Counsel for the Second Respondent:	Mr C J Kourakis QC with Ms R J Webb and Ms G A Brown Crown Solicitors Office for the State of South Australia Mr R Whitington QC with Mr C H Goodall
Solicitor for the Respondent:	Rosemary H Craddock
Dates of Hearing:	22, 23, 26, 27, 28 & 29 May 2003
Date of Judgment:	16 December 2003