Risk v Northern Territory of Australia [2007] FCAFC 46 (5 April 2007)

Last Updated: 5 April 2007

FEDERAL COURT OF AUSTRALIA

Risk v Northern Territory of Australia [2007] FCAFC 46

NATIVE TITLE – Native Title Act 1993 (Cth) s 223(1) – rights and interests of claimant groups – whether possessed under traditional laws acknowledged and customs observed – whether traditional laws and customs discontinued – whether trial judge failed to consider relevant oral evidence in determining discontinuance – whether trial judge required to adopt findings of Aboriginal Land Commissioner – identification of laws and customs and composition of claimant group – whether trial judge failed to consider claim of alternative claimant group

Held: No error in trial judge’s treatment of evidence, or in conclusion that traditional laws and customs discontinued. Discretion not to adopt findings of Aboriginal Land Commissioner not miscarried. No failure to consider claim of alternative claimant group.


Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 applied
Risk v Northern Territory of Australia [2006] FCA 404 affirmed
De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 cited
De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 cited
Northern Territory v Alyawarr [2005] FCAFC 135; (2005) 145 FCR 442 cited 
Sampi v Western Australia [2005] FCA 777 cited
Rubibi Community (No 5) v Western Australia [2005] FCA 1025 cited
Bennell v Western Australia [2006] FCA 1243 cited
Mifsud v Campbell (1991) 21 NSWLR 725, cited
Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (2001) 110 FCR 244 applied
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 applied
Phillips v Western Australia [2000] FCA 1274 cited
Australian Coal and Shale Employees’ Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 applied


Native Title Act 1993 (Cth) ss 84A, 86, 223
Evidence Act 1995 (Cth) s 55
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)


WILLIAM RISK, HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE v NORTHERN TERRITORY OF AUSTRALIA AND DARWIN CITY COUNCIL AND ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

No NTD 5 of 2006


KEVIN LANCE QUALL ON BEHALF OF THE BATCHO FAMILIES, THE DANGGALABA CLAN AND THE KULUMBIRINGIN LANGUAGE GROUP/PEOPLE v NORTHERN TERRITORY OF AUSTRALIA, DARWIN CITY COUNCIL, AMATEUR FISHERMEN’S ASSOCIATION OF THE NORTHERN TERRITORY, WILLIAM RISK, HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE, DEFENCE HOUSING AUTHORITY, PALMERSTON CITY COUNCIL, ANZ BANKING CORPORATION LTD, CONSERVATION LAND CORPORATION, CSR LIMITED, CSR READYMIX (AUSTRALIA) PTY LTD, DARWIN MODEL FLYING CLUB, DELFIN CHASE PTY LTD, DIAMOND LEISURE PTY LTD, GIUSEPPE MAUGERI, NORTHERN TERRITORY CHRISTIAN SCHOOLS ASSOCIATION, NT GAS DISTRIBUTION PTY LTD, NT GAS PTY LTD AND TELSTRA CORPORATION LTD AND ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

No NTD 6 of 2006





FRENCH, FINN AND SUNDBERG JJ
5 APRIL 2007
ADELAIDE (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 5 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WILLIAM RISK, HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE Appellants
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent DARWIN CITY COUNCIL Second Respondent
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Intervener

JUDGES:	FRENCH, FINN AND SUNDBERG JJ
DATE OF ORDER:	5 APRIL 2007
WHERE MADE:	ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. Pursuant to s 84A(2) of the Native Title Act 1993 (Cth) the Commonwealth pay the other parties’ costs of and incidental to the intervention.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 6 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KEVIN LANCE QUALL ON BEHALF OF THE BATCHO FAMILIES, THE DANGGALABA CLAN AND THE KULUMBIRINGIN LANGUAGE GROUP/PEOPLE Appellant
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent DARWIN CITY COUNCIL Second Respondent AMATEUR FISHERMEN’S ASSOCIATION OF THE NORTHERN TERRITORY Sixth Respondent WILLIAM RISK, HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE Further Respondents DEFENCE HOUSING AUTHORITY, PALMERSTON CITY COUNCIL, ANZ BANKING CORPORATION LTD, CONSERVATION LAND CORPORATION, CSR LIMITED, CSR READYMIX (AUSTRALIA) PTY LTD, DARWIN MODEL FLYING CLUB, DELFIN CHASE PTY LTD, DIAMOND LEISURE PTY LTD, GIUSEPPE MAUGERI, NORTHERN TERRITORY CHRISTIAN SCHOOLS ASSOCIATION, NT GAS DISTRIBUTION PTY LTD, NT GAS PTY LTD AND TELSTRA CORPORATION LTD Other Respondents
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Intervener

JUDGES:	FRENCH, FINN AND SUNDBERG JJ
DATE OF ORDER:	5 APRIL 2007
WHERE MADE:	ADELAIDE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. Pursuant to s 84A(2) of the Native Title Act 1993 (Cth) the Commonwealth pay the other parties’ costs of and incidental to the intervention.

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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

NTD 5 OF 2006

BETWEEN: WILLIAM RISK, HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE Appellants AND: NORTHERN TERRITORY OF AUSTRALIA First Respondent DARWIN CITY COUNCIL Second Respondent AND: ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Intervener

NTD 6 OF 2006
BETWEEN:	KEVIN LANCE QUALL ON BEHALF OF THE BATCHO FAMILIES, THE DANGGALABA CLAN AND THE KULUMBIRINGIN LANGUAGE GROUP/PEOPLE Appellant
AND:	NORTHERN TERRITORY OF AUSTRALIA First Respondent DARWIN CITY COUNCIL Second Respondent AMATEUR FISHERMEN’S ASSOCIATION OF THE NORTHERN TERRITORY Sixth Respondent WILLIAM RISK, HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE Further Respondents DEFENCE HOUSING AUTHORITY, PALMERSTON CITY COUNCIL, ANZ BANKING CORPORATION LTD, CONSERVATION LAND CORPORATION, CSR LIMITED, CSR READYMIX (AUSTRALIA) PTY LTD, DARWIN MODEL FLYING CLUB, DELFIN CHASE PTY LTD, DIAMOND LEISURE PTY LTD, GIUSEPPE MAUGERI, NORTHERN TERRITORY CHRISTIAN SCHOOLS ASSOCIATION, NT GAS DISTRIBUTION PTY LTD, NT GAS PTY LTD AND TELSTRA CORPORATION LTD Other Respondents
AND:	ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Intervener

JUDGES:	FRENCH, FINN AND SUNDBERG JJ
DATE:	5 APRIL 2007
PLACE:	ADELAIDE (HEARD IN DARWIN)

INTRODUCTION	[1]
ATTORNEY GENERAL'S INTERVENTION	[4]
THE LARRAKIA APPEAL	[9]
Primary judge's reasons	[9]
The three periods	[9]
Current Larrakia society	[15]
Primary judge's conclusions	[22]
Grounds of Appeal	[25]
Failure to deal with the oral evidence	[26]
Misapplication of Yorta Yorta	[73]
The book-end error	[76]
Physical presence and exercise of rights	[99]
Transmission of knowledge	[105]
The Kenbi claim report	[108]
THE QUALL APPEAL	[115]
Background	[118]
The case advanced at trial	[120]
The native title determination applications	[120]
The hearing and the evidence	[133]
Mr Quall's oral submissions	[142]
Mr Quall's written submission	[144]
Primary judge's reasons	[148]
The appeal on the case advanced	[157]
Consideration	[164]
The adequacy of his Honour's reasons	[180]
COSTS OF THE INTERVENTION	[182]

REASONS FOR JUDGMENT

INTRODUCTION

1 The proceedings under appeal were a consolidation of a number of native title determination applications made on behalf of three groups in relation to land and waters in and around Darwin in the Northern Territory. The claim area comprises many sections of land and waters within an overall area of about 30 square kilometres. The three groups within the consolidated proceedings were the Larrakia applicants on behalf of the Larrakia people, the Quall applicants on behalf of variously the Danggalaba clan and described descendants of Kulumbiringin ancestors, and the Roman applicants. The Roman applicants discontinued their claim during the course of the hearing. The Quall applicants claimed that the Danggalaba clan was the holder of native title rights and interests over the claim area, rather than the larger Larrakia group, because that clan alone had continued to observe the traditional laws and customs of the Aboriginal society that existed at sovereignty. All the individuals named in the Quall application were also named as members of the Larrakia people.

2 The primary judge dismissed the consolidated applications on the ground that the present society, comprising the Larrakia people or else the Danggalaba clan, did not now have the rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the Larrakia people at sovereignty, because their current laws and customs were not ‘traditional’ in the sense required by s 223(1) of the Native Title Act 1993 (Cth) (the Act) as explained by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 (Yorta Yorta): Risk v Northern Territory of Australia [2006] FCA 404.

3 Mr Risk and others on behalf of the Larrakia applicants, and Mr Quall on behalf of the Danggalaba and Kulumbiringin applicants, have appealed to the Full Court. The respondents to the Larrakia appeal are the Northern Territory and the Darwin City Council. All the respondents below are named as respondents to the Quall appeal. The Larrakia appellants have also been joined as respondents. Only the Northern Territory, the Darwin City Council and the Larrakia appellants made submissions on the appeal. In what follows we will generally refer to the Larrakia people as "Larrakia".

ATTORNEY-GENERAL’S INTERVENTION

4 Shortly before the hearing of the appeal the Attorney-General for the Commonwealth intervened on behalf of the Commonwealth pursuant to s 84A of the Act. In support of the intervention the Attorney filed lengthy written submissions. At the conclusion of the parties’ oral arguments the Attorney sought to raise three further issues. However, it was subsequently agreed that those issues would be dealt with by further written submissions. Those submissions were filed, and they were responded to by other parties.

5 The purpose of the Attorney’s intervention was to submit that the course set in Full Court native title appeals determined since Yorta Yorta – namely De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325, De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 and Northern Territory v Alyawarr [2005] FCAFC 135; (2005) 145 FCR 442 – had departed from what had been laid down in Yorta Yorta. It was said that there had been a similar departure in first instance decisions: Sampi v Western Australia [2005] FCA 777, Rubibi Community (No 5) v Western Australia [2005] FCA 1025 and Bennell v Western Australia [2006] FCA 1243. The last three decisions are currently under appeal.

6 In his initial written submissions the Attorney summarised the matters he wished to advance as follows:

• the concept of ‘society’ focuses on the internal view of the claimants, not on an objective or academic analysis of cultural homogeneity or similarity, or intercourse between groups
• the concept of ‘society’ is inextricable from the concept of ‘traditional laws and customs’
• extant laws and customs must not be so altered from those at sovereignty that they now fail to sustain the claimed right
• the concept of a ‘chain of possession’ is key to each of the above submissions
• the concept of ‘communal title’ has no independent role in native title.

7 The matters sought to be canvassed orally, that were instead reduced to writing, were:

• the extent to which laws and customs can change yet remain extant
• Larrakia’s submissions on the brevity and recency of interruption of the practice of the laws and customs
• the Quall appellants’ submissions as to society and in particular the proper identification of a society.

8 The Attorney’s intervention under s 84A is as of right. However, it was accepted that the extent of the intervention is a matter for the Court, having regard to the issues agitated by the parties (other than the intervener) and the matters that actually arise for decision. Having now heard and read all submissions, and identified the issues requiring decision, we have decided to receive the Attorney’s two written submissions. However, because of the limited issues that in the events that have happened call for decision, we have not needed to deal with any of the matters summarised at [6] and [7].

THE LARRAKIA APPEAL

Primary judge’s reasons

The three periods

9 In that part of the primary judge’s reasons appearing under the heading Consideration of the Evidence, his Honour divided the evidence into three periods: 1825 to about 1910, 1910 to the second world war, and the war to 1970. It was in 1825 that the Crown acquired sovereignty over the Territory.

10 As to the first period – 1825 to about 1910 – the primary judge said:

"232 ... I find that within the geographical area which includes the claim area, at sovereignty, there existed an Aboriginal society which, by its traditional laws and customs, had a normative system which gave rise to rights and obligations on the part of its members in relation to the land and waters within that area. The archaeological evidence points to there having been some form of society at that time, albeit directly demonstrating only an ‘economic’ society. From the time of the first observations of the area by European observers, their observations are in general terms consistent with there being then, and there having been, such a society....

233 From the time of European settlement of the Darwin area [1869], as one would expect, the range of available material is much more extensive. That material, covering a period of three decades or so, reveals then the existence of a society of Larrakia peoples who had a close attachment to the land and waters in the area, including in the claim area. The basis of that finding is evident enough from the foregoing. I also conclude again on the basis of the findings I have made above, that the Larrakia peoples had a normative system by reason of their traditional laws and customs which created rights and obligations possessed by them in relation to the land and waters of the claim area. In particular, the Larrakia people identified themselves as a society in that way; they spoke the Larrakia language, and they had a complex and sophisticated set of laws and customs. Those laws and customs included rules governing their internal societal relationships, the way they dealt with the land and waters and the collection and use of its resources, and the ceremonial and spiritual aspects of their relationships with the land and waters of the claim area referred to.

...

236 On the basis of Dr Black’s views, which I accept, I find that the Larrakia language has a common ancestry with the Wulna language, extending back over many generations. That finding, together with the absence of any evidence to suggest that any other language group existed within the claim area and the wider Darwin area at the time of sovereignty, leads me to the view that, at sovereignty, the Aboriginal society which then existed was in general terms the same as the society which existed at the time of European settlement of the general area. That is, the society which the archaeological evidence indicated was in existence in the lengthy period leading up to sovereignty (although as noted it did not itself lead to identification of the nature of that society other than in economic terms) was the Larrakia people.

...

238 Consequently, I also conclude that the society which occupied the claim area at sovereignty was the same society, with the same traditional laws and customs (whether adapted by economic or environmental factors or not) as I have found to have been the occupants of the Darwin region including the claim area in the latter decades of the 19^th Century."

11 The primary judge then dealt with the evidence relating to the second period – 1910 to the war. Under the sub-heading Cultural Practices of the Larrakia people between 1910 and WWII, his Honour considered the contemporary documentary evidence for the period. His conclusions are expressed as follows:

"339 Apart from the oral evidence to which I shall refer shortly, the contemporary material in the period from about 1910 to the start of World War II does not point clearly to the Larrakia people having a continuing strong community practising their traditional laws and customs in the Darwin area including the claim area. The material points to some elder structure within the Larrakia community, to the ongoing holding of corroborees (apparently in conjunction with other Aboriginal groups both at the Kahlin Compound and elsewhere), and to the conduct of some ceremonies although it more strongly suggests that the conduct of ceremonies had barely persisted. There is no evidence to suggest that all, or most, of the cultural practices of the Larrakia people which were observed during the latter part of the 19^th Century continued to be practised.

340 ... The [Larrakia people] have put forward reasons why, despite the paucity of positive contemporary records showing the continued practices of the panopoly of cultural practices, I should find they continued to be practised.

341 I shall defer my conclusions on those issues until I have recorded my findings and the significant evidence in respect of [the] period between WW II and the present, and about the contemporary status of the Larrakia cultural practices."

12 The context favours the view that the words in the last sentence of [339] – "there is no evidence to suggest ..." – are a reference to "the contemporary material" rather than to the evidence at large. The reference in [341] to "findings and the significant evidence in respect of [the] period between WWII and the present" is not to the period the subject of the immediately following heading – (ie the war to 1970) – but to that from the war to the present time. Quite apart from the words "and the present", this is confirmed by the ensuing reference in [341] to the findings and evidence "about the contemporary status of the Larrakia cultural practices", dealt with under the later heading Current Larrakia Society. This understanding of [341] is further supported by the fact that there are no distinct findings between [342] and [372], namely in the material under the heading The Period WWII – 1970.

13 In relation to the third period (the war until 1970) the primary judge referred to evidence dealing with

• a 1950 report about efforts to keep Aboriginal people out of Darwin
• the post war return to Darwin of Aboriginal people of full descent, and their placement at Berrimah
• the period between the end of the war and the 1950s as one of further control over Aboriginal people of full descent
• a permit requirement for Aboriginal people to enter the Darwin area in the 1940s and 1950s
• the removal of those without permits to Berrimah.

His Honour made no express findings on these matters, though there is no indication that he did not accept that evidence.

14 The matters recorded at [13] gave rise to dissatisfaction on the part of Aboriginal people, to strikes, and the beginning of the land rights movement. The primary judge then recorded the making of Larrakia land claims – the Kulaluk, Gundal, Dariba Nunggalinya and Kenbi claims.

Current Larrakia society

15 The final part of his Honour’s reasons dealing with the evidence appears under the heading Current Larrakia Society. This, his Honour said, "looks at the contemporary nature of the Larrakia people’s society, as it has been presented over the last decade or so to the present". He then made this finding about the nature of the society "at the present time":

"530 The Larrakia community of today is a vibrant, dynamic society, which embraces its history and traditions. This group of people has shown its strength as a community, able to re-animate its traditions and customs, following a period when, as Justice Gray described it in the Kenbi Report, ‘government policies and social attitudes dictated the integration of Aboriginal people into non-Aboriginal society’."

16 His Honour then said he would in due course make findings about cultural organisation and practices, economy and resource use, and spirituality. But before he did this, he would note certain contentions on "matters to which I will later have to have regard". A great deal of the material collected between [533] and [793] is no more than a record of what various witnesses said, and what Larrakia and the Territory (and sometimes the second respondent) submitted about that evidence. In relation to some topics, no findings are made. We have identified the following findings made under the heading Cultural Organisation and Practices:

• some Larrakia now practise and recognise requirements and prohibitions concerning kinship relationships
• the avoidance rule is neither universally nor consistently practised
• the practices of preferential and promissory marriages are no longer observed
• the use of traditional Aboriginal names is not universally practised
• some witnesses only acquired their traditional names as adults, subsequent to the commencement of the Kenbi claim
• traditional bush burials no longer take place
• self harm as an expression of grief is no longer practised
• the ‘smoking’ funeral rite is still practised
• the Larrakia patrilineal clan system that existed at sovereignty no longer exists.

17 The following finding is made under the heading Economy and Resource Use:

• the development of Darwin has restricted Larrakia ability to hunt, fish and forage in the claim area, because of restriction of access, development and pollution.

18 The following findings, some of which overlap, are made under the heading Spirituality:

• Larrakia no longer practise a distinctly ‘Larrakia’ ceremony
• there has been an ‘attenuation’ of knowledge in relation to and in the observance of customs associated with ‘ceremony’
• ceremonies no longer take place on the Darwin side of the harbour
• the intensity and consistency of Larrakia involvement in ceremonies has diminished since sovereignty
• there has been a revival of ceremonies in recent times
• those Larrakia who were aware of particular Aboriginal sites had no detailed awareness of any story for the site or the origin or significance of the site, and could not identify site specific rules for access, use or caring for those sites
• the level of awareness of significant sites did not indicate a process of inheritance or transfer of such knowledge in accordance with traditional laws and customs
• among the more senior members of the current Larrakia people, there was no clear correspondence between their knowledge of particular sites and their seniority
• there was no clear indication that a significant number of Larrakia (either numerically or by status) had a clear knowledge of the stories relating to particular sites
• apart from a generally acknowledged understanding of the responsibility to care for sites, there was little precision about the significance of particular sites
• there was contradictory evidence about particular sites, their significance and the responsibility which attached to them
• the evidence did not indicate the existence of a normative society holding information about sites of spiritual significance in the Darwin area, including the claim area, and involving an appreciation of, and a responsibility for, conveying the spiritual significance of these sites
• while there has been some passing of knowledge from one generation to another, it has been at a personal level rather than in accordance with some normative system involving commonality of traditional laws and customs for the passing of such knowledge
• the knowledge of witnesses about the nature of dances and their significance was quite limited
• there was no evidence that the detailed nature of the kangaroo dance or the frog dance was now known to any particular member of Larrakia
• other witnesses did not know much, if anything, about the different types of corroborees
• there is only a general knowledge of the existence of one or two particular songs and dances previously part of Larrakia’s traditional laws and customs
• the current level of knowledge of those songs and dances does not support the conclusion that their current level of knowledge has been received by an appreciation of, or transfer of, knowledge within the Larrakia community according to its traditional laws and customs
• there was no evidence of any Larrakia body painting designs, specifically in relation to particular ceremonies or rituals, now said to be possessed by Larrakia
• there was no evidence that those who painted artwork derived their knowledge of the style or form of paintings through any normative structure under traditional laws and customs, as distinct from a current desire now to record in that form some of the sense of relationship to country or stories about country which the current generation has developed.

19 Under the heading Social Structure the following findings are made:

• the recent processes for the acquisition and transmission of cultural knowledge are somewhat piecemeal
• the process of the acquisition and transmission of knowledge which existed at sovereignty was not of the same piecemeal character; it was likely to have been a process effected within formal Larrakia rules as to who should hold and pass on knowledge, when they should do so, and to whom they should do so.

20 Under the heading Language the primary judge found that the Larrakia language is no longer spoken fluently by any member of the Larrakia group; indeed it is hardly spoken at all.

21 Under the heading Country the following findings are made:

• while witnesses were clear that Larrakia country is bounded on the coast by the Adelaide and Finniss Rivers, Larrakia’s knowledge of the inland boundary was uncertain and conflicting
• evidence as to how a particular person is entitled to assert his or her identity as Larrakia was contradictory, and there was no consistency as to who should elect between tribes in the case of mixed parentage or as to when the choice was to be made
• many Larrakia have a deep connection to their country and a feeling of belonging to it
• there is no general understanding and expression of knowledge about stories, songs and ceremonies for sites and looking after them; no particular process of acquisition of knowledge about those matters, and no detailed knowledge about the manner in which particular sites are to be cared for, looked after or preserved
• whereas in the past Larrakia people had detailed knowledge about particular sites, that knowledge in large measure no longer exists
• rules about avoiding and caring for sites have been lost
• Larrakia people generally are in the process of learning about a number of sites because they lack knowledge about them
• there is no coherent and consistent learning of traditional law and customs
• the preponderance of the evidence about Wariyn (the creator of all Larrakia land), and in particular the learning that it is the creation source of the Larrakia land and dreaming, derives from the early stages of the Kenbi claim hearings.

Primary judge’s conclusions

22 The primary judge first repeated his findings, favourable to Larrakia, that were relevant to satisfaction of the requirements of s 223(1) of the Act:

• at sovereignty there was a society of indigenous persons who had rights and interests possessed under traditional laws and customs, giving them a connection to the land and waters of the claim area
• that society was the same society as that which existed at settlement and continued to exist up to the first decade of the 20^th Century, and it continued to enjoy rights and interests under the same or substantially similar traditional laws and customs as those that existed at settlement
• Larrakia are the same society as that which previously existed, including at settlement.

23 His Honour then turned to the contentious question of whether Larrakia had shown that they still possess rights and interests under the traditional laws acknowledged, and the traditional customs observed by them, and that those laws and customs give them a connection with the land and waters of the claim area. He concluded that Larrakia had not satisfied this requirement. He said:

"834 ... the Larrakia people, that is the present society comprising the Larrakia people, do not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. That is because I do not find that their current laws and customs are ‘traditional’ in the sense explained in Yorta Yorta.

835 There is considerable ambiguity, and some inconsistency, about the current laws and customs of the Larrakia people which I have discussed in my findings when considering the evidence. There are also in my view significant changes in those laws and customs from those which existed at sovereignty. Again, I have discussed my findings when considering the evidence. Those differences and changes stem from, and are caused by, a combination of the historical events which occurred during the 20^th Century. Those events have given rise to a substantial interruption in the practice of the traditional laws and customs of the Larrakia people as they existed at sovereignty and at settlement, so that their practice and enjoyment has not continued since sovereignty. I find that the present laws and customs of the Larrakia people are not simply an adaptation or evolution of the traditional laws and customs of the Larrakia people in response to economic, environmental and historical and other changes."

24 In the thirty or so paragraphs preceding those just set out, his Honour related the findings summarised at [16] to [21] to the requirements of s 223(1)(a) of the Act, as explained in Yorta Yorta. It will be necessary to return in greater detail to this part of his Honour’s judgment in considering Larrakia’s second ground of appeal.

Grounds of Appeal

25 At the hearing, three grounds of appeal were pressed by Larrakia. The first is that his Honour failed to deal in his reasons with a significant body of oral evidence bearing on whether there had been a substantial interruption in the observance of traditional laws and customs. The second – which included one main argument and two subsidiary ones – is that his Honour mis-applied Yorta Yorta in determining that Larrakia’s traditional laws acknowledged and customs observed had been discontinued at some stage during the twentieth century. The final ground, acknowledged to be a subsidiary one, was that his Honour erred in failing to adopt findings of fact made by the Aboriginal Land Commissioner in the Kenbi land claim.

Failure to deal with the oral evidence

26 The first Larrakia grievance referred to at [25] was propounded in two quite different ways. In their written submissions it was contended that in concluding that there had been a substantial interruption in the acknowledgment and observance of traditional law and custom, the primary judge failed to consider the oral evidence for the period from about 1910 to the start of the war. It was said that the ‘interruption’ finding depended on an inference drawn from the documentary record that at some time before the war the continued practice of traditional laws and customs was on the wane, and continued to decline over the succeeding two decades, but that the practice was revived in the 1970s. It was then noted that his Honour said that the view he took of the documentary record for the period from about 1910 to the start of the war was subject to the oral evidence to which he would refer shortly, and that he would defer his conclusions until he recorded his findings in respect of the period following the war. It was then contended that his Honour failed to return to the oral evidence for those two periods. Rather his consideration of the oral evidence was directed to the "contemporary nature of the Larrakia people’s society, as it has been presented over the last decade or so to the present". It was said that his Honour’s ultimate ‘interruption’ conclusion could not be reached without dealing with the oral evidence relating to the period in which the interruption was supposed to have occurred.

27 In oral argument the first ground of appeal was put differently. The claim was that the primary judge had failed to consider and evaluate a potentially significant and very large body of evidence bearing on whether there was a substantial interruption during "the period of 30 or 40 years in the middle of the 20^th century". This period was more precisely identified as 1940 to 1970. We propose to deal with the ground as it was put to us in oral argument. It will be apparent from what follows that this is the only basis upon which the argument addressed to us can be understood. See in particular what we record at [29] to [31].

28 Larrakia relied on the observations of Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728:

"it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge – as the defendant’s denial of having consumed alcohol – may promote a sense of grievance in the adversary."

29 In support of Larrakia’s case on the primary judge’s failure to consider and evaluate the oral evidence, Mr Gageler SC produced a chart headed Timeline (the chart). As its top line shows, it covers the period 1890 to 2005. The upper half of the chart contains the names of Larrakia elders, all deceased, who were active in the period of the land claims. The blue colouring, within which their names appear, shows the duration of their lives. All were alive in part of the period from 1940 to 1970, during which, according to Larrakia, the primary judge must have found that the laws and customs fell into desuetude. Thus King George was still alive in the early 1940s. Nipper Ranken, Captain Bishop, Tommy Lyons, Ababa, Topsy Secretary, Dolly Garinyi, Topsy Kurramanak, Prince of Wales, Victor Williams, Norman Harris and Bobby Secretary were alive throughout the thirty year period. Kathy Secretary, Olga Lyons, Gabriel Secretary, Johnny Fejo and Fred Waters were alive in the later part of the period. The lower half of the chart contains names encased in ochre colouring, showing the life span, in nearly all cases continuing, of witnesses at trial. Topsy Secretary is the only person who appears in the upper and lower parts of the chart.

30 The object of the chart is to show that 13 of the 30 witnesses were alive during the whole of the 30 year period and the others during the second half of the period. Counsel’s explanation was as follows:

"[His Honour] deals only with the oral evidence as to contemporary society in the last decade, and simply does not deal with that significant period in between ... if you just line up that period between ... 1940, if you like, and 1970. That is the period within which the laws and customs, according to his Honour’s findings must have ceased to exist, and just look at who was around during that period and the blue lines were the significant figures of the land rights era, and in ... ochre colour, the witnesses before his Honour, and it was in the period of all of those people’s lives, that his Honour must have found this cessation to have occurred ...."

31 And later counsel added that in the 30 year period:

"when, on his Honour’s findings, the tradition had ceased or, at least, dwindled to a point where it could no longer be said to be the tradition of a society, one had these – just looking at the blue for a moment – these Lyons of the Land Rights movement presumably in their prime.

... his Honour has just failed to address the critical question as to what was occurring in the lives, or the collective lives, of this society within that period.

He has really, by confining himself in the oral evidence to the contemporary, failed to address a critical body of evidence concerning the interruption that he says must have occurred during that period."

32 The primary judge’s statement that he would shortly refer to the oral evidence appears at the conclusion of his consideration of the documentary evidence relating to the period from 1910 to the war. His Honour said he would defer his conclusions in respect of the cultural practices of the Larrakia people until he had recorded his findings and the significant evidence in respect of the "period between WWII and the present, and about the contemporary status of the Larrakia cultural practices". It seems clear, therefore, that the primary judge intended to deal first with the evidence relating to the period from the end of the war up to the present (2004). The layout of his Honour’s reasons shows that this was to be done in two parts. First, the evidence relating to the period from the war until 1970. That was the last of the several historical periods suggested by the Territory, whose historical structure the primary judge adopted at [95]. The second part was the evidence disclosing the contemporary nature of the Larrakia cultural practices. Together those periods covered the interval between "WWII and the present".

33 His Honour did what he said he would do. The first part referred to at [32] appears at [342] to [372] under the heading The Period WWII-1970. The second part is at [527] to [793] under the heading Current Larrakia Society. The promised conclusions are at [802] to [843] under the heading Conclusions Regarding s 223(1) of the Native Title Act. What his Honour said immediately under Current Larrakia Society bears this out. This is the (final) "section of my consideration of the evidence and my findings" about the contemporary nature of Larrakia society "as it has been presented over the last decade or so to the present". This is clearly a reference to the evidence that had been presented to the Court and earlier to the Commissioner in the Kenbi claim, and not to evidence pertaining to the last decade or so.

34 It is simply a misreading of the primary judge’s reasons for counsel to say, as recorded at [30] and [31], that his Honour "deals only with the oral evidence as to contemporary society in the last decade". It is also wrong to say that his Honour confined himself "in the oral evidence to the contemporary". Although his consideration of the documentary evidence was divided into time zones, that approach was not adopted when at [527] he turned to Current Larrakia Society. Here there are no timelines. Rather the methodology shifts to topics – cultural organisation and practices, economy and resource use, spirituality and so on. His Honour makes this clear at [531] where he says:

"The following findings are intended to give an overview of various aspects of the current Larrakia society based on the evidence. I have endeavoured to address the various topics under the following headings: Cultural Organisation & Practices; Economy and Resource use and Spirituality. It is not the role of the Court to provide a comprehensive history of the claim group nor a complete discussion of the intricacies of the Larrakia society, and I have not sought to do so. Where I refer to the evidence of specific witnesses, it is not meant to be an exclusive exercise. That which follows is, as I have said, merely an overview."

We understand the penultimate sentence to mean that his Honour’s reference to a witness’ evidence is not to be taken to suggest that that was all the witness had to say or was the only evidence to which his Honour had regard. (It may be that "exhaustive" rather than "exclusive" would have more accurately rendered his intention.) His Honour said at [528] and [529] that he had the benefit of direct primary evidence from many members of the Larrakia people, he thought them all truthful, and his findings were "based on all their evidence".

35 We now turn to the substance of Larrakia’s complaint that the oral evidence to which the primary judge referred at [339] was not considered and evaluated. Mr Gageler told us that it was not part of Larrakia’s case that on the totality of the evidence the primary judge could not have come to the conclusion he reached.

36 Mr Gageler took us to but one example of what was said to be the primary judge’s failure to consider the critical body of evidence. This was the witness statement of Jim Fejo Senior, who lived from 1930 to 2001. Counsel highlighted what the witness said about his father and his uncle Smiler being ceremony men, travelling with Smiler in a bush canoe, things he learnt from him, family dreaming, Sunday corroborees at Cullen Bay and Bagot, learning to dance and sing songs, getting painted up for a burial ceremony, learning to gather bush food, making crab hooks out of mangrove sticks, and making a canoe out of a milkwood tree. This was said to be evidence spanning the period within which the primary judge inferred interruption, and was presumably selected by Larrakia as a good example of the primary judge’s failure to refer to the life story of an older witness during the interruption period.

37 Jim Fejo Senior was not much of an example of the primary judge’s alleged delinquency. His Honour referred to his evidence on seven occasions, covering the following topics: ceremonies, painting bodies with ochre for ceremonies, Smiler making him a milkwood canoe when he was 7 or 8 and teaching him to make spears, hunting crabs with a crab hook or crab stick, making crab hooks from mangrove sticks, Fejo family dreaming (his was a whitish brown frog), his father and uncle being ceremony men, knowledge of a particular site, and that he had not been taught anything about dreamings.

38 As is apparent from the foregoing, the primary judge referred to eight of the ten topics highlighted by counsel, and others that were not. The Jim Fejo Senior example in no way establishes the contention in support of which it was advanced, presumably as the best example on offer, namely that the primary judge failed to refer to the life stories of the older witnesses during the period of interruption.

39 Putting Jim Fejo Senior aside, there are 29 witnesses in the ochre part of the chart. The primary judge referred to the evidence of all of them, some on many occasions: Topsy Secretary (10 times), JF (10), Barbara Raymond (13), Yula Williams (13), LC (17), Richard Barnes (23), Dorothy Fox (10), Maureen Ogden (28), Roslyn Walker (8), Rosemary Parfitt (8), Pauline Baban (37), Bill Risk (49), Roque Lee (12), Annie Risk (26), Donald Baban (13), Lawrie Raymond (8), Florence Devine (2), Gabriel Hazelbane (2), Mary Lee (3), Lorna Talbot (2), David Mills (4), Alice Briston (4), Mary Raymond (6), John McLennan (1), Robert Browne (4), Rona Alley (1), Judith Williams (3), Freddie May (1) and Jocelyn Archer (5).

40 We will initially take three senior and important witnesses as examples of the way in which the primary judge dealt with the evidence of those named at [39]. Barbara Raymond made a witness statement and gave oral evidence. The primary judge recorded the substance of most of the matters to which she deposed: watching corroborees when she was young, going walkabout, the prohibition on women entering Larrakia Barracks (Gundul), the use of kinship terms, that she was a Danggalaba clan member, Larrakia customs (sharing resources, prohibition of waste and greed), traditional method of cooking goose, Old Man Rock (a spiritual being who looks after Larrakia), the seaward boundaries of Larrakia country, playing in banyan trees when young, the location of White Stone (which may have been a sacred or significant site), and her conception dreaming (her mother burnt a crab she was cooking on Vestey’s Beach, and when Barbara was born she had a crab shaped mark on her back).

41 Barbara Raymond gave evidence about other matters that the primary judge did not specifically attribute to her. Many of those topics were covered in the evidence of other witnesses, such as fishing with her parents and collecting bush food. Other evidence related to genealogy, which was not relevant to the question of interruption. His Honour was not obliged to record or summarize everything the witness said. Having read Barbara Raymond’s witness statement and the transcript of her evidence, we are in no doubt that his Honour’s references to her evidence disclose that he was conversant with the evidence as a whole, and had regard to it. The fact that he mentioned specific aspects of it does not mean that he did not have regard to the whole of it.

42 JF made a witness statement and gave oral evidence. Again, the primary judge did not summarise the whole of her evidence. As did other witnesses, she gave genealogical evidence which his Honour had no occasion to record, and other evidence that, having regard to the way the case proceeded, did not have particular relevance. However, his Honour did record the essence of her evidence about Larrakia laws and customs: corroborees, the occasions when they were held (such as days when a person died and happy days), sites prohibited to women (such as Larrakia Barracks), avoiding the use of a deceased’s name, punishment for infringement of that rule, initiation ceremonies, women’s business, instruction in law and customs, parents and grandparents speaking Larrakia language, Old Man Rock, her limited knowledge of sites, her instructions in Larrakia law by non-Larrakia people, and her limited knowledge of the extent of Larrakia country.

43 JF gave evidence about other matters, to which his Honour did not specifically refer, that would not have assisted Larrakia’s case on interruption: Larrakia can’t live off the land around Darwin any longer, can’t find a tree to camp under now, don’t know any places where Larrakia can hunt or fish on country now, kids don’t speak Larrakia any more, learnt Larrakia things at the Kenbi claim that she hadn’t heard before, lost trace of Larrakia people when she went to work at age 12, and that against the law women now dance at bone burials.

44 JF also gave evidence about matters covered by many other witnesses: Larrakia must look after their land, not over-fish, gather or hunt, and that she lived off the sea when a child.

45 Yula Williams gave extensive oral evidence. The primary judge noted her evidence about women’s inability to enter Larrakia Barracks or Daramanggamaning, her use of kinship terms, her skin grouping, that she no longer fishes in the Darwin area, her salt water crocodile dreaming, ceremonies, her knowledge of sites and limited knowledge of their significance and of rules relating to them, her lack of knowledge of the words of the frog song, that her mother had not told her about sites or dreamings on the Cox Peninsula, that she heard her parents and grandparents speaking Larrakia language, her limited knowledge of the boundaries of Larrakia country, and Mindil Beach burials.

46 Yula Williams gave other evidence, not specifically recorded by the primary judge, that would not have assisted Larrakia’s case on interruption: she used to know a lot about Larrakia law and custom but when she came back to Darwin after the war she no longer knew much, although she sang in language at corroborees she didn’t know what she was singing about, she picked up only a few words of language, all kinds of tribes (not just Larrakia) used to go to Cameron Beach and Kulaluk, at Bagot Reserve there were lots of different mobs with their different languages, she had not been to Bagot Creek since the war, lots of crabbing places were now gone because of buildings, when she was growing up there were lots of other non-Larrakia Aboriginals in Darwin who hunted and fished there without asking permission, her mother spoke mainly English to the kids, and that a long time ago there used to be full-blooded Larrikia but "there’s nothing here now".

47 Yula Williams also gave evidence about matters covered by many other witnesses, such as cooking fish and mussels, harvesting crabs and about the best places for gathering bush tucker.

48 Putting aside the topics in [42], [44], [46] and [47], the primary judge recorded most of the relevant evidence each witness gave. In respect of none of them can it be said that he failed to refer to their life stories during the interruption period. It is true that his Honour does not devote consecutive paragraphs to any witness’ life story. But his references to their evidence, as it becomes relevant to the various topics with which he deals, leave us in no doubt that he has had resort to the essential parts of it.

49 We have gone to the whole of the oral evidence before the primary judge given by Barbara Raymond, JF and Yula Williams in order to understand his Honour’s modus operandi. We do not propose to do that in relation to the other witnesses named at [39]. Rather we will assess the claim made in Larrakia’s written submissions that particular evidence given by some of them was not taken into account.

50 However, before we do that, we should refer to the specific parts of the evidence of JF, Barbara Raymond and Yula Williams that his Honour is said not to have taken into account. The specific parts of JF’s witness statement are covered by what we have said at [42] and [43]. So are the specific parts of her oral evidence. The specific parts of her evidence in the Kenbi claim, so far as presently relevant, are also covered by what we have said earlier.

51 The specific parts of Barbara Raymond’s oral evidence are covered by what we have said at [40] and [41].

52 The specific parts of Yula Williams’ oral evidence are covered by what we have said at [45] to [47]. The specific parts of her Kenbi claim evidence were repeated in her oral evidence before the primary judge.

53 We have dealt at [36] and [37] with the contention that Jim Fejo Senior’s evidence was not taken into account. Specific parts of his written statement are said to have been overlooked. They were not. The part of his Kenbi claim evidence to which we were referred concerned a frog dreaming at Bagot when he was young. It is repeated in his witness statement, and was mentioned by the primary judge. See [37].

54 The remaining witnesses, specific parts of whose evidence was said to have been overlooked, were Mary Raymond, Maureen Williams, Pauline Baban and Topsy Secretary.

55 Mary Raymond made a witness statement and gave oral evidence before the primary judge and in the Kenbi claim. In the parts of the witness statement relied on in the present connection, she deposed to accompanying her uncle and aunt on visits to Lee Point Beach where her uncle would spear fish and her aunt would forage in the scrub for goanna. She was then about seven years old (1946). Together the family gathered periwinkles, crabs and sea urchins. She also deposed to having seen corroborees and smokings at Bagot when she was about eight years old (1947). The primary judge did not refer to either of these parts of her evidence.

56 Apart from the two topics referred to at [55], the parts of the witness’ oral evidence before the primary judge that were relied on in the present connection dealt with the practice of not taking more from land or waters than was needed, sharing things, a sacred site at White Stone the location of which she was unaware, hunting geese, men’s business at Larrakia Barracks, Old Man Rock, Black Jungle men’s site, changes around Darwin precluding the gathering and foraging that used to be done there, and that she could not recall having seen a corroboree since the ones she saw at Bagot when she was young. The parts of Mary Raymond’s Kenbi claim evidence relied on dealt with some of the matters contained in her oral evidence before the primary judge.

57 The primary judge mentioned cooking goose that had been shot, collecting mangrove worms, and the Black Jungle and White Stone sites the locations of which the witness was not aware. The primary judge did not give as full an account of Mary Raymond’s evidence as he did of that of the other witnesses to whom we have referred. However, it is to be remembered that many other witnesses gave evidence about instruction received from their elders when the witnesses were young: hunting, fishing, foraging, sharing and avoiding waste. His Honour was not obliged to record the name of every witness who said something about those uncontroversial topics on pain of the accusation of having ignored the evidence. In our view his Honour’s references to Mary Raymond’s evidence showed that he did not fail to take it into account. Once again it must be pointed out that Larrakia’s contention is not that his Honour was not entitled on the evidence to conclude as he did. It is that he did not take parts of it into account. It does not follow from a judge’s failure to mention something that it was not taken into account. Especially is that so when the evidence is extensive, several parts of it are referred to and the judge’s evidentiary modus operandi supports the view that he made a thorough examination of the evidence.

58 Maureen Williams made a witness statement, and gave evidence before the primary judge and in the Kenbi claim. In her witness statement she mentioned watching corroborees at Bagot, catching and cooking geese, foraging and fishing. In the parts of her oral evidence before the primary judge that are said to have been ignored or overlooked she referred to Larrakia Barracks (men’s business), her forbear Sam’s mosquito dreaming, Black Jungle (men’s business), Old Man Rock, hearing older people speaking language, and her non-Larrakia father’s entitlement to enter and use Larrakia land because he was married to her mother. Her Kenbi claim evidence mentioned unnamed men’s business locations and cheeky yam dreaming. Otherwise she referred to some of the matters covered by her oral evidence before the primary judge.

59 The primary judge referred to her evidence about Larrakia Barracks (men’s business), Old Man Rock, mosquito dreaming, her parents and older people speaking language, and her father’s entitlement to enter Larrakia land by reason of his marriage to her mother. Although his Honour did not record all aspects of the evidence, in the light of the topics to which he did draw attention, it cannot be said that he failed to have regard to her evidence.

60 Topsy Secretary, who was born in 1928 and died in 1999, did not give evidence before the primary judge. Her evidence in the Kenbi claim was tendered before his Honour. It dealt with the places where her family had lived, travelling with her relations when she was a little girl, her father catching fish and turtle, going to Kalaluk for coconuts when she was a kid, corroborees, that there are no corroborees or dancing men now, but sometimes other tribes are invited to come and dance.

61 The primary judge referred to her evidence about corroborees, the fact that they were no longer held and that other tribes were invited to come and dance. The other topics referred to above related to Topsy’s early life (variously when a little girl or a kid) and to things her father did at that time. All that was before the interruption period. The primary judge referred to many aspects of her evidence other than those specifically relied on for interruption purposes. It cannot be said that his Honour failed to have regard to her evidence as a whole. Such part of it as was relied upon for interruption purposes was simply not relevant to that issue.

62 Pauline Baban gave a witness statement and oral evidence before the primary judge. In her witness statement she referred to her Larrakia membership through the bloodline of her ancestors, her granny Ababa fishing, being taught to catch crabs and forage, watching Ababa making baskets out of pandanus leaves, a burial ground at Mindil Beach – Mindil-ang-gwa, collecting bush tucker with Ababa, medicinal fruits and remedies, prawning, the proper way to cook goose by singing its feathers first, Larrakia Barracks (men’s business), Old Man Rock, Shoal Bay, sharing resources, not wasting resources, use of certain Larrakia words, learning Larrakia customs from non-Larrakia people (Limilgan), and a men’s business place at Rapid Creek.

63 In those parts of her oral evidence before the primary judge to which we were referred, in addition to some of the matters contained in her statement, she referred to a women’s business place near Mandorah which she heard about when doing the Kenbi claim, which was after the interruption period.

64 The primary judge recorded the witnesses’ evidence about her granny Ababa, being taught to weave pandanus baskets, learning how to gather bush foods, the Mindil Beach burial ground, a women’s only place she learnt about during the Kenbi claim, her use of kinship terms, that the main criterion for Larrakia membership is bloodline, the development of Darwin restricting Larrakia’s ability to hunt and forage, sharing of bush resources, prohibition of waste and greed, medicinal remedies for headaches and jellyfish stings, cooking fish etc on the fire, calling upon deceased relatives in time of stress, learning Larrakia customs from non-Larrakia persons, a men’s business place at Rapid Creek, and Mindil-ang-gwa- the shoulder of Old Man Rock at Mindil Beach.

65 As is apparent from the foregoing, the primary judge’s detailed summary of much of Pauline Baban’s evidence requires the rejection of the contention that his Honour failed to take it into account or ignored it.

66 It is important to record that while the witnesses dealt with at [36] to [64] were alive during the period or parts of it in which the interruption occurred, the evidence of many of them was in large part about their childhood and growing up experiences: playing, chasing crabs, gathering with their parents, and instruction by the elders, in the period preceding the interruption period or in its earliest phase, and not to any real extent about their practice of those laws and customs during the period in which the interruption occurred. This evidence was relevant to his Honour’s overall task, but did not significantly bear on the 30 year interruption period. Rather it formed the largely undisputed starting point with which a comparison of the post-war years was to be made.

67 Our attention has not been drawn to any particular parts of the evidence of the other ochre witnesses. On any appeal it is incumbent on the party asserting error to establish it to the satisfaction of the court. Where it is claimed that the judge ignored relevant evidence, that evidence should be identified and its relevance explained, as has been done with the witnesses dealt with at [36] to [64]. Only then can an appellate court address the ground of appeal. It is not the court’s function to attempt to determine from the evidence what the appellant might consider to be relevant, and then determine whether the judge overlooked it. A fortiori in a case such as the present, where the transcript of proceedings occupied 7,915 pages.

68 It is to be remembered that the ground of appeal under consideration is not that the evidence before the primary judge did not entitle him to conclude that there had been an interruption. As counsel said, it was not part of Larrakia’s case that on the totality of the evidence his Honour could not have come to the conclusion he reached. Rather the ground is a process-type complaint, that his Honour did not refer to what Larrikia considered to be critical evidence, which it was said showed that he did not consider or take it into account.

69 We have noted at [28] Larrakia’s reliance on Mifsud v Campbell. There is nothing to indicate that the primary judge failed to consider all the evidence. Indeed, what we have said at [36] to [65] indicates that he did consider it. It is true that his Honour did not record or refer to all of it. But he was not obliged to. He did, however, make copious reference to the essential parts of the evidence of most of the ochre witnesses, and some reference to the evidence of all of them.

70 The primary judge had before him a complex case. There were 47 Aboriginal witnesses, many expert witnesses, and a great deal of documentary material. The hearing lasted 68 days. The Full Court has referred to the special features of native title cases in connection with a claimed failure on the part of the trial judge to take into account various parts of the evidence. In Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (2001) 110 FCR 244 at [202]- [203] Branson and Katz JJ said:

"His Honour's finding that there was a period of time between 1788 and the date of the appellants' claim during which the relevant community lost its character as a traditional Aboriginal community is not to be lightly disturbed on appeal to this Court. A finding that an indigenous community has lost its character as a traditional indigenous community involves the making of a judgment based on evidence touching on a multitude of factors. The hearing before his Honour was long and complex .... The preparation of a written judgment that explicitly rehearsed and evaluated every part of this evidence would have been an exceptionally burdensome task.

It is not to be expected that, following a hearing of the length of the trial of this matter, the judge at first instance will make reference in his or her judgment to every matter which influenced his or her findings on a complex issue such as the maintenance of a traditional indigenous community. We see no reason to conclude from the failure of his Honour expressly to refer to, or evaluate, particular aspects of the evidence, that he did not take them into account."

71 Their Honours went on to say that in cases such as Yorta Yorta, considerable caution is appropriate before the Full Court infers that crucial evidence was not evaluated and necessary findings of fact were not made.

72 Their Honours’ observations are applicable to the present case. For the avoidance of doubt, we add that we do not in this case need to resort to admonitions of caution, for we are clearly of the view that the primary judge amply discharged his duty to consider all the evidence, and referred in his reasons to such parts of it as were relevant to the resolution of the issues that were before him. He did not ignore evidence crucial to those issues.

Misapplication of Yorta Yorta

73 By their second ground of appeal the appellants argue that the primary judge erred in three respects in his application of s 223(1) as explained by the High Court in Yorta Yorta. The first was that he failed to consider whether the body of laws acknowledged and customs observed by the appellants had its origins in the laws and customs that existed at the time of the assertion of sovereignty. Rather he, impermissibly, compared the body of laws and customs at sovereignty with those that exist today, determined they were different, and on that basis concluded that the requirements of s 223(1) had not been made out.

74 The second error was said to be that his Honour’s finding that there had been an interruption in the body of laws and customs was based in part on the disruption in Larrakia’s presence in the Darwin area. Larrakia argued that physical presence is not a necessary requirement of native title, because s 223(1) directs an enquiry into the acknowledgment and observance of traditional laws and customs, not into physical presence on or use of land. Related to this was said to be his Honour’s reliance on the disruption in Larrakia’s continued observance and enjoyment of their traditional laws and customs. Again, it was said that such continued observance and enjoyment was not a necessary requirement of native title; s 223(1) is not directed to the enjoyment or exercise of rights and interests, but rather to the possession of those rights and interests.

75 The third alleged error was that his Honour required Larrakia to show not only that they observed traditional customs but that the knowledge of those customs was transmitted in the traditional manner.

The book-end error

76 In Northern Territory v Alyawarr at [77], the Full Court said that Yorta Yorta established that:

"It must be shown that the society under whose laws and customs the native title rights and interests are said to be possessed has continued to exist from sovereignty to the present day ‘as a body united by its acknowledgment and observance of the laws and customs’. However, change or adaptation in traditional law and custom or some interruption of enjoyment or exercise of native title rights is not necessarily fatal to that continuity."
(references omitted)

77 Larrakia submit that the primary judge erred in his application of Yorta Yorta by, in effect, comparing the contemporary Larrakia laws and customs with those that existed at the date of the assertion of sovereignty, and inferring from the lack of correspondence that there had been interruption. The error is said to be manifest in the following passage at [835]:

"There are also in my view significant changes in those laws and customs from those which existed at sovereignty. ... Those differences and changes stem from, and are caused by, a combination of the historical events which occurred during the 20^th Century. Those events have given rise to a substantial interruption in the practice of the traditional laws and customs of the Larrakia people as they existed at sovereignty and at settlement, so that their practice and enjoyment has not continued since sovereignty."

Larrakia say that it is not relevant to ask whether there has been "a substantial interruption in the practice of ... traditional laws and customs ... as they existed at sovereignty". Rather the relevant question is whether the laws and customs of the claimants today had their origins in the laws and customs observed at sovereignty.

78 At [97] the primary judge set out what he saw as being his task:

"The evidence is to be considered having regard to the matters which the applicants are required to establish to make out their claim or claims, and which the Territory disputes. They are:

(a) whether the applicants are a society united in and by its acknowledgment and observance of a body of laws and customs which constitutes a normative system, or as the Territory contends, the ‘laws and customs’ asserted are idiosyncratic and inconsistent both between and within family groups, with the result that it is not possible to infer any commonality or unity within the group about those ‘laws and customs’;

(b) whether the present day body of laws and customs are the body of laws and customs acknowledged and observed by the ancestors of members of the Larrakia people, or as the Territory contends, the differences between the laws and customs disclosed in the historical material and the present day evidence are significant and substantial; and

(c) whether the acknowledgment and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty, and whether the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs, or as the Territory contends, from very soon after non-Aboriginal settlement of the Darwin area, the Larrakia ‘society’ ceased to acknowledge and to observe the laws and customs previously acknowledged and observed, until the ‘land rights era’ of the 1970s when a revival of an approximation of those laws and customs gave rise to the present day Larrakia society."

79 Larrakia submitted that sub-paragraph (b) discloses the error made by his Honour. They say it misstates the test in Yorta Yorta.

80 In his oral submissions, counsel put the alleged error as follows:

"what his Honour did wrongly was to line up on the one hand the incidents and means of transmission of law and custom of the Larrakia people as he was prepared to find them in existence in the last decade or so – line that up on the one hand, and to line up on the other hand what he was prepared to find or infer to be the incidents and means of transmission of the laws and customs of the Larrakia people as they existed at sovereignty, and then to infer interruption from change."

According to Larrakia, what his Honour should have done was to ask "whether the laws and customs of the Larrakia people as they currently exist [are] the product of a normative system which originated before sovereignty and which has continued as a normative system since sovereignty".

81 In Yorta Yorta at [56], Gleeson CJ, Gummow and Hayne JJ, with whom McHugh J felt bound to agree (the majority) said that

"it will be necessary to inquire about the relationship between the laws and customs now acknowledged and observed, and those that were acknowledged and observed before sovereignty, and to do so by considering whether the laws and customs can be said to be the laws and customs of the society whose laws and customs are properly described as traditional laws and customs."

82 In order to carry out this inquiry it will be necessary, insofar as the evidence allows it, to examine the course of the claimant group’s observance of traditional customs and acknowledgment of traditional laws from sovereignty to the present, in order to determine if they are the same laws and customs at both times. It will be insufficient merely to examine the laws and customs of the present day and compare them with those that existed at sovereignty. Such a ‘book-end’ approach has two significant dangers. First, it may lead to a conclusion that native title has continued throughout the period, when in fact the claimant group’s customs and laws have been discontinued and later revived. Secondly, and more importantly for this appeal, if the laws and customs of the present day are not the same as at sovereignty, the book-end approach fails to ask the critical question whether the traditional laws and customs have ceased or whether they have merely been adapted. An assumption in favour of the former is not justified. It follows that if his Honour did adopt this ‘book-end’ approach, he has misunderstood Yorta Yorta.

83 Larrakia’s submissions in this respect must be rejected. It is clear that the primary judge has not simply considered the evidence of the claimant society at sovereignty and today. We have already rejected Larrakia’s submission that his Honour failed to consider the evidence relating to much of the intervening period. The evidence we have set out at [36] to [64] demonstrates that his Honour had regard to Larrakia’s oral evidence relating to the period of European settlement as well as the documentary evidence. His Honour’s findings that Larrakia did not maintain the acknowledgement of their traditional laws and observance of their traditional customs are based upon evidence, particularly from older members of the Larrakia group, that practices they had engaged in during the first half of the twentieth century did not last into the second half. The submission that his Honour inferred interruption from change is not supported by a close reading of his reasons. No inferences needed to be drawn, since it was apparent to his Honour on the evidence that there had been a substantial interruption.

84 We do not consider the passages identified by Larrakia demonstrate the error for which they contend.

85 The alternatives contained in sub-para (b) of the passage quoted from the primary judge’s reasons at [78] are shorthand renderings of the parties’ competing submissions. They must be read together and not in isolation. The words in the first of the alternatives – "are the body of laws ..." are explained in the second. That is to say, the present day laws and customs will be the same body of laws as those that existed at sovereignty if the differences between them are not significant and substantial. The second alternative is that the present day laws and customs will not be the same body of laws as those that existed at sovereignty if the differences between them are significant and substantial. It is apparent from the passage from Yorta Yorta quoted by his Honour and set out at [92] and the passage from his Honour’s reasons quoted at [96], that in determining whether differences are "significant and substantial" it is appropriate to look at whether the differences are due to adaptation, so the laws and customs at the present time can still be said to be those existing at sovereignty, though modified to changed circumstances. If that is the case, the differences will not be significant and substantial. If not, they will be. No exception can be taken to that formulation. It does not posit a book-end approach. His Honour considered whether the differences were the product of adaptation and modification or were significant and substantial and decided, based on the evidence we have referred to earlier in these reasons as well as additional evidence to which we have not needed to refer, that the latter was the case.

86 We also do not consider that the passage at [835] of his Honour’s reasons (quoted at [77]) demonstrates a misunderstanding of the Yorta Yorta test. That paragraph does not address the whole of the test, but is directed to the more limited question whether there has been an interruption in the practice of traditional laws and customs. The paragraph is to be understood in the light of what we have said at [85].

87 The primary judge’s careful setting out of relevant passages from the majority judgment makes it impossible to accept that he misunderstood the Yorta Yorta test. In a section entitled The Law in Relation to Native Title his Honour considered the question of continuity of native title rights. He commenced by setting out the definition of ‘native title’ found in s 223(1) of the Act:

"223(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."

88 At [54] his Honour noted that in Yorta Yorta, the majority stated that the rights and interests the subject of the Act are those which derive from traditional laws and customs that formed a body of norms existing before the assertion of sovereignty. He then quoted from the majority judgment in Yorta Yorta at [46]-[47]:

"...the references, in pars (a) and (b) of the definition of native title, to ‘traditional’ law or custom must be understood in the light of the considerations that have been mentioned. As the claimants submitted, ‘traditional’ is a word apt to refer to a means of transmission of law or custom. A traditional law or custom is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. But in the context of the Native Title Act, ‘traditional’ carries with it two other elements in its meaning. First, it conveys an understanding of the age of the traditions: the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only those normative rules that are ‘traditional’ laws and customs.

Secondly, and no less importantly, the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the peoples concerned, requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. And any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which rights and interests must spring if they are to fall within the definition of native title."
(High Court’s emphasis.)

89 From this passage the primary judge concluded at [55] that:

"The majority judgment in Yorta Yorta imposes a requirement of continuity on both the Aboriginal society and also on the acknowledgment and observance of the traditional laws and customs which are claimed to give rise to the rights and interests under the NT Act."

90 His Honour went on to consider the continuity aspect of native title, a matter of some importance in Yorta Yorta. He noted at [56] that if a society that had once possessed native title rights ceased to exist:

"then so too do its traditional laws and customs, from which rights and interests arise ... . Once a society has ceased to exist, it is not possible for descendants of that society to take up again the ‘traditional’ laws and customs as those expressions are used in the NT Act."

91 His Honour then quoted further from the majority judgment in Yorta Yorta at [53]:

"When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society."
(High Court’s emphasis.)

92 At [57] the primary judge said:

"The requirement for continuity of connection is not absolute. In Yorta Yorta, the majority recognised at [83] that

‘...demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. ... The key question 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 when that expression is understood in the sense earlier identified?’

(High Court’s emphasis.)

See also Yorta Yorta at [44] and [82]-[89]."

93 Finally, at [58], his Honour said that "[t]he acknowledgement and observance of the traditional laws and customs must have continued ‘substantially uninterrupted’ since sovereignty: Yorta Yorta at [87]".

94 The primary judge’s conclusions on the question whether native title rights have survived are contained in the section entitled Conclusions Regarding s 223(1) of the Native Title Act. At [803] his Honour said:

"I have found above that, at sovereignty, there was a society of indigenous persons who had rights and interests possessed under traditional laws and customs, and giving them a connection to the land and waters of the claim area. I have also found that that society was the same society as existed at settlement and continued to exist up to the first decade of the 20^th Century, that it continued to enjoy rights and interests under the same or substantially similar traditional laws and customs as those which existed at settlement. Consequently, to that point, that society of Larrakia people were possessed of traditional laws and customs giving them the rights and interests to which I have referred."

95 His Honour also concluded, at [805], that the Larrakia people of today are the same society as that which existed previously, including at settlement. He then re-iterated what was said in Yorta Yorta about traditional laws and customs, which is set out above at [88]. He contrasted two sets of circumstances, the first where "interruption in the use or enjoyment of native title rights and interests ... may not disqualify the current generation from having those laws and practices regarded as ‘traditional’", and the second where "there has been an interruption in the acknowledgment and observance of laws and customs" such that "the laws and customs which are now acknowledged and observed will not have continued substantially uninterrupted since sovereignty".

96 His Honour continued at [811]:

"I am mindful that ultimately the court must simply apply the provisions of s 223 of the NT Act. Interruption of the enjoyment or exercise of native title rights and interests in a particular geographical area will not necessarily be fatal to a native title claim. Nor will change of itself necessarily have that effect. The significance of change to, or adaptation of, traditional law or custom in particular circumstances may present difficult questions as to whether the current law and custom is still ‘traditional’ as used in s 223(1)(a) and as discussed, for example, in Yorta Yorta. In that case, the majority also pointed out at [84] that interruption of use or enjoyment of native title rights or interests may be significant in determining whether those rights and interests now possessed are possessed under ‘traditional’ laws and customs. That is why the observance and acknowledgment of the pre-sovereignty laws and customs should be shown to have continued substantially uninterrupted since sovereignty. In Yorta Yorta the majority at [86]-[88] said:

‘Yet again, however, it is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. For the reasons given earlier, ‘traditional’ in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty.

For exactly the same reasons, acknowledgement 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 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 people 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.

To return to a jurisprudential analysis, continuity in acknowledgement and observance of the normative rules in which the claimed rights and interests are said to find their foundations before sovereignty is essential because it is the normative quality of those rules which rendered the Crown’s radical title acquired at sovereignty subject to the rights and interests then existing and which now are identified as native title.’"

97 His Honour then concluded at [812] that a "combination of circumstances has, in various ways, interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the 20^th Century in a way that has affected their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty". He then went on to set out at [813]-[833] the factual findings that led to this conclusion before saying at [834]:

"I have therefore reached the conclusion that the Larrakia people, that is the present society comprising the Larrakia people, do not now have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia people at sovereignty. That is because I do not find that their current laws and customs are ‘traditional’ in the sense explained in Yorta Yorta."

98 It is apparent from this lengthy setting out of part of his Honour’s judgment that he informed himself of the Yorta Yorta test and applied it to reach his conclusions. No error has been shown in this process. It is also apparent from the foregoing, especially from [92] and [96], that the shorthand summary in sub-par (b) at [78] is to be understood in the manner we have described at [85] and [86].

Physical presence and exercise of rights

99 The primary judge concluded at [812] that a

"combination of circumstances has, in various ways, interrupted or disturbed the presence of the Larrakia people in the Darwin area during several decades of the 20^th Century in a way that has affected their continued observance of, and enjoyment of, the traditional laws and customs of the Larrakia people that existed at sovereignty."

100 In written submissions this was said to involve the imposition of a requirement that Larrakia now have substantially uninterrupted possession of the claim area and exercise of their native title rights, neither of which is mandated by s 223(1). The point was not pursued in oral argument. However, since it was not abandoned we will deal with it.

101 In Yorta Yorta, the majority said at [84]:

"Interruption of use or enjoyment, however, 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."
(emphasis added)

102 In Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at 85, Gleeson CJ, Gaudron, Gummow and Hayne JJ said:

"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."
(emphasis added)

103 The primary judge referred to the passage from Ward quoted above at [102]: see [51]. He was aware that a failure to continue to live on the claimed land or exercise the claimed rights will not necessarily be fatal to a native title claim.

104 Read in totality, it is clear that his Honour’s conclusion on interruption was not based on the dislocation of the claimants from Darwin, or their failure to continue to exercise many of their native title rights. Rather he recognised that these were both evidence and symptoms of a more fundamental discontinuity in the traditional laws acknowledged and customs observed. Neither the passage from Yorta Yorta set out at [101] nor that from Ward set out at [102] suggests that non-use of land and waters or a failure to exercise rights over them are not evidence of discontinuity. That it is such evidence is apparent from the first of the emphasised sentences in [101]. A claimant group that has been dispossessed of much of its traditional lands and thereby precluded from exercising many of its traditional rights will obviously have great difficulty in showing that its rights and customs are the same as those exercised at sovereignty. This is, in effect, what has happened to Larrakia in this case. It is not that the dispossession and failure to exercise rights has, ipso facto, caused the appellants to have lost their traditional native title, but rather that these things have led to the interruption in their possession of traditional rights and observance of traditional customs. That this was the primary judge’s view is clear from the following passage, at [839]:

"To summarise, in my judgment, the Larrakia people were a community of Aboriginal people living in the claim area at the time of sovereignty. The settlement of Darwin from 1869, the influx of other Aboriginal groups into the claim area, the attempted assimilation of Aboriginal people into the European community and the consequences of the implementation of those attempts and other government policies (however one might judge their correctness), led to the reduction of the Larrakia population, the dispersal of Larrakia people from the claim area, and to a breakdown in Larrakia people’s observance and acknowledgement of traditional laws and customs. In the 1970s the land claims drew interest to the Larrakia culture and there has since been a revival of the Larrakia community and culture. A large number of people who now identify as Larrakia only became aware of their ancestry during these land claims, and acquired much ‘knowledge’ at this time. The Larrakia community of 2005 is a strong, vibrant and dynamic society. However, the evidence demonstrates an interruption to the Larrakia people’s connection to their country and in their acknowledgement and observance of their traditional laws and customs so that the laws and customs they now respect and practice are not ‘traditional’ as required by s 223(1) of the NT Act."

Transmission of knowledge

105 At [823] the primary judge said:

"The firm impression I have is that the evidence does not reveal the passing on of knowledge of the traditional laws and customs from generation to generation in accordance with those laws and customs during much of the 20^th Century."

Larrakia submit that this elevates the method of transmission of knowledge of traditional customs to an essential part of the customs themselves. In other words, if transmission of knowledge of customs is not undertaken in the traditional way, then the customs themselves are no longer traditional.

106 This submission, even if it were correct, would not assist Larrakia. That is because the trial judge’s findings about the interruption to the customs observed by Larrakia went far deeper than just the manner of their transmission. His Honour found that the laws acknowledged and customs observed by Larrakia as a whole were interrupted between the war and the 1970s. Consequently, even had Larrakia been able to show a continuing tradition of transmission of knowledge of their customs and laws, the interruption to the rest of their practices was fatal to their case.

107 In any event, this submission is unsound. A tradition of passing on knowledge by word of mouth may in itself constitute a traditional custom. That is what his Honour appears to have found here. Its discontinuance is therefore further evidence of the interruption to Larrakia’s society generally. No doubt the failure of a claimant group to continue to pass on knowledge of other customs and laws by word of mouth will not necessarily be fatal to their claim. But it may be evidence of an interruption in customs and laws generally. It is a factor that the trial judge rightly took into account in coming to his conclusion.

The Kenbi claim report

108 The third ground of appeal, which Larrakia’s counsel described as "very much subsidiary" to the others, concerns the primary judge’s treatment of the Kenbi claim report. Larrakia complained that while the report and the evidence on which it was based were received into evidence, his Honour was not prepared to adopt or have regard to the Commissioner’s findings that Larrakia have, under Aboriginal tradition, attachments to and rights to forage over, occupy and use country associated with them. This was said to be a miscarriage in the exercise of the discretion conferred on him by s 86 of the Act.

109 So far as presently material s 86 provides:

"Subject to subsection 82(1), the Federal Court may:

(a) receive into evidence the transcript of evidence in any other proceedings before:

(i) the Court; or
(ii) another court; or
(iii) the NNTT; or
(iv) a recognised State/Territory body; or
(v) any other person or body;

and draw any conclusions of fact from that transcript that it thinks proper; and

...

(c) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v)."

The primary judge treated the Aboriginal Land Commissioner as "any other person or body" within s 86(a)(v).

110 Larrakia sought to have the primary judge adopt certain findings made by the Commissioner, including those relating to rights to forage. The Territory opposed this course. His Honour noted at [437] certain differences between the respective regimes which the Act and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) establish:

"There is no precise correspondence between the proof requirements under the NT Act and those for a claim under the ALR Act. Section 3 of the ALR Act defines ‘traditional Aboriginal owners’ as including that they be a local descent group of Aboriginals who have common spiritual affiliations, being affiliations that place that group under a primary spiritual responsibility for the particular land. It is a term which does not include all those Aboriginals who may have a traditional right to use or occupy the land: cf s 71(1) of the ALR Act, and the discussion by Northrop, Hill and O’Loughlin JJ in Northern Land Council v Olney [1992] FCA 69; (1992) 34 FCR 470 at 478-485."

111 His Honour then, at [441], referred with approval to the observations of Carr J in Phillips v Western Australia [2000] FCA 1274 at [16]:

"In respect of non-controversial matters, there might well be a saving of time and resources if the Court were to exercise its discretion to adopt particular findings or decisions of a court, person or body of a kind mentioned in s 86. There might also be cases where that would be an appropriate exercise of the discretion even in relation to contentious matters. That would depend upon the subject matter of the proposed adoption and the circumstances of each particular matter."

112 The primary judge’s reasons for declining to adopt the Commissioner’s findings were expressed as follows at [442]:

"The Kenbi Claim covered a claim area distinct from that involved in these proceedings. Not all of the witnesses who gave evidence before his Honour were called in these proceedings, for various reasons. The expert evidence was in part from different witnesses. The expert evidence too related to the different issues which arose under the ALR Act, and was in respect of different land. The matters to which those findings relate have also been, to varying degrees, the subject of additional and in some instances different evidence in the current proceedings. Those considerations have led me to the view which I have expressed."

113 An assault upon the exercise of a discretion such as that contained in s 86 is attended with difficulty. In Australian Coal and Shale Employees’ Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 Kitto J, speaking of discretionary decisions, said:

"there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

114 Nothing has been put to us that impugns his Honour’s exercise of discretion. None of the matters enumerated by Kitto J is present here. The considerations moving the primary judge (set out at [112]) were apposite and relevant. This ground of appeal must be rejected.

THE QUALL APPEAL

115 The issues in this appeal are of a quite different character to those raised by the Larrakia appellants. In substance two errors by way of omission are ascribed to the primary judge. First it is said that his Honour failed to consider the substance of the case advanced by the Quall appellants at trial and by so doing did not properly identify the relevant society that was the source of the traditional laws and customs by which, at sovereignty, the Larrakia people had rights and interests in the application area. There is sharp disagreement between the appellants and the respondents as to what the Quall case was. For this reason it will be necessary to consider in some detail both the original native title determination applications and the evidence and submissions made by Kevin Quall at the trial. Secondly, it is said that his Honour failed to provide proper reasons for his decision if he did consider the case advanced by the Quall appellants.

116 Underpinning the first of these matters is the assertion by the appellants that the Quall application at trial was made on a different basis from that of the Larrakia applicants. That difference is said to be that while the Larrakia applicants contended they were entitled to native title rights and interests in the application area under the traditional laws and customs of "the Larrakia people", the Quall applicants based their entitlement to native title rights and interests under the traditional laws and customs of "the Aboriginal society in the region stretching from Cox Peninsular to West Arnhem Land". That society includes the Larrakia people and has been referred to variously as the "Top End society" or "people of the Top End". For convenience we will use the former of these two descriptions in these reasons.

117 Ms Kelly, who represented Mr Quall, explained the above difference in oral submissions in the following way:

"He [Mr Quall] is a member of Larrakia Society, no question about that at all. He is also and he wouldn’t say the other members of Larrakia Society are also members of a differently constituted society united by their common acknowledgment and observance of a different body of laws and that group, that society, is the society [consisting of] Aboriginal people in the Top End region. Now, clearly the two bodies of laws are different. Larrakia law and custom regulates the relationships of the Larrakia People internally, if you like. The body of laws and customs that are common to Aboriginal People throughout the Top End are those laws and customs via which they regulate their relations with each other on a wider regional level."

Background

118 It is appropriate to begin with a note on nomenclature. There are eleven native title determination applications for which Mr Quall was the named applicant. In two of these the native title claim group is referred to as "members of the Danggalaba Clan". In the remaining nine the group is referred to as (listed) "descendants of Kulumbiringin ancestors and constitute the Kulumbiringin according to Aboriginal law and custom". As we understand it from the appellants’ reply submissions, "Kulumbiringin" was the term used by the Larrakia people to describe themselves at the time of sovereignty. The significance of this community of identity will become apparent below. The word "Danggalaba" refers to a clan, or subset, of the Kulumbirigin tribe. The primary judge found that, though the Larrakia had a patrilineal clan system which had ceased to exist, the Danggalaba was the one clan that continued to exist: [558]. In the material before us there has not been altogether consistent usage of these descriptors. Equally Mr Quall on occasions used the terms "Danggalaba Larrakia" to refer to the clan as such.

119 It is important to emphasise that Mr Quall was not represented at the hearing before his Honour. Nonetheless, as his Honour indicated ([34] and [798]), he gave evidence (albeit of "relatively short compass"); he tendered some documents, though these did not include an anthropological report prepared for the proceedings; he cross-examined witnesses; and he made submissions. His Honour noted (at [797]) that his evidence was, in effect, the only evidence directly supporting his claim.

The case advanced at trial

The native title determination applications

120 We need only refer by way of example to one of the eleven applications made by Mr Quall, it being the one to which we were taken by counsel for the appellants. It is DG6014/98 and relates to Elizabeth River. Part A cl 2 of the Form 1 application (which deals with authorisation) referred to the native title claim group as "Kulumbiringin" and described the process of authorisation, insofar as presently relevant, as follows:

"The authorisation is given under traditional and customary law that the Kulumbiringin possess and hold in the interest of all its membership. Under Kulumbiringin Law the claimants have inherited the knowledge from ancestors to protect and maintain traditional law": emphasis added.

121 Schedule A to the application described the claim group, as earlier noted, as named descendants of Kulumbiringin ancestors. The group is said to constitute "the Kulumbiringin according to Aboriginal law and custom". We would note in passing this reference to "Aboriginal law" as counsel for the appellant contends that, as used later in the application (and presumably in the above), the description refers to the law and customs of Top End society. We would also note both that three of the four named elders in the claim group gave evidence in the Larrakia application and that that application included all members of this claim group.

122 The next identifying reference to traditional laws and customs is in Schedule F ("General description of Native Title Rights and Interests Claimed"). The schedule required, amongst other things, a description of the factual basis on which it was asserted that (a) there existed traditional laws and customs that gave rise to the claimed native title and (b) that the claim group has continued to hold native title in accordance with those laws and customs. The descriptions given were as follows:

"(b) Traditional laws and customs

Kulumbiringin Traditional Laws and Customs are still continuing up until the present, as there is the existence of Sacred Sites in the subject area. Traditional laws and customs are observed by the claimants through their spiritual and ceremonial affiliation which shows clearly their association with the area: emphasis added.

(c) Continuing to hold native title

Ownership is described in accordance with the on-going traditional rights and interests in the subject area. The native title claim group continues to hold native title with traditional laws and customs taught by our Elders who have passed on, and by those who are present.

The transmission of knowledge is so important to the Rights of the claimants that they establish ownership and have to mean our legal rights are recognised.

Our traditional laws and customs have been continued throughout time by the Kulumbiringin Ancestors exclusively and is continued by the Descendants who are members of the native title claim group and members of the Kulumbiringin": emphasis added.

123 Under the heading "Further information" it was stated that the group had its rights and interests because it was the Kulumbiringin group; that these rights and interests came from traditional laws and customs by way of "ongoing ceremonies that have been done exclusively by Kulumbiringin men and women in the Darwin area and adjacent land, the Cox Peninsular": emphasis added; and that the group was connected by the "Kulumbiringin Dreaming tracks that come from creation time".

124 Schedule R (which deals with certification or authorisation) again refers to "Kulumbiringin Law" as also does Schedule S.

125 Attachment S to Schedule S is a discursive document of nine pages that deals variously with matters of history, kinship and heritage, the Kulumbiringin, the moiety system, etc. It is apparently didactic in purpose but it is not free from ambiguity. Because counsel for the applicant has sought to derive much from this attachment as providing a platform for the appellants’ case we will refer, necessarily selectively, to some number of its paragraphs the ones chosen being in the main paragraphs to which we were taken by Ms Kelly.

126 The following appears under the heading "Local":

"The Native title claimant group is local in that our traditional land interests have a firm and fixed focus on and within a limited area of Darwin and the Cox Peninsular and its islands. The Native Title claimant group do not maintain or advance an interest outside of this country. In fact the Native Title claimant group can be more specifically associated with a number of sacred sites along a Dreaming track. This association distinguishes our connection to country. The Native Title claimant group is local in that this is our traditional land. We claim our existence through our ancestors and the land we claim belong to our ancestors. Members of this community group share an exclusive belief in the Dreaming presence in our country and our belief constitute a common spiritual affiliation to the sites and the land traversed by the Dreaming sites and tracks. Our spiritual and religious affiliation is embedded historically in a clear continuation of the past and present."

127 Under the heading "We have law and culture" is (inter alia) the following:

"The native title claimant group is a kinship group that originates from Aboriginal law. To be a member of this group is to be recognised through law and customs. It is their responsibility to make decisions that allow us the descendants to understand the construction of kinship and how, to act and behave within the family group. The important thing is that the law tells us who we are and how we belong together forever. We are taught this knowledge for the purpose of belonging to Aboriginal culture. This is always reminded to us by elders who rely on and follow the law of our ancestors. Our law does not come from the south east or south west. It is from the north east."

128 In discussing the moiety system, it is said:

"A language group means that all as a group having the same language denotes land owners Quite the opposite to moieties The moiety system designates a division because of aboriginal law and customs. Aboriginal law and customs does not come from a language group or make a language group. Its not aboriginal law or tradition. The Kulumbiringin membership is to belong to a Dreaming that is significant to the land and its group. It comes from the moiety system and the moiety system is to have together a shared common group rights and traditional interests.. The life of the people is governed by different groups of people who have different Dreamings different lands. To belong to a moiety maintains the groups roles and responsibilities of sacred sites, ceremonies, marriages, kinship, Dreaming track, for continuation of laws and customs. The kulumbiringin applicant claimant group membership of the Kulumbiringin desendants (sic) through their apical ancestors provides a distinct group, separate to others because of Aboriginal law, and custom. And that the group hold the traditional native title rights and interest, of the areas claimed and subject areas. The kulumbiringin membership maintains the moiety system, the system of one law. The native title claimant group are the traditional native title holders that hold the rights and interests of the land and subject areas. To carry on the aboriginal tradition is be linked to other countries of other lands also. And its not by language when dealing with such aboriginal connections. Its belonging to a moiety system. That gives you the right."

129 Mr Quall referred to a deal of Attachment S in his oral evidence, and particularly to that referred to under the heading "Local".

130 To anticipate matters, counsel for the applicant seeks to draw from the application that it supports a case that the claim groups rights and interests are derived from Aboriginal Law, i.e. from the traditional laws and customs of Top End Society. We would, though, interpolate that Ms Kelly acknowledged that she could not make the submission that it was made perfectly clear to his Honour that the case was being run on the basis she was now asserting. The respondents, in contrast, contend that the relevant laws and customs referred to in the applications were those of the Kulumbiringin (or Danggalaba clan).

131 We would note, additionally, that the native title determination applications that refer to the Danggalaba clan describe the traditional law and customs that gave rise to the claimed native title as "Danggalaba Traditional laws and customs": DG6019/98, Sch F.

132 The final matter to which reference should be made relates to the composition of the claim groups in the various applications. Those groups were comprised variously of eight named persons or the family groups of four named elders. Three of those elders gave evidence in the course of the Larrakia applicants’ case. In his final written submissions Mr Quall confined the claim group to members of the Batcho family of whom he was one.

The hearing and the evidence

133 In its written submissions the Northern Territory referred in detail (primarily through footnotes) to the sources containing the positive case put by the appellants to the primary judge. It is not necessary to refer to these sources in detail (although some reference to aspects of them will be necessary). Ms Kelly for the appellants has taken us to parts of Mr Quall’s oral evidence and to selected extracts from the exhibits to illustrate the case which, it is said, his Honour failed to address. For the most part we will confine our account of Mr Quall’s evidence to the material dealt with by Ms Kelly.

134 Before referring to Mr Quall’s evidence, it is appropriate that we refer to his opening on the second and third days of the hearing. The primary judge had sought to ascertain from him the participation he wished to have in the case, what his evidence would be, etc. While Mr Quall indicated his objections to the Larrakia claim group, his dissatisfaction with the Northern Land Council and his criticisms of the Kenbi Land Claim, he did not indicate at that stage a positive case that derived from the laws and customs of Top End society. His focus was on the Danggalaba clan of which he said:

"We hold a kinship system provided by the laws and customs which have been practised on this land long before colonisation. The ceremonies and laws are ongoing and it’s practised by our families, just as they practised since time immemorial by our ancestors. We know the sacred sites and dreamings and stories that connects us to this land."

135 In the extracts of evidence to which we were taken Ms Kelly sought to emphasise the following matters:

(i) the native title claim group was associated with a number of sacred sites along the dreaming track and this association distinguishes their connection to country;
(ii) the Dreaming track of the Danggalaba clan extends from "Two Fella Creek" to beyond Larrakia country and is part of the creation of the laws and customs;
(iii) "when you have your dreaming track, you have a one law";
(iv) his relatives participated in ceremonies in West Arnhem Land and he "learned a lot through my families through the West Arnhem Land and their families";
(v) "Aboriginal law is still strong and still going on and – because like a lot of young people are law people ... who don’t live in Darwin but live in their own country now, have a good understanding of our past and what is happening ... [I]n a sense that we’re all Aboriginal people";
(vi) "it’s the Danggalaba people that maintain the aboriginal culture";
(vii) you need permission to enter into another’s country;
(viii) "if you have people on the land and they belong to the land in the Aboriginal sense, well they have to have laws and customs and those laws and customs were made long time ago, at Creation time, and it never changes; it hasn’t been changed";
(ix) in the Kenbi Land Claim "we emphasised a particular area in Two Fella Creek called the Daramanggamaning, and that is our Creator, and that’s where our law starts and ends";
(x) (in reference to evidence at the Kenbi Land Claim) "if you have a Creator on Cox Peninsula and your Dreamings go from Cox Peninsula to Darwin, well that’s your country, that’s Aboriginal law. That’s the law, that’s how the law run, it runs, through the land, and that’s where your strength comes from; your strength comes from that Creator".

136 For its part the Northern Territory pointed to the evidence given by Mr Quall in cross-examination that:

(a) he found out he was a member of the Danggalaba clan in 1989 during the first Kenbi Land Claim (he was then 40);
(b) (to quote the primary judge at [713]): "Tibby Quall acknowledged that he had done an ‘enormous’ amount of reading and research on the Larrakia people", his Honour using the term "Larrakia people" to encompass both the Larrakia and Quall applicants: [96];
(c) he only found out the Aboriginal name site, Darramanggamaning in the late 1980’s; his uncle simply referred to it as Two Fella Creek; and he learned at the same time about his family’s Dreaming.

137 We would note additionally about Mr Quall’s evidence that it covered a significant range of detailed matters about sites, customs, practices, etc that included the frog dreaming, calling out to the spirits of ancestors, particular spiritual or sacred sites including "Old Man Rock" (described by his Honour at [760] as "an important Larrakia site, if not the most important Larrakia site") and particular dreaming tracks. He also gave evidence about "Warryn" (who, his Honour observed at [787], was "said to be the creator of all Larrakia land"). The primary judge referred to these matters of detail and indicated as well that he was impressed by Mr Quall’s evidence and his knowledge of the particular laws and customs of which he spoke.

138 The final comment to be made about his evidence as it related to Aboriginal law is that in significant part it was given in the context of criticising what transpired in the Kenbi Land Claim and was directed at refuting evidence given in those proceedings.

139 Mr Quall’s evidence apart, Mr Kelly referred us to observations made by some early observers of both the Larrakia people and other tribal people in the claim area which, it is said, support the view that the relevant laws and customs come from the Dreaming and are shared by societies. To précis these documents they deal essentially with interaction between and within tribal groups and entry on another’s territory. A paper of 1881 to the Royal Society of South Australia by an Inspector of Police in the Northern Territory does provide a brief note on the origin of the Larrakia tribe which it is said, reveals a common creation story for some number of tribes in the Northern Territory.

140 Additionally, Ms Kelly referred to anthropological reports prepared for the Kenbi Land claim, pointing in particular to a 1997 report by Robert Graham which was prepared for some members of the Danggalaba. The report itself, as Ms Kelly conceded, was really directed at disputing genealogies. It, nonetheless, referred to Larrakia country dreamings: "[s]everal of these travel from distant peoples country and pass into that of others": Report, p 15; and it refers in some detail to the Darramanggamaning site and dreaming that goes from west to east to Western Arnhem Land and then back to the Cox Peninsula.

141 We would note that his Honour accepted into evidence thousands of pages of transcript from the Kenbi Land Claim: [434]. Of the expert evidence given to the Land Rights Commissioner the primary judge observed that it was, in part, from different witnesses; it related to the different issues that arose under the Aboriginal Land Rights Act; and it was in respect of different land: [442]. These comments were made in the context of his Honour not adopting findings made by the Commissioner: [430] ff.

Mr Quall’s oral submissions

142 These were not referred to as such in the appellants’ oral or written submissions. They were quite brief and were directed in the main at disputing the evidence given at, and findings of, earlier land claims and particularly the Kenbi Land Claim. We would only note the following two matters. First, in referring to "our laws and customs" Mr Quall said:

"It was – it shows in the – in the – in the Kenbi Land Claims that there was a lack of laws and customs which related to our Dreamings and sites which are – which are our most important part of our laws and customs through the sites and through the Dreamings of the law that – that was established through the creation and our Dreaming story, and they are relates to sites, particularly to the one that our family had a lot of interest in at the Two Fella Creek area of a site called Daramanggamaning.

...

And it’s important that being Danggalaba that we maintain our laws and customs through our creator which is – which is the Dreaming of our laws and customs, and that’s why the Danggalaba clan group remains so because of that – because Aboriginal law. Aboriginal law maintains your culture through your creation, and you can only practise law through that system which we – it may go into another country, it may come from another country, but you still practise that one law.

And this was not – all this – I mean, even in the – even in Kenbi Land Claim, the people who did get recognised as traditional owners were found not to have Aboriginal law, even of that country. They had to take on board Aboriginal laws and customs of other groups": emphasis added.

143 Secondly, in response to protracted questioning from his Honour, Mr Quall accepted that at 1825 the people in the claim area (the Larrakia people) had traditional laws and customs under which they occupied the land and while the others stopped practising the laws and customs which existed in 1825, the Danggalaba people did not.

Mr Quall’s written submission

144 Two written submissions appear to have been filed by Mr Quall. The first, filed on 19 February 2004 (some months before final oral submission) was of five pages. This submission appears to have been created after the close of evidence. We have not been informed of its particular purpose. Its principal concern was to attack the legitimacy of the Larrakia native title claim. The one presently significant observation it made is contained in the following to which Ms Kelly appears to have referred in her reply submissions:

"The Federal Court should recognise that the Batcho Family, are descendants of the Dangalaba Clan, either by Patrilineal or Matrilineal Ancestors.

Our Claim to be Dangalaba Larrakia, is well respected and identified by Elders and families of neighbouring countries to the East, mainly because of the respect to our Ancestors and our families who have the association and recognition to partake in ceremonies, to the East and in Darwin Which is our true connection to aboriginal Laws and customs. That has continued for thousands of years from our Ancestors. That’s why we say having one law. This Law is directly from Cox Peninsular Darwin to West Arnhemland. Its our law Dreaming and Custom."

145 The second submission, dated 21 June 2004, was filed on 23 June in the last week of the hearing. It is thirty-three pages in length. For the most part this document contested evidence given in the Kenbi Land Claim or in other claims; it dealt at length with the mixing of peoples, with genealogies and with particular sites and ceremonies. There is a number of passages in it, though, upon which the appellants rely for present purposes. The principal of these are the following:

"It is because the Batcho Family have had a strong connection that we have the distinction of participating in Dangalaba Larrakia Laws and Customs through the Kinship and connection to the neighbours of the East to Arnhemland. Whether it be through Initiation or ceremonies relating to Kapok mortuary (funerals) to healing and sickness or celebrations. It is a part of us. At some time individuals of the Batcho families have continued to participate where necessary. They are the ceremonies belonging to one law, one religion, one rite, to this country and us. They happen within our country or together with our neighbouring families of West Arnhem Land because of the one law connection.

It is this connection that is unbroken. The existence of our ongoing traditional Laws and Customs has been overlooked by so-called experts. No other outsiders can comprehend this or understands its true significance or acknowledge its system of existence. The experts ignore it because the truth is others are not a part of it.

...

Within the Batcho family, there is significant evidence that our family is active in ceremonies and show that it is continuous. We maintain the connection and continue to make it live through our children. To show it is a continuous thing, I can say that our families have always have followed and lived the traditional customs, according to law, of our old people. We have maintained these Laws and Customs in unity with the Wulna, Limullimul, Gagadgu, Iwadja and Armuduk people of West Arnhem Land. These Customs and Laws have been practiced without the presence and involvement of any other Darwin family who are the claimants as Larrakia. It is essential that it is finally heard that there is a distinction in the cultural practices of Larrakia people, and ours. Ours is the authentic and unbroken connection.

...

The connection from Cape Don country (Gurig) Coburg Peninsular Warramarrangamanidj to Cox Peninsular Darramarrangamanidj, Darwin. The Dreaming track combines Dirula Serpent Dreaming Red Ochre and Kapalgwa ceremonies. These are joined by the people of Wulna, Creator Techetchering Dreaming, Limull Limull people Creator Unga Robunbun. The Gagadju people Creator Imbrowurngyn, Amuduk people and Iwadja Creator Warramarrangamanidj THE CREATION OF ONE LAW."

146 In passages dealing with ceremonies (p 7), stone arrangements (pp 7-8) and creation dreaming (p 8), the submissions noted the interaction, and links, with neighbouring tribes to the east to West Arnhem Land.

147 Finally, no fewer than eleven references are made in the second submission to Danggalaba Larrakia Laws and Customs.

Primary judge’s reasons

148 At [11] of his Reasons, the primary judge characterised the Quall case in the following way:

"Mr Quall, the named applicant for the second applicant group, submitted that the Larrakia people ought not be awarded native title over the claim area, as the group is simply a language group. He submitted that the members of the Larrakia applicant groups have lost their culture, and that it is the Danggalaba clan (or the Kulumbiringin clan) who have continued to observe and acknowledge traditional laws and customs and to maintain their connection to the relevant land and waters."

149 To anticipate matters, the appellants, while quibbling with his Honour’s understandable confusion of the Danggalaba clan and the Kulumbiringing people, accept the accuracy of the above characterisation as far as it went. What it did not do, it is said, was identify the origins of the traditional laws and customs.

150 In his consideration of the evidence put on in both the Quall and Risk applications, the primary judge indicated that he would adopt the course of referring to the "Larrakia people" as encompassing both the first applicants and the second applicants. That course avoided the duplication of references and reflected the fact that most of the evidence on connection was adduced by the first applicants: [96]. He went on to note that he would distinguish between the two where it was necessary to do so.

151 As we indicated in the Risk appeal, his Honour considered the evidence in three periods – 1825 to circa 1910; 1910 to World War II; and World War II to 1970. It is necessary for present purposes to refer briefly to aspects of his conclusions on the first of these. His Honour was satisfied that (i) within the geographical area that included the claim area there existed at sovereignty an Aboriginal society which, by its laws and customs, had a normative system which gave rise rights and obligations on the part of its members in relation to the land and waters within that area: [232]; (ii) the society which the archaeological evidence indicated was in existence in the lengthy period leading up to sovereignty was the Larrakia people: and at the time of European settlement a society of those people existed and had a close attachment to the claim area: [236], [233]; (iii) they had a normative system by reason of their traditional laws and customs which created rights and obligations possessed by them in relation to the land and waters in the claim area: [233]; and (iv) those laws and customs included rules governing their internal societal relationships, the way they dealt with the land and waters and the collection and use of its resources, and the ceremonial and spiritual aspects of their relationships with their land and waters: ibid.

152 Having then considered the ensuing two periods, his Honour indicated it would be helpful to discuss the anthropological evidence before turning to the current Larrakia society. As he said at [444]:

"[That evidence] introduces and explains the traditional laws and customs which, the applicants contend, are presently recognised by them and which can be traced back through their preceding generations to the society of Larrakia people which I have found to have existed at sovereignty."

153 We would again note in passing that, while Mr Quall did not put on an anthropologist’s report for the purposes of the native title claim, he did tender a report prepared by Robert Graham for the Danggalaba clan for the purposes of the Kenbi Land Claim. Mr Graham provided two reports in the consolidated proceedings for the purposes of the Risk claim. His Honour observed that Mr Graham gave evidence in the hearing of the Kenbi Land Claim and was questioned about that evidence and about documents he had produced for the purposes of that claim: Reasons [36]. Mr Graham indicated in his Supplementary Report of May 2003 that while he considered his Kenbi report to be still a "valid contribution", it was of a different order to those prepared in this proceeding.

154 The one presently relevant piece of evidence referred to by the primary judge was that (at [482]):

"In his supplementary report, Mr Graham stated that the Larrakia people had never adopted moiety terms or sections (described as ‘terms that are in effect absolutes across any society and do not vary’) and that this was a regional feature rather than specific to the Larrakia tribe. He was cross-examined by counsel for the Territory on the basis that certain Larrakia witnesses had indicated that they had ‘skin’, that is, moieties or sections. He accepted that there are a number of Larrakia people for whom moieties or sections form a part of their traditional life. However, he qualified that admission by saying that the Larrakia people who have these characteristics are those who ‘sit between a number of [Aboriginal] groups ... They have taken information from other groups and applied it to themselves or other groups have assigned it to them’."

As will be seen, the Aboriginal Law relied upon by the appellants is premised on a moiety system which connects different Aboriginal people along a dreaming track and gives rise to rights and responsibilities in different clans for difficult sites along that track.

155 What we would emphasise is that common to the Risk and Quall claims is an acceptance that at 1825 the Larrakia (or Kulumbiringin) society in the claim area observed traditional laws and customs. His Honour found such to be the case in respect of the "Larrakia people".

156 From [794] to [801] the primary judge addressed the Quall applicants’ case. His conclusions are sufficiently concise to be able to be set out in full.

"794. In the discussion above, I have used the expression ‘the Larrakia people’ to encompass both the first applicants and the second applicants. I did so simply as a matter of convenience.

795. It is necessary separately to consider the position of the second applicants. Clearly the second applicants are regarded by the first applicants as members of the first applicants group. Several witnesses spoke with respect of the seniority and knowledge of Tibby Quall about their laws and customs. I was impressed by Mr Quall’s evidence, and his knowledge of the particular laws and customs of which he spoke. I have referred to his evidence in my assessment of the evidence and my findings about it. For the reasons explained in this judgment, it has not lead to me concluding that the current laws and customs governing ‘the Larrakia people’ are ‘traditional’ in the sense required by s 223(1)(a) of the NT Act.

796. I reach the same conclusion if I address that issue concerning the laws and customs of the Danggalaba clan. Mr Quall claimed that clan is the only one which has maintained the traditional laws and customs of the society which existed at sovereignty and to the present time. I am mindful that I should distinguish between his evidence and his submissions. It is of course necessary to have regard to all his evidence. I have done so. I also have regard to his submissions, but only to the extent that they have a foundation in the evidence. The assessment of his claim must also be made upon the whole of the evidence.

797. Mr Quall was clearly not supported by other persons (other than his sister) who, he said, were members of the Danggalaba clan. His sister Dianne Quall also was less precise than Mr Quall about the independent significance of the Danggalaba clan and the details of its laws and customs. Other persons who Mr Quall said were members of the Danggalaba clan, some of whom he described as the seniors or elders of that clan, gave evidence about the existence of the wider group comprising the first applicants. Their evidence did not explain with any precision the separate independent existence of the Danggalaba clan. Nor did they regard it as the current ultimate repository of the laws and customs of their predecessors in the Darwin area. They did not describe the laws and customs of the Danggalaba clan as distinct from those of the first applicants. Mr Quall’s evidence (in effect as the only evidence directly supporting the claim) did not go into sufficient detail to establish a separate received set of laws and customs of the Danggalaba clan.

798. There is therefore uncertainty, or inconsistency, about the composition of the Danggalaba clan and the rules governing its structure. There is also, on the evidence, no satisfactory foundation for finding that the second applicants practice and enjoy certain rights and interests which arise under laws and customs which they only have inherited from or had passed on to them by their predecessors back to sovereignty. On the evidence, there is also no satisfactory foundation for concluding that the laws and customs reflect or derive from the normative system of the Aboriginal society which existed at sovereignty. Mr Quall attended during the hearing, but his evidence was of relatively short compass and did not cover a number of matters which would it have been desirable to have covered to reach the necessary level of persuasion. I do not need to speculate as to why it fell short of the proof needed. It may be that his relative lack of resources is one explanation. Nor am I to be taken as indicating that, if that were the explanation, the availability of greater resources to him might have made a difference to the outcome of the second applicants’ claim. Given the uncertainty about the composition of a claim group confined to the Danggalaba clan, where many of those he said fell within it disavowed their membership in favour of the wider group comprising the first applicants, that would at this point appear unlikely.

799. The evidence does show that Victor Williams and Dolly Gurrinyee were members of a social group who passed on to Mr Quall, and probably others, some of the laws and customs which they recognised and protected. The Batcho/Quall families are their direct descendants. Others who are part of the wider group comprising the first applicants are also their direct descendants. Their evidence did not sustain or support the picture for which Mr Quall contended.

800. Accordingly, I am not satisfied that there is a separate more confined society of Aboriginal persons comprising the second applicants who, alone among those who comprise what Mr Quall called the wider ‘Larrakia language group’, possess rights and interests under ‘traditional’ laws and customs by which they have a connection to the land and waters of the claim area.

801. Indeed, the fact that there was a diversity of evidence about the composition and status of the Danggalaba clan, both from persons who Mr Quall claimed to be members of that clan, and from other witnesses, together with the fact that there was diversity of evidence about the laws and customs of that group compared to those of the wider group comprising the first applicants, tends to support my more general conclusions referred to below": emphasis added.

The appeal on the case advanced

157 The appellants’ case as finally put characterised Mr Quall’s case as having always been that the second appellants were entitled to native title rights and interests under Aboriginal law rather than specifically Kulumbiringin/Larrakia law or Danggalaba law, notwithstanding that there are many references in the material before his Honour to observing Kulumbiringin law and Danggalaba law. It is said that it is confirmed by a fair reading of Mr Quall’s two written submissions and Attachment S to the Kulumbiringin application that Aboriginal law does not emanate from, and does not bind, the Larrakia alone. Further it is said that Mr Quall has always maintained that Aboriginal law is the one law which comes from the Dreaming and from the east and it goes from the Cox Peninsular to West Arnhem Land.

158 While Mr Quall did not provide an analysis to the effect that the normative system which gave rise to the rights and interests of the Kulumbirigin people in Kulumbiringin land was that of the wider Top End Aboriginal society, it is submitted that that was implicit in his case.

159 The resultant error said to be found in the primary judge’s conclusion is that he did not address at all Mr Quall’s contention that the second appellants’ rights and interests come from Aboriginal law, specifically a Dreaming which stretches from Cox Peninsular to West Arnhem land, and a moiety system which connects the different Aboriginal peoples along that track and gives rise to rights and responsibilities in different families (or clans) for different sites along that track. His Honour, it is said, did not even identify this as an issue. If he had, it is contended, it would not have been possible for his Honour to base his decision on the findings he did (i.e. that neither Larrakia law nor Daggalaba law are "traditional" within the meaning of s 223(1)) without making a preliminary finding of fact. That finding was that Mr Quall’s submission was not sustainable because he had identified the wrong normative system, the relevant society being Larrakia society, and the relevant laws and customs Larrakia laws and customs, not the regional Aboriginal laws and customs relied upon by Mr Quall.

160 We would emphasise that Ms Kelly acknowledged that the above described case was not put explicitly to the trial judge, but contended that it was reasonably apparent given Mr Quall’s submissions.

161 As to the claimed existence of a wider Top End society at sovereignty, it is submitted the evidence established that (a) the land around the settlement of Palmerston on Port Darwin was occupied by the Larrakia and recognised as Larrakia country; (b) there were other "tribes" occupying neighbouring land, in the areas delineated on the Tindale map; (c) there were dreaming tracks that link the land occupied by the different "tribes" in the region; (d) the creation myths of the Larrakia (and other tribes) accounted for the relationship to the land of their own tribe and that of others in the region; (e) the "tribes" in the region visited each other and participated in shared ceremonies, including ceremonies relating to initiation of young men and death rituals; (f) some of the customs and rituals involved the use of items such as human hair and fat from dead human bodies that were shared or traded between tribes; (g) these tribes intermarried with each other and observed rules in relation to the tribal affiliation of the children of such inter-marriages; (h) there were rules which regulated the response of one tribe to a murder of one of their members by a member of another tribe (and also regulated the response to that response); (i) the tribes knew of and acknowledged each others’ land boundaries; (j) members of one tribe were prohibited from entering the land belonging to another tribe or from removing anything from that land without the permission of the owners; (k) in ordinary circumstances members of the tribe had the right to roam over and use the resources of the whole of the land belonging to the tribe without asking permission; (l) within the tribal lands sub-groups or clans owned their own portions and members of one group were not permitted to enter the camp of another group without a formal invitation; (m) there was a system whereby messengers bearing recognised objects could be sent out to the territory of other tribes in safety with messages/invitations.

162 Taken together, it is said, this evidence unequivocally establishes the existence of a wider "society" of Top End Aboriginal tribes with traditional laws and customs regulating their interactions, their shared religious and ceremonial life, and, crucially for present purposes, their rights and interests in land. It also establishes that that society was the source of the normative system which gave rise to the right of the Larrakia people to ownership of Larrakia land. For reasons we give below, we have not considered it necessary to enter upon the evidence supporting the above assertion.

163 Given the view we take of this matter, it is unnecessary to set out in detail the submissions of the respondents, though we acknowledge the assistance we have derived from them and, particularly, from those of the Northern Territory. Suffice it to say the respondents are as one in claiming that no such case as has been advanced here was raised at trial. The Northern Territory and the Darwin City Council also contend that the evidence relied upon by the appellants does not establish (a) which tribes are members of the Top End society; (b) the nature of the social organisation of that society; and (c) the content of the body of traditional laws and customs which united that society, either at sovereignty or today.

Consideration

164 The difficulties that can be experienced by a trial judge in divining what actually is the case being advanced by a self represented litigant particularly in complex matters are well understood. They were obviously apparent to the primary judge in this matter and are reflected, for example, in his Honour’s precise questioning of Mr Quall at the very end of his closing oral submissions on the actual composition of the group in whose favour a native title determination was being sought. The answers given described a group differing in its composition from those referred to in the determination applications.

165 What must be acknowledged is the distinct advantage a trial judge has in coming to an informed appreciation over the course of a hearing – and particularly a hearing of the length of this matter – as to what is the case being put by a litigant in person. Save in those rare cases where a mistake is palpable, an appeal court, not having that advantage, ought be slow to interfere with the view of the trial judge – the more so when it is supported by the opponents of that litigant who have had to marshall the material necessary to meet the case they in turn have perceived to be put against them.

166 It is also necessary for present purposes to have regard to several quite elementary propositions. The first is that submissions are not themselves evidence. Again we note that his Honour was quite alert to this in relation to Mr Quall’s submissions. He indicated that he had regard to those submissions, "but only to the extent that they have a foundation in the evidence: [796]. He went on to observe that "[t]he assessment of his claim must also be made upon the whole of the evidence": ibid. Secondly, it is impermissible in an appeal to construct a different case to that put at trial by focussing selectively on parts of the evidence which could have lent support to that different case were it then in issue between the parties. Basic fairness to the other parties and the rules of evidence (particularly those relating to relevance: see Commonwealth Evidence Act 1995 (Cth) s 55) require no less.

167 Turning to the present appeal we are satisfied that his Honour neither mischaracterised, nor failed to deal with, Mr Quall’s case as advanced in his application and as presented at the hearing.

168 It is clear from the outset that the cases being put by the Quall appellants in their various applications were based upon traditional laws and customs that were the laws and customs specific to either the Kulumbiringin (or the Larrakia society at sovereignty) or the Danggalaba clan. A fair reading of the applications would not reasonably lead the audience to which they were addressed to any other conclusion. The Schedule F description of the traditional laws and customs in the illustrative application in the Second Supplementary Appeal Book makes no reference to any wider laws and customs or to any broader society. Attachment S to Schedule S of the application is both dense and not free from ambiguity. It does not, in the context of what is said in the application, convey any clear contrary meaning. To have ascribed to it the meaning suggested in this appeal requires that it be divorced from its context and that distinctive "dictionary" meanings be given to particular terms and notably to "Aboriginal Law", though such were not given to his Honour.

169 Mr Quall’s opening submission could only have reinforced the understanding conveyed by his applications. The matters emphasised by Ms Kelly in Mr Quall’s oral evidence were discursive and would not reasonably have put either his Honour or the other parties on notice that the matters on which he was relying to satisfy s 223 of the Act had been changed fundamentally. If anything, in the references made to "our Creator" and "our law", he could reasonably be taken as confirming the bases upon which the applications were made.

170 Set in the body of historical, expert and other evidence before the primary judge the few historical documentary extracts on which the appellants rely cannot, in the context of the trial, be ascribed the profoundly different significance now attributed to them. At best they could reasonably be taken as being indicative of common practices shared by, and of modes of interaction of, neighbouring Aboriginal groups. Further, account of that evidence appears to have been taken in the reports of anthropologists relied upon by his Honour: see Graham, Report March 2002, Appendix A; Graham Supplementary Report, May 2003, Ch 2.

171 Mr Quall’s oral submissions, to the extent they dealt with the issue of laws and customs of a society would again seem confirmatory of the relevant laws and customs being the Danggalaba’s (the Kulumbiringin based claims seem, by this stage, to have been collapsed into the Danggalaba claims). In particular, as the quotations we have given suggest, the tenor of what is said about laws and customs seems group specific (i.e. "our laws" and "Aboriginal laws and customs of other groups").

172 Distinctly, the two written submissions so much relied upon in support of the appeal cannot sustain the weight given them. The second of them, and probably the first as well, were filed after the conclusion of the evidence. The second, as his Honour seems to indicate, would appear to contain some degree of assertion which lacks a basis in the evidence. The Northern Territory has made a submission to this effect. Insofar as the second submission is said to reveal Mr Quall’s case on a basis different to that which we consider had been put to that point, it by no means does so unequivocally or unambiguously. On the contrary. It repeatedly refers to Danggalaba Larrakia Laws and Customs – a usage wholly consistent with one of the two bases on which the primary judge assessed the Quall appellants’ case.

173 To the extent that the second submission refers to unity of practices with other groups, this must be seen in the context of anthropological evidence, accepted by his Honour, of common or similar practices amongst groups in the region: see e.g. [476] and [482]. As comments made late in his reasons indicate: [837]; his Honour was sensitive to the fact that the sharing of laws and customs with other groups did not, of itself, mean that those laws and customs could not be the laws and customs of each particular group.

174 If it can properly be said to be the case that the second submission did put the appellants’ case on a new basis involving a more encompassing body of laws and customs and a wider society practising them, his Honour was entitled to that extent then to disregard it. That, as we have indicated, was not the case that had hitherto been put. It was not the case to which the evidence as a whole was addressed and, as his Honour indicated, he made his assessment of Mr Quall’s case upon the whole of the evidence: [796].

175 Though his Honour’s reasons for dismissing the Quall applications are concise, we do not accept that they betray in any way a lack of attention to their burden or to Mr Quall’s contributions. As the primary judge indicated, Mr Quall was not a passive participant in the matter: see [34]; even if his own evidence was of "relatively short compass": [798].

176 Given the cases which we consider were put by the Quall appellants, his Honour had no reason to advert to, or to make findings about Top End society or Aboriginal Law. Those cases were directed at Kulumbiringin Law and Custom and/or Danggalaba Law and Custom. To the extent that his Honour found the relevant traditional laws at sovereignty were those of the Larrakia people (i.e. the same people as the Kulumbiringin people) – and this was one basis of the case as put - he had extensive evidence, expert and otherwise, on which to make that finding. In so doing, as his Honour indicated, he had regard to all of Mr Quall’s evidence. The applications in which the claim groups were framed as being named descendants of Kulumbiringin ancestors having fallen away in closing oral submissions (unsurprisingly given the evidence of three of the four named elders in the Quall/Kulumbiringin applications), his Honour was then left with the claim of the Danggalaba Larrakia clan – a claim which, probably, was required to be assessed in light of the above finding but which his Honour rejected on another basis. It was this claim that his Honour addressed primarily in his reasons.

177 As with the Larrakia people, it was held that the current laws and customs of the Danggalaba clan were not "traditional" in the sense required by s 223(1)(a) of the Act: [796]. More fundamentally, however, it was concluded (i) there was uncertainty or inconsistency about the composition of the Danggalaba clan and the rules governing its structure: [797]-[801] ; (ii) there was no satisfactory foundation for finding that the Quall appellants practise and enjoy certain rights and interests which arise under laws and customs which only they have inherited from, or have been passed on to them by, their predecessors back to sovereignty: [797]-[798]; and (iii) there was no satisfactory foundation for concluding that the Danggalaba laws and customs reflected or derived from the normative system of the Aboriginal society which existed at sovereignty: [798].

178 Bearing in mind both his Honour’s observation that the only evidence directly supporting this claim came in effect from Mr Quall: [797]; and the changing composition of the claim group to which we earlier referred in passing, the dismissal of the claim in this manner was unobjectionable. The case was in substance disposed of on the basis of insufficiency of evidence. His Honour’s reasons make quite plain where that insufficiency lay.

179 This ground of appeal must be rejected.

The adequacy of his Honour’s reasons

180 The appeal on this ground is interrelated with that considered above. The former alleged that the primary judge did not consider the substance of the Quall appellants’ case. This ground alleges that, if his Honour did consider that case, it is not apparent from his reasons.

181 Having concluded that his Honour did consider and answer the case put at trial, but that he did not have to consider the case advanced in this Court as being Mr Quall’s case, we necessarily must reject this ground of appeal as well. His Honour’s reasons for the decision he gave, as we have said, were concise but clear.

COSTS OF THE INTERVENTION

182 Section 84A(2) of the Act allows the Court to make a costs order against the Commonwealth in cases where the Attorney intervenes under s 84A. Both sets of appellants invited us to make such an order. Given that the matters raised in the Attorney’s initial submission did not otherwise arise on the appeals, and that it should have been apparent that the appeals were an inappropriate vehicle in which to raise them, and that the intervention was at a very late stage and must have caused considerable inconvenience to the parties, it is appropriate that the Commonwealth pay the other parties’ costs of the intervention.

I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Finn and Sundberg.

Associate:

Dated: 5 April 2007

No NTD 5 of 2006

Counsel for the Appellants:	Mr S J Gaegler SC with Mr S A Glacken
Solicitor for the Appellants:	Northern Land Council
Counsel for the First Respondent:	Mr T Pauling QC (Solicitor General of the Northern Territory), Mr V Hughston SC and Ms S L Brownhill
Solicitor for the First Respondent:	Solicitor for the Northern Territory
Counsel for the Second Respondent:	Mr G Hiley QC and Ms R J Webb QC
Solicitor for the Second Respondent:	Cridlands Lawyers
Counsel for the Commonwealth as Intervener:	Mr K M Petit SC and Mr A D Rorrison
Solicitor for the Commonwealth as Intervener:	Australian Government Solicitor
Date of Hearing:	13 & 14 November 2006
Date of Judgment:	5 April 2007

No NTD 6 of 2006

Counsel for the Appellants:	Ms J Kelly
Counsel for the First Respondent:	Mr T Pauling QC (Solicitor-General of the Northern Territory), Mr V Hughston SC and Ms S L Brownhill
Solicitor for the First Respondent:	Solicitor for the Northern Territory
Counsel for the Second Respondent:	Mr G Hiley QC and Ms R J Webb QC
Solicitor for the Second Respondent:	Cridlands Lawyers

Counsel for the Commonwealth as Intervener:	Mr K M Petit SC and Mr A D Rorrison
Solicitor for the Commonwealth as Intervener:	Australian Government Solicitor
Date of Hearing:	13 & 14 November 2006
Date of Judgment:	5 April 2007