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Bodney v Bennell [2008] FCAFC 63 (23 April 2008)

Last Updated: 23 April 2008

STATE OF WESTERN AUSTRALIA,

COMMONWEALTH OF AUSTRALIA,

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL and

CHRISTOPHER BODNEY

ANTHONY BENNELL and OTHERS

WAD 287 of 2006

WAD 288 of 2006

WAD 289 of 2006

WAD 290 of 2006

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a Summary to accompany the judgment that is to be delivered today. However, it must be emphasised that the Summary forms no part of the judgment. The only authoritative statement of the Court’s reasons is the judgment itself.

This Summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete. The published Reasons for Judgment and this Summary will be available on the internet www.fedcourt.gov.au.

Bodney v Bennell [2008] FCAFC 63

In 2003 eighty Aboriginal persons made an application to the Court for a determination of native title. The application came to be called ‘the Single Noongar application’. The applicants alleged that in 1829 (the date of European settlement in Western Australia) there was a single Aboriginal community throughout the whole of the south-west of Western Australia. The applicants called this the ‘Noongar community’ and claimed the 1829 rules governing the occupation and use of land, throughout the south-west, were the laws and customs of that community. The applicants said the Noongar community continues to exist, and they are part of it; and that its members continue to observe some of the community’s traditional laws and customs (including in relation to land), although with changes flowing from the existence and actions of the white community. The applicants seek a Determination of native title, in favour of all members of the present Noongar community, over a substantial portion of Western Australia. The boundary of the claimed area commences, on the west coast, at a point north of Jurien Bay, proceeds roughly easterly to a point approximately north of Moora and then roughly south-easterly to a point on the southern coast between Bremer Bay and Esperance. The Single Noongar applicants also claim rights and interests over Rottnest and Carnac Islands and coastal waters to a distance of three nautical miles from land. The whole of the land and waters claimed in the single Noongar application are described as the ‘claim area’.

The claim area includes the whole of the Perth metropolitan area as well as centres such as Bunbury, Busselton, Margaret River, Albany, York, Toodyay, Katanning, Merredin and many other towns. However, the applicants excluded from their claim all land and waters over which native title had been extinguished by a past act of the Commonwealth or State governments. The effect of that exclusion is to omit from the application all freehold land in the claim area, and probably most leasehold land. Having regard to the extent of urban development, and intensive farming, in the claim area, the result is that a large proportion of the land within the claim area is unaffected by the claim.

The Court decided to break up the trial of the Single Noongar application by first dealing with an area, in and around Perth, that had been the subject of several earlier, smaller claims later aggregated together as the ‘Combined Metro claim’. The Court took this course because of the expressed desire of the State (supported by the Commonwealth) for early finality as to whether native title still survived in the Perth area. With the agreement of all parties, the Court created a separate proceeding in relation to the Perth area. With the assistance of the parties, the Court framed a separate question in that proceeding, asking whether native title existed in the Perth area and, if so, who were the persons who held the native title and what rights and interests it included.

The application was heard by Justice Wilcox commencing in October 2005. On 19 September 2006 the Judge answered the separate question as follows: "But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), native title exists in relation to the whole of the land and waters in the area of the separate proceeding, other than off-shore islands and land and waters below low-water mark."

In the course of his reasons for judgment Justice Wilcox reached the following conclusions:

(1) that the applicants were correct in claiming that, in 1829, the laws and customs governing land throughout the claim area (other than off-shore islands and land and waters below low-water mark) were those of a single community;

(2) that the contemporary Noongar community acknowledges and observes laws and customs relating to land which are a recognisable adaptation to their situation of the laws and customs existing at the date of settlement;

(3) that the native title holders are the whole Noongar community on whose behalf the Single Noongar application was made.

The State, the Commonwealth and Western Australian Fishing Industry Council (WAFIC) obtained leave to appeal to the Full Court against Justice Wilcox’s decision. The appeal was heard by Justices Finn, Sundberg and Mansfield in April 2007. Today the Full Court allowed the appeals.

The Full Court assumed, without deciding, that in 1829 the laws and customs governing land throughout the claim area were those of a single community. However, it held that Justice Wilcox had failed to consider two matters the claimants were required by s 223 of the Native Title Act to establish in order for their application to be successful. The first was that there has been continuous acknowledgment and observance of the traditional laws and customs by the Single Noongar Society from sovereignty until recent times. The second matter was that the claimants have a connection with the area of the separate question, that is the Perth Metropolitan Area. Justice Wilcox had taken the view, wrongly in the Full Court’s opinion, that it was enough that the claimants had established a connection with the claim area of the Single Noongar claim, and that since the Perth Metropolitan Area was part of that larger area, the connection requirement was satisfied in relation to the Perth Metropolitan Area.

The Court set aside Justice Wilcox’s answer to the separate question, and remitted that question to the Perth docket judge for determination, Justice Wilcox having retired from the Court shortly after handing down the judgment under appeal.

The Full Court’s allowance of WAFIC’s appeal does not require separate treatment in this Summary.

At the same time as he heard the Noongar claim Justice Wilcox heard various claims by Mr Bodney to land in the Perth area. The Judge dismissed the claims. The Full Court dismissed Mr Bodney’s appeal. The reasons for doing so do not need to be described in this Summary.

FEDERAL COURT OF AUSTRALIA

Bodney v Bennell [2008] FCAFC 63

ABORIGINALS – native title – determination – continuation of traditional laws and customs since sovereignty – connection of applicants with land or waters claimed – substantial claim area – separate question relating to metropolitan Perth

Native Title Act 1993 (Cth) ss 11(1), 62(1)(b), 62(2)(a), 62(2)(b), 64, 67, 67(1), 84C(1), 94A, 223(1), 223(2), 225
Evidence Act 1995 (Cth) ss 60, 79, 135, 136
Federal Court Rules O 29 rr 2, 5

Bennell v State of Western Australia [2006] FCA 1243; (2006) 153 FCR 120 reversed
Bodney v State of Western Australia [2003] FCA 890 cited
Bodney v Bropho [2004] FCAFC 226; (2004) 140 FCR 77 cited
Anderson v State of Western Australia [2003] FCA 1423 cited
Wilkes v State of Western Australia [2003] FCA 1206 cited
Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 cited
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 applied
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 cited
Northern Territory v Alyawarr [2005] FCAFC 135; (2005) 145 FCR 442 applied
Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 applied
Risk v Northern Territory of Australia [2006] FCA 404 approved
Risk v Northern Territory [2007] FCAFC 46; (2007) 240 ALR 75 followed
Neowarra v Western Australia (No 1) [2003] FCA 1399; (2003) 134 FCR 208 considered
Sampi v Western Australia [2005] FCA 777 cited
Jango v Northern Territory (No 4) 214 ALR 608 cited
Daniel v Western Australia [2000] FCA 858; (2000) 178 ALR 542 cited
Quick v Stoland Pty Ltd (1998) 87 FCR 371 cited
Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548 cited
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893; (2003) 130 FCR 424 cited
R v Welsh (1996) 90 A Crim R 364 cited
Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 cited
Borowski v Quayle [1966] VR 382 followed
PQ v Australian Red Cross Society [1992] 1 VR 19 followed
H v Schering Chemicals [1983] 1 WLR 143 followed
Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 followed
Gumana v Northern Territory [2005] FCA 50; (2005) 141 FCR 457 cited
R v Patents Appeal Tribunal; Ex parte Baldwin & Francis Ltd [1959] 1 KB 105 cited
Griffiths v Northern Territory [2007] FCAFC 178 considered
Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 cited
Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 cited
State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 applied
Mason v Tritton (1993) 70 A Crim R 28 cited
Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 cited
Neowarra v State of Western Australia [2003] FCA 1402 cited
Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; (2007) 238 ALR 1 cited
De Rose v South Australia (No 2) (2005) 145 FCR 209 applied
Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 cited
Gumana v Northern Territory of Australia (2007) 158 FCR 349 cited
Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 cited
Daniel (on behalf of the Ngarluma People) v State of Western Australia [2003] FCA 666 cited
Griffiths v Northern Territory of Australia [2006] FCA 903 cited
Attorney-General (NT) v Ward [2003] FCAFC 283; (2003) 134 FCR 16 cited
Attorney-General for the Province of British Columbia v Attorney-General for the Dominion of Canada [1914] AC 153 cited
Tuite v Administrative Appeals Tribunal [1993] FCA 71; (1993) 40 FCR 483 cited
Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 cited

Bonyhady, The Law of the Countryside (1987)
Wigmore on Evidence (3^rd ed), vol 2
ALRC Interim Report No 26, Evidence (1985) vol 1

CHRISTOPHER (CORRIE) BODNEY v ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS

WAD 287 OF 2006

COMMONWEALTH OF AUSTRALIA v ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS

WAD 288 OF 2006

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) v ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS

WAD 289 OF 2006

STATE OF WESTERN AUSTRALIA v ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS

WAD 290 OF 2006

FINN, SUNDBERG AND MANSFIELD JJ
23 APRIL 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 287 OF 2006

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

BETWEEN:	CHRISTOPHER (CORRIE) BODNEY Appellant
AND:	ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS Respondents
JUDGES:	FINN, SUNDBERG AND MANSFIELD JJ
DATE OF ORDER:	23 APRIL 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 288 OF 2006

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

BETWEEN:	COMMONWEALTH OF AUSTRALIA Applicant
AND:	ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS Respondents
JUDGES:	FINN, SUNDBERG AND MANSFIELD JJ
DATE OF ORDER:	23 APRIL 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The applicant have leave to appeal from the judgment below.

2. The appeal be allowed.

3. Orders 1 and 5 of the primary judge’s orders be set aside.

4. The separate question be remitted to the Western Australian native title provisional docket judge to be dealt with in the manner appearing at [211] of the Court’s reasons for judgment.

5. There be no order as to the costs of the appeal.

6. Any submissions by the appellant that there should be a costs order different from that in paragraph 5 be filed and served within 21 days from the publication of the Court’s reasons.

7. Any submissions by the respondents in reply to the appellant’s submissions be filed within 14 days of service of the appellant’s submissions.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 289 OF 2006

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

BETWEEN:	WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) Applicant
AND:	ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS Respondents
JUDGES:	FINN, SUNDBERG AND MANSFIELD JJ
DATE OF ORDER:	23 APRIL 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The applicant have leave to appeal from the judgment below.

2. The appeal be allowed.

3. Order 1 of the primary judge’s orders as it relates to paragraph (iii) of the separate question be set aside.

4. Paragraph (iii) of the separate question be remitted to the Western Australia native title provisional docket judge.

5. There be no order as to the costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 290 OF 2006

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

BETWEEN:	STATE OF WESTERN AUSTRALIA Applicant
AND:	ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS Respondents
JUDGES:	FINN, SUNDBERG AND MANSFIELD JJ
DATE OF ORDER:	23 APRIL 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The applicant have leave to appeal from the judgment below.

2. The appeal be allowed.

3. Orders 1 and 5 of the primary judge’s orders be set aside.

4. The separate question be remitted to the Western Australian native title provisional docket judge to be dealt with in the manner appearing at [211] of the Court’s reasons for judgment.

5. There be no order as to the costs of the appeal.

6. Any submissions by the appellant that there should be a costs order different from that in paragraph 5 be filed and served within 21 days from the publication of the Court’s reasons.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 287 OF 2006 WAD 288 OF 2006 WAD 289 OF 2006 WAD 290 OF 2006

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

BETWEEN:	CHRISTOPHER (CORRIE) BODNEY Appellant
AND:	ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS Respondents
BETWEEN:	COMMONWEALTH OF AUSTRALIA Applicant
AND:	ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS Respondents
BETWEEN:	WESTERN AUSTRALIA FISHING INDUSTRY COUNCIL (INC) Applicant
AND:	ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS Respondents
BETWEEN:	STATE OF WESTERN AUSTRALIA Applicant
AND:	ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS Respondents
JUDGES:	FINN, SUNDBERG AND MANSFIELD JJ
DATE:	23 APRIL 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1 On 10 September 2003, eighty named applicants commenced an application for a determination of native title under the Native Title Act 1993 (Cth) (the NTA) in relation to 186,000 square kilometres of land and adjoining waters in the south west of Western Australia, including the area in and around Perth. That application, brought "on behalf of all Noongar people" is known as the "Single Noongar Application".

2 The Single Noongar Application was subsequently divided into two parts: Part A, covering a relatively small portion of land and waters on the south-west coast including the city of Perth; and Part B, covering the balance of the Single Noongar Application area. Part A overlapped five other native title claims, each commenced under the NTA by Christopher Robert Bodney.

3 Pursuant to s 67 of the NTA and O 29 r 5 of the Federal Court Rules, Part A of the Single Noongar Application and Mr Bodney’s five claims (other than part of his largest claim which did not overlap with Part A) were ordered to be heard together in a "separate proceeding". The area the subject of that separate proceeding will be referred to as "the area of the separate proceeding". The trial of a separate question in the separate proceeding was directed under O 29 r 2 of the Federal Court Rules so that the existence of native title in the area could be determined prior to, and separately from, issues of extinguishment.

4 The trial of the separate question in the separate proceeding commenced before a judge of this Court in October 2005. The principal respondents to the separate proceeding were the State of Western Australia (the State) and the Commonwealth of Australia (the Commonwealth).

5 On 19 September 2006, the primary judge determined that, subject to matters of extinguishment of native title, the Noongar people hold native title rights and interests in relation to the area of the separate proceeding, other than off-shore islands and waters below the low-water mark. His Honour dismissed Mr Bodney’s claims insofar as they were concerned with the area of the separate proceeding: Bennell v State of Western Australia [2006] FCA 1243; (2006) 153 FCR 120 (Bennell).

6 Applications for leave to appeal from the decision of the primary judge on the separate question were subsequently filed by the State, the Commonwealth and the Western Australian Fishing Industry Council (WAFIC). Mr Bodney has also exercised his right of appeal from the dismissal of his native title claims, and seeks leave to appeal from his Honour’s findings in favour of the Noongar people. For reasons which appear below, we consider it appropriate to grant leave to each of the applicant parties to appeal from the judgment. In those circumstances, it is convenient to describe the proceedings before us as "appeals".
PROCEDURAL HISTORY

7 To understand the context in which the separate question and the separate proceeding came about, it is necessary to set out in some detail the history of the Single Noongar Application and the other native title applications which have been brought over land and waters in south-west Western Australia, particularly in the area in and around Perth.
The Perth metropolitan claims

8 Between November 1994 and September 1998, thirteen native title claims were commenced over land and waters in and around Perth. One of those claims, WAG 6009 of 1996, has since been finalised. It is not necessary to further refer to that claim.

9 Another application, WAG 141 of 1998, was lodged by Robert Charles Bropho in November 1994 on his own behalf (the Bropho Application).

10 Mr Bodney’s five applications were lodged on various dates between August 1995 and May 1996. Four of his claims cover small portions of land wholly within the area of the separate proceeding at Hartfield Park (WAD 137 of 1998), Wanneroo Road (WAD 138 of 1998), Burswood Island (WAD 139 of 1998) and Swanbourne (WAD 140 of 1998). His fifth claim, matter WAD 149 of 1998, covers a much larger area of land, including a substantial area which is outside the area of the separate proceeding. That part of matter WAD 149 of 1998 which lies outside the area of the separate proceeding is yet to be considered by the Court.

11 Of the remaining six applications, three were commenced by Mr Bropho on behalf of the ‘Swan Valley Nyungah Community’ (WAG 142 of 1998, WAG 6159 of 1998 and WAG 6239 of 1998) and three were commenced by other named applicants referred to by the primary judge as "people associated with Mr Bropho" (WAG 143 of 1998, WAG 6128 of 1998 and WAG 6283 of 1998). Two of these applications involved substantial areas of land and waters in and around the Perth Metropolitan Area (including the sea to the 12 nautical mile limit) and four related to small areas of land. The primary judge described these six applications collectively as "the Swan Valley Nyungah Applications". The Swan Valley Nyungah applications overlapped the Bodney applications to a large extent.

12 The Swan Valley Nyungah applications were subsequently combined by order of the Western Australian District Registrar on 12 April 1999. Application WAD 142 of 1998 became the lead application. The combined application was known as the "Combined Metro Application".

13 In September 2001 a joint trial of the five Bodney applications, the Combined Metro Application and the Bropho Application commenced before Beaumont J. It continued, sporadically, until April 2003. The evidence was not completed. On 4 April 2003 Beaumont J ordered pursuant to O 29 r 2 of the Federal Court Rules that the question of the existence of any native title rights and interests in the claim area be decided separately from and prior to any other question in the Combined Metro Application. However, shortly afterwards Beaumont J was compelled to retire from the matters due to ill health. On 13 June 2003 French J ordered that there be a new trial of the five Bodney applications, the Combined Metro Application and the Bropho Application and that the evidence from the hearing before Beaumont J be received into evidence at the new trial.

14 Before the commencement of the new trial before the primary judge, the Combined Metro applicants sought to have each of Mr Bodney’s five applications struck out pursuant to s 84C(1) of the NTA. After hearing argument on that motion, his Honour made orders on 25 August 2003 striking out each of those applications: Bodney v State of Western Australia [2003] FCA 890. Following a successful appeal to the Full Court against that decision, the strike-out orders were set aside on 24 August 2004: Bodney v Bropho [2004] FCAFC 226; (2004) 140 FCR 77.
The Single Noongar Application

15 The Single Noongar Application, WAD 6006 of 2003, was then commenced on 10 September 2003. It covered a large portion of land and waters in south-west Western Australia. The external boundary of the claim area of the Single Noongar Application extends from a point on the western coast of Western Australia slightly north of Jurien, roughly easterly to a point approximately north of Moora and then roughly south-easterly such that it intersects the coast at a point on the Great Australian Bight slightly west of Esperance. It included several off-shore islands (including Rottnest and Carnac Islands) and the seas surrounding the off-shore areas and adjoining the coastal portion of the claim area to the three nautical mile limit. A small strip of coastal land in the Busselton-Margaret River district was excluded, that area being part of a separate claim known as "Single Noongar No 2".

16 The Single Noongar Application overlapped a large number of existing native title applications over land and waters in the south-west of Western Australia. Those existing applications were set out in Attachment H to the Single Noongar Application. It encompassed the whole of the Combined Metro Application, the Bropho Application and the five Bodney applications, other than over the waters between the three nautical mile limit and the 12 nautical mile limit in the Combined Metro Application and beyond the three nautical mile limit in Mr Bodney’s largest claim, WAD 149 of 1998: see the primary judge’s reasons at [29] and [47] and Map 2 annexed to those reasons. The Single Noongar Application also overlapped a number of other native title applications over areas in what is now Part B of the Single Noongar Application area, namely: Southern Noongar (WAG 6134 of 1998); Womber (WAG 6130 of 1998); Noongar (WAG 6102 of 1998); Ballardong (WAG 6181 of 1998); Gnaala Karla Booja (WAG 6274 of 1998); South West Boojarah (WAG 6279 of 1998); Wagyl Kaip (WAG 6286 of 1998); Yued (WAG 6192 of 1998); and the "Collard Polygon claims" (WAG 6091 of 1998, WAG 6142 of 1998, WAG 6171 of 1998 and WAG 6223 of 1998). It also overlapped the land covered by three applications for compensation under the NTA by Mr Bodney: WAG 6290 of 1998, WAG 6291 of 1998, WAG 6289 of 1998. Those other native title claims existing over the area of the Single Noongar Application prior to its commencement were referred to at the hearing as "the underlying claims".

17 Attachment O to the Single Noongar Application contained "[d]etails of the membership of the applicant or any member of the native title claim group in a native title claim group for any other application that has been made in relation to the whole or part of the area covered by this application". Attachment O indicates that many of the named applicants to the Single Noongar Application were also named applicants in one or more of the underlying claims. The native title docket judge for Western Australia, French J, described the filing of the Single Noongar Application as "an endeavour to rationalise [the underlying claims] and to provide a basis for negotiating on behalf of Noongar people of the region as a whole": Anderson v State of Western Australia [2003] FCA 1423 at [1] (Anderson).

18 Attempts were made by some applicants to the underlying claims to progress that process of rationalisation. On 2 September 2003, a motion was filed in the Ballardong application (WAG 6181 of 1998) in which amendments were sought to that application so as to contract its boundaries such that the balance of the area it covered would fall outside the area of the Single Noongar Application. It was intended that the excluded area of the Ballardong claim would be covered by the Single Noongar Application and the Ballardong applicants would be involved in the progression of the Single Noongar Application: see Anderson at [8]. The motion also sought an order replacing the existing sixteen named applicants with four applicants. French J dismissed the application for replacement of the applicants because he was not satisfied that it was authorised by the native title claim group. It was therefore also necessary to dismiss the application to amend the boundaries of the claim because it was not consented to by all of the existing applicants: Anderson.

19 In October 2003, the Combined Metro applicants and the Single Noongar applicants sought leave to amend their respective applications pursuant to s 64 of the NTA so that the Combined Metro Application was combined with and included in the Single Noongar Application. The primary judge made orders so combining the two claims on 9 October 2003: Wilkes v State of Western Australia [2003] FCA 1206 (Wilkes). WAD 6006 of 2003 became the lead action. His Honour also ordered on that day that that part of the combined application as relates to the land and waters previously covered by the Combined Metro Application be heard in a separate proceeding, intended to commence in October 2004; and that the evidence already given in respect of Mr Bodney’s five applications, the Bropho Application, and the Combined Metro Application was to be evidence in that hearing. No order formally splitting the Single Noongar Application was made at that time. Due to practical difficulties experienced by the solicitors for the Noongar people, the trial of the separate proceeding did not commence in October 2004 as planned, but in October 2005.

20 The Bropho Application was discontinued on 9 October 2003. From that point onwards, the remaining native title claims over the Perth Metropolitan Area were the Single Noongar Application (including by its combination the Combined Metro Application) and Mr Bodney’s five applications (after being reinstated on 24 August 2004).

21 In a further attempt to resolve the overlaps between the various native title claims in the south west of Western Australia, on 27 and 28 November 2003 the South West Aboriginal Land and Sea Council (the native title representative body for the south west region) filed motions in the Southern Noongar, Wagyl Kaip, South West Boojarah, Gnaala Karla Booja, Yued and Collard Polygon applications seeking to amend and combine those applications and the Single Noongar Application into one claim covering the bulk of the south west area. The motions sought to amend the relevant underlying claims such that the boundaries of the areas they covered were contiguous with the area covered by the Single Noongar Application; and so that the respective native title claim groups were defined as the native title claim group identified in the Single Noongar Application. French J dismissed the combination applications because, as was the case with the earlier amendment application in the Ballardong claim (Anderson), his Honour was not satisfied that the applications were authorised by the relevant native title claim groups on whose behalf the underlying claims were brought: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760.

22 None of those underlying claims overlying Part B of the Single Noongar Application Area have since been discontinued.

23 Section 67(1) of the NTA provides that if two or more proceedings before the Court relate to native title applications that cover the same area, the Court must ensure that, to the extent to which the applications cover the same area, they are dealt with in the same proceedings. Resolution of the entire Single Noongar Application would thus involve consideration of the evidence on a substantial number of "competing" applications. There would be a very large number of parties to such a proceeding. We understand that it was this circumstance, as well as the parties’ wish to resolve the issue of native title in the Perth Metropolitan Area (the trial of which had commenced before Beaumont J in 2001), that prompted the creation of the separate proceeding. See also Wilkes.
The separate question in the separate proceeding

24 The separate question, referred to in [3] above, was first set out by the primary judge by order of 1 April 2005. On that day, his Honour set aside the order of Beaumont J made on 4 April 2003 and directed the trial of a separate question in the Single Noongar Application regarding the existence of native title in the area of the Combined Metro Application (which was subsequently named "Part A" of the Single Noongar Application, that is, the area of the separate proceeding). His Honour’s order of 1 April 2005 was later amended on 23 August 2005, 11 October 2005, 21 December 2005 and 30 March 2007.

25 The trial of the separate proceeding commenced on 11 October 2005. In the course of the trial, on 12 December 2005, the primary judge formally ordered that the Single Noongar Application be divided into two parts, and that Part A of the area be considered separately from and prior to Part B. His Honour further ordered that Part A of the Single Noongar Application and Mr Bodney’s claims (other than part of matter WAD 149 of 2006) be heard together in a separate proceeding, as referred to in [3] above.

26 The separate question in its final form reads as follows:

Pursuant to Order 29, Rule 2 of the Federal Court Rules, the following questions be decided separately from and before any other questions in the proceedings:

But for any question of extinguishment of native title by inconsistent legislative or executive acts or by acts carried out pursuant to the authority of the legislature or under Divisions 2, 2A, 2B of Part 2 of the Native Title Act 1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA):

(i) does native title exist in relation to land and waters in the area of the separate proceeding?

(ii) if the answer to (i) above is in the affirmative, who are the persons or each group of persons holding the common or group rights comprising the native title; and

(iii) what is the nature and extent of the native title rights and interests in relation to the area?

27 The primary judge set out the separate question at [47] of his reasons for judgment in a form slightly different from that which appears above. There are two reasons for this. Firstly, the separate question as set out above reflects the slight variations made to it by order of French J on 30 March 2007 (after the primary judge had published his reasons) so as to correct several typographical errors. Secondly, the primary judge included two sub-paragraphs under part (i) of the separate question when he set it out in [47] of the first instance decision, but in our view the effect of the variation to the separate question made by his Honour’s order of 21 December 2005 was that those sub-paragraphs should have been omitted. Those differences, however, do not affect the substance of the separate question. It is clear that the separate question as set out at [26] above is what his Honour was addressing.
THE PRIMARY JUDGE’S ANSWER TO THE SEPARATE QUESTION
The decision of the primary judge on the Single Noongar Application

28 The primary judge described the claims of the Noongar people as communal or group claims. He identified as the "first major factual issue" to be determined the identification of the relevant society at sovereignty; that is, whether there existed in 1829 "a single normative community, with members throughout and beyond the claim area" or "a number of normative communities who occupied discrete, smaller territories": at [83(f)] and [348]. His Honour defined "the claim area" as the external boundary of the entire Single Noongar Application: at [23]. Having considered the evidence of language, laws and customs concerning land, other customs and beliefs and social interaction in the claim area (as defined) at sovereignty, his Honour found that there was a "single Noongar community" in the claim area at that time.

29 His Honour then considered the "second major factual issue", which he identified as whether the single Noongar community that existed in 1829 continued to exist until recent times, with its members "continuing to acknowledge and observe at least some of the traditional laws and customs relating to land that were acknowledged and observed in 1829"; and whether that community continues to exist today, with members (including at least some of the Single Noongar claimants) who continue to acknowledge and observe "at least some of those laws and customs": at [83(h)] and [455]. He found that there has been a continuity of the single Noongar community from 1829 until the present. While acknowledging that European settlement had a profound effect upon the Aboriginal people of the south west, his Honour considered that the culture of those people had persisted. He recorded several changes in the laws and customs over time but was satisfied that, overall, the contemporary normative system revealed by the evidence was the normative system of the society existing in 1829. His Honour then concluded that the Noongar people had successfully demonstrated the requisite connection under s 223 of the NTA between themselves and the whole claim area, excluding the off-shore islands and land and waters below low-water mark. He was therefore satisfied that the Noongar people had established their connection to the area of the separate proceeding as "the whole includes its parts": at [82], [792]-[793].

30 The third major issue identified by the primary judge was the nature of the native title rights and interests that have survived since sovereignty: at [83(i)]. At the conclusion of his reasons his Honour identified, "subject to formulation of the precise wording of the determination and application of the principle of extinguishment", eight native title rights and interests held by the Noongar people in the area of the separate proceeding, including to live on and access the area, to use and conserve its natural resources, to carry out economic activities on the area and to use the area for various cultural purposes: at [841].

31 The final issue identified by the primary judge was whether the identified surviving rights and interests are recognised by the common law of Australia (as required by s 223(1)(c) of the NTA): at [83(j)]. As it was not contended by any party that any of the native title rights and interests claimed by the Noongar people were not so recognised, it was unnecessary for his Honour to consider that aspect of s 223(1) in any detail. It can be inferred from his reasons that his Honour was satisfied the native title rights and interests found to exist are recognised by the common law: at [814].

32 His Honour answered the three parts of the separate question as follows:

(i) But for any question of extinguishment of native title, native title exists in relation to the whole of the land and waters in the area of the separate proceeding other than offshore islands and waters below low water-mark;

(ii) The persons who hold the native title rights are the Noongar people (as identified in Schedule A to their application filed 10 September 2003 in matter WAD 6006/2003);

(iii) Without purporting to specify the final terms of a formal Determination of Native Title, the said native title rights and interests are the rights to occupy, use and enjoy the area in the following way:

(a) to access and live on the area;

(b) to conserve and use the natural resources of the area for the benefit of the native title holders;

(c) to maintain and protect sites, within the area that are significant to the native title holders and other Aboriginal people;

(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;

(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;

(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;

(g) to use the area for the purpose of teaching, and passing on knowledge, about it, and the traditional laws and customs pertaining to it;

(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.

33 His Honour left open the question of whether any of those native title rights and interests were held to the exclusion of all others: at [840].
The decision of the primary judge on Mr Bodney’s five applications

34 Each of Mr Bodney’s applications were brought on behalf of a slightly differently described group, but it appears that the claimants in each application were essentially the same and can be loosely described as the Bodney family group. The primary judge did not make any finding as to the identity of the claimants other than Mr Bodney.

35 Mr Bodney claimed that native title rights and interests in the areas of the Bodney applications were held by two "clans", the Ballaruk and Didjarruk. He disputed the submission of the Noongar people that there was a single Noongar society holding native title rights over the area. The Single Noongar claimants acknowledged that Mr Bodney and those represented by him are members of the Noongar people but did not accept that Mr Bodney or his family had any exclusive rights in relation to the land and waters claimed in the Bodney applications.

36 The learned primary judge rejected Mr Bodney’s evidence, finding that Ballaruk and Didjarruk were moieties or skin groups, rather than "tribes" or "clans". His Honour also found that Mr Bodney had not established any connection between himself (or the other Bodney claimants) and anybody living at the date of settlement who was identifiable as Ballaruk or Didjarruk; and that Mr Bodney had not demonstrated continued adherence to whatever laws and customs relating to land were followed by Ballaruk and Didjarruk people.

37 The applications by Mr Bodney in WAD 137 of 1998, WAD 138 of 1998, WAD 139 of 1998, WAD 140 of 1998 and part of WAD 149 of 1998 were therefore dismissed.

38 His Honour did find, however, that Mr Bodney was descended from members of the single Noongar community and that he is entitled to enjoy whatever rights and interests were recognised in the foreshadowed determination in favour of that community.
THE PARTIES TO THE APPEALS

39 The principal respondents to the four appeals are the Noongar people. Each of the State, the Commonwealth and the Noongar people filed extensive written submissions prior to the hearing of the appeals and were represented by senior counsel at the hearing. WAFIC also made oral and written submissions to the Court on its appeal, which were limited in scope as will appear below. Mr Bodney, who appeared for himself, filed written submissions on his appeal prior to the Full Court hearing. Although he was present for part of the hearing, he was unable to attend the latter half due to illness and did not make any oral submissions. He was given permission to file further written submissions after the hearing, but he did not take up that opportunity. His appeal thus proceeded on the papers.

40 Other than the four appellants and the Noongar people, several other respondent groups participated in the appeal proceedings. A group of 19 Perth metropolitan local governments (the Local Governments), named as the third respondents to the State’s and the Commonwealth’s appeals, filed written submissions and were represented at the hearing. The Local Governments supported the grant of leave to appeal to the State and the Commonwealth. In respect of the merits of the appeals, the Local Governments did not seek either affirmation or the setting aside of the primary judge’s answers to the separate question, but made submissions on some aspects of the correct legal test to be applied. Mr Peter David of the Noongar Land Council (NLC) and Mr Kevin Miller attended the hearing and expressed their desire to have the reasons of the primary judge upheld. Mr Miller and the NLC are respondents to the State’s and the Commonwealth’s appeals. We did not consider it necessary to hear further oral submissions from Mr David or from Mr Miller. Mr David’s application for leave to appear was thus refused.

41 In addition to the named respondents, a group of individuals and companies known as the "Group 17 Pastoral Respondents" were granted leave to file brief written submissions in relation to ground 4.4 of the State’s appeal, which is concerned with his Honour’s finding of connection in relation to the whole of the Single Noongar Application area in circumstances where there had been constituted a separate proceeding. The Group 17 Pastoral Respondents are respondents to the wider Single Noongar Application but were not parties to the separate proceeding. Leave to intervene was limited to the filing of written submissions on ground 4.4.

THE ISSUES ON THE APPEALS

42 The grounds of the State’s appeal, and of the Commonwealth’s appeal, are extensive. There is considerable overlap between them. Collectively, the two appeals challenge many of the factual findings of the primary judge as well as his Honour’s approach to the concepts of "community" and "society" for the purposes of the NTA and his approach to the issue of connection to the area of the separate proceeding. In particular, the State’s appeal is to a large extent concerned with its assertion that by employing the concept of "communal native title" his Honour bypassed or misstated the requirements for native title in s 223 of the NTA. WAFIC’s appeal is limited to the issue of the nature and content of the native title rights and interests (if any) in relation to waters in the area of the separate proceeding lying seaward of the high water mark, which are tidal or which are navigable. Mr Bodney’s appeal challenges his Honour’s dismissal of Mr Bodney’s five applications (other than that part of matter WAD 149 of 1998 that was not included in the separate proceeding).

43 In order to dispose of the appeals other than Mr Bodney’s appeal, three major issues initially fall for determination. They are concerned with part (i) of the separate question, that is, whether native title exists in relation to the land and waters in the area of the separate proceeding. For the purpose of dealing with those issues we are content to assume, without deciding, that the primary judge was correct in finding that there existed a single Noongar society in the area of the Single Noongar Application at sovereignty. The three issues are:

1. whether there has been continuity of the traditional laws and customs of the single Noongar society from sovereignty until recent times;

2. whether a finding of one society, or one community, entails one communal title;

3. whether there was error in his Honour's approach to the issue of connection between the Noongar people and the area of the separate proceeding.

We will then consider the State's procedural fairness ground, the pastoralists’ intervention, the Commonwealth's appeal on the primary judge’s answer to part (iii) of the separate question and WAFIC’s appeal. We will then deal separately with Mr Bodney’s appeal.

THE BENNELL APPEALS

CONTINUITY

Meaning of "traditional"

44 We now turn to the question whether the laws and customs said to be acknowledged and observed by the claimants today are traditional in the sense that they are the continuation of laws and customs acknowledged and observed at sovereignty. The primary judge held that they are.

45 Under the definition of "native title" in s 223(1)(a) the rights and interests in relation to land and waters must be "possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples".

46 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 (Yorta Yorta HC) draws attention to three separate but related concepts: society; laws and customs; and rights and interests. The first is not found in the Act, but is referred to at length in Yorta Yorta HC. The second and third are related in the manner first explained by Brennan J in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 58 (Mabo (No 2)). In Yorta Yorta HC the majority said at [49] that "law and custom arise out of and, in important respects, go to define a particular society", and that "‘society’ is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs". At [50] the majority said that "to speak of rights and interests possessed under an identified body of laws and customs is, therefore, to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs". Their Honours spoke of the traditional laws and customs as constituting a normative system which possesses normative rules which give rise to rights and interests in relation to land and water.

47 Because it is the normative system that is the source of the rights and interests, it is necessary in order to prove native title that the normative system 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: Yorta Yorta HC at [47]. It is therefore necessary for native title claimants to show that the normative system that existed at sovereignty is substantially the same as the one that exists today. If it is not, then any rights and interests are not "possessed under the traditional laws acknowledged and traditional customs observed".

48 The requirement in s 223(1)(b) that the Aboriginal peoples, by their laws and customs, have a "connection" with the land or waters, is an additional element of proof which is considered at [61] to [66]. However, "connection" is linked with the requirement of continuity. As a Full Court said in Northern Territory v Alyawarr [2005] FCAFC 135; (2005) 145 FCR 442 (Alyawarr FC) at [92]:

It may be that not enough emphasis has been placed on the idea of continuity of observance as a manifestation of connection. .... The use of ‘connection’ as emphasising a requirement to show continuity of association with the land by observance and acknowledgment of traditional law and custom relating to it gives proper recognition to its origins in the Mabo [(No 2)] judgment. It involves the continuing assertion by the group of its traditional relationship to the country defined by its laws and customs. This relationship may be evidenced by its physical presence there but also in other ways involving the maintenance of the stories and allocation of responsibilities and rights in relation to it.

Thus "connection" can be maintained by the continued acknowledgment of traditional law and observance of traditional customs. See also Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 at [243] (Ward FC).

Primary judge on continuity

49 At the beginning of his discussion of continuity, the primary judge posed two questions, which he said were logically distinct:

3.1 whether the community that existed in 1829 (the single Noongar community) continued to exist over subsequent years, up until recent times, with its members continuing to acknowledge and observe at least some of the traditional laws and customs relating to land that were acknowledged and observed in 1829;
3.2 whether that community continues to exist today, with members, including at least some of the Applicants, who continue to acknowledge and observe at least some of those laws and customs.

50 His Honour then set about informing himself of the relevant law concerning continuity, and noted at [456]-[459]:

• the possibility that a native title claim may fail where traditional laws and customs have been discontinued and subsequently revived

• that native title claimants must satisfy the Court, on the balance of probabilities, that there has been continuity of acknowledgment and observance of laws and customs from the date of sovereignty until the present time

• that inferences may be drawn from evidence led at trial as to the situation that existed at times before the living memory of witnesses: Yorta Yorta HC at [80].

51 His Honour summarised the evidence given by thirty Aboriginal witnesses. He noted the following features of their evidence:

• while there were some differences in witnesses’ perceptions, there was unanimity about the existence of a Noongar society

• there was substantial agreement about the location of Noongar land, and the witnesses’ descriptions of Noongar boundaries was generally consistent with those given by the early writers and with the anthropological evidence

• most witnesses gave clear evidence of differences between Noongars and their neighbouring groups the Wongais and Yamatjis, and thought the differences were unlike those existing between Noongar tribes

• many of the witnesses first learnt about being Noongar as children, as long ago as the 1940s or even earlier

• European settlement had a profound effect on the Aboriginal people of south-west Western Australia, but there was no cataclysmic event that totally removed them from their traditional country

• members of Noongar families continued to remain in contact with each other, and with members of other Aboriginal families, especially those from their traditional areas, so there is clearly a present-day ‘Noongar network’ linking families throughout the claim area.

52 His Honour turned to the observance and acknowledgement of traditional laws and customs and noted at [601] that the

... question whether the members of the ‘Noongar network’ may properly be called a ‘community’, for the purposes of s 223(1) of the Act, depends upon the extent to which its members have continued to observe and acknowledge their traditional laws and customs.

He considered the evidence relating to each of the traditional laws and customs with a view to determining whether the Noongar society of today acknowledges and observes traditional laws and customs.

Spiritual beliefs

53 The primary judge noted fifteen spiritual beliefs such as the existence of good and unfriendly spirits; the spiritual qualities of certain birds; the wagyl (creation snake); and totems. His conclusions on spiritual beliefs are:

some beliefs were held by virtually all the witnesses, despite their variation in ages and the fact that they came from widely-scattered parts of the claim area. In combination, they ‘illustrate a rich and active spiritual universe and one that admitted of mysteries’, as Dr Host [the historian called by the claimants] described ... There were some differences between the beliefs of particular witnesses about a particular subject; the most striking examples being different views about messenger birds and totems. Frances Humphries [an aboriginal witness] explained the first example by saying: ‘Particular birds bring messages to different people’. However, there was a high degree of consistency in relation to the most widespread beliefs (the need to appease the spirits, wirrnitjs, the creation snake story, wagyls, wudatji, mabarn). This says something about both the unity of the people across the claim area and their adherence to traditional ways.

Marriage

54 This part of his Honour’s judgment contains no express findings, and on many topics no concluded or even tentative view. We can therefore do little more than summarise the evidence referred to by his Honour and record the views he formed.

55 There was evidence about the moiety system that existed within Noongar society, but his Honour said the operation of the system was unclear to him. He was unable on the evidence to determine whether the moiety system was conceptually the same as the skin group system that also existed. His Honour said at [643]: "I think I understand the concept but there is too little evidence to indicate how it works (or perhaps, more correctly, used to work) in practice". The words in parentheses suggest that his Honour thought the moiety system no longer exists today, at least not in a form that could be found to be traditional.

56 There was much evidence concerning kinship rules, that is the people one is allowed to marry. As to this his Honour said at [643]:

What is clear, and it is a pattern consistent throughout the claim area, is that there were, and continue to be, strict rules designed to prevent marriage between close relatives. Marriage between first cousins or second cousins was, and is, universally condemned; third cousins may be alright. The kinship rules were traditionally enforced by parental involvement; parents either chose the marriage partner or needed to give their permission.

57 In certain respects, the above passage glosses over some of the evidence that was given. There was, for example, a large degree of inconsistency between the witnesses as to the extent to which cousins could marry. Some thought third cousins could marry, but at least one said that marrying even a sixth cousin would be a ‘wrong way’ marriage. There was also evidence that the rules are not followed today. For example, in response to the question "do people mostly follow those rules these days?" Lynette Knapp replied in the negative. Gregory Garlett gave evidence that after European settlement and the removal of many Noongar to various missions, "a lot of them didn’t know where they came from and sometimes [marrying first cousins] happened then." Another significant change is in the punishment of transgressors of marriage rules, there being no evidence that the traditional spearing punishment is still practised today. However, there was evidence of belief in the bad things that will happen if marriage rules are broken, for example children being born handicapped.

58 The primary judge concluded this section of his judgment by referring at [644] to three things that he said clearly emerged from the evidence:

• the present rules are seen as a continuation of traditional Noongar rules

• there is no discernible regional difference in the content of these rules unless - and for the reasons referred to at [55] his Honour was unclear on this - there is a true regional distinction between moities and skin groups

• people in leadership positions throughout the south-west continue to enforce at least the substance of the rules, by discouraging marriages between close cousins.

Death and funerals

59 At [645] the primary judge summarised the evidence on death and funerals as demonstrating five broad beliefs or practices:

• a dead person’s spirit returns to his or her land, and so people who die away from their own land should be taken back for burial

• Noongars are never cremated as fire would burn the spirit

• funerals are big important occasions at which relatives and others are expected to be present

• people are allowed, even expected, to show grief at funerals

• burial places should be respected and cared for.

These beliefs or practices were said to derive primarily from the evidence of nineteen witnesses. His Honour said at [647]:

Not all of these witnesses covered all the items in my summary, but all dealt with some of them. Importantly, there was no challenge to, or inconsistency in, the evidence about any of those matters. So it may properly be said that these items represent attitudes widely accepted throughout the claim area.

60 His Honour also mentioned a number of practices about which the evidence was inconclusive, in that it did not establish that the practice was currently or ever had been accepted throughout the claim area. In some cases, he said the practice was no longer followed. As regards burial practices, he found at [649] that there were "significant discrepancies" in the evidence.

Hunting, fishing and other food-gathering

61 The primary judge found that every aboriginal witness had learnt about food-gathering as a child. He did not set out all the hunting and fishing rules that were referred to in evidence, but rather noted that the witnesses "considered the rules still apply, when people seek the particular food." He then summarised the evidence of twenty-one witnesses and their present-day activities. In the case of some of them he also set out how they had learnt about traditional hunting, fishing and food-gathering practices and how they passed on knowledge of these practices to members of the younger generation. He concluded this section of his judgment with the following at [684]:

It seems to me apparent that hunting, fishing and food-gathering remain important ingredients in the lives of most of the witnesses, and this despite the constraints imposed upon them by wajala laws and practices and the fact that these activities are presumably no longer essential to Aboriginal survival. Moreover, it seems clear that, in carrying out these activities, the witnesses strive to follow traditional laws and customs and that many of them, at least, are actively teaching their skills, and those laws and practices, to younger members of their families.

Laws and customs concerning land

62 The traditional Noongar land-ownership system consisted of two types of ownership. The first, referred to as ‘estates’, was the basic unit of landholding. An ‘estate group’ comprised several nuclear families, and ownership rights in an estate were determined by birth. His Honour found that estate groups conferred on members of smaller groups their rights to occupy and use particular areas of land. It was common ground that estate groups have long disappeared. The second traditional unit of rights in land was the ‘run’. This was an area in which a person felt at home, and had certain rights derived from, for example, marriage.

63 The land-ownership rights recognised by the claimants today consist of areas known as ‘boodjas’, or ‘country’, which is an area in which a person feels at home and can move about freely without asking permission. His Honour summarised the evidence concerning the acquisition of rights over land and water by adopting the words of one of the witnesses: "the right to speak for country comes from where your family was born and lived, where you have lived and hunted and where you feel welcome and comfortable". His Honour also found that while a marriage connection gives rights to live and hunt in particular country, it does not give the right to speak for that country.

64 The primary judge said at [685]:

I have the impression that the typical contemporary boodja is more extensive than in 1829. That is to be expected. It is the logical extension of the interaction of a rule (or, at least, a practice) that a man should seek a wife from a tribe far away from his own, with the greater mobility brought to (indeed, forced upon) the Noongar people by white settlement and practices.

65 It seems that for the primary judge the most important feature of a boodja is the permission rule. This is the rule that requires people to seek permission to enter land outside their own boodja. His Honour concluded that the permission rule is still followed, although not universally. One reason for its decline was adverted to by a witness when responding to a question about travelling from Albany to Perth: "because it’s so urbanised now, it’s okay, but I think if you want to travel into spots of cultural significance, you have to go and ask permission."

66 His Honour noted the change from a mostly patrilineal descent system to one involving both patrilineal and matrilineal descent. In his view, such a change was inevitable given the number of non-Noongar ancestors from whom Noongar land rights could not be inherited.

Primary judge’s conclusion on continuity

67 The primary judge prefaced his conclusion by quoting this passage from Yorta Yorta HC at [89]:

it is necessary to demonstrate that [despite the changes] the normative system out of which the claimed rights and interests arise is the normative system of the society [at sovereignty] ... not a normative system rooted in some other, different, society ... it must be shown that the society ... has continued to exist throughout that period as a body united by its acknowledgement and observance of the laws and customs.

He continued at [776]:

In other words, one should look for evidence of the continuity of the society, rather than require unchanged laws and customs. No doubt changes in laws and customs can be an indication of lack of continuity in the society; they may show that the current normative system ‘is rooted in some other, different, society’. Whether or not that conclusion should be drawn must depend upon all the circumstances of the case, including the importance of the relevant laws and customs and whether the changes seem to be the outcome of the factors forced upon the community from outside its ranks.

68 His Honour then dealt with a number of submissions made by the present appellants and reached the following conclusions:

(a) Descent rules are of great importance and changes to them were inevitable if the Noongar were to survive European colonisation. The move away from a patrilineal system to a mixed patrilineal/matrilineal system "should be regarded as not inconsistent with the maintenance of the pre-settlement community and the continued acknowledgement and observance of its laws and customs".

(b) There was inconsistency as to whether a person had to have been born on country in order to have rights to it. However, problems with the content of this rule have arisen because of European settlement and the phenomenon of babies being born elsewhere than on their parents’ land. It was therefore ‘natural’ for a rule to have developed to the effect that a person could have rights to land merely from living on it for substantial periods of time and learning about it.

(c) The fact that witnesses could not always articulate with precision the content of their rules does not mean that there was no normative system. Aboriginal witnesses cannot be expected to recount their laws and customs with the precision of a lawyer expounding the common law. Moreover, there is no error in an expert anthropologist reasoning from individual evidence to discern the rules that are in operation.

(d) The absence of an enforcement mechanism for resolving disputes over access to land is not fatal. The most effective method of enforcement - spearing - is illegal under European law and so has disappeared. A secondary method - social ostracism - is still practised today, especially if a person hunts on or speaks for land without permission.

(e) The submission that no action had been taken to resist or protest against ingress to Perth of Aborigines from other areas was ‘unreal’. There was evidence that from as early as 1836, Perth Aborigines were unwilling to drive away stranger tribes since the loss of control of their traditional lands meant that the Perth Aborigines were reliant on strangers for essential goods.

(f) "Today’s boodjas are similar in concept to - although probably larger in area than - the ‘runs’ of pre-settlement times". While this change is significant, it is an understandable result of European settlement. White settlers put up fences and forced the Aborigines off their home areas. It is possible for Aborigines to substantially maintain a connection with the land even though it is impracticable to maintain a traditional presence on substantial parts of the determination area.

(g) The argument that permission rules have changed is incorrect. Although the manner of seeking permission has changed, the rule that permission must be obtained still exists. The fact that it is disregarded by some does not abrogate the rule.

69 At [791] the primary judge stated his ultimate conclusion on continuity in relation to the Single Noongar claim area as follows:

The changes mentioned by counsel for the State, and counsel for the Commonwealth, raise important issues. There is no doubt that enormous forces have assailed Noongar society since 1829, making it impossible for many of the traditional laws and customs to be maintained. However, when I come back to the test stated in Yorta Yorta, and ask myself whether the normative system revealed by the evidence is ‘the normative system of the society which came under a new sovereign order’ in 1829, or ‘a normative system rooted in some other, different society’, there can be only one answer. The current normative system is that of the Noongar society that existed in 1829, and which continues to be a body united, amongst other ways, by its acknowledgment and observance of some of its traditional laws and customs’. It is a normative system much affected by European settlement; but it is not a normative system of a new, different society.

Consideration of the appeals on continuity

Wrong question asked

70 The appellants contended that the questions the primary judge posed (quoted at [49]) are the wrong questions. The Commonwealth submitted that the correct question is whether acknowledgement and observance of traditional laws and customs has continued substantially uninterrupted since sovereignty. It is to be answered by ascertaining whether, for each generation of the relevant society since sovereignty, those laws and customs constituted a normative system giving rise to rights and interests in land, and in fact regulated and defined the rights and interests which those people had and could exercise in relation to the land and waters.

71 Since Yorta Yorta HC the approach propounded by the Commonwealth has been adopted in relation to the continuity issue. There at [87] the majority said:

acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned.

72 In Risk v Northern Territory [2006] FCA 404 at [97(c)] (Risk TJ) Mansfield J said that applicants for native title must establish, amongst other things, that

the acknowledgment and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty, and 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.

On appeal to the Full Court, the appellants did not attack that formulation, though they did unsuccessfully attack other parts of his Honour’s summary of the requirements for establishing native title: Risk v Northern Territory [2007] FCAFC 46; (2007) 240 ALR 75 at [78]- [79]. The Full Court regarded the whole of his Honour’s summary, including that quoted above, as an accurate statement of the effect of the cases, including Yorta Yorta HC. See at [78] to [98].

73 As appears from [49], the primary judge did not pose the continuity question in the form propounded by Yorta Yorta HC. Instead of enquiring whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted by each generation since sovereignty, he asked whether the community that existed at sovereignty continued to exist over subsequent years with its members continuing to acknowledge and observe at least some of the traditional 1829 laws and customs relating to land.

74 The Yorta Yorta HC formulation concentrates on continued acknowledgment and observance of laws and customs because the rights and interests the subject of a determination of native title (s 225) are the product of the laws and customs of the society. It is not the society per se that produces rights and interests. Proof of the continuity of a society does not necessarily establish that the rights and interests which are the product of the society’s normative system are those that existed at sovereignty, because those laws and customs may change and adapt. Change and adaptation will not necessarily be fatal. So long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional. An enquiry into continuity of society, divorced from an inquiry into continuity of the pre-sovereignty normative system, may mask unacceptable change with the consequence that the current rights and interests are no longer those that existed at sovereignty, and thus not traditional.

75 Consistently with the primary judge’s formulation at [49], his Honour’s conclusion quoted at [67] is cast in terms of continuation of a society.

76 The primary judge’s focus on the continuity of a society rather than continued acknowledgement and observance of laws and customs is seen in his treatment of the change from an essentially patrilineal system of descent to a mixed patrilineal/matrilineal system.

77 His Honour did not engage in the Yorta Yorta HC and Risk TJ enquiry as to whether the laws and customs relating to descent had continued to be observed by each generation from sovereignty to the present. He made no findings about that. Rather he seems to have proceeded on the basis that provided the pre-sovereignty society continued to exist, its members would have continued to acknowledge and observe those laws and customs. At [777] he said:

The descent rules are undoubtedly of great importance. However, changes to them must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices. I think the move away from a relatively strict patrilineal system to a mixed patrilineal/matrilineal or cognative system should be regarded as not inconsistent with the maintenance of the pre-settlement community and the continued acknowledgement and observance of its laws and customs.

78 The primary judge adopted a similar approach to the breakdown of the estate system. At [784]-[785] he said:

counsel [for the State] rightly say the claims made by the witnesses in these cases do not distinguish between ‘home areas’, inhabited by estate groups, and ‘runs’, larger areas to which they have access without the need for permission. Each of the witnesses only identified a relatively large area of land, his or her boodja, or country, to which he or she had access (as a matter of Noongar law, although often not under wajala law) without the need for permission. It seems to me that ‘home areas’ have effectively disappeared. Today’s boodjas are similar in concept to - although probably larger in area than - the ‘runs’ of pre-settlement times. I agree this is a significant change. However, it is readily understandable. It was forced upon the Aboriginal people by white settlement. As white settlers took over, and fenced, the land, Aborigines were forced off their home areas; the ‘bands’ or ‘tribes’, comprising several related families, were broken up. Surprisingly, the social links between those families seem to have survived, but the related families ceased to be residence groups, together occupying a relatively small area of land. The ability to maintain the ‘home area’ element of the pre-settlement normative system was lost.

79 We will return at [96] to his Honour’s approach to the effects of European settlement. What is of present relevance is that, having found that the ‘home areas’ had ceased to exist, together it would seem with the runs of pre-settlement times, the primary judge found that witnesses now claimed boodjas, or country, that were larger areas than the pre-settlement runs to which they were ‘similar in concept’. However his Honour failed to consider, as required by Yorta Yorta HC, whether a post-sovereignty boodja was an acceptable adaptation of the old runs or home areas or an unacceptable change. The majority in Yorta Yorta HC said that change or adaptation of traditional law or custom will not necessarily be fatal to a native title claim: see at [83]. Their Honours went on at [83]:

Yet ... change ... may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). 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?

80 Rather than explore this question, the primary judge seems to have rested on the fact that the social links between the several related families survived. This suggests that his Honour was again asking whether the community survived, rather than whether the laws and customs in relation to land continued from sovereignty through to the present. That is an error. In the absence of any finding of permissible adaptation or change, the "significant change" brought about by the disappearance of home areas, and apparently also the runs of pre-settlement times, is conclusive of discontinuity. Boodjas are a post-sovereignty phenomenon, and the fact that they are said to be similar in concept to the pre-settlement runs, though probably larger than runs, does not constitute a finding that a boodja is a permissible adaptation of either a home area or a run.

81 There are other difficulties with the primary judge’s treatment of boodjas. First, after acknowledging that the change from home areas to boodjas is a significant change, his Honour says at [785] that the change is readily understandable because it was forced on the Aboriginal people by white settlement. The reason for such an important change is irrelevant: Yorta Yorta HC at [89].

82 Second, after saying at [685] that he thought the typical contemporary boodja is more extensive than in 1829, his Honour observed that this was only to be expected, because of the interaction of a practice requiring a man to seek a wife from a tribe remote from his own and the greater mobility forced by white settlement. Again the reason for an expansion in size is irrelevant. The question is whether the change means boodjas are no longer traditional. His Honour did not find that boodjas are traditional. As we have said, our understanding is that they are a post-settlement phenomenon. His Honour’s statement that contemporary boodjas are larger than they were in 1829 is a slip. His intention was doubtless to say that a present day boodja is probably larger than an 1829 home area or run. In order to have found boodjas are traditional there would need to have been some evidence of continuity of a normative system of land-holding. His Honour refers to no such evidence. Indeed the evidence points against continuity with pre-sovereignty runs or home areas:

(a) traditionally, rights came about through a person’s birth on particular land. Contemporary rules allow people to have rights to land they were not born on as long as they live there for a substantial period of time and are prepared to learn about the land;

(b) estates, which consisted of several nuclear families possessing rights in small areas of land, have completely disappeared;

(c) contemporary boodjas are significantly different from traditional runs. To begin with, the boodja is now the highest form of land right for the Noongar people. It is an area that can be visited without the need to ask permission. This is in contrast to the traditional run where permission to visit had to be sought from the local estate-holders. Boodjas seem to develop largely as a result of a person’s life history, and thus include areas where a person has lived, worked and had family connections. Evidence about what rights are possessed over what areas of boodjas was somewhat inconsistent. The size of boodjas has increased dramatically;

(d) the permission rules, although still followed elsewhere, have disappeared from Perth, the area of the separate question. It follows that any Noongar may visit Perth without seeking permission, and not thereby act inconsistently with Noongar law and custom.

83 The third difficulty with his Honour’s treatment of boodjas is his statement at [785] that boodjas are "similar in concept" to pre-settlement runs. Without any explanation of what this similarity involves, or any reference to evidence, this is largely meaningless as a finding in a continuity context. The problem is that his Honour made almost no findings about runs. It is therefore difficult to compare boodjas with runs in order to determine if one has developed in an allowable manner from the other. Even if his Honour’s finding of conceptual similarity, whatever that may mean, is made out on the evidence, it is not relevant. What is relevant is whether the contemporary boodja system is traditional in the sense understood in Yorta Yorta HC. No finding is made as to this, and it is not possible for this Court to reach its own conclusion in the absence of factual findings about the content of the run system. The State’s submissions focussed on the differences between the estate system and the boodja system. The differences are understandably great, and we don’t understand the primary judge to have suggested otherwise. However, since there is no suggestion that the boodjas are the contemporary equivalent of the original estates, those differences are of minimal relevance. Differences are inevitable when one is not comparing like with like.

Disregard of continuity evidence

84 The primary judge’s failure to address continued acknowledgment and observance of traditional law and custom between sovereignty and the present is underlined, and perhaps explained, by his "disregard" of opinions expressed by the anthropologists who gave evidence based on the writings of nineteenth and twentieth century anthropologists and observers. We use the word "disregard" because, while his Honour said he obtained no benefit or little assistance from this material, he did not positively disallow it, so that it was not part of the evidence before him. It is nevertheless clear that his Honour said he would not take it into account and that he did not do so.

85 At [316] the primary judge said he obtained "no benefit from" section 5 of Dr Brunton’s report. This part of the report deals with recent anthropological writings about social and cultural continuity in south-west Western Australia. The primary judge said:

many of these writings are not before me, and I have little or no information about the factual assumptions upon which most of them were based. Consequently, I obtain no benefit from Section 5 of Dr Brunton’s report. The opinion of an expert assists a court only where two conditions are fulfilled: first, the court is apprised of the facts assumed by the expert in reaching that opinion; and, second, the truth of those facts is either proved by evidence or conceded by all other parties.

86 At [113]-[115], dealing with late twentieth century writers, the primary judge said:

During the latter half of the 20th century, many works, touching on early Western Australian Aboriginal history, were published. These works are different in kind to the earlier works. Their writers had no opportunity to converse with people who had personal knowledge of conditions in the early years of the Colony. The late 20th century writers had to content themselves with interpreting other people’s writings and/or whatever oral histories were narrated to them. Although it would be wrong to refuse to consider writings within this category, it seems to me they cannot provide much assistance in determining the factual situation existing in 1829 .... As Dr Palmer and Dr Brunton have demonstrated in their evidence, it is possible to find in the late 20th century writings support for almost any proposition. Some of the late 20th century writers were anthropologists of high repute; some were less well-known. However, whatever the general reputation of a particular writer, his or her work has value, for present purposes, only to the extent that the Court can be satisfied that any views expressed are based on facts established by other material before the Court or conceded by all other parties.

87 In the course of Dr Brunton’s cross examination counsel asked him about passages in his report in which he "made quite a deal" about Professor Berndt’s opinion, expressed in the 1970s, that the Noongar people have lost their traditions. The primary judge intervened:

It seems to me that the only evidence that’s worth a bumper is evidence from people who wrote at the time of original settlement where that’s so, or people who were in contact with people who were alive at original settlement, which takes us through to the early years of the 20th Century, and in relation to the present situation, people who investigated the present situation or the evidence in this case of people who have lived that situation.

And later:

I don’t really, at the moment, care whether Dr Brunton is right or wrong in his view about what Professor Berndt wrote, for the reasons I just said, or whether Dr Palmer’s defence of ... the Professor ... --- I always apply the test, when I write the judgment, is this topic going to find its way into it? And the answer to me says by flashing lights, ‘No, no, no’. And if that’s so, I frankly don’t want to spend time on it.

88 There are in our view three problems with the passages set out at [85] to [87]. The first is that assuming the basis rule has survived the Evidence Act 1995 (Cth) (as to which see [90] and [91]), its application to the material the subject of the passages set out at [85] and [86] should have led the primary judge to disallow it altogether, rather than to derive little assistance from it. That rule, as his Honour understood it, does not confer a discretion as to the treatment of that to which it applies.

89 The second is that while the evidence that was put aside or accorded no weight may be irrelevant to the situations at sovereignty and the present, it is clearly relevant to whether the claimants have established the continued observance of their law and customs generation by generation between sovereignty and the present time. To take Professor Berndt as the example, his opinions about the position in 1970 are relevant to continued observance since sovereignty, though not to the positions at sovereignty or the present.

90 The third problem is that the common law basis rule is not incorporated in s 79 of the Evidence Act: Neowarra v Western Australia (No 1) [2003] FCA 1399; (2003) 134 FCR 208 at [22] to [27] where the case law is collected and considered. See also Sampi v Western Australia [2005] FCA 777 at [799] (Sampi) and Jango v Northern Territory (No 4) 214 ALR 608 at [19].

91 At [37] to [38] of Neowarra (No 1) it was said:

Because any common law basis rule has not been imported into s 79, so that at the stage of admissibility there is no requirement that the facts upon which the expert’s opinion has been formed be supported by admissible evidence, the fact that an expert’s opinion is based in whole or in part on a ‘fact’ supported by hearsay, is not a ground upon which the opinion must be rejected. In any event, an expert’s opinion that is based on ‘facts’ supported by hearsay is prima facie admissible under s 60. Subject to the application of ss 135 and 136, hearsay material on which an expert's opinion is based will qualify for admission as relevant to the basis upon which the expert holds the opinion (‘a purpose other than proof of the fact intended to be asserted by the representation’). If it qualifies, it can then be used as proof of the fact intended to be asserted. That is the view that has been taken in relation to expert evidence in Daniel, Quick v Stoland, Lardil and Harrington-Smith v Western Australia [2003] FCA 893; (2003) 130 FCR 424. See also Welsh v The Queen at 368 and Lee v The Queen at 604. The weight to be accorded to that evidence is a matter for the Court.

(The full citations of the decisions in the above passage (other than Harrington-Smith) are Daniel v Western Australia [2000] FCA 858; (2000) 178 ALR 542, Quick v Stoland Pty Ltd (1998) 87 FCR 371, Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548, R v Welsh (1996) 90 A Crim R 364 and Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594). Section 60 of the Evidence Act (referred to in the first paragraph of the quoted passage) provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. Section 135 confers power to exclude evidence, and s 136 enables a court to limit the use to be made of evidence.

92 Before the Evidence Act it was well established that experts are entitled to rely upon reputable articles, publications and material produced by others in the area in which they have expertise, as a basis for their opinions. In Borowski v Quayle [1966] VR 382 at 386 (Borowski) Gowans J, quoting Wigmore on Evidence 3^rd ed, vol 2 at 784-785, said that to reject expert opinion because some facts to which the witness testifies are known only upon the authority of others, "would be to ignore the accepted methods of professional work and to insist on finical and impossible standards". Experts may not only base their opinions on such sources, but may give evidence of fact which is based on them. They may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information, in the sense they rely for such data not on their own knowledge but on the knowledge of someone else. The weight to be accorded to such evidence is a matter for the court. See generally Borowski at 385-387, PQ v Australian Red Cross Society [1992] 1 VR 19 at 34-35, H v Schering Chemicals [1983] 1 WLR 143 at 148-149, Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163 and Jango (No 4) at [8].

93 There is nothing in the Evidence Act that displaces this body of law. The Australian Law Reform Commission, on whose report the Act was based, said:

Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court’s assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose – eg to prove a prior consistent or inconsistent statement, or to prove the basis of the expert’s opinion – will be admissible also as evidence of the facts stated.

See Interim Report No 26, Evidence (1985) vol 1 at para 685.

94 It is also to be remembered, as Selway J pointed out in Gumana v Northern Territory [2005] FCA 50; (2005) 141 FCR 457 at [156], that expert evidence is not necessarily opinion evidence. In the case of anthropologists, it will often be direct evidence of the anthropologist’s observations and thus admissible in the ordinary course. See also R v Patents Appeal Tribunal; Ex parte Baldwin & Francis Ltd [1959] 1 KB 105 and Borowski at 385-386.

95 In view of the discussion at [90] to [94] the primary judge’s failure to have regard or attach weight to the anthropologists’ evidence on the observance of the laws and customs in the period between sovereignty and the present on the ground that it was not relevant to the position at sovereignty or at the present time was a serious error. The other ground on which his Honour rejected the evidence, namely that the basis rule was not satisfied, is also wrong. The primary judge thereby deprived himself of the evidence in reliance on which he could have undertaken the Yorta Yorta HC exercise of determining whether, for each generation since sovereignty, acknowledgment and observance of the Noongar laws and customs have continued substantially uninterrupted.

Effects of white settlement

96 The applicants submit that the primary judge erred by making too much allowance for the changes inflicted upon Noongar society by European settlement. In Yorta Yorta HC at [89]-[90] the majority said:

In the proposition that acknowledgment and observance must have continued substantially uninterrupted, the qualification ‘substantially’ is not unimportant. ... It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement. Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society .... ... But the inquiry about continuity of acknowledgment and observance does not require consideration of why, if acknowledgment and observance stopped, that happened. That is, continuity of acknowledgment and observance is a condition for establishing native title. If it is not demonstrated that that condition was met, examining why that is so is important only to the extent that the presence or absence of reasons might influence the fact-finder’s decision about whether there was such an interruption.

We understand the last sentence of that passage to be a reference back to the expression "substantially uninterrupted".

97 In the passage quoted at [78] the primary judge said that the disappearance of home areas, and apparently pre-settlement runs, was a "significant change". He then seems to have put the change aside on the ground that it was "readily understandable". There could not be a more important law or custom for the identification of rights and interests in land than that by which Aboriginal people are related to tracts of land. At settlement the tracts were the home areas and the runs. They ceased to exist after settlement and Aboriginal people instead claimed boodjas or country. Understandably, the primary judge treated the change as significant. However his Honour thought the effects of change could be mitigated by reference to white settlement. That is not a process contemplated by Yorta Yorta HC. European settlement is what justifies the expression "substantially uninterrupted" rather than "uninterrupted". It explains why it is that the common law will recognise traditional laws and customs that are not exactly the same as they were at settlement. But if, as would appear to be the case here, there has been a substantial interruption, it is not to be mitigated by reference to white settlement. The continuity enquiry does not involve consideration of why acknowledgment and observance stopped. If this were not the case, a great many Aboriginal societies would be entitled to claim native title rights even though their current laws and customs are in no meaningful way traditional. Yorta Yorta HC would have been decided differently, since the primary judge in that case found that it was European settlement that had caused the forebears of the claimants to leave their traditional lands and cease acknowledgement and observance of their traditional laws and customs. What we have said about the primary judge’s treatment of European settlement is applicable also to his observation at [777] that changes to the descent rules "must have been inevitable" if the Noongar community was to survive white settlement. It follows that in reaching his conclusion that Noongar laws and customs of today are traditional, his Honour’s reasoning was infected by an erroneous belief that the effects of European settlement were to be taken in account – in the claimants’ favour – by way of mitigating the effect of change.

Patrilineal/matrilineal

98 Before the primary judge the State submitted that whereas at sovereignty rights to country were acquired principally through patrilineal descent, Noongars can now obtain ownership rights through matrilineal descent or through birth or marriage. This it said was a radical departure from the situation at sovereignty and cannot be regarded as traditional.

99 In rejecting this submission the primary judge said at [350] that there had been an agreement "in substance" between the claimants and the State that in 1829 land entitlements were acquired pursuant to "a general rule of patrilineal descent, subject to exceptions". Later at [773] his Honour referred to the agreement as one "in substance" between Dr Palmer and Dr Brunton. Before us the State denied any such agreement.

100 His Honour continued at [773]:

That description [a general rule ... subject to exceptions] implies that, ordinarily, people will succeed to their father’s country; succession to mother’s country being the exceptional case. It is, I think, undeniable that claims to matrilineal descent are now commonly recognised; succession to mother’s country is no longer the exceptional case.

His Honour then referred to the effects of European settlement, and continued at [774]:

Every one of the 30 Aboriginal witnesses has at least one white male ancestor. If a rule of patrilineal descent had been strictly applied, all these witnesses would have lost their entitlements to country. I have no reason to doubt this would have also been the position of everybody else within the Noongar community. In such a situation, it is only to be expected that members of the community would have widened the application of the exception, so as to allow a claim to country to be made through the mother, equally with the father, and even, skipping a generation, through a grandparent.

101 The primary judge referred again at [775] to European disruption, including children being taken from their parents, and said it was not surprising that many people were ‘mixed up’ in terms of identification with particular country. In those circumstances,

For the normative system to have survived, it was obviously necessary to allow a degree of choice of country exceeding what would have been necessary in more ordered, pre-settlement times.

After referring to Yorta Yorta HC at [89], the primary judge said what we have recorded at [67] and concluded with the passage set out at [69].

102 A patrifiliation/matrifiliation submission similar to the State’s was dealt with in Griffiths v Northern Territory [2007] FCAFC 178 (Griffiths FC). The issue there concerned the Territory’s cross appeal complaining that, having found there had been a shift from principles of patrilineal descent to principles of cognative descent, the trial judge erred in holding that the claimants continued to acknowledge and observe traditional laws and customs giving rise to rights and interests in relation to land. The Territory contended that the trial judge "did not enquire whether the change ... was a permissible adaptation of a traditional rule" in the sense described in Yorta Yorta HC.

103 The Full Court dismissed the cross appeal on the ground that the Territory had misunderstood the trial judge’s reasons. It had wrongly assumed a finding that a rule of patrilineal descent had been changed to one of mixed descent. That was not the case. The primary judge’s conclusion was based on an expert report by Dr Palmer and Ms Asche. The authors noted that until some twenty years ago there was an assumption in the literature relating to the Timber Creek area that country groups were patrilineally recruited. However, more recent evidence showed that the assumption was questionable, because evidence given in land claims in the same area as that in question suggested that cognative descent was a common principle by which people expressed filiation to country.

104 The Full Court noted at [135] that the experts’ opinion was that patrifiliation was, and remains, an important means whereby people affiliate to country in the Timber Creek area, but that the operating principle in relation to gaining rights to country was that of descent - through mother or through father. Mere descent was insufficient; it must be supplemented by knowledge of the country in order that rights to country be realised. The authors noted that there may have been a shift over time such that the number of patrifiliates has decreased while the number of matrifiliates has increased. However, in their view, the normative system underpinning the acquisition of rights to land had not changed.

105 At [141] the Full Court said:

The primary judge accepted the opinion of Dr Palmer and Ms Asche that the operative principle at the time of European settlement in relation to gaining rights to country involved descent - through mother or through father. His Honour also accepted the opinion of Dr Palmer and Ms Asche that there may have been a shift over time such that the number of patrifiliates has decreased while the number of matrifiliates has increased but the underpinning normative system has not changed .... There was thus no occasion for his Honour to enquire about changed principles of descent. His Honour was satisfied that the relevant principle had not changed - albeit that its present exercise involves increased reliance on matrifiliation at the expense of patrifiliation.

106 In the present case the primary judge described the pre-settlement position as "a general rule of patrilineal descent, subject to exceptions". He later referred to the "widening of the exception" as a result of European settlement, and a "move away from a relatively strict patrilineal system to a mixed patrilineal/matrilineal or cognative system".

107 In his report (at para 11.12), dealing with rights to land, Dr Palmer said:

With respect to rights in country, descent is cited [by claimants] as an operative principle, but it is not, from my observations, always cited as either essential or the only means of gaining rights to country. However, many claimants did refer to their ancestral ties to country, and the principle would appear to be important. For example, Joe Walley stated that to ‘come from’ an area means that you have a traditional connection to that place, through descent. That is, either matri or patrikin were also affiliated to the same area. Another claimant reported that her country had also been her mother’s country and saw this as providing support for her claim .... There are a number of other examples where mother’s country is cited as also being ego’s country. Claimants also claimed their father’s country on numerous occasions. ... Descent in this system is reckoned through either matri or patri kin and can be called cognatic.

108 Dr Palmer then referred to a table he had prepared showing, in each of the 50 cases for which sufficient data was available, whether home area or country is derived from patri or matrifiliation, from birth or from residence and knowledge (pages 181 to 188 of the report). Dr Palmer made the following observations on this data (at para 11.14):

Nearly seventy three percent of claimants, from whom relevant data were obtained, cited patri-filiation as one of the means whereby they gained filiation to country. Nearly sixty six percent made this claim in relation to matri-filiation. There were seven cases where both matri- and patri-filiation were cited. Despite the limitations of these data, they provide, in my view, an indication that descent is an important means by which rights to country are established.

109 In his conclusion on rights to land Dr Palmer said (at para 11.42):

The early literature also makes clear that rights to country are gained through descent, and there is some evidence that descent was reckoned through either the matri- or the patri-line .... This is a view also supported by Bates .... Rights to country could also be attained through birth ... and marriage .... Again, in my opinion, this system of gaining rights to country would appear to have remained current, in its fundamentals, and is evident in the contemporary data I have reviewed above.

110 In the course of Dr Palmer’s cross-examination by the State, he agreed that there may have been a strong bias towards patrilineal descent in the Perth Metropolitan Area at sovereignty. However, he referred to Bates’ and Grey’s writings about people gaining rights in both mother’s and father’s country. Then he said:

Well, I think the best I can do for you is to say there may have been [a strong patrilineal bias in the Perth Metro Area at sovereignty], but that the system ... most probably as it operated always allowed for matrifiliates to claim rights as well. I don’t think that the evidence is – particularly given the Bates material and ... the other things that I’ve said, that it’s ... likely that matrifilates were always ruled out of the ... equation.

111 Later, in cross-examination by the Commonwealth about south-west Western Australia generally, Dr Palmer agreed that there was some evidence of a patrilineal bias, but that rights to land were obtainable "by reference to other things ... than the country of father ..., and it certainly included rights to mother’s country".

112 The other expert anthropologist, Dr Brunton, expressed the opinion that Dr Palmer’s assertion that there is some evidence of descent through either matri- or patrifiliation overstates the effect of the material he presented in support of it. He also said that Dr Palmer failed to differentiate "the measures that were taken when demographic circumstances occasionally precluded these patrilineal rules or expectations from being followed".

113 In cross-examination Dr Brunton expressed much the same view. Counsel put to him that his difference with Dr Palmer was that patrilineal descent wasn’t the only means of recruitment into the groups. He responded:

My point would be that there was, if you like, an ideology or ... norms of patrilineal recruitment such that when other mechanisms came into play, and I don’t deny the possibility that they did, that they would be masked, so that the group would appear as ... essentially a patrilineal or patri-group.

And later, in response to a suggestion that there was more than one legitimate means of recruitment into the land-owning group at sovereignty, he said:

there was a norm or an ideology of patriliny, and when this was not possible to be met, then there were other mechanisms that came into play.

114 It thus appears that the primary judge’s rendering of the parties’ or their experts’ supposed agreement on "a general rule of patrilineal descent, subject to exceptions" more closely accords with Dr Brunton’s evidence than with Dr Palmer’s. His Honour’s belief that the parties or the experts were in agreement on a general rule subject to exceptions may not have been based on his belief that there was a positive accord between the parties. Rather it may have been based on what was common ground between the experts. Given that Dr Palmer’s view of descent rules was more liberal than Dr Brunton’s, the former would have agreed with the latter’s view because it went some way in the direction of matrifiliation. To that extent they were in agreement. In our view that is what his Honour meant. Of course, left to his own devices, his Honour would probably, for the reasons he gave at [788] to [789], have preferred Dr Palmer’s view.

115 We do not think it matters whether the primary judge’s "general rule of patrilineal descent, subject to exceptions" or Dr Palmer’s patrilineal bias, with land rights also obtainable matrilineally (as well as by birth or marriage), is to be preferred. If the latter, the case is very like Griffiths FC, and what was said by the Full Court in that case justifies the primary judge’s conclusion that there was no more than an increase in the instances in which succession was obtained by matrilineal affiliation rather than patriliny; no change from patriliny to patriliny/matriliny or cognation. On Dr Brunton’s stand (or the experts’ modest level of agreement), there was no more than an expansion of the exceptions to the general rule. According to Dr Brunton, an exception was granted where "demographic circumstances occasionally precluded the patrilineal rule or expectation from being followed". Those circumstances expanded to accommodate preclusion brought about by European settlement.

116 While we think the primary judge’s reliance on the significance of European settlement at times goes further than is permitted by Yorta Yorta HC (see [96]), we do not think in this instance (ie descent) it has led him to the wrong conclusion. On the expert evidence alone (whether Dr Palmer’s or Dr Brunton’s or the extent to which they were in agreement), the primary judge was entitled to conclude that a shift over time involving an increase in reliance on matrilineal descent did not lead to the conclusion that the descent rules were no longer traditional.

No new rights?

117 The State’s patriliny/matriliny case was also put in a different form. This was that "a new right is never permissible under Yorta Yorta". It was said that ambilineal descent of rights is not a traditional law of the Noongar, and is not an acceptable adaptation from patriliny because of the extension of rights its acceptance would cause. It was submitted that any change in the distribution of rights, for example a wider class of those enjoying a right or an expanded geographical area where the right can be enjoyed, is a change in the rights themselves. It was said that Yorta Yorta HC did not intend merely to preclude a new class of rights arising, but to preclude any new right, including an old right for a new class of persons.

118 Reliance was placed on various passages in Yorta Yorta HC, but especially on [43], which is in part as follows:

Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.

119 In our view the contention that there can be no new rights after sovereignty, and in particular no change in the distribution of pre-sovereignty rights, pays insufficient attention to what was said in Yorta Yorta HC immediately after the passage quoted at [118]. At [44] the majority said:

[That is not] to deny that the new legal order recognised then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be ‘significant adaptations’. ... Because there could be no parallel law-making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.

120 In accordance with Yorta Yorta HC, when determining whether rights and interests are traditional, the proper enquiry is whether they find their origin in pre-sovereignty law and custom, and not whether they are the same as those that existed at sovereignty. Clearly laws and customs can alter and develop after sovereignty, perhaps significantly, and still be traditional. The fourth and last sentences of the passage quoted at [119] suggest that rights and interests, which are the product of laws and customs which adapt or develop, may themselves change without losing recognition.

121 It may be that the true position is that what cannot be created after sovereignty are rights that impose a greater burden on the Crown’s radical title. For example, in this proceeding, the evidence demonstrated that the claimants had never fished in the sea. The Crown’s radical title over the sea was therefore not, at sovereignty, burdened by any native title rights to fish. If a practice of fishing in the sea had developed since sovereignty, no native title rights could attach to that practice since any such rights would constitute a greater burden on the radical title than existed at sovereignty. By definition such rights could not be traditional. On the other hand, where the Crown’s radical title was burdened at sovereignty with a right to fish, a change in the number and identity of people whose rights so burden it does not necessarily mean that those current rights cannot be traditional.

122 We need not pursue this issue further because, as we have explained at [98] to [116], the starting point of the State’s submission, namely that pre-sovereignty descent was exclusively patrilineal, is not made out.

Conclusion

123 The Commonwealth has made out the following "continuity" errors alleged in its grounds of appeal:

Ground 9 – holding that continuity of a normative system of traditional laws and customs can be established by evidence of continuity of a society.

Ground 10 – failing to inquire whether there had been continuity in the acknowledgment and observance of the body of normative rules in which the claimed native title rights and interests were said to find their foundation before sovereignty.

Ground 13 – failing to hold that continuity of a normative system of laws and customs which existed at sovereignty required proof that the acknowledgement and observance of the body of laws and customs said to be acknowledged and observed by the ancestors of the claimants at the time of sovereignty had continued substantially uninterrupted since sovereignty.

Ground 14 – failing to find that the claimants had not established on the evidence that acknowledgment and observance of the body of laws and customs said to be acknowledged and observed by their ancestors at the times of sovereignty had continued substantially uninterrupted since sovereignty.

Ground 19 – in the absence of any findings that a body of laws and customs acknowledged and observed by the claimants’ ancestors at the time of sovereignty constituted the normative system for each successive generation of the society which existed at sovereignty, finding that the laws and customs now acknowledged and observed by the claimants are properly described as traditional laws and customs.

124 The State has made out ground 2.4(1) and (2)(a) of its grounds of appeal, namely the application by the primary judge of the wrong test in determining whether the claimants have continued to acknowledge and observe traditional laws and customs from sovereignty to the present.

THE "COMMUNAL TITLE" AND CONNECTION APPEALS

125 Section 223(1), insofar as presently relevant, defines "native title" or "native title rights and interests" to mean –

the communal, group or individual rights and interests of Aboriginal peoples ... 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 ...; and

(b) the Aboriginal peoples ..., by those laws and customs, have a connection with the land or waters

126 The primary judge accepted, as he was obliged to, that the applicants had to establish a connection with the Perth Metropolitan Area, the subject of the separate question: at [82]. It is the means by which he considered this could be demonstrated that gives rise to the present appeal prosecuted both by the State and the Commonwealth. His Honour was of the view that the applicants were not required to establish their connection in a manner that was divorced from their asserted connection to the whole claim area. If they succeeded in demonstrating the necessary connection between themselves and the whole claim area – which his Honour accepted they did – they would demonstrate the required connection to the Perth Metropolitan Area: at [792]-[793].

127 His Honour expressed the view (at [794]-[795]) that:

It is not necessary that all members of the Noongar community have identical rights over the separate question area, or any special rights at all. It is sufficient they be members of a community of Aboriginal people who continue to acknowledge and observe the traditional laws and customs possessed by them at sovereignty, under which particular rights and interests in that area are enjoyed by some or all members of the community.

There is no doubt that Aborigines inhabited the Perth Metropolitan Area at date of settlement. They were members of what I have held to be the single Noongar community, who acknowledged and observed the traditional laws and customs discussed above. Accordingly, it is open to present day members of that community to obtain recognition of the community’s rights in relation to Perth, whether or not there are, today, members of the community who can trace their ancestry to people living in the Perth Metropolitan Area at sovereignty. The result of that recognition, in terms of actual use of particular land in the Perth Metropolitan Area by particular members of the Noongar community is an intracommunal matter to be regulated by the community itself.
(Emphasis added.)

128 Although he thought it was unnecessary for the applicants to go so far, his Honour nonetheless indicated (at [796]) that he thought they had established –

upon the probabilities, that some members of the present day Noongar community are descended from one or more Noongars who lived in the Perth Metropolitan Area at sovereignty.

129 Significantly, while the primary judge (at [59]) adopted the general observations of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta HC at [33]-[35] on the requirements of s 223(1), he did not separately consider what was the burden imposed by the connection requirement of s 223(1)(b) and how it might be satisfied. That matter has attracted considerable attention and analysis in recent authorities as will be seen below.

130 The approach to be taken to "connection" was itself informed by the primary judge’s appreciation of the character of the native title claimed by the applicants. Theirs were "communal or group claims, as distinct from individual claims": at [61]. The fundamental significance of this was made plain in his Honour’s comment (at [78]) that:

In any communal native title case, it is necessary for the Court to determine whether the claimed native title extends to the whole, or any part, of the claimed area. However, it is not necessary (and it would be inappropriate) for the Court to become involved in issues as to the intracommunal distribution of special rights over portions of the total area, in relation to which native title has been established. The Court leaves it to the community to determine those issues. Alyawarr illustrates the point: see [81], [110]-[112] and [2] and [6] of the formal determination, which is set out at 504-505. See also Ward (FC1) at [202]. Of course, if the applicants have no communal native title rights or interests over any identifiable part of the claimed area, but only if the position is that other people have rights over parts of it, the claim will fail.
(Emphasis added.)

Necessarily we consider below what was said by the Full Court both in Alyawarr FC and in Ward FC.

131 The challenges made to the primary judge’s finding of connection are, in essence, twofold. First, it is said, his Honour erred in using the concept of "communal title" either at all or as he did. Secondly, and this flows out of that error, it had to be established by evidence that the applicants, by their traditional laws and customs, had a connection to the land and waters of the areas the subject of the separate question. That connection could not be deduced as of course from the Noongar community’s connection with the claim area as a whole. There is a number of subsidiary themes in each of these alleged errors which will be noted as we consider the errors in turn.

1. "COMMUNAL TITLE"

(a) Background

132 The terms "communal title" and "communal native title" are not used in the NTA let alone are they defined by it. They were, nonetheless, given a currency by the judgment of Brennan J in Mabo (No 2) which has survived the enactment of the NTA. It is necessary to consider what Brennan J had to say in a little detail.

133 For a variety of reasons relating primarily to consequences for native title that may be wrought by a change in sovereignty and hence to the common law’s recognition of that title, Brennan J accentuated both its proprietary dimension and the interest that a traditional community as such had in its land. His Honour commented (at 51) that:

If it be necessary to categorize an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category. Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor.

A related reason for this proprietary emphasis when viewing native title through common law eyes was to sustain the enjoyment of traditional (non-proprietary) usufructuary rights. As Brennan J said (at 51): "it is not possible to admit [such] rights without admitting a traditional proprietary community title." His Honour then went on to characterise the interrelationship of communal title and group and individual rights and interests. The latter, he said (at 62) were "so to speak, carved out of the communal native title". Nonetheless, Brennan J was quite specific that there was a typology of rights and interests that could be comprehended by the description "native title". In language which, save in one important respect, was the obvious inspiration for s 223(1)(a) and (b): Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 452; Brennan J indicated (at 57):

The term ‘native title’ conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.

Hence his Honour was to refer (at 63) to the "native titles claimed by the Meriam people – communally, by group or individually" (emphasis added). The saving to which we refer is that while Brennan J refers to "interests and rights in ... land", s 223(1) refers to "rights and interests ... in relation to land": on which see Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 (Yarmirr HC) at [12] ff; and see also NTA s 223(2).

134 Important to an understanding of Brennan J’s concept of communal native title is the explanation he gave for the declaration as to native title made in Mabo (No 2). It was restricted to the "native communal title of the Meriam people". His Honour said (at 75):

This matter came before the Full Court pursuant to an order made by the Chief Justice under s 18 of the Judiciary Act 1903 (Cth) reserving questions relating to the rights and interests claimed by two of the plaintiffs, David Passi and James Rice in specified blocks of land on the islands of Mer, Dauar and Waier. No such claim was made before this Court by the plaintiff Eddie Mabo. In the course of the hearing before this Court, it emerged that it was not practicable to answer those questions by acting upon findings made by Moynihan J. The plaintiffs’ statement of claim was then amended to seek declarations relating to the title of the Meriam people. The plaintiffs Passi and Rice claim rights and interests dependent on the native title of the Meriam people, not as interests dependent upon Crown grants. In the absence of any party seeking to challenge their respective claims under the laws and customs of the Meriam people, the action is not constituted in a way that permits the granting of declaratory relief with respect to claims based on those laws and customs – even had the findings of fact been sufficient to satisfy the Court of the plaintiffs’ respective interests. Declaratory relief must therefore be restricted to the native communal title of the Meriam people. The plaintiffs have the necessary interest to support an action for declarations relating to that title.
(Emphasis added.)

135 We have referred at some length to this aspect of Brennan J’s judgment as the primary judge relied considerably upon it and upon the declaration made in Mabo (No 2), noting in particular (at [63]) that "there are cases [in the Federal Court] in which communal native title has been recognised over the whole of an area of land, notwithstanding that estate groups were found to have particular rights to parts of that land". We refer to those decisions of this Court below.

136 Importantly for present purposes, Mabo (No 2), though the herald of the NTA, was a decision at common law.

(b) The NTA regime

137 The High Court has emphasised "repeatedly": see Yorta Yorta HC at [32]; that the native title recognised and protected by the NTA is that which is defined in s 223(1) of the Act and it is that definition which provides the starting point for any consideration of a native title determination application under the Act: see Yarmirr HC at [7]; State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [16] (Ward HC); Yorta Yorta HC at [32].

138 As was said in the joint judgment in Ward HC (at [16]):

No doubt account may be taken of what was decided and what was said in [Mabo (No 2)] when considering the meaning and effect of the NTA. This especially is so when it is recognised that pars (a) and (b) of s 223(1) plainly are based on what was said by Brennan J in Mabo [No 2]. It is, however, of the very first importance to recognise two critical points: that s 11(1) of the NTA provides that native title is not able to be extinguished contrary to the NTA and that the claims that gave rise to the present appeals are claims made under the NTA for rights that are defined in that statute.

139 The High Court equally has emphasised that the rights and interests to which s 223(1) refers may not, and often will not, reflect Anglo-Australian conceptions of "property" and "belonging": Yorta Yorta HC at [40]; and that neither the use of the word "title" nor the fact that the rights and interests be "in relation to" land and waters should be seen as necessarily requiring identification of the rights and interests as items of "real property": Yarmirr HC at [12]. We would note in passing that the inclusion within the definition of "rights and interests" in s 223(2) of "hunting, gathering, or fishing rights and interests" – ie of traditional, non-proprietary, usufructuary rights: see Mabo (No 2) at 51 and 70; see also Mason v Tritton (1993) 70 A Crim R 28 at 30-33 – merely accentuates the lack of symmetry between native title rights and interests and common law conceptions of property.

140 Given that native title is defined in terms of a typology of rights and interests in relation to land and waters having the characteristics specified in s 223(1), it is, with respect, unsurprising that in the joint judgment in the High Court’s decision in Ward HC, it was indicated at [95] that the metaphor ,"bundle of rights", is useful in this area in two respects:

It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.

141 In rejecting the proposition that native title will "ordinarily" be a "communal native title" or "community title" that is practically equivalent to full ownership, it was observed in the joint judgment in Ward HC that such a proposition was not useful "because it assumes, rather than demonstrates, the nature of the rights and interests that are possessed under traditional law and custom": at [84]. This is not without significance in the present appeal. We would add in passing that since the enactment of the NTA, the expression "communal title" does not appear to have been used by a High Court majority as an element in their decision.

142 The definitional focus in s 223(1)(a) on "rights and interests", not only contrives the inquiry to be undertaken in determining a claim of native title, it also is reflected in what is required in an order of the Court when making a determination that native title exists in relation to a particular area. Such a determination involves a determination, amongst other things, of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area.
(s 225 of the NTA)

These details must be set out in the Court’s order: see s 94A. Though a native title determination must comply with the requirements of s 225: see Ward HC at [51]; there is some controversy in this appeal as to the degree of specificity required in setting out the details of the two matters noted above. The latitude that has been given in past cases is now a cause of contention. This is because the primary judge was of the view that in a "communal native title case", while it is necessary for the Court to determine whether the claimed native title extends to the whole, or any part, of the claimed area, it is not necessary or appropriate for the Court to become involved in intracommunal distribution of special rights over portions of the area in which native title has been established. His Honour’s approach provides one strand in the appeals of the State and the Commonwealth on the use made by him of "communal title".

143 As a matter of completeness, we should note that it is now well accepted that the native title rights and interests to which the NTA refers and which it defines for its purposes are not an institution of the common law. They are rights and interests finding their origin in pre-sovereignty law and custom which are recognised by the common law, not rights and interests which are a creature of the Act: Yorta Yorta HC at [45]. For this reason there is "an intersection" of traditional laws and customs and the common law: Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at 128. An application for determination of native title requires the "location of that intersection ... by reference to the definition of native title in s 223(1)": Yorta Yorta HC at [31]. As will be seen, the "level" at which that recognition of native title rights and interests is to occur will be contrived by the character of the rights and interests, ie communal, group or individual, which are the subject of the claim in question: see Neowarra v State of Western Australia [2003] FCA 1402 at [384] ff (Neowarra).

(c) Communal, Group and Individual Rights and Interests

144 There has been considerable discussion in Federal Court decisions of what is comprehended by "communal", "group" and "individual" rights and interests respectively. The helpful analysis of Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; (2007) 238 ALR 1 at [1129] ff (Wongatha) is a recent illustration of this. Before turning to that matter, we would reemphasise what we earlier said at [44] to [47] of the s 223(1)(a) requirement that the laws and customs under which rights and interests are possessed must be traditional. We would add for present purposes that "[t]he underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title": Fejo HC at 128. That title may have been extinguished in whole or in part: Wongatha at [94]; or lost for want of continuity of acknowledgement and observance of traditional laws and customs: Yorta Yorta HC at [90]. As to the latter of these, the Full Court in De Rose v South Australia (No 2) (2005) 145 FCR 209 at [57] (De Rose FC No 2)):

... a claimant community or a claimant group whose members themselves have never acknowledged or observed traditional laws and customs cannot succeed in a claim for native title rights and interests merely because other Aboriginal peoples have acknowledged and observed the relevant traditional laws and customs. This would be so even if the traditional law and customs identified the non-observant claimant community or group as ‘possessing’ rights and interests in particular land or waters.

145 Turning to the "communal", "group" and "individual" rights and interests typology, it is convenient to use observations made in De Rose FC (No 2) as a starting point. The Court said (at [38]-[39]):

It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as ‘communal’, ‘group’ or ‘individual’. The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community.

The distinction between group and individual rights and interests (to the extent it matters) is perhaps more difficult to identify. An example of group rights and interests may be those held by a subset of a wider community, the traditional laws and customs of which determine who has interests in particular sites or areas. The members of the subset may or may not themselves be an identifiable community, but their rights and interests are determined by the traditional laws and customs observed by the wider community. The members of the subset might be expected, under the traditional laws and customs, to share common characteristics in relation to certain land or waters, such as rights and responsibilities as the custodians of particular sites. Ordinarily, it might be expected that the ‘group’ holding native title rights and interests would have a fluctuating membership, the composition of which would be determined by the relevant body of traditional laws acknowledged and customs observed.

146 We agree with this understanding of the classification and accept its consequence that s 223(1) envisages three possible native title "owning" entities – the community (or "society") under whose laws and customs native title is possessed, a group or groups, and an individual or individuals: see Wongatha at [1135]. With the Act itself so envisaging three distinct types of possible native title holder, a recurrent issue in determination applications (including the present: see Bennell at [348]), has been whether the possibilities provide alternative, or cumulative, bases for the possession of native title rights and interests in the circumstances of a given case: see eg Alyawarr FC at [79]-[86]; De Rose FC (No 2) at [31].

147 The issues that need to be addressed for present purposes are interrelated. They are: what is the character of communal rights and interests? and what is the relationship, if any, of group and individual rights and interests to communal rights and interests? A variety of factors appear to bear on how these questions have been approached. They encompass, at least, (i) the so-called "fundamental principle" that native title rights and interests are ordinarily communal in character: see eg Sampi at [955]; Alyawarr FC at [71]; (ii) communal native title holders do not necessarily possess, or need to possess, rights and interests uniformly over the entire native title determination area: Ward FC at [239]; (iii) if communal native title is established, the intramural (or intracommunal) allocation of special rights to particular areas is a matter for the community itself to determine in accordance with its traditional laws and customs: Ward FC at [202]; Alyawarr FC at [79]; (iv) relatedly, in a communal native title claim the level of intersection both at which common law recognition of native title rights and interests is to occur (if at all) and at which the s 225 determination is to be made, is at that of communal rights and interests: Ward FC at [205]-[206]; cf De Rose FC (No 2) at [45]-[47]; see eg Neowarra at [384] ff; (v) group and individual rights and interests are dependent upon, and are "carved out of", the communal native title; Mabo (No 2) at 62.

148 We will deal with these factors synoptically. Before so doing we consider it appropriate to make the following general observation. In a given matter the existence, character and extent of native title rights and interests, whether communal, group, or individual, depend upon the traditional laws and customs of the community in question. With all depending upon the content of those laws and customs: Wongatha at [536]; there is in our respectful view reason for pause in the too ready embrace of a priori generalisations both as to the ordinary character and locus of native title rights and interests and as to the nature of the interconnectedness of communal rights and interests on the one hand and group or individual rights on the other. While we acknowledge that such generalisations have been made in High Court decisions and, notably, in Mabo (No 2), we are conscious that they may lead in a given case to assumptions being made about that which, in fact, is required to be demonstrated under the NTA: cf Ward HC at [84].

149 A claim by a community to all of the native title in a particular area can properly be described as a communal claim. But is it for that reason properly to be characterised as a claim for communal rights and interests (ie communal native title) irrespective of whether group or individual rights are held under that community’s traditional laws and customs? Or is to describe it as a communal claim to do no more than state that, as between themselves, the members of the claimant community hold all of the rights in the claim area albeit they may hold them differentially, ie "there is no other proprietor", so that (absent dispute over those rights) it is superfluous and unnecessary to differentiate them?

150 It is clear that in Mabo (No 2), Brennan J (at 62), as also Deane and Gaudron JJ (at 109-110), characterised native title "as communal title" that enured for the benefit of the community as a whole and for the groups and individuals within it who have particular rights and interests in the land. While the text and structure of s 223(1), with its typology of "native titles", would not necessarily suggest that the NTA regime reflected such a characterisation, recent decisions of this Court at trial and appellate level have construed s 223(1) under the shadow of Mabo (No 2). As French J observed in Sampi (at [955]):

Given [the] terminology of paras (a) and (b) of the definition of ‘native title rights and interests[’] in s 223 is taken from Mabo (No 2) it could hardly have been intended to undercut the fundamental principle of their communal character.

See Alyawarr FC at [69]-[71]; on taking account of Mabo (No 2) in interpreting the NTA see Ward HC at [7] and De Rose FC (No 2) at [29]-[30]. Communal native title claims, we would note, have been made with some regularity: see eg Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 at 601-602 (Yarmirr TJ); Gumana v Northern Territory (2007) 158 FCR 349 at [144]-[161] (Gumana FC).

151 This Court, though, has refrained from turning the "fundamental principle" of Mabo (No 2) into an inveterate rule, acknowledging in this that each case will depend on its own facts. As was said by the Full Court in Alyawarr FC (at [79]-[80]):

The determinations which may be made under s 225 cover a range of possibilities which depend upon the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title rights and interests claimed. In some cases the members of the community identified as the relevant society may enjoy communal ownership of the native title rights and interests, albeit they are allocated intramurally to particular families and clans. This was the case in Sampi v Western Australia [2005] FCA 777 ... The traditional laws and customs, as explained in the evidence, supported a principle of communal ownership.

If, on the other hand, the society identified as the repository of the traditional laws and customs is a cultural bloc whose members are dispersed in groups over a large arid or semi-arid area an inference of communal ownership of native title rights and interests derived from its laws and customs may be difficult if not impossible to draw.
(Emphasis added.)

152 What we would take from this – and accept for present purposes – is that before a claim of communal title in a community can properly be made out, the evidence must be capable of supporting an inference of communal ownership of native title derived from the community’s laws and customs. The decision of Sundberg J in Neowarra at [384] ff illustrates the application of this approach.

153 While the primary judge accepted that the claim as made in this matter was for a communal title, it is not apparent from his Honour’s reasons that he considered the above evidentiary question in finding communal title. Unsurprisingly neither the State nor the Commonwealth has taken issue with this on the appeal, the burden of their cases at the preliminary hearing being, contrary to his Honour’s findings, that there was no single Noongar society at sovereignty acknowledging its own traditional laws and observing its own traditional customs. Nonetheless, we think it appropriate to make this comment. If his Honour had considered, not merely the question of what was the society whose laws and customs were observed, but also the question whether those laws and customs supported an inference of communal title, or only of group titles, a potentially different inquiry may well have been set in train. It would have required a closer analysis of the coherence of the "society" found (having regard to the area it occupied and the dispersal of its members), of the character of its laws and customs and of how those laws and customs allocated rights, interests and responsibilities across the lands and waters the subject of the claim.

154 A determination of communal title does not necessarily result in the communal rights and interests themselves being held in common by the members of the community: see Ward FC at [234] and [239]; Wongatha at [1144] (in relation to group members). It has been accepted that communal rights, interests and responsibilities themselves can be enjoyed (or distributed) differentially. As the Full Court observed in Ward FC at [202]: "[t]he enjoyment of the communal rights or some of them is a matter which is left for the common law holders to determine among themselves in accordance with the traditional laws and customs as currently acknowledged and observed."

155 A like approach has been taken – and was taken by the primary judge (at [794]) – to rights and interests that could qualify as group or individual rights and interests under s 223(1) of the NTA. The dual justifications for this would seem to be (i) Brennan J’s comments in Mabo (No 2) that group or individual rights "are, so to speak, carved out of the communal native title" (at 62) – are "dependent on" the native title of the community (at 75) – hence the regular reference to the form of the declaration in Mabo (No 2) in Full Court decisions of this Court: see eg Ward FC at [205]-[206]; and (ii) that to satisfy the requirements of s 94A and s 225 of the NTA (relating to the matters to be listed in a determination of native title), the identification of communal native title rights and interests suffices: see eg Alyawarr FC at [69]-[71] but contrast the more guarded comments in De Rose (No 2) at [45]-[48].

156 We agree with the observations made in Ward FC at [205] that the degree of specificity required in a determination will depend upon the nature and extent of the native title rights and interests and is likely to vary from case to case. We equally consider the matters in issue in a particular claim may in turn influence what needs to be specified for s 225 purposes. If there is no fundamental controversy in a communal title claim as to alleged group rights and interests, but there is serious controversy as to whether there is a community having communal title, it is understandable, if that controversy is decided favourably to the claimant community, that the native title determination be made at the level of communal rights and interests and that the s 225 rights and interests be specified accordingly. But for reasons we give later in relation to the s 223(1)(b) requirement of "connection", where the extinguishment of group rights is put in issue in a communal title claim, somewhat different considerations may well obtain.

157 The significance of what Yorta Yorta HC described (at 445) as the "inextricable link between a society and its laws and customs" and that society’s acknowledgement and observance of those laws and customs must be accepted. Unless a society has, and acknowledges and observes, laws and customs under which native title rights and interests are possessed, there can be no native title rights whether communal, group or individual. In this sense, such a society with appropriate laws and customs is indispensable to there being group or individual rights. Such rights can properly be said to be dependent upon the society (or community). What, with respect, is not so obvious is that such rights ordinarily are dependent as well on, and are carved out of, the society’s (or communal) title. Acceptance of that proposition has had the effect in what have been called "multiple group" cases (Gumana FC at [154]) that where the question is whether what are discernible groups in fact constitute a "society" which acknowledges traditional laws and observes traditional customs under which communal title is possessed, the issue of whether there is communal title collapses into the issue of whether there is a society. The judgment under appeal is a very obvious illustration of this.

158 Given the course of authority in this Court to which we have referred and which we are not prepared to say is clearly wrong (notwithstanding the reservations we have expressed), we consider we are obliged to adhere to the approach taken to communal title in Ward FC and Alyawarr FC and in the cases which have followed them at appellate and trial level. If the "fundamental principle" that, ordinarily, native title is communal is to be called into question, it will be in another place. We would, though, comment that, notwithstanding common law principles relied upon by Brennan J in Mabo (No 2), the terms and tenor of the NTA may well be capable of implementation without resort either to a "fundamental principle" of community title or to some degree of approximation of native title rights and interests with concepts drawn from Anglo-Australian property law.

159 As will be apparent below, we do not consider our conclusion ends the issue that arises out of the use made by the primary judge of communal title. However, it does necessitate the rejection of the challenges made by the State and the Commonwealth (a) to the legitimacy of invoking the concept of community title at all; (b) to reliance upon the fundamental principle that native title is ordinarily communal title; and (c) to the anticipated failure to make a determination for s 94A and s 225 purposes of group and individual rights in conjunction with a determination of communal title.

2. "CONNECTION"

160 Though the Commonwealth challenged in a limited fashion his Honour’s finding that the Noongar applicants had a connection to the Perth Metropolitan Area, the State challenged it on a broad front which subsumes the Commonwealth’s appeal. It is convenient to set out the State’s grounds of appeal in full. They are:

4.5 In finding that the First Respondents had a connection to the Perth Metropolitan Area, the learned trial judge erred in law:

(1) by finding that the First Respondents had a connection to the Perth Metropolitan Area by virtue only of their general connection to the whole of the Claim Area and irrespective of any person’s connection particularly to the Perth Metropolitan Area ([78], [82], [792]-[795]);

(2) by finding that it was unnecessary that any of the persons in the First Respondents’ claim group be descended from a person holding native title in the Perth Metropolitan Area at the date of settlement ([83](c), [795]);

(3) by finding that the First Respondents, by virtue only of their communal title, have native title in the Perth Metropolitan Area in the absence of proof that some other Aboriginal persons or groups had rights in the Perth Metropolitan Area ([78]);

(4) by failing to find that the existence of native title in one part of a society’s land does not, without more, establish native title to all parts.

4.6 The learned trial judge erred in law and in fact in finding that (upon assumed statistical probabilities, in the absence of supporting evidence, and in the face of contrary evidence) some members of the present day Noongar community are descended from one or more Noongars who lived in the Perth Metropolitan Area at sovereignty ([796]-[799]), whereas his Honour should have held, as a matter of onus and inference, that no such person is so descended from a person holding native title in the Perth Metropolitan Area at sovereignty.

Applicable Principles

161 Since the decisions of Ward HC and Yorta Yorta HC, considerable attention has been given in Federal Court decisions to the "connection" requirement of s 223(1)(b). It is that the Aboriginal peoples or Torres Strait Islanders, by their traditional laws and customs, have a "connection with the land or waters" in relation to which they possess rights and interests in accordance with s 223(1)(a).

162 In Yorta Yorta HC, it was emphasised in the joint judgment (at [33]-[35]) that all of the "elements" in s 223(1)(a), (b) and (c) must be given effect and that in relation to subpara (1)(b) "the connection to be identified is one whose source is traditional law and custom". In Ward HC, it was indicated in the joint judgment (at [64]) in terms of considerable present relevance that:

In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a ‘connection’ with the land or waters. That is, it requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a ‘connection’ of the peoples with the land or waters in question. No doubt there may be cases where the way in which land or waters are used will reveal something about the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned. But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection. Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by ‘connection’ by those laws and customs. This latter question was not the subject of submissions in the present matters, the relevant contention being advanced in the absolute terms we have identified and without examination of the particular aspects of the relationship found below to have been sufficient. We, therefore, need express no view, in these matters, on what is the nature of the ‘connection’ that must be shown to exist. In particular, we need express no view on when a ‘spiritual connection’ with the land (an expression often used in the Western Australian submissions and apparently intended as meaning any form of asserted connection without evidence of continuing use or physical presence) will suffice.

163 The genesis of the term "connection" in the NTA is to be found in Brennan J’s judgment in Mabo (No 2) (at 59-60). We refer to it, not simply because it highlights "the opaque" drafting of s 223(1)(b): see Alyawarr FC at [87]; but also because it has had influence in shaping aspects of the content of the connection requirement in this Court’s jurisprudence on s 223(1). His Honour commented:

Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. But that is not the universal position. It is clearly not the position of the Meriam people. Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgement of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.

164 As cases in this Court on s 223(1) clearly demonstrate, the connection concept is multifaceted, with differing aspects of it being emphasised in differing factual contexts. For present purposes we would note the following matters.

165 First, despite the occasional propensity both to fuse and to confuse the inquiries raised by s 223(1)(a) and (1)(b), it is indisputable that they are distinct – the one relating to rights and interest in relation to land or waters, the other to connection with that land or those waters – notwithstanding that each is sourced in the traditional laws acknowledged and the traditional customs observed by the claimants in question: see Ward HC at [18]. While it may be the case in a given instance that the evidence necessary to establish connection will be the same as that used to identify the claimed rights and interests (and the State has contended that this is such a one: Submissions at [106]), it is clear s 223(1)(b) serves its own purpose in s 223(1) and is not rendered largely redundant by s 223(1)(a): see Sampi at [1079]; see also Wongatha at [1880]. The distinction between the two inquiries can, as has been said, be "critical": Ward HC at [19]. We will refer below to aspects of the independent work done by subpara (1)(b). What is to be emphasised here is that connection is not simply an incident of native title rights and interests as such. The required connection is not by the Aboriginal peoples’ rights and interests. It is by their laws and customs.

166 The presently important consequence of our last observation is that because the connection inquiry is not tied to the rights and interests claimed – though their character and their exercise may be important in a given case in demonstrating connection by the traditional laws and customs – the inquiry itself is not contrived by the nature of the rights and interests ("communal", "group" or "individual") claimed in an application. In a communal title claim, it doubtless is convenient shorthand to observe that connection with the claim area has to be established "at the communal level": cf Sampi at [1079]; because, as the Full Court observed in Gumana FC at [143], "the question is whether that community ... has the required connection". It equally is understandable that this shorthand should be used, in particular, in "multiple group" communal title claims – hence the observations in Alyawarr FC at [111] that:

[Connection] involves the relationship of the relevant community to its country defined by laws and customs which it acknowledges and observes. The relationship may be expressed in various ways including, but not limited to, physical presence on the land. It does not depend upon the precise locus, within a community, of native title rights and interests intramurally allocated, provided that they can be regarded as held by the community as a whole.
(Emphasis added.)

167 However, this shorthand and the circumstances of its usage ought not deflect attention from the inquiry ultimately required by s 223(1)(b). We emphasise this for the following reason. Where, as in the present matter, it is contended that connection has been lost with a particular part of the claim area, because the connection to that area by the laws and customs has not been shown to have been substantially maintained, the connection inquiry itself must address that contention and, if it is established, its significance for the communal claim to that part of the area must be assessed: see eg Neowarra at [357]. To foreshadow what we have to say, the primary judge did not consider it necessary to embark upon such an inquiry in relation to the Perth Metropolitan Area and so clearly erred.

168 Secondly, the laws and customs which provide the required connection are "traditional" laws and customs. For this reason, their acknowledgment and observance must have continued "substantially uninterrupted" from the time of sovereignty: Yorta Yorta HC at [86]-[89]; and the connection itself must have been "substantially maintained" since that time: Ward FC at [241]. As the Court observed in Alyawarr FC at [92], perhaps not enough emphasis has been placed on the idea of continuity of observance as "a manifestation of connection". We will return below to the significance of manifestation of connection. As will later become apparent, the requirements of continuity of observance and connection assume no little significance when one comes to consider whether observance and/or connection has been established sufficiently or at all in relation to the Perth Metropolitan Area.

169 Thirdly, as was made plain in the joint judgment in Ward HC at [64], the connection inquiry requires, first, an identification of the content of the traditional laws and customs and, secondly, the characterisation of the effect of those laws as constituting a connection of the people with the land. It is often observed, as in Ward FC at [243], that connection can be maintained by the continued acknowledgement of traditional laws and observance of traditional customs. The reason for this is that the laws and customs themselves characteristically will, in significant degree, presuppose or envisage direct connections with land or waters or will, if acknowledged and observed, link community members to each other and to the land or waters in a complex of relationships. Illustrative of this are the comments of Sundberg J in Neowarra at [352] as to the s 223(1)(b) character of the laws and customs that were in evidence in that matter. What we would wish to emphasise in the following extract is that the laws and customs that connected the claimants to the land were by no means exclusively ones that gave them rights and interests in that land:

Many of the claimants’ laws and customs have a physical connection with land or waters. The central figures of the Wanjina are physically present on land throughout the claim area. Wunggurr places are identifiable locations. The languages of the area are related to the land. They are language countries, not merely languages spoken by people who live on the country. Clans have clan estates – areas of land. Moieties have their own countries – Jun.gun and Wodoy. Claimants travel over the country and practise their laws and customs there. The wurnan, in its various parts, is directly connected to land. There is wurnan rank and wurnan location or direction. Rituals – initiations and junbas – are carried out at special sites. Baran has a physical relationship to land. The widow must leave her camp and live elsewhere for a time. These laws and customs thus have a connection with land or waters, and their observance by the Aboriginal people gives them a connection with land or waters. They are thus connected to the land or waters ‘by’ their laws and customs. The claimants’ connection to country is deepened by what the anthropologists called "multiple cross-cutting links to country". Dr Rumsey’s explanation is set out in [79]. There is a network of connections. On the one hand are places (eg Wunggurr) and areas of country (eg dambun) and related groups of areas of country (eg families of clan countries, wurnan neighbours) and areas having various forms of common or overarching identity (eg moiety, language, Wanjina). On the other are individual members of the claimant group and various groupings of individuals (eg families, close kin, wurnan partners, communities, moieties, language groups). The strands of this network are multiple and cross-cutting as described by Dr Rumsey.

As we will later indicate, his Honour went on to outline at considerable length the evidence disclosing connection both at the general (or community) level and at the estate (or dambun) level.

170 We would observe that in the present matter the primary judge did not undertake any such s 223(1)(b) inquiry into the Noongar claimants’ laws and customs as they relate to the claim area generally or to the Perth Metropolitan Area specifically.

171 Fourthly, though the connection inquiry requires the formal characterisation of the laws and customs we have noted, it equally requires demonstration that, by their actions and acknowledgement, the claimants have asserted the reality of the connection to their land or waters so made by their laws and customs. A recurrent theme in Federal Court cases is the significance to be attributed to absence of physical presence upon the land with which connection by the traditional law and customs is claimed. Absence of physical presence as such is not a matter of present concern. But the case law on "presence" does illuminate that the connection itself must have a continuing reality to the claimants and that the evidence of how this is manifest is of no little importance in establishing present connection.

172 It is well accepted that an effect of European settlement on aboriginal communities was often enough to render it impracticable for them to maintain a traditional presence on substantial parts of their respective lands. However, it is equally accepted in decisions of this Court that such impracticability does not necessarily mean that the surviving members of such a community have not substantially maintained their connection with their land: Ward FC at [241]; Neowarra at [349]-[351]. It may have subsisted at a spiritual and/or cultural level: see Yanner v Eaton at [38]; and for this reason such evidence as there may be of attempts to overcome the absence of physical presence on land that is claimed is of real importance: see Daniel (on behalf of the Ngarluma People) v State of Western Australia [2003] FCA 666 at [421] (Daniel).

173 In Ward FC, Beaumont and von Doussa JJ, having described the relationship between Aboriginal people and their land as "primarily a spiritual affair", commented at [243]:

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

174 Put shortly it can properly be said, as French J has, that a requirement of connection "involves the continuing internal and external assertion by [a claimant community] of its traditional relationship to the country defined by its laws and customs ... which may be expressed by its physical presence there or otherwise": Sampi at [1079]; see also Neowarra at [353].

175 Fifthly, the connection inquiry can have what may be described as a particular topographic focus within the claim area, the perimeter of which must itself be specified with reasonable precision: NTA, s 62(1)(b) and (2)(a) and (b); Daniel at [113]-[117]. This focus has been apparent, for example, in those cases where the claim area includes within its boundaries portions of land or waters for which there is no evidence of use by the claimants, or which are inaccessible. In such cases the courts have shown a distinct propensity to infer such connection as was practicable with such land or waters from Aboriginal activities in the surrounding areas which were supportive of a connection to the general area within which those apparently unused or inaccessible areas were located: see Ward FC at [262] and also [240]; Yarmirr TJ at [91]-[98]; see also Daniel at [412] ff.

176 A topographic concern has also been evident in cases where the question is whether claimants have lost or have maintained their connection with a part, or parts, of the claim area. So in Neowarra, for example, Sundberg J at [357] accepted the possibility that the state of evidence on connection could indicate that, in relation to a particular portion of a communal claim, connection had not been maintained and for that reason that portion would have to be excised from the claim area. In contrast in Sampi – again a communal claim – French J accepted at [1079], on the evidence before him, that the necessary connection had been established to particular estate areas that may have fallen vacant, and this because there was "sufficient evidence of ongoing visitation and the assertion of the relevant relationship to country by Aboriginal witnesses to establish that the requisite connection of the Bardi people, as a whole, exists."

177 It is this topographic focus of connection which is critical in the disposition of this appeal given that the separate question relates to the Perth Metropolitan Area.

178 It is not uncommon for the traditional laws and customs of a community to connect that community to a claim area by connecting groups within the community both to each other (often in complex ways) and, respectively and immediately, to their own particular portions of the claim area (in the latter case by granting rights to, and imposing responsibilities on, each such group in respect of its portion). In such cases, it is entirely appropriate that the connection inquiry consider not merely evidence of the general connection of the claimant community to the claim area, but also the evidence of the particular connection of the particular groups and their members to their respective portions of the claim area: see Neowarra at [353]-[356]. The latter evidence, we would suggest, will ordinarily be necessary in some degree if the claimants’ assertion of connection is to be sufficiently manifest over the claim area as a whole – the more so, in communal claims, if rights and interests are held differentially across the community – though there can be cases where, because of long standing occupancy of the claim area, the s 223(1)(b) inquiry (as distinct from that under s 223(1)(a)) will not loom large: cf Griffiths v Northern Territory of Australia [2006] FCA 903 at [561]-[562].

179 What, in our view, is indispensable where a matter put in issue in a proceeding is whether connection has been maintained to a particular part of a claim area, are the needs (i) to examine traditional the laws and customs for s 223(1)(b) purposes as they relate to that area, and (ii) to demonstrate that connection to that area has, in reality, been substantially maintained since the time of sovereignty.

180 As we noted at the outset, the primary judge adopted a quite different course in establishing connection to the Perth Metropolitan Area. His Honour simply asserted at [793] that he was satisfied that "the Applicants have succeeded in demonstrating the necessary connection between themselves and the whole claim area (excluding the offshore islands and land and waters below low-water mark). Accordingly ... they have established a connection with the Perth Metropolitan Area".

Consideration of the Primary Judge’s Alternative Connection Findings

(1) Connection to the whole claim area establishes connection with the Perth Metropolitan Area

181 We have already indicated our view that, with the present existence of native title in the Perth Metropolitan Area having been put in issue, it was not open to his Honour simply to subsume the connection issue in relation to that area within a finding of connection to the whole claim area. We would not wish our focus on the Perth Metropolitan Area to be taken as endorsing the primary judge’s conclusion of connection with the whole of the claim area. Whether connection has been substantially maintained to all or any other parts of the claim area is not in issue before us and we need express no conclusions on that issue. What we would say, though, is that his Honour’s reasons do not betray how, if at all, he undertook the separate inquiry posed by s 223(1)(b): see Ward HC at [18] and [64]. It should be added that the present is not a case in which it could be said that the issue of connection does not loom large.

182 The State and the Commonwealth have successfully challenged directly the primary judge’s conclusion on continuity. However, even if his Honour’s conclusion be accepted, it does not assist in answering the question whether, by their laws and customs, the Noongar people have maintained substantially a connection with the land and waters of the Perth Metropolitan Area.

183 What is notable about the primary judge’s recitation of the evidence of the aboriginal witnesses concerning their customs and beliefs (to which we referred on the continuity issue) is that while some, but not all, of it may have been able to help in establishing connection to particular parts of the claim area, the evidence was not used or deployed with connection to a particular area, let alone the Perth Metropolitan Area, in mind. Rather it was marshalled so as to inform findings on the continuity of the Noongar community and on the continued observance of at least some traditional laws and customs: see eg [606] (beliefs), [644] and [757] (marriage rules), [645] and [758] (deaths and funerals) and [684] (hunting).

184 Integral to the laws and customs both at sovereignty and at present were his Honour’s findings that groups of Noongar people had their own particular country for which they could speak, about which they had spiritual knowledge, in relation to which permission to enter had to be obtained and over which rights were acquired by descent rules. Put shortly, an important element in the body of laws and customs that may have connected the Noongar people to the land of the claim area were those laws and customs that may have connected particular groups to their particular country: see eg at [825]. We would note in passing that there was apparently uncontradicted evidence which, as Mr Pettit SC put it at the hearing of the appeals, estimated that there would have been around 16 estate groups in the Perth Metropolitan Area at sovereignty.

185 We earlier indicated, that for the purposes of the s 223(1)(b) connection inquiry, it is necessary to characterise the laws and customs in question so as to ascertain whether they constitute a "connection" of the peoples in question with the relevant land and waters. His Honour undertook no such inquiry. We need say no more about that.

186 What we wish presently to emphasise is that if those persons whom the laws and customs connect to a particular part of the claim area have not continued to observe without substantial interruption the laws and customs in relation to their country, they cannot succeed in a claim for native title rights and interests even if it be shown – which it has not been – that other Noongar peoples have continued to acknowledge and observe the traditional laws and customs of the Noongar: cf De Rose FC (No 2) at [57]-[58]. As the Full Court noted in Alyawarr FC at [92], continuity of observance of laws that connect is itself "a manifestation of connection". A substantial absence of any real acknowledgement of traditional law and observance of traditional custom, as these related to the Perth Metropolitan Area, would occasion a substantial failure to maintain connection with that area which could not later be revived for contemporary recognition: Mabo (No 2) at 60.

187 If his Honour was to find that native title existed in relation to land and waters of the Perth Metropolitan Area, it had to be proved that the laws and customs that related to that area had continued to be acknowledged and observed without substantial interruption and that connection likewise had been substantially maintained. Those inquiries necessitated a consideration and evaluation of the evidence (historical and contemporary) as it related to that area from sovereignty to the present: cf the approach to these questions by Mansfield J in Risk TJ in relation to the Darwin area. There was a considerable body of such evidence before the primary judge. Section 223(1)(b) required that it be addressed before a finding as to the existence of native title could be made for the purposes of the separate question.

(2) Connection to the Perth Metropolitan Area through descent from one or more Noongars who lived there at sovereignty

188 His Honour found that the applicant/respondents had not been able to demonstrate an irrefutable line of descent from a Noongar living in the Perth Metropolitan Area at sovereignty, to any particular member of the claimant group, ie the claim group as a whole: at [797]. Nonetheless, he went on to conclude (at [799]):

Many of the people who gave evidence before Beaumont J and myself claimed ancestors who were said to have been living in the Perth Metropolitan Area at, or shortly after, sovereignty. Some of the claimed ancestors are known historical figures; the doubt is the link between that person and the witness. Others are not known historical figures. While the evidence does not permit me to make a positive finding in relation to the claim of any particular witness, it is highly unlikely that all the claims are wrong. After all, we know some thousands of Aborigines lived in the Perth Metropolitan Area at date of sovereignty. In the ordinary course, those people would now have hundreds of thousands of living descendants. Nineteenth century families (Aboriginal and non-Aboriginal) were usually large. There was a high rate of infant mortality and European settlement must have resulted in loss of Aboriginal lives and forced dispersal of Aborigines to other areas; but it seems most unlikely that the wider Noongar community contains no descendant of any of them.

189 Even if this statistical probability (as the State describes it) be accepted, of itself it would provide no evidence of the descendant’s present connection to the Perth Metropolitan Area. His Honour has inferred such a connection from the descendant’s membership of the Single Noongar community irrespective of whether that unknown person (or persons) claim(s) rights and interests in the Perth Metropolitan Area or, indeed, presently observes and acknowledges the community’s laws and customs. This methodology suffers from the same vice which we considered in the preceding discussion of connection to the Perth Metropolitan Area. We would add to this that, as the rights and interests in question related only to the Perth Metropolitan Area and as the acquisition of rights over land and interests in that area was tied, by the community’s laws and customs, to descent rules, proof of continuing connection to that area would have to track the continuing operation and vitality of those descent rules as they related to that area.

Conclusion on Connection

190 We are satisfied that his Honour misapplied s 223(1)(b) of the NTA and, in so doing, failed to answer a question necessary to be answered in deciding the separate question. Accordingly on this ground alone the appeals of the State and the Commonwealth must succeed.

THE STATE’S "PROCEDURAL FAIRNESS" GROUND AND THE PASTORALISTS’ INTERVENTION

191 Under the heading, "Denial of procedural fairness", ground 4.4 of the State’s grounds of appeal stated that:

... if the learned trial judge was correct to consider and decide the connection of the First Respondents to the Claim Area generally, then his Honour erred in law in:

(1) constituting, alternatively proceeding to hand down judgment notwithstanding the constitution of, a separate proceeding in respect of the Perth Metropolitan Area divorced from the rest of the Claim Area; and

(2) refusing to join persons with an interest in the Claim Area as respondents,

whereas his Honour should have given notice, and an opportunity to become a party, to all such persons once his Honour decided to determine the question of whether the First Respondents had a connection to and native title in the whole of the Claim Area.

Ground 4.3, which complained of procedural unfairness to the State, was abandoned in written submissions. It challenged the primary judge’s reliance upon witnesses outside the Perth Metropolitan Area to establish connection to, and native title in, the whole of the claim area. The appeal that the State is prosecuting, in other words, is alleging a denial of procedural fairness to third parties who were not parties to the Perth Metropolitan Area proceedings. In essence, the State’s written submissions contend that, in the circumstances, this Court could not be satisfied that the trial was conducted fairly, seemingly, in relation to those third parties who were neither bound by the answer his Honour gave to the separate question nor by any determination of any issue made in that proceeding.

192 The Group 17 (Pastoral Interests) were pastoralists who, while having pastoral leasehold interests in the claim area, did not have such interests in the Perth Metropolitan Area. Nonetheless, they applied to be joined as parties to WAD 6006 of 2003 long after the order for the hearing of the separate question but before WAD 6006 of 2003 was formally split into WAD 6006 of 2003 Part A (being the Perth Metropolitan Area) and Part B (being the balance). His Honour refused their application insofar as it sought active participation in the separate question, although the pastoralists were later joined as parties to the Part B proceedings. It is not at all apparent that any order was made precluding their participation in the separate question, or at least an order capable of founding an appeal.

193 Be that as it may, the pastoralists sought leave to intervene in the hearing of the appeal. This Court granted leave to intervene in relation to ground 4.4 which on its face was directed to third parties such as them. They were limited to written submissions of no more than five pages, those submissions to be made, if at all, after consultation with the State’s legal advisers. Put shortly, their contentions are that his Honour made findings as to native title and connection in relation to the whole of the claim area on a factual matrix which was more limited than would have been the case had they been parties to the proceedings: some of the pastoralists’ families have lived in the claim area since the early 1900s. Relatedly they complain of their lack of joinder as parties.

194 Given both that the State has abandoned its grounds alleging procedural unfairness to itself in his Honour’s decision and that the intervenors were not bound by his orders or findings, and given the views we have arrived at as to the proper disposition of the State’s appeal in any event, we consider it unnecessary to express any concluded view on ground 4.4.

THE APPEALS ON THE NATIVE TITLE RIGHTS AND INTERESTS FOUND

195 The answer given by his Honour to para (iii) of the separate question, which answer was embodied in the orders made, was as follows:

1. As to para (iii):

Without purporting to specify the final terms of a formal Determination of Native Title, the said native title rights and interests are the rights to occupy, use and enjoy the area in the following way:

(a) to access and live on the area;

(b) to conserve and use the natural resources of the area for the benefit of the native title holders;

(c) to maintain and protect sites, within the area that are significant to the native title holders and other Aboriginal people;

(d) to carry out economic activities on the area, such as hunting, fishing and food-gathering;

(e) to conserve, use and enjoy the natural resources of the area, for social, cultural, religious, spiritual, customary and traditional purposes;

(f) to control access to, and use of, the area by those Aboriginal people who seek access or use in accordance with traditional law and custom;

(g) to use the area for the purpose of teaching, and passing on knowledge, about it, and the traditional laws and customs pertaining to it;

(h) to use the area for the purpose of learning about it and the traditional laws and customs pertaining to it.
(Emphasis added.)

The listed rights are a modified subset of those claimed in Schedule E of the Claimant Application.

196 His Honour went on to order that the separate proceeding be remitted to the Western Australian native title provisional docket judge "for the making of such further orders and directions as may be necessary".

197 In his reasons (at [809]) the primary judge indicated that:

... I do not propose to return an answer to sub-question (iii) of the separate question that would purport to specify the precise wording of any determination that may ultimately be made. The form of a determination concerning the nature and extent of native title rights and interests is always a matter of public importance. The parties ought to have a further opportunity of discussing that form. Hopefully, they can reach agreement about it; if not, any dispute may be resolved by another judge, in the same way as the second Ward Full Court resolved some outstanding disputes about the wording of the determination made in that case: see Attorney-General (NT) v Ward [2003] FCAFC 283; (2003) 134 FCR 16 (Ward FC2). What follows is simply my finding about the rights and interests that have been established by the evidence and which, it seems to me, ought to be included in a determination, subject to further consideration of their precise wording.

198 The Schedule E rights claimed by the respondents included a claim of "exclusive possession, occupation, use and enjoyment" of six listed types of area. It was noted by his Honour that no evidence concerning any of these was led and no specific submission was put: at [838]. He previously had indicated that it "will ... be appropriate to make a determination of a non-exclusive right (at least) to occupy, use and enjoy the claimed land and waters of the Perth Metropolitan Area (excluding all offshore islands and waters below low-water mark)": at [828]. In dealing with the six listed types of area where exclusive possession was claimed, his Honour appears to have rejected the claim in relation to two of the area types: at [838]; but left "this matter open" in relation to the other four area types: at [840]. Exclusive possession as such is not addressed in the orders made, the primary judge seemingly contemplating that this would be the subject of latter determination.

199 The Commonwealth has appealed against all but one of the rights specified in the answer to para (iii) of the separate question. The grounds of appeal allege, variously, lack of specificity of content of particular rights (eg (b) and (e)); that certain of the rights were not rights or interests in land possessed under the traditional laws and customs (eg the rights to use the area to teach and learn those laws and customs: (g) and (h)); and inconsistency with the law as it now stands, particularly in relation to waters. A matter informing the Commonwealth’s appeal is the contention that, in treating some number of the claimed rights as "uncontroversial", his Honour ignored the Commonwealth’s submissions. The Commonwealth also claims that by failing to deal with the exclusive possession issue, his Honour failed to discharge his duty to answer para (iii) of the separate question.

200 The State and the Commonwealth take issue in their appeals with his Honour’s failure finally to determine the separate question. The State also relies upon one of the alternative grounds of appeal relied upon by WAFIC.

201 WAFIC’s grounds, put shortly, were that the primary Judge failed to give effect to a concession made by respondents in their closing submissions at trial which limited the nature and extent of the rights and interests claimed in relation to the intertidal zone and (arguably) navigable, non-tidal waters, but not in relation to other waters in which native title was found to exist. In consequence of the concession, WAFIC, it is said, did not address submissions to the wider rights in relation to waters that were claimed in Schedule E and which are reflected in his Honour’s orders. It has in the circumstances been denied procedural fairness. WAFIC, we should note, has a very limited but particular interest in prosecuting its appeal. Its interest in the claim area (including in relation to the Perth Metropolitan Area) is limited to those areas to which commercial fisheries apply, these being in intertidal waters and navigable waters.

202 For the reasons we give below, we need only refer to WAFIC’s appeal and then only briefly. The respondents’ written closing submissions at trial clearly differentiated between the rights sought in relation to "tidal waters" and those in relation to waters "not affected by the ebb and flow of the tides". Paragraph 536 of those submissions, insofar as presently relevant, stated:

Answer to (iii):

i. In relation to the land and waters above the high water mark of the foreshore of the coast line, including rivers, streams and estuaries that are not affected by the ebb and flow of the tides, the native title rights and interests that are possessed under the traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the native title rights and interests by the native title holders, possession, occupation, use and enjoyment to the exclusion of all others.

ii. In relation to the land and waters of the sea, including rivers, streams and estuaries that are affected by the ebb and flow of the tides, the native title rights and interests that are possessed under the traditional laws and customs are, subject to the traditional laws and customs that govern the exercise of the rights and interests by the native title holders, rights of access to, and use of resources in or on the land or waters, being:

(i) the right to hunt, fish, gather and use traditional resources within the area for personal, domestic or non-commercial exchange or communal consumption for the purposes allowed by and under their traditional laws and customs.
(Emphasis added.)

That some such differentiation might have to be made was seemingly anticipated, but not precisely articulated, in the Schedule E claims which limited the claims to "exclusive possession" (inter alia) to "any area of natural water resources that is found not to be tidal". The Schedule, further, acknowledged that the rights claimed may "co-exist with other statutory or common law rights".

203 While the primary judge refused to find that native title existed below the low-water mark: at [805]; he did not deal specifically with native title rights in the intertidal zone: see Gumana FC at [86]; or, for that matter, in navigable, non-tidal, waters: Attorney-General for the Province of British Columbia v Attorney-General for the Dominion of Canada [1914] AC 153 at 169; and see generally, Bonyhady, The Law of the Countryside (1987) Pt 2, Ch 1. Above the low-water mark, the orders made did not discriminate between rights in relation to land and those relating to water.

204 If, as appears to be the case, the nature and extent of the rights in relation to tidal waters described in the closing submissions encapsulate the rights given under the traditional laws and customs, then no greater rights than those could possibly be given the respondents in respect of the tidal waters. We were not taken to any evidence concerning the content of the traditional laws and customs to confirm such was the case – hence WAFIC’s description of the submission as being in the nature of a "concession" by the respondents.

205 While we consider it likely that, by oversight, the primary judge failed to differentiate between rights in tidal and non-tidal waters in the Perth Metropolitan Area above the low water mark, the orders made are, in their generality, clearly open to an interpretation that gave the respondents greater rights to the tidal waters than those actually sought. Whether they could properly be regarded as extending to the commercial exploitation of the tidal area as WAFIC apprehends – this is disclaimed by the respondents in their written submissions – takes one back to what is mandated by the traditional laws and customs. As we note above, their content is not before us.

206 It is the case, though, that WAFIC, by acting on the concession made in the closing submissions, was denied the important opportunity to make submissions both on the uncertain content and reach of his Honour’s orders and on the sufficiency of the evidence to establish the rights themselves: see Tuite v Administrative Appeals Tribunal [1993] FCA 71; (1993) 40 FCR 483 at 487-488; see also Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298. We do not consider that WAFIC acted unreasonably or inappropriately in the circumstances in seeking leave to appeal as it did. The issues it has raised in relation both to tidal waters and to navigable, non-tidal, waters needed to be settled, if his Honour’s orders were otherwise left on foot. It is the success of the appeals of the State and the Commonwealth that, in a sense, has obviated the need for any singular order to be made in WAFIC’s appeal. Nonetheless, as WAFIC’s appeal does not depend on the success or otherwise of the State’s or Commonwealth’s appeal, it is appropriate to make orders in it to reflect its success in the matter. Accordingly we will order that the appeal be allowed; that order 1 of the primary judge as it relates to para (iii) of the separate question be set aside; and that part of the separate question be remitted to the docket judge. In making these orders, we appreciate that they are subordinate to the more comprehensive orders made in the State and Commonwealth appeals.

207 The appeals of the Commonwealth and of the State on his Honour’s answer to para (iii) of the separate question are not ones upon which we need express concluded views. In large measure the issues they raise, particularly in the Commonwealth’s appeal, are not ones which we consider would be appropriate for us to determine. As we understand his Honour’s reasons and orders, he left a significant but uncertain area of latitude to the docket judge, who was to make the final native title determination, in ascertaining and formulating the respondents’ rights and interests for s 94A and s 225 purposes. It is not at all clear to us whether it was envisaged that that process would involve the taking of further evidence and the making of further submissions (cf the comments on this in relation to the exclusive possession claims at [838]-[840]). To the extent that objection is raised to the particular rights found because of the form of their expression and of uncertainty or overreaching thereby occasioned, his Honour’s orders appear on their face to countenance the later resolution of such objections by the docket judge. Short of this Court actually making the determination that the primary judge refrained from making – a course which it would be quite inappropriate for us to embark upon given the state of the evidence and the submissions before us – little purpose would be served by our entering into the debate about what the final terms of a determination should or should not include. At best, some of the objections raised seem premature.

208 It is unnecessary to comment further upon the difficulties we have with these grounds of appeal and with the issues, interpretative and otherwise, they raise. As we intend to make orders setting aside the primary judge’s orders, no useful purpose would be served in dealing with the present grounds of appeal. If we are incorrect in setting aside those orders, then the issues sought to be ventilated before us in relation to the answer given to para (iii) of the separate question can more appropriately be raised before the docket judge.

CONCLUSION: THE BENNELL APPEALS

209 We grant the Commonwealth, WAFIC and the State leave to appeal in WAD 288 of 2006, WAD 289 of 2006 and WAD 290 of 2006 respectively.

210 In appeals WAD 288 of 2006 and WAD 290 of 2006, the extent of the success of the Commonwealth and of the State has been such as to require orders in each instance that the appeal be allowed and that order 1 of the orders made on 19 September 2006 in the separate proceeding (Part A of WAD 6006 of 2003) be set aside. Both parties have sought that we proceed to answer the separate question and have proposed that a negative answer be given to Question (i). This is not a course we are prepared to take given the inquiries it would entail and the manner in which both the trial and the appeal has been conducted.

211 Ordinarily we would simply order that the separate question in the separate proceeding be remitted to a docket judge for consideration in light of our reasons. The Commonwealth in fact seeks such an order. Because the separate question arises in what is simply part of a larger matter, we are unwilling to make such an order. It may well be the case that the proper future management of the entire claim may be compromised by a requirement of ours that the separate question remain on foot and be answered. Accordingly we will remit the separate question to the docket judge leaving it to that judge to determine whether, if at all, the separate question, or some other separate question, should be heard and determined and whether or not the separate proceeding should be consolidated with the Part B of WAD 6006 of 2003. In consequence of a remittal on such a basis, it is appropriate that we also set aside order 5 of the primary judge’s orders.

212 Accordingly the orders in the State and Commonwealth appeals will be that the appeal be allowed; that orders 1 and 5 of the primary judge’s orders be set aside; and that the separate question be remitted to the docket judge to be dealt with in the manner appearing at [211].

213 Though the Commonwealth and the State sought orders that the respondents pay their respective costs of their appeals, no submissions were made in support of such orders. While we are disposed to make no order as to costs and to make an order to that effect, should any party wish to submit that a different costs order should be made, they are to file and serve written submissions on costs within 21 days from the publication of these reasons.

214 We have already foreshadowed our proposed orders in WAD 289 of 2006, the WAFIC appeal, at [206]. We note that those orders are independent of, but are subordinate to, the orders made in WAD 288 of 2006 and WAD 290 of 2006. WAFIC has not sought an order for its costs of its appeal.

THE BODNEY APPEAL

Background

215 Because of the difficulties Mr Bodney’s five applications posed for the primary judge, it is appropriate to refer at the outset to a number of matters of background and context. Though the claimant group was not uniformly described in the applications, it is clear that they were being made on behalf of the same body of people: see Bodney v Bropho [2004] FCAFC 226; (2004) 140 FCR 77 at [7] and [76]. All of the applications, save WAD 149 of 1998 in part, fell within the Perth Metropolitan Area and all, save WAD 149 of 1998 in part, were dismissed by his Honour.

216 The claimant group, variously described as "Ballaruk people", "Ballaruk and Didjarruk people", "descendants of Melba Armitage and William Bodney" and "Bodney family group", is constituted by various members of Mr Bodney’s family group the size of which he estimated to be 150 people including children. They are, according to Mr Bodney, the last living descendants of the Ballaruk people who, along with the Didjarruk, were the original indigenous people of his claim region. He said he was a Ballaruk and Didjarruk person.

217 Mr Bodney’s evidence was that "Ballaruk" and "Didjarruk" were "clan" names which described the traditional people and owners of the "Whadjuk" region. The five claims were within that region. WAD 149 of 1998 overlaps almost the entirety of, but is more extensive than, the Perth Metropolitan Area. The remaining four claims relate to separate areas within the Perth area. The boundaries of WAD 149 of 1998 are those of the traditional lands of the Ballaruk and Didjarruk people.

218 The only evidence advanced by Mr Bodney in support of his claims was oral evidence given to Beaumont J (no additional oral evidence was given by him in the separate proceeding before the primary judge); an "Expert Report of the History and Genealogy of the Bodney Family Group" which Mr Bodney compiled; and such evidence as resulted from his cross-examination of witnesses in the separate proceeding. No other witnesses, expert or otherwise, were called by him. Mr Bodney was unrepresented in the separate proceeding. Importantly, he did not make any submissions to the primary judge in support of his applications.

The Primary Judge’s Reasons for Dismissing the Bodney Claims

219 His Honour’s principal conclusion was contained in the following two paragraphs: at [873]-[874]:

First, it is not clear there was ever a community of people, identifiable as ‘Ballarruk’ or ‘Didjaruk’ (or ‘Ballarruk and Didjarruk’), that held, in that capacity, rights and interests in relation to land, as distinct from their capacity as members of a larger group, such as a Single Noongar community or a Tindale-sized tribe. Mr Bodney frequently stated that Ballarruk and Didjarruk lived on Whadjuk territory, which suggests he himself sees the Ballarruk and Didjarruk as being part of the Whadjuk people, or at least subject to their laws and customs. Mr Bodney has never suggested the Ballarruk and Didjarruk people (or either group separately) had their own identifiable territory.

Furthermore, it seems to be clear that Mr Bodney understands it to have been permissible for Ballarruk to marry Didjarruk (and, of course, vice versa), but not for members of either group to marry within their own group. After marriage, the partners are said to have retained their original classification, of Ballarruk or Didjarruk; the children followed their mother’s classification. In the absence of expert evidence to the contrary, I would take this to mean that Ballarruk and Didjarruk were moieties or skin groups; rather than ‘tribes’; or ‘clans’, as Mr Bodney called them. In other words, neither the Ballarruk or the Didjarruk, or the two of them combined, is ‘a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged’: see De Rose (No 2) at [38].

220 Three further reasons were advanced for rejecting the claims: at [875]. These were:

First, Mr Bodney has not established any connection between himself, and the small group of people on whose behalf he claims, and anybody living at the date of settlement who is identifiable as Ballarruk or Didjarruk. Second, as the State pointed out, Mr Bodney has not demonstrated continued adherence to whatever laws and customs relating to land were followed by Ballarruk and Didjarruk people. Finally, Mr Bodney’s claim is irreconcilable with my finding that, at date of settlement, the relevant communal rights, for s 223 purposes, were the rights held by the single Noongar community.

Notice of Appeal

221 Mr Bodney was unrepresented in the appeal. The notice of appeal itself appears to be his own composition. Five of the ten grounds of appeal seem to be directed primarily, if not wholly, at the Single Noongar claim: grounds 1-4 and 7. The remaining grounds, though for the most part discursive, assert (a) an ancestral connection to the traditional indigenous peoples of the Perth Metropolitan Area and surrounding areas; and (b) that these were landholding peoples.

222 As to the first of these, it is said (grounds 5, 8 and 10) that:

5. A closer look at all early writing of the Perth area and surrounding districts. In the writing of Armstrong, Moor, Bull, Lyons, Shaw, and others. The first person Captain Stirling (later the Governor) met was when he sailed up the Swan River as it is now known, was Yellagonga a Didjarryk, his wife Yangan a Ballarruk, Elal son of Yellowgana a Ballarruk on his mothers side, Miago a Ballarruk, Noonyietch, Joobiatch, Father. The peoples around the Perth and districts were known. As such, Monday, Weip, Midgygooro, Moyagh, and their son Yagan Joobiatch a nephew of my great great grandfather Winditch Weenjietch, nickname Kungietch, the same person. That is the fact of the matter.

...

8. In the writing of Daisey Bates when she lived with my family members at Maamba, I speak of my mother who was born there in the year of 1903, my grandmother Beeragun Loise Gentle, My great grandmother Kagaman, born around 1840, who gave the information to Daisey Bates of the genealogical descent of her ancestors and mine, Balbuk is Joobaitch neice, Joobaitch nephew of my great great grandfather Weenjeitch. Joobaitch Balbuck uncle the last of the full blood Aboriginal of the Perth area. They died in the year 1907. My great grandmother Kagaman died in the year 1904, she was a full blood woman, which his honor ignored and failed to respond to. My connection to the Aboriginal peoples of the areas of land and waters in question, which was given orally and in documented evidence in the court proceedings

...

10. All information of my connection to traditional Aboriginal Indigenous peoples of the Perth area and surrounding districts can be seen in the notes of Daisey Bates.

223 As to landholding, ground 6 claims:

6. His Honor failed to recognize these peoples as land holding peoples. In my preservation evidence before the honourable Justice Beaumont, I was asked by council for the first respondent party, the state, to point out on a map, the areas where certain Aboriginals owned land in the Perth area and surrounding districts. This I carried out in detail in the proceedings.

In ground 7 the Perth Metropolitan Area and surrounding districts is referred to as "Whadjuk Country".

224 The map referred to in ground 6 is at p 1270 of vol 4 of the Book of Materials supplied to us. The cross-examination of Mr Bodney before Beaumont J when he drew the estates, or country, within the Whadjuk territorial boundary of "special men of high standing in Aboriginal society", is contained in pp 352-370 of the Transcript of that hearing on 6 June 2002. That evidence was an elaboration, on a map of the Perth Metropolitan Area, of paras [40] to [45] of Mr Bodney’s "Expert Report" to which we earlier referred.

The Appeal

225 Mr Bodney provided the Court with a written submission which, in substance, reiterated his challenge to the Single Noongar claim and re-asserted his ancestral connection, through the Ballaruk and Didjarruk, to the Perth Metropolitan Area. While he attended the hearing of the appeal, he was unable to address us at the time because of ill health. We nonetheless received his written submission and indicated we would consider whether, in light of what was said in submissions made in his appeal, he should be given an opportunity to respond. With the primary focus in the four appeals being on the Single Noongar claim, Mr Bodney’s appeal was in effect dealt with as an appeal on the papers. Only passing reference was made to it. We considered it unnecessary to seek further submissions from Mr Bodney.

226 We mean no disrespect to Mr Bodney by dealing shortly with his appeal. We accept that he did claim that there were landholders in the Perth Metropolitan Area at sovereignty and that he was able to mark on a map the boundaries of the estates of persons from around that time. The questions his determination application raised in this respect were: what was the society (or community) under whose laws and customs those landholders were possessed of rights and interests in their land? and were those landholders a community or group?

227 While Mr Bodney gave evidence which related the boundaries of his traditional group’s land to that of the "Whadjuk territory", he accepted that the term "Whadjuk" signified "just a territorial boundary" and that he had never been told that there was in the past a Whadjuk language that went with that territory. In his "Expert Report" and in oral evidence, he asserted that that territory was, nonetheless, the traditional lands of the Ballaruk and Didjarruk clan group. His case was that it was under the traditional laws and customs of, seemingly, those peoples, that rights and interests in the claim area in WAD 149 of 1998 were held by that community or group. Contrary to what the primary judge said (at [873]), Mr Bodney was asserting – and has re-asserted on his appeal – that the Ballarruk and Didjarruk people had their own identifiable territory.

228 However, accepting that such was his claim, there was clear anthropological evidence before his Honour (given by Dr Brunton and Dr Palmer), that the names "Ballaruk" and "Didjarruk", along with "Ngarnook" and "Tondarup", were the four semi-moiety names in use in the south west over an area much larger than the Perth Metropolitan Area. Dr Brunton’s evidence, to which the State refers in its appeal submissions, was that (at Exhibit S12, 114-115):

Bates’ material strongly supports the proposition that there was a regional semi-moiety system encompassing the Perth area and beyond, in which individuals derived their membership from their mothers, and which ensured that over any substantial period of time the membership of particular estate groups could be expected to comprise people from all of the semi-moieties. Furthermore, while some parts of the Perth Metro and Bodney claim areas and other districts in the south western part of Western Australia had localised equivalents for the four semi-moiety names, Ballaruk, Nagarnook, Tondarup and Didarruk, there can be little doubt that people belonging to these particular named divisions were to be found well outside the Perth Metro and Bodney claim areas.

But even were the evidence from Bates supporting the existence of a semi-moiety system to be discounted, there is nothing in any of the material I have presented – or indeed, in anything that I am familiar with – to suggest that the groups or categories known as Ballaruk and Didjarruk (as Mr Bodney has spelled it) can be portrayed as land-holding groups in the Perth area. As is clear from Table 3 in Section 2.3, the members of these groups or categories were intermingled with members of the Tondarup and Nagarnook (or their equivalents) throughout the Perth Metro and Bodney claim areas and beyond. There is no evidence which might be taken to suggest that at the time when sovereignty was acquired the Ballaruk and Didarruk had a relationship to country in the Perth Metro and Bodney claim areas that was somehow different from that of the Tondarup and Nagarnook.

The Table referred to listed the names of all of the individuals who, at sovereignty, were likely to have been members of estate groups, or to have had ongoing usufructuary rights, in the Perth Metropolitan and Bodney claim areas.

229 Mr Bodney cross-examined Dr Brunton on his view that the four semi-moieties were all within the Perth Metropolitan Area of sovereignty. He did not resile from that view, indicating as well that he could not understand how the system propounded by Mr Bodney could work. It was Mr Bodney’s evidence that only after colonisation that Ballaruk and Didjarruk people could marry members of the two other moieties.

230 In his account of the evidence in the Bodney claim, the primary judge referred to the above evidence; to his difficulty in treating Ballarruk and Didjarruk as landholding groups as distinct from skin groups (or moiety names); and to the fact that neither Bates nor Tindale identified Ballaruk and Didjarruk as tribes. As his Honour noted (at [866]), because Mr Bodney elected not to give evidence before him, he was unable to put to Mr Bodney his essential difficulty with his evidence: "how can it be that a husband and wife are in separate land-owning clans, as distinct from separate skin groups?"

231 It clearly was open to his Honour to accept the expert evidence before him we have noted above, in which case, Mr Bodney’s description of the clan groups as Ballaruk and Didjarruk was mistaken, the more so if confined to the territorial boundary Mr Bodney proposed. If there was a distinct and identifiable group in the Perth Metropolitan Area at sovereignty, that group was not to be identified on the basis Mr Bodney suggests.

232 Accepting that there were landholdings within the Perth area and its surrounds at sovereignty and that those lands were possessed under traditional laws and customs, the evidence relied upon by Mr Bodney in the context of the evidence as a whole was insufficient to establish on the balance of probabilities that the lands were possessed under laws and customs, by the group propounded by Mr Bodney. Neither did the evidence establish the particular society under whose laws and customs such rights and interests were had. If, for example, it were people belonging to either of the Ballaruk or Didjarruk moieties, then, given the disposition of such persons over the south west at sovereignty and beyond (as suggested in the expert evidence), it seems wholly improbable that they could in any way be regarded as a society with laws and customs that constituted the normative system under which rights and interests were created and acknowledged in the Perth Metropolitan Area and its surrounds. If they did not constitute the society, who did? That question could not be answered on the material before his Honour.

233 Whatever may be the laws acknowledged and customs observed by Mr Bodney and by persons in his family group, there was not the material before his Honour which would permit a finding to be made that they were "traditional". It could not be said that their content had demonstrated origins in the laws and customs of a particular, identified society that was united in and by its acknowledgement of and observance of that body of laws and customs before the assertion of sovereignty by the British Crown: Yorta Yorta HC at [45]-[47], [49].

234 Though our reasons differ somewhat from those of the primary judge, we conclude that he did not err in concluding there was no recognised community – or we would add group – identified as Ballaruk, or Ballaruk and Didjarruk, which held rights and interests in relation to land in the area of WAD 149 of 1998. Rather, on the evidence before his Honour, those terms described two of the four semi-moiety names in use in the south west over an area much larger than the Perth Metropolitan Area. This conclusion is sufficient to dispose of the appeal and we do so on this ground.

235 We would add that the reason for the failure of Mr Bodney’s claim demonstrates the difficulty an unrepresented person has in negotiating the shoals of native title jurisprudence.

236 We do not consider it appropriate, given the above conclusion, to deal with the second substantive basis of Mr Bodney’s appeal, ie the rejection of his claim of descent from ancestors living in the claim area at sovereignty. That issue raises contentious evidentiary questions, as is apparent from the State’s submissions. What we would say is that, even if Mr Bodney could establish the descent he claims, other difficulties remained not the least of which were (a) identifying the society whose laws and customs constitute the normative system under which rights and interests in land are possessed; (b) demonstrating continuity in the observance of the traditional laws and customs, and the continued existence of the Ballaruk and Didjarruk group; and (c) given his claim is said to be that of the last surviving family, what, under the traditional laws and customs, has been shown to be the process of succession which resulted in his family group succeeding to the territory of the other family groups.

237 Finally, we would note that, insofar as Mr Bodney’s grounds of appeal relate to findings made in the single Noongar appeal, though relied upon by the primary judge in the Bodney appeal, it is unnecessary for us to deal with them in light of our conclusions in the appeals by the State and the Commonwealth in the Bennell matter. In particular it is unnecessary for us to express a view on the correctness or otherwise of his Honour’s finding that a single Noongar society existed at sovereignty.

CONCLUSION: THE BODNEY APPEAL

238 We will order that the appeal be dismissed.

I certify that the preceding two hundred and thirty-eight (238) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Sundberg and Mansfield.

Associate:

Dated: 23 April 2008

Mr C Bodney appeared in person.

Counsel for the Commonwealth:	Ms R Webb QC
Solicitor for the Commonwealth:	Australian Government Solicitor
Counsel for the Western Australian Fishing Industry Council:	Mr M McKenna
Solicitor for the Western Australian Fishing Industry Council:	Hunt & Humphry
Counsel for the State of Western Australia:	Mr K Pettit SC with Mr S Wright
Solicitor for the State of Western Australia:	State Crown Solicitor (WA)
Counsel for the Bennell respondents:	Mr V Hughston SC with Ms T Jowett
Solicitors for the Bennell respondents:	South West Aboriginal Land & Sea Council
Counsel for the Perth metropolitan local councils:	Mr P Wittkuhn

Solicitors for the Perth metropolitan local councils:	McLeods Barristers & Solicitors
Counsel for the Group 17 Pastoralist interveners:	Mr J Allanson
Solicitors for the Group 17 Pastoralist interveners:	Blake Dawson Waldron

Date of Hearing:	16-19 April 2007

Date of Judgment:	23 April 2008

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