Editors --- "Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors - Case Summary" [1999] AUIndigLawRpr 10; (1999) 4(1) Australian Indigenous Law Reporter 91

Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors

18 December 1998

[1998] 1606 FCA

Native title determination - Native Title Act 1993 - application for a determination of native title - claim to possession, occupation, use and enjoyment of land, waters and natural resources

Evidence - proof of native title - proof of descent from indigenous inhabitants - proof of traditional laws and customs of ancestors - evidence based upon oral tradition - use of historical and ethnographic material - whether continued acknowledgment and observance of traditional laws and customs.

Facts:

On 21 February 1994, the Yorta Yorta Aboriginal community made an application for a determination of native title to the Native Title Registrar, covering public land, mainly State Forest and reserves, in northern Victoria and southern NSW, including the Murray, Goulburn and Overs Rivers, and other waterways and lakes.

The application was accepted by the Native Title Registrar on 26 May 1994. Mediation commenced on

21 September 1994 and 23 May 1995. The matter was referred to the Federal Court for determination.

There were over 500 respondents to the claim including the States of Victoria, NSW and South Australia, the Murray Darling Basin Commission, Murray Irrigation Limited, six Shire Councils, Telstra, various recreational user groups, licence holders, and the NSW Aboriginal Land Council.

The trial commenced in Melbourne on 8 October 1996. The evidence concluded on 30 October 1997. Final submissions were made on 15 May 1998. Subsequent to the passing of the Native Title Amendment Act 1998 (Cth) the parties made further written submissions concerning the effect of the amendments made by that Act and the Court sat again for two days in the week commencing 2 November 1998. Altogether the Court sat on 114 days and heard from 201 witnesses.

Held:

Native title does not exist in relation to the areas of land and waters which are the subject of the claim, being areas of land and waters identified in Schedule D to the Native Title Determination Application VN 94/1.

Olney J:

Introduction

1. The matter presently before the Court is an application for a determination of native title made pursuant to the Native Title Act 1993 (the NTA). The NTA was Parliament's response to the decision of the High Court in Mabo v Queensland [No 2] [1992] HCA 23; 175 CLR 1 (Mabo [No 2]). Its objects include making provision for the recognition and protection of native title and the establishment of a mechanism for determining claims to native title: s 3. The NTA defines the key concept of native title in terms which are consistent with the language of Mabo [No 2]. Section 223 provides:

223(1) The expression 'native title' or 'native title rights and interests' means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders;

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

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

2. The judgments in Mabo [No 2] speak only of the rights and interests of indigenous peoples in their lands; there is no reference to rights and interests in water. However, the NTA has application in relation to native title rights and interests in both land and waters. Section 253 defines 'land' to include the airspace over, or subsoil under, land but does not include 'waters'; whereas 'waters' is defined to include, inter alia, a river, a lake or subterranean waters or the bed or subsoil under, or airspace over any waters. The definition also extends to offshore waters but this case has no offshore element. It does however have a very substantial connection with the Murray and Goulburn Rivers and other rivers and watercourses in Victoria and NSW within the area of the claim.

3. Although s 223 provides a definition of native title for the purposes of the NTA, it is necessary to understand the context in which the definition was developed and to do this it is of assistance to refer briefly to several passages from the judgments in Mabo [No 2]. Mason CJ and McHugh J, with the authority of the other members of the Court, said at 15:

... the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands ...

At 57 Brennan J provided a definition which is clearly the origin of s 223. He said:

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.

In his discussion of the nature and incidents of the native title which he had earlier (at 57) held to constitute a burden on the radical title of the Crown, Brennan J observed (at 58):

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.

Having again asserted that 'it is necessary to ascertain by evidence the nature and incidents of native title', his Honour proceeded to identify some 'general propositions' about native title which could be stated without reference to evidence. The first proposition is that, absent any pre-existing laws which provide for the alienation of interests in land to strangers, the rights and interests which constitute native title can be possessed only by the indigenous inhabitants and their descendants (59). In this context Brennan J observed (at 59-60):

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 acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown's radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.

Toohey J observed (at 187) that it is inconceivable that indigenous inhabitants in occupation of land did not have a system by which land was utilised in a way determined by that society. He then went on to say (at 187-188):

There must, of course, be a society sufficiently organized to create and sustain rights and duties, but there is no separate requirement to prove the kind of society, beyond proof that presence on land was part of a functioning system. It follows from this discussion that requirements that Aboriginal interests be proprietary or part of a certain kind of system of rules are not relevant to proof of traditional title.

In general the approach taken in the North American authority is to be preferred. So, what is required to prove title?

The requirements of proof of traditional title are a function of the protection the title provides. It is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights. Presence would be insufficient to establish title if it was coincidental only or truly random, having no connexion with or meaning in relation to a society's economic, cultural or religious life. It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title. Thus traditional title is rooted in physical presence. That the use of land was meaningful must be proved but it is to be understood from the point of view of the members of the society.

His Honour referred to three factors relevant to the kind of presence on, or use of, land to which reference is made in the passage quoted. First, presence on land need not amount to possession at common law in order to amount to occupancy (at 188). Hence, a nomadic lifestyle is not inconsistent with occupancy (at 189). Second, in considering the length of time that presence on land must continue before it amounts to occupancy, his Honour posed the question (at 189):

If occupation by an indigenous people is an established fact at the time of annexation, why should more be required?

The third factor relates to the question of exclusive occupancy. Having referred to a passage from the decision in US v Santa Fe Pacific Railroad Co [1942] USSC 12; (1941) 314 US 339 at p 345 which suggests that 'Indian title' was dependent upon the exclusive occupation of definable territory, Toohey J said (at 189-190):

This principle of exclusive occupancy is justified in so far as it precludes indiscriminate ranging over land but it is difficult to see the basis for the rule if it precludes title merely on the ground that more than one group utilizes land. Either each smaller group could be said to have title, comprising the right to shared use of land in accordance with traditional use; or traditional title vests in the larger 'society' comprising all the rightful occupiers. Moreover, since occupancy is a question of fact, the 'society' in occupation need not correspond to the most significant cultural group among the indigenous people.

The need to establish occupancy as an essential element of a claim to traditional title is again highlighted by the observation (at 192):

Traditional title arises from the fact of occupancy, not the occupation of a particular kind of society or way of life. So long as occupancy by a traditional society is established now and at the time of annexation, traditional rights exist.

4. It follows from the above that a claim to native title necessarily involves a number of distinct avenues of inquiry. First, it is necessary to prove that the members of the claimant group (whether it be described as a clan, a community or otherwise) are descendants of the indigenous people who occupied (in the relevant sense) the claimed area prior to the assertion of Crown sovereignty; second, the nature and content of the traditional laws acknowledged, and the traditional customs observed by the indigenous people, in relation to their traditional land must be established; third, it must be demonstrated that the traditional connexion with the land of the ancestors of the claimant group has been substantially maintained since the time sovereignty was asserted; and the claimed rights and interests must be rights and interests recognised by the common law of Australia. Leaving aside for the moment any question of extinguishment, it is not until each of these elements has been proved that it will be possible to determine whether the laws acknowledged and the customs observed by a contemporary clan, group or community should be afforded the protection of Australian law.

5. The common law does not recognise native title which has been extinguished (Mabo [No 2] per Mason CJ and McHugh J, at 15). As it is an element of the statutory definition of native title that the rights and interests in question are recognised by the common law of Australia (s 223(1)(c)), it necessarily follows that it is fatal to a claim for a determination of native title under the NTA if the native title rights and interests claimed have been extinguished. Indeed it would seem to be unarguable that if extinguishment is established nothing more need be considered. The circumstances giving rise to the extinguishment of native title are discussed in each of several landmark High Court decisions, notably Mabo [No 2], Western Australia v The Commonwealth [1995] HCA 47; 183 CLR 373, The Wik Peoples v Queensland 187 CLR 1 and Fejo v Northern Territory [1998] HCA 58; 156 ALR 721. Apart from any statutory provision now in force, it has always been the case, and remains so, that a grant of freehold title or a lease granting exclusive possession of land will extinguish any native title rights that may previously have existed in relation to that land. In such a case proof of prior occupation of the land and the traditional laws and customs of the claimant group in relation to the land is irrelevant. Such is not the case in circumstances in which the grantee's rights confer less than the right of exclusive possession. Such was the position in Wik. In his postscript in that case Toohey J said (at 133):

So far as the extinguishment of native title rights is concerned, the answer given is that there was no necessary extinguishment of those rights by reason of the grant of pastoral leases under the Acts in question. Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees. Once the conclusion is reached that there is no necessary extinguishment by reason of the grants, the possibility of the existence of concurrent rights precludes any further question arising in the appeals as to the suspension of any native title rights during the currency of the grants.

A freehold grant or an exclusive possession lease would amount to 'necessary extinguishment' but in cases where the rights and interests granted do not necessarily extinguish the rights and interests of native title holders the existence and nature of such latter rights must first be established before the extent of any inconsistency can be ascertained. Such a conclusion was reached by Demack J in Re Mining Lease Application No 70149 (unreported, Supreme Court of Queensland, 5 June 1998), a conclusion with which I respectfully agree. In the present case substantial arguments have been presented which assert 'necessary extinguishment' in respect of all but a very small portion of the claimed land.

The application

...

11. The determination sought by the applicants has been variously expressed; first in the original application, later in the applicants' formal statement of facts, issues and contentions and subsequently in their written submissions. The final form, as expressed in a draft minute annexed to a written submission tendered to the Court on 2 November 1998 (which takes into account the amended form of s 225 after 30 September 1998) seeks a determination that communal native title exists in relation to the whole of the claimed land and waters except those parts thereof where native title has been extinguished by a previous exclusive possession act (the determination area) and all waters and natural resources located, from time to time, therein; further a determination is sought identifying the native title holders as 'the members of the Yorta Yorta Aboriginal community'. The nature and extent of the native title rights claimed in relation to the determination area, the waters and natural resources are:

(a) rights to possession, occupation use and enjoyment of the determination area, the waters, and natural resources, to the exclusion of all others;

(b) the interest of ownership of the determination area, the waters and natural resources according to traditional law and custom and the right to be recognised as the owners of the determination area, the waters, and the natural resources, according to traditional law and custom;

(c) the right to possession, occupation, use and enjoyment of the determination area, the waters and the natural resources;

(d) the right to participate to the fullest extent practicable in the making of decisions by non-native title holders, being decisions made pursuant to a law, regulation, order or administrative arrangement by Government or its agencies about access to, occupation, use and enjoyment of the determination area, the waters and the natural resources, including the right to be consulted about such decisions;

(e) the right to access and occupy the determination area and the waters;

(f) rights to use and enjoy the determination area, and the waters and the natural resources, to hunt, fish, forage for traditional foods and medicines and camp; for burial, ceremonial and educational purposes; and for any other purpose deemed appropriate by the native title holders;

(g) the right to protect places and areas of importance in and on the determination area and the waters.

The trial

...

15. Section 82 (the marginal note to which is 'Federal Court's way of operating') previously provided:

82. (1) The Federal Court must pursue the objective of providing a mechanism of determination that is fair, just, economical, informal

and prompt.

(2) The Court, in conducting proceedings, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

(3) The Court, in conducting proceedings, is not bound by technicalities, legal forms or rules of evidence.

In its amended form there is no longer any provision equivalent to the former subs (1). The thrust of the remaining subsections has been significantly altered. The section, as it now applies, is as follows:

82 (1) The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

(2) In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party in the proceedings.

The whole of the trial was conducted in a manner consistent with s 82 in its original form. Particular attention was paid to observing the requirement of the former subss (1) and (2). The changes made by the amendment have no bearing upon the matters referred to in those subsections. But the amended provision relating to the application of the rules of evidence raises a question as to whether the Court should now apply the more stringent provision of the amended section in its analysis of the evidence. In my opinion the case should be decided on the evidence which was properly admitted during the trial in accordance with the law as it applied at the time the evidence was given. No party has suggested that any other approach should be adopted.

16. Section 225, which sets out the requirements of a 'determination of native title', has been replaced and re-enacted in a significantly different form. The section now provides:

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

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

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(c) the nature and extent of any other interests in relation to the determination area;

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act);

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a

non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Schedule 5, Pt 5, item 24 of the Native Title Amendment Act provides:

The repeal of s 225 of the old Act and insertion of s 225 in the new Act by this Act apply to all determinations made after the commencement of this Act, regardless of when any native title determination application (if relevant) was made.

Furthermore, s 94A (which is an entirely new provision) requires that:

An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in s 225 (which defines determination of native title).

In these circumstances, any order which the Court may make must comply with the requirements of the new s 225.

17. It is unnecessary to comment further upon the mechanisms of determination adopted by the Court in order to fulfil its statutory obligations. However, it is appropriate to observe that the special procedures that were previously ordained by s 82 do not authorise the Court to depart from two basic principles of litigation in this Court, namely that the standard of proof is on the balance of probabilities and that the Court will have regard only to evidence which is relevant, probative and cogent. In particular, pure speculation, of which there has been much, must be disregarded. Nor is there any warrant within the NTA for the Court to play the role of social engineer, righting the wrongs of past centuries and dispensing justice according to contemporary notions of political correctness rather than according to law.

18. As the whole of the claimed land and waters is said to be public lands in either Victoria or NSW it was to be anticipated that each of those States would take a major role in the proceeding and this proved to be so. Both States deny the existence of any native title in respect of the claimed land and waters within its jurisdiction. Apart from the two States, other individual respondents and groups of respondents claim that their interests are likely to be affected by a determination of native title in the terms sought. In some, but not all cases, the existence of native title has been put in issue.

Evidence

20. The applicants called a total of 60 witnesses, 56 of whom were of Aboriginal descent and of the latter all but two were part of the claimant group. The remaining four witnesses were two anthropologists (Mr Rod Hagen and Dr Deborah Rose), an archaeologist (Dr John Craib) and a linguist (Dr Heather Bowe). As part of the pre-trial procedures the applicants filed and served written statements of the lay witnesses they proposed to call. It was agreed that this be done in the course of counsel's opening address and in fact on that occasion counsel tendered a volume of some 30 statements. In the events which happened, not all of those statements were proved. With one exception, the witnesses who were called identified and adopted (often with minor corrections) the statement in their name previously tendered. In the exceptional case, a witness who had given a statement was not asked to adopt the statement. It is not possible to say whether this resulted from oversight or a deliberate decision. No explanation was offered for the failure to call a number of people whose written statements were included in the tendered volume, although in one case there was other evidence that the gentleman in question was extremely old and not in good health. In another case there was other evidence to suggest that the potential witness was somewhat antagonistic to the claim. In the absence of the consent of the respondents, I have paid no regard to the contents of the statements of persons who were not called to give evidence. I have not read those statements and do not regard them as being part of the evidence.

21. The oral evidence of many of the applicants' witnesses was in some respects both credible and compelling. This was particularly so with the more senior members of the applicant group. Regrettably, this was not always so. In one instance two senior members of the claimant group were caught out telling deliberate lies, albeit about a relatively minor matter, but nevertheless incidents of that nature tend to cast a shadow over the other evidence of those witnesses. The testimony of some of the younger members of the claimant group was less impressive than their senior colleagues. Evidence based upon oral tradition passed down from generation to generation does not gain in strength or credit through embellishment by the recipients of the tradition and for this reason much of the testimony of several of the more articulate younger witnesses has not assisted the applicants' case. Another unfortunate aspect of much of the applicants' evidence was frequent, and in some instances, prolonged, outbursts of what can only be regarded as the righteous indignation of some witnesses at the treatment they, and their forebears, have suffered at the hands of the colonial, and later the various State, authorities. As I have commented earlier, this case is not about righting the wrongs of the past, rather it has a very narrow focus directed to determining whether native title rights and interests in relation to land enjoyed by the original inhabitants of the area in question have survived to be recognised and enforced under the contemporary law of Australia.

22. A substantial portion of the oral testimony of the senior members of the claimant group was directed towards establishing their genealogical links with earlier generations. The depth of knowledge of these witnesses was most impressive, and for the most part (with only minor exceptions) proved to be accurate. Many witnesses also described what they understood to be the traditional laws and customs of their ancestors, information which was frequently said to have been derived from parents or grandparents, or simply 'from the old people'. The cogency of such evidence does not necessarily depend upon the credibility of the individual witnesses but must be assessed in the whole context of the case including, where it exists, evidence derived from historical records and the recorded observations of people who witnessed activities and events about which the members of the claimant group know only what has been passed down to them by their forebears. In addition to the oral testimony of the witnesses, the applicants tendered and rely upon a considerable volume of documentary material. Much of it is of an historical nature and is uncontentious, but much of it has to do with events and activities which have no bearing upon any of the issues the Court is called upon to determine.

23. The respondents who took an active part in the conduct of the proceeding also called a considerable body of evidence which for the most part relates to the status and use of the land and waters under claim. This evidence is extremely detailed in content. Its primary focus is directed to the related questions of whether the traditional laws and customs of the original inhabitants have continued to be acknowledged and observed and whether any pre-existing native title rights and interests have been subjected to extinguishing acts. Each of the States of Victoria and NSW tendered evidence concerning the tenure history and current status of the claimed areas of land and waters within their respective jurisdictions. It is fair to say that in the result the Court has before it an enormous volume of detailed information, much of it going back many decades into the 19th century. It is not possible to say with absolute certainty that every dealing and transaction affecting every piece of the claimed land and waters has been placed before the Court but I was very favourably impressed by the diligence and attention to detail displayed by the witnesses who testified as to the nature of the available records and the processes whereby the required information was extracted and collated. In some cases documents which would otherwise have been made available could not be located, presumably because they had been lost or destroyed. The latter explanation was in fact the case in respect of some early records from NSW known to have been destroyed in a major fire. On the whole I am satisfied that the best available land tenure evidence has been put before the Court and I accept as credible the expressions of opinion of witnesses familiar with the relevant processes relating to dealings in land in circumstances where documentation is not available. Some of the respondents also adduced expert evidence. Victoria called two historians (Dr Marie Fels and Ms Susan Priestley) and a professional genealogist (Ms Helen Harris); NSW called an anthropologist (Professor Kenneth Maddock) and a linguist (Dr Bruce Sommer); and a group of other represented respondents called a second anthropologist (Dr Ronald Brunton).

24. The difficulties inherent in proving facts in relation to a time when for the most part the only record of events is oral tradition passed down from one generation to another, cannot be overstated, but great as they obviously are, they are not insuperable. In Mabo [No 2], the task was relatively straight forward. Sovereignty had not been asserted until a century after the original annexation of NSW in 1788, nor until after there had been significant involvement of the colonial authorities and others in the affairs of the indigenous people of the Murray Islands. There was clearly a body of evidence to call in aid. But in the present case the first European contact with the indigenous people did not occur until nearly 50 years after sovereignty was asserted when the early explorers visited the area prior to the arrival of the first permanent settlers in the late 1830s.

25. Despite the absence of any direct evidence of the indigenous occupation of the claim area in 1788 it is possible to infer that it was in fact occupied at that time. The early explorers recorded making contact with Aboriginals in the general vicinity of the claim area as did the first settlers. The area is clearly well watered and fertile. There is undisputed evidence in the form of burial sites, oven mounds and shell middens, particularly along and near to the banks of rivers, which testify to the presence of people within the claim area over a considerable period. The inference that indigenous people occupied the claim area in and prior to 1788 is compelling. Whether or not the indigenous people who were found in occupation of the claim area in the 1830s and 1840s, and about whom there are available records, were the descendants of those who occupied the area at the time sovereignty was asserted, is a matter to be addressed later. It is the descendants of the people who occupied the area in 1788, and whose traditional laws and customs in relation to the land became, at the time of sovereignty, a burden on the radical title acquired by the Crown who are entitled, in appropriate circumstances, to recognition as the native title holders.

...

Proving descent from the original inhabitants

50. Schedule A to the application contains a 'description of the Yorta Yorta community'. It was written by the applicants' anthropologist Mr Rod Hagen in February 1994 and runs to five and a half pages of typescript. Under the heading Who are they?' it is said:

The Yorta Yorta people are the descendants of the original inhabitants of the area set out in the map attached to both the native title and compensation applications from before the time of white occupation in the 1840s. The Yorta Yorta also include people identifying as or being identified as Pangerang ... Membership of the Yorta Yorta group and affiliation with their territory is based on descent from those who held the land prior to the time of white occupation. Descent is traced through either or both parents.

In their amended statement of facts and contentions, the applicants assert that the Yorta Yorta Aboriginal community includes 'people identifying as or who have been identified by others as, either Pangerang or Bangerang people'

(para 15). Elsewhere in the statement (para 47(b)) it is said 'The Yorta Yorta/Bangerang group is comprised of indigenous persons biologically descended from the original occupiers or adopted into and/or otherwise accepted as part of this group'. In his anthropological report (exhibit A17) Mr Hagen almost invariably identifies the claimant group as 'Yorta Yorta/Bangerang people' or simply as 'Yorta Yorta/Bangerang'. In his 'Introduction to the claimants' he says :

The name 'Yorta Yorta' is preferred by most of the descendants of the original Aboriginal occupiers of the area today, although some prefer to use the word 'Bangerang'. The two names refer to descendants of one and the same group. 'Yorta Yorta' is derived from 'Yorta', a word for 'no' amongst people of the area.

In the course of his opening address counsel for the applicants asserted that 'there are approximately 4500 applicants' (T 3) of whom 278 were identified as, and referred to as 'selected applicants'. For the most part the evidence was confined to a somewhat smaller group whose genealogical connections and life histories are clearly typical of many others who were identified but who were not called upon to give evidence.

51. The applicants' supplementary anthropological report prepared by Mr Hagen (exhibit A67) identifies a list of 18 individuals who are described as 'known ancestors' from whom members of the claimant group are said to be descended. The 18 known ancestors are:

1. Edward Walker
2. Matilda Walker (wife of Edward Walker)
3. Kitty Atkinson/Cooper
4. Alfred Morgan (brother of Bagot Morgan - see below)
5. George Charles
6. Margaret Nelson
7. Louisa Frost
8. Janet (Jenny) McCulloch (Charles) (wife of George Charles)
9. Sampson Barber
10. Emma Murri
11. Mary Friday/Brangy (married a son of Kitty Atkinson/Cooper)
12. George Middleton (married to Maggie Toodles - see below)
13. Annabella Howard
14. Sarah Walker (married a son of Edward Walker)
15. Tommy McCrae
16. Lily McCrae (wife of Tommy McCrae)
17. Maggie Toodles (wife of George Middleton)
18. Bagot Morgan (brother of Alfred Morgan)

It follows from the manner in which the case has been presented that the applicants have the burden of establishing first, that one or more of the named ancestors was a descendant of an indigenous inhabitant who occupied the claim area at or prior to 1788 and who enjoyed native title rights and interests to the claimed land and waters and second, that one or more of the claimant group is a descendant of such an ancestor or ancestors.

52. The applicants' claim that the members of the group they describe as the Yorta Yorta Aboriginal community are the descendants of the indigenous inhabitants of the claim area involves two closely related issues, one genealogical, the other geographical. To provide a genealogical connection to the original inhabitants necessarily involves establishing the identity of one or more persons who occupied the relevant area at or prior to 1788. Proof in relation to the half century from 1788 until the advent of European settlement may well be satisfied by inference but the mere presence of one or more persons at a particular place at a particular time in history goes nowhere to proving either the traditional rights and interests of the descendants of such person or persons in relation to land or waters, or the geographical limits of the land and waters in relation to which it is said native title rights and interests are enjoyed.

53. Early observers such as EM Curr and GA Robinson provide some evidence of the existence of various groupings of Aboriginal people who are distinguishable one from another by such factors as the names by which they identified themselves (or were identified by others), the territory they habitually occupied and the languages they spoke. Neither Curr nor Robinson had any special qualifications or training that fitted them for the task of recording or interpreting the information they acquired about the Aboriginal people with whom they made contact. Nor was it their prime task in life to do so. Robinson appears to have moved from place to place, never stopping long at any one location and apparently never venturing north of the Murray. Although he recorded many details in his journal he made no attempt to collate or interpret this information and indeed much of what remains is extremely hard to decipher. Curr on the other hand remained in the general area of his pastoral holdings for about 10 years. He clearly established a degree of rapport with the local Aboriginal people and subsequently published two valuable works dealing with his experiences.

54. Contemporary scholars have analysed the works of Curr and the records kept by Robinson and have come to conflicting conclusions. For the applicants, Robinson's records are relied upon to demonstrate that the early ancestors of the claimant group occupied the whole of the claim area, and to the extent that Curr's work suggests otherwise it is rejected as being either based on incomplete information or simply wrong. The respondents on the other hand (or at least those who have chosen to enter this aspect of the debate) rely heavily on Curr's conclusions in limiting the area which in his day was occupied by those from whom the applicants claim descent. The Court has derived little assistance from the testimony of the various experts who have given evidence in this proceeding and this because apart from the recorded observations of Curr and Robinson, much of the evidence was based upon speculation. I say that without in any way meaning to disparage the qualifications, experience or integrity of the witnesses concerned. Obviously, the issues with which the Court is required to grapple in a native title claim were not matters at the forefront of academic thought at the time when it really mattered, namely (in this case) the 1830s and 1840s. It is only now, more than 150 years later, that the specific issues are being addressed for the first time. Be all that as it may, the Court must address the evidence that is before it and to the extent that it admits of firm findings, make such findings as are relevant to the case.

55. The anthropological and historical evidence presented on behalf of the applicants was prepared and presented by Mr Hagen. In preparation for this claim he spent five weeks working with the applicants. In evidence he conceded that his active participation in the conduct of the proceedings indicates a close association with the applicants and perhaps a degree of partisanship on his part (T 6433). Nevertheless, his report (exhibit A17) is comprehensive and deals in some detail with the works of Curr and Robinson. His concluded opinion is that the traditional lands of the applicants' ancestors extended to the whole of the claim area. Mr Hagen's views were supported by Dr Deborah Rose. Dr Rose's evidence suffers from a combination of factors, notably, that she had no prior anthropological experience in the area under consideration, she had not read the ethnographic literature of the region and had relied upon the written witness statements, not all of which were in evidence and some of which were shown to be inaccurate.

56. One of the major problems associated with the presentation of the applicants' case is the need to connect the 'known ancestors' with the people whose traditional laws and customs at and before the time of European contact entitled them to the rights of ownership, possession, occupation and use now claimed by their descendants. The problem is highlighted by the fact that neither Curr's writing nor Robinson's journals identify any individual Aboriginal with whom either made contact in the 1840s who can be connected with any of the named ancestors. This is hardly surprising as most of the 18 were born after both Curr and Robinson had left the area and those who were alive during the period in question would have been quite young even when Curr departed the district in 1851.

57. Apart from the recorded observations of Curr and Robinson, the Court has gained assistance from several other sources. Daniel Matthews' diaries and his annual reports are a firsthand record of events and activities relating to the Maloga mission. Nancy Cato's work Mister Maloga relies heavily on Matthews' records and provides a readily available source of information, albeit secondary information. Mister Maloga was tendered in evidence (exhibit Vic 18.1) and many references will be made to this work, particularly to a list of Maloga residents extracted from the Eighth Report of the Maloga Mission 1883 which is reproduced as appendix 5 to Mister Maloga. This list will be referred to as Matthews' 1883 list (the edition of Mister Maloga tendered in evidence is that published by UQP Paperbacks).

58. Ms Harris provided the Court with a substantial body of material obtained from official records of births, deaths and marriages. So far as it goes, Ms Harris' evidence is supportive of many aspects of the applicants' case and it has proved to be invaluable to the Court. To a large extent it corroborates the oral testimony of many of the applicants' witnesses concerning their genealogical relationships with early residents of Maloga and Cummeragunja. Included in the documents tendered through Ms Harris is a document dated 13 July 1891 entitled 'Report by John G. Treseder of his visit to the Aboriginal Mission Station at Coomeragunga and Warangesda' (exhibit Vic 62; WS 3.6.1; appendix 6). The report contains a list of 156 names of 'Aborigines on Cummeragunja Station' showing particulars of age, sex, caste and 'where born'. This list will be referred to as Treseder's 1891 list. Another valuable part of

Ms Harris' material is the copy of genealogies prepared by NB Tindale at Cummeragunja in 1938 (exhibit Vic 62 WS 3.6; appendix 3).

59. Much time and considerable learning has been applied to the task of assigning labels to various groups of the indigenous inhabitants of the claim area. In the end it has proved to be a sterile argument. What ultimately must concern the Court is whether members of the claimant group can trace descent from those inhabitants who at or before the earliest contact with Europeans occupied the claim area, or a part of it, and in relation to that area or part possessed what is now known as 'native title' in the sense described by Brennan J in Mabo [No 2] at 57. If that connection is made it will be necessary to identify the nature and extent of the native title rights of those ancestors.

'Original lands'

60. The observations of Curr and Robinson in relation to the Aboriginal people in the claim area were confined to the 1840s. Robinson's work did not take him north of the Murray and Curr's observations were for the most part limited to the Victorian side of the river in the vicinity of his pastoral runs. Despite these very real limitations Curr and Robinson provide an early record of the groups who Curr described as Bangerang, and Robinson, as Pinegerines. Robinson located the Pinegerines on the south and south-west banks of the Murray (Journal 20/4/1840; Ex. A17 at

p 20) whereas Curr placed 'nine tribes whose speech was either pure Bangerang or dialects of that tongue' in 'the country between the Goulburn and the Murray Rivers from their confluence, and a little below that point, as far east as may be defined by a line drawn from Yarrawonga, on the Murray, to Toolamba on the Goulburn, as well as the country on the north bank of that portion of the Murray, and on the south bank of that portion of the Goulburn' (Recollections p 301). The area so described can conveniently be referred to as the south-western quadrant of the claim area.

61. There is no ethnographic evidence relating to the part of the claim area north of the Murray east of Tocumwal (referred to as the north-eastern quadrant). It has been suggested that Curr's reference to Yarrawonga was probably not a reference to the present town of that name but more likely to the pastoral run of the same name, which had a substantial frontage to the Murray. In this context it is of interest that one of the senior members of the claimant group, Mr Richard Atkinson, who identified himself as of the Bangerang tribe, when asked by counsel for the applicants to describe what he had been told was the area or region of Bangerang country, said (at T 1977) that it started at Barmah, and continued:

Yes, at Barmah, on the Victorian side, went downstream to Echuca and cut across from Echuca to between Rochester and come back to Kyabram, Tatura, then to Shepparton. From Shepparton, it went up to Tocumwal - oh, to Cobram and down the Murray, back to Barmah. It's in that area.

He further said that his information was told to him by his grandmother and by his father and his mother. The town of Cobram is close to the Murray somewhat to the west of Yarrawonga.

In the course of cross-examination Mr Hagen conceded that the only evidence he had concerning the boundaries in the north-east of the claim area was information supplied by the applicants themselves. That information must necessarily be regarded as suspect. In 1993 (before the passing of the NTA) a High Court writ signed by three of the named applicants (Elizabeth Hoffman, Ella Anselmi and Desmond Morgan) and two other major witnesses in this proceeding (Neville Atkinson Jr and Shane Walker) was issued in respect of a native title claim made on behalf of the Yorta Yorta community to land extending to a large part of the area described as the original lands in this proceeding but which did not include the area previously described as the north-eastern quadrant. Mr Hagen was not made aware of the writ prior to writing his initial report (exhibit A17), nor, it would appear, was senior counsel for the applicants told of it. In his opening address counsel referred (at T 7) to what he said were 12 significant attempts by the Yorta Yorta people to assert proprietary interests in their land, but in his later identification of those attempts (at T 15-23) no mention is made of the 1993 High Court proceeding. In these circumstances the only inference that can reasonably be drawn is that the claim to the north-eastern quadrant is of recent invention and is otherwise unsupported by credible evidence and this notwithstanding linguistic and other evidence which was relied upon to support the applicants' case. There is no evidence to support the proposition that because two or more Aboriginal tribes or groups spoke the same or similar languages that they thereby necessarily enjoyed native title rights and interests in relation to all of the lands occupied by the separate groups. Indeed, some of Curr's observations, to which reference will be made later, suggest the contrary to be so.

62. Mr Hagen asserts that the journal entries of Robinson provide a basis for his thesis that an 'overarching' group, comprising the Pinegerine and Waveroo 'nations', occupied the original lands in the 1840s. The Waveroo people appear to have occupied country to the east and north-east of the claim area. Hagan's [sic] thesis is severely challenged by Professor Maddock and Dr Sommer. The pros and cons of the argument occupy many pages of evidence and are dealt with in detail in both the written reports of the witnesses and in the written submissions of counsel. The Court is not in a position to resolve disputed questions of anthropological interpretation. None of the persons whose original observations and records are relied upon could be called to give evidence and accordingly no assessment can be made of the credibility of the primary material. There are no objective facts to which the Court can have regard to support a conclusion one way or the other. That being so, if scholars learned in the relevant discipline are unable to provide an authoritative answer, the Court must have resort to such credible primary evidence as is available and apply the normal processes of analysis and reason.

63. The boundary of the claim area as shown on the claim map is not reflected in any historical or other records. Nor are any of the known ancestors identified in any records as having any special standing in relation to any particular locality within the claim area. By the time Daniel Matthews established Maloga Mission in 1874 and commenced keeping records of those who came and went to and from the mission the effect of European settlement in the area had had a devastating effect on the Aboriginal population. In a paper entitled 'Native Tribes of the Upper Murray' which Matthews wrote in 1899 he said:

In the early part of 1864, when residing at Echuca, Victoria, I was brought into contact with a considerable number of natives of the Bendigo, Terrick Terrick, Loddon, Mount Hope, Gunnawarra and other tribes of Victoria, as well as the remnant of two large tribes in New South Wales - the Walithica and Calthaba, who occupied the territory between Moama and Deniliquin, extending eastward to the Moira Lakes and Edward's River. These tribes in early days were probably large, numbering several hundreds; but owing to the march of civilization, acquired estates, incursions and reprisals, they gradually became decimated until now, they are mere fragments of tribes, occupying an industrial village of about 200 residents and 1800 acres of land that I obtained for their use in 1882 from the NSW Government. (Exhibit Vic 44)

Matthews' reference to 'the Walithica and Calthaba' is of some significance. According to Curr (Recollections,

p 232):

Adjoining the Bangerang there were two tribes which numbered about 50 individuals each, and spoke the Bangerang language, with some slight difference in, I believe, half-a-dozen words only. They called themselves respectively Wollithiga (or occasionally Wollithigan) and Kailtheban, and had no doubt seceded from the Bangerang at a comparatively recent epoch; indeed the Bangerang occasionally spoke of their neighbours in a hesitating sort of way as Bangerang Blacks. The country occupied by the Wollithiga was at and about the junctions of the Goulburn and Campaspe rivers with the Murray. The country of the Kailtheban was principally on the south side of the Goulburn, extending from Tongala to Toolamba, at which point they came in contact with the Ngooraialum tribe which they called Ooraialum.

There is no doubt that Matthews' 'Calthaba' and Curr's 'Kailtheban' are the same group. (T 6319). Curr's location of the Wollithiga is supported by Robinson whose 'Walleriggers' were located 'between the junction of the Campaspe and the Goulburn' (Exhibit A67, appendix 5.7 at p 54). The conclusion which may be drawn from the different territorial locations assigned to these two groups by observers separated in time by a little more than 20 years is that in that period there had been a considerable movement of Aboriginal people away from the country they had occupied at the time of European settlement, a fact which highlights the difficulty of trying to reconstruct tribal boundaries one or two centuries after the relevant date.

64. The applicants claim to be descendants of 'a common group of known ancestors who were located on the original lands'. What precisely the applicants mean to convey by the claim that the ancestors were 'located' on the original lands is not explained however as Toohey J said in Mabo [No 2] (at 188):

(i)t is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights ... (i)t is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title.

65. Little is known of the 18 'known ancestors' from whom it is said the members of the claimant group are descended. But there are some records which are of assistance. The various reports of the Maloga mission contain names and other particulars of some of the early residents whilst official records such as birth, marriage and death certificates are another source of information, although neither can be relied upon with absolute certainty. One of the difficulties encountered in interpreting the records, particularly those of Maloga, is that many of the descriptions of the places of origin of the people named and of their 'tribal' affiliation are either ambiguous or lack any real meaning. In the evidence about to be discussed relating to the known ancestors frequent reference will be made to Moira (both in NSW and Victoria), Moira Lakes and Moira Station as being a place of birth and in some records individuals are described as being of the Moira tribe. As it may be important to establish the geographical location of these variously described places it will be helpful to review some of the historical material to obtain an idea as to the location which is referred to in these records.

66. In Chapter XVI of Recollections (pp 165-180) Curr describes his first visit to a tract of country north of Tongala but south of the Murray which he later applied for and was granted. At pp 165-179 of Recollections he wrote:

When, therefore, I reached Tongala with the 1500 ewes referred to in the last chapter, my first care, as a matter of course, was to obtain a proportionate increased area of run. As the neighbouring country, with the exception of the Goulburn frontage, was entirely unoccupied, the direction in which I should extend the run was a matter for consideration. It so happened, however, that my brother Richard, who resided at Tongala in my absence, had seen and taken a fancy to a tract of country on the south side of the Murray, which was known to the Blacks by the name of Moira (pp 165-6).

As characteristic of the Moira, he mentioned that it abounded beyond all belief in unusually fat fish, swarmed with leeches and snakes, and the ducks were so numerous that I cannot tell now how many he bowled over at one shot. As we learned afterwards, its extensive reed beds were the great stronghold of the Bangerang Blacks.

In consequence of my brother's representation he and I started before sunrise one morning to make a thorough examination of this country, and decide whether or not we should take it up. Mounted, I remember, on two vigorous rowdy horses, we trotted merrily along the Towro sandhill, which leads from Tongala station to Madowla lagoon (pp 166-7).

So we cantered on, crossed the Tiia Creek at its mouth, and sped along the Blacks track to Pama, and thence, keeping on the edge of the fine old red gums (off which we noticed many a canoe had been stripped in old days), to the Moira itself, at the mouth of the Baala Creek, some fourteen miles from home (p 169).

Having delayed some time, and satisfied ourselves that the Moira would suit our purpose, we retraced our steps to the mouth of the Baala, where we found some Blacks who had returned to camp, and were grilling fresh caught fish, in the disposal of which we gladly assisted them, giving them a little tobacco in return. As I wished to see the river frontage between the Baala Creek and Pama, which appeared too rough for riding, and might contain a reed bed, I persuaded one of these Blacks, with whom I was acquainted, to take me in his canoe to the latter place, where my brother agreed to meet me with the nags (pp 172-3).

Stately and hushed, old Tongala* flowed on through his trackless woods! For myself I was inclined to be silent, but my boatman took up the cicerone's part, drawing my attention as we passed to spots which one way or another were of interest to himself and his tribe. The country on the right bank, he informed me, belonged to the Moitheriban, that on the left to his own tribe, the Wangatpan. The Moitheriban (literally, Moira people) were a numerous tribe, and had plenty of fish and thousands of spears ...

*Tongala is the aboriginal name for the river Murray in this portion of its course (p 174).

Being satisfied with what I had seen, I shortly after applied for, and obtained about eighty square miles of Moira country, which turned out very valuable (p 179).

67. It is clear from Curr's record that in the early 1840s the name Moira was one used by the local Aboriginal people to identify country both north and south of the Murray in the vicinity of the stretch of river between at least Pama (now Barmah) and the junction of the Baala Creek (Broken Creek) with the Murray. Up-stream from the junction of Broken Creek and the Murray there are two lakes - one on the NSW side of the river, now known as Moira Lake and the other on the Victorian side, now known as Barmah Lake, but it seems that in earlier times the two lakes were known as the Moira Lakes.

68. The name Moira is also associated with one of the earliest pastoral runs in the region. A supplement to the New South Wales Government Gazette dated 29 September 1848 contains a notification by the Governor pursuant to an Order in Council of 9 March 1847 informing all persons interested that certain persons therein mentioned had demanded leases of various runs of Crown land. Item 96 contains the following particulars:

Lewis HI and Charles Throsby

Name of Run - Moira

Estimated Area - 100 000 Acres

Estimated Grazing Capabilities - 3000 Cattle, and 4000 Sheep.

Bounded upon the east by the 'Gulpa' Creek and the River Murray; upon the south by the River Murray to a marked tree (about three miles below the confluence of the Campaspie[sic] Creek) at the boundary between the Moira station and that of Mr B. Holmes; upon the west by a true north line from the said marked tree extending about 14 miles; upon the north by a line between the Moira station and that of Peter Stucky, Esq., junior, commencing at a marked boundary tree situated at a place called the 'Red Bank', upon the 'Gulpa Creek', extending due west about 12 miles to its intersection of the line forming the western boundary.

The Moira run had been occupied by Messrs Lewis and Throsby since before 1848. It was on the NSW side of the Murray with a river frontage running from the junction of Gulpa Creek and the Murray down stream to a point about three miles below the confluence of the Murray and Campaspe Rivers. Although there is no record of a lease having been issued it is clear that one was, as in 1865 it was converted to a lease under the Crown Lands Occupation Act 1861 and a new lease, with slightly amended boundaries, was issued to The Hon. John O'Shannassy. The property remained with the O'Shannassy family for a considerable time thereafter. There are references in Matthews' diaries to 'O'Shannassy's' and to the 'camp' at Moira station from where Matthews collected Kitty (one of the known ancestors) on 4 August 1874. Moira Lake and the sites of both Maloga and Cummeragunja were all within the original boundaries of the Moira run.

69. From the foregoing it would seem that areas on both sides of the Murray are properly referred to as Moira and indeed, it would not be totally inaccurate to describe Moira Lakes as being in both NSW and Victoria. There is however some doubt as to the identification of people as the Moira tribe. That term could properly be applied to the Moitheriban, referred to by Curr as 'Moira people' who were said to inhabit country on the right bank of the Murray, but that was in the 1840s. By the time Matthews established Maloga and started keeping records, it is likely that Aboriginal people who were from the camp at Moira station would be described as of the Moira tribe simply because of their place of residence rather than because of any traditional tribal connection. This issue may be of some importance if it becomes necessary to identify the tribal country of any particular group as it existed in 1788.

70. Ulupna is another name which is frequently referred to in the records both as a place name and as a tribal grouping. Such evidence as is available suggests that a large pastoral run on the Victorian side of the Murray, first established in 1840 and known as Strathmerton, was also referred to as Ulupna. Strathmerton, which encompassed Ulupna Island, had an extensive frontage to the Murray running west from about where Tocumwal is now situated. One of the ration depots established after the 1858 Select Committee report was at Ulupna.

The 'known ancestors'

71. In his Supplementary Report - April 1997 (Exhibit A67) Mr Hagen provides (at pp 65-73) what he describes as 'brief biological details about known ancestors to whom contemporary Yorta Yorta/Bangerang people trace their ancestry'. The list of ancestors presumably includes not only all of the persons from whom the applicants claim to be descended for the purpose of establishing their case but also the best information that the applicants wish to advance concerning the 18 individuals named. There is however, in most cases, more evidence available than is referred to in the report and it will be necessary to deal with each named ancestor on the basis of the totality of the available evidence.

Analysis of the known ancestors

88. The purpose of the following comments is to ascertain from the evidence the extent to which the known ancestors provide the necessary link between the present claimant group and the original inhabitants of the claim area. The applicants' case requires that I draw an inference that all or some of the known ancestors were descended from an Aboriginal person who occupied (in the sense described by Toohey J in Mabo [No 2] at 188) the claim area or a part of it, at the time that the British Crown claimed sovereignty over the colony of NSW. It is clear from an analysis of the evidence that a number of them must be eliminated from the outset.

89. The claim by those who trace their line of descent back to either Alfred Morgan or Bagot Morgan is dependent upon establishing the status of their mother. All that is known is that she was an Aboriginal woman from 'Mulwella NSW' (per Tindale, 1938). Even assuming that Tindale's reference to Mulwella indicates that she came from an area close to the present town of Mulwala, there is no evidence upon which an inference can be drawn that she was descended from an indigenous inhabitant of the claim area. All that has been established is that prior to the birth of her children she was 'from Mulwella' but by the time Bagot was born she appears to have moved to Moira Station. Alfred's place of birth remains a mystery.

90. Those who trace their descent through either or both of George Charles and his wife Jenny McCulloch are faced with a similar difficulty as that encountered by the Morgan descendants. Both George and Jenny had non-Aboriginal fathers. Nothing is known of George's mother Caroline other than the fact that she gave birth to George at Wyuna Station (in the claim area) in the 1850s. All that is known of Jenny's mother is that she gave birth to Jenny at Benalla (in the claim area) in the late 1850s or early 1860s. There is no evidence from which any relevant inference can be drawn to establish a connection between either mother and the indigenous inhabitants of the claim area as at 1788.

91. Nothing is known of Margaret Nelson's antecedents except that she was born to the east of the claim area in the early 1860s. This is not enough to connect her with an original inhabitant of the claim area.

92. Louisa Frost's father was non-Aboriginal. She was born at Mathoura (within the claim area) in about 1855. There is no evidence to connect her mother Topsey with the claim area apart from the fact that she would have been present at Mathoura when Louisa was born. This is insufficient to justify drawing any inference relating her back to the indigenous inhabitants of the area in 1788.

93. Whatever may be the real story as to Sampson Barber's antecedents the evidence does not provide a basis upon which it can be said with any degree of confidence that his antecedents were from the claim area. This fact is accepted by the applicants' own anthropological expert.

94. All that is known of Emma Murri is that she and her three daughters resided at Maloga after 1877. There is no other evidence to connect her with the claim area.

95. Mary Friday/Brangy's father was non-Aboriginal. Her mother was an Aboriginal from 'near Wodonga' (which is not in the claim area). Mary was born at Oxley, Victoria, which may be within the claim area although that cannot be said with any certainty. There is no other evidence to connect her or her antecedents with the claim area.

96. Annabella Howard's place of birth is variously described as Cobram Station and Ulupna Station. Either description would clearly be within the claim area. However there is a significant inconsistency between her first marriage certificate, which would have her aged 23 in 1873, and her death certificate, which records her age as 99 in 1936. Her father was not Aboriginal but her mother was. All that is known of her mother is the description on Annabella's June 1873 marriage certificate 'Mother black woman' and on the December 1877 certificate 'Mary - Aboriginal'. There is insufficient evidence to connect Annabella's mother with the original inhabitants of the claim area.

97. Tommy McCrae had a physical association with the eastern part of the claim area. He is thought to have been born at Wahgunya and he lived a significant part of his life in and around that area. In the absence of any evidence as to his parents, it is not possible to draw any inference that would connect him with an original inhabitant of the claim area. Indeed, for what it is worth, Tindale would have him associated with the Bidewal tribe in eastern Gippsland. The only relevant evidence concerning Tommy McCrae's wife Lily is Tindale's reference to 'Lily Edmonds fb of Dubbo NSW' which does not connect her with the claim area.

98. Maggie Toodle was a full-blood who was born in the claim area in the 1840s, probably in 1849. By that time European settlement in the area was well established and in the absence of any information concerning her parents, other than their names George and Mary, there is no basis upon which to infer a genealogical connection with an indigenous inhabitant of the area in 1788.

99. For the reasons summarised above the evidence does not assist the descendants of any of the following to establish a genealogical connection with the indigenous inhabitants of the claim area in 1788: Alfred Morgan, Bagot Morgan, George Charles, Margaret Nelson, Louisa Frost, Janet (Jenny) McCulloch (Charles), Sampson Barber, Emma Murri, Mary Friday/Brangy, Annabella Howard, Tommy McCrae, Lily McCrae and Maggie Toodle. It will be necessary to consider the remaining known ancestors in more detail.

100. Edward Walker was born in the 1830s at a location generally described as Moira, which indicates a place of birth within the claim area. As he was a full-blood Aboriginal it follows that his parents were also full-bloods. He was born at a time either prior to or possibly in the very early days of European contact in the area. It is probable that his parents would have been born at about the turn of the century before even the earliest explorers had ventured into the region. All of this provides a reasonable basis upon which to draw an inference that Edward Walker's antecedents were indigenous inhabitants in 1788 of the part of the claim area known as Moira. The fact that in Matthews' 1883 list he and his family are shown as being of the Ulupna tribe indicates only that prior to 1877 he had lived at Ulupna and Matthews' 1883 description of his 'tribe' as Ulupna appears to merely reflect his place of residence immediately prior to his move to Maloga. Less is known of Matilda Walker's history than that of her husband. In the absence of any information as to her place of birth the same reasoning is not open in her case. However, the applicants' case is not advanced at all by claiming Matilda as an ancestor in view of the fact that those who can claim descent through her can also claim descent through Edward.

101. Kitty Atkinson/Cooper was also born in the Moira area at about the same time as, or possibly even a little earlier, than Edward Walker. She is said to have been a full-blood Wollithiga. According to Curr (The Australian Race at p 567) the Wollithiga was one of ten tribes who identified as Bangerang. His map 'showing approximately the country which used to be occupied by the Bangerang and by five of the Ngooraialum speaking tribes' shows Wollithiga country as extending both north and south of the Murray in the general vicinity of Echuca. In the north, Wollithiga country abutted that of the Moitheriban whose area encompassed Kitty's birthplace, 'Lake Moira'. The proximity of Wollithiga country to Lake Moira suggests that there is sufficient material before the Court to permit an inference to be drawn that Kitty's father, or if not him, her paternal grandfather, was an indigenous inhabitant of part of the claim area in 1788.

102. George Middleton's marriage certificate suggests that he was a full-blood Aboriginal but both his daughter and Treseder identify him as half-caste. There is an oral tradition that his mother was a daughter of an Aboriginal known as Barker Billy (or Barkabillie) but there is no other evidence to support this belief nor is there any evidence concerning Barker Billy which would support any relevant inference being drawn even if it be fact that he was George's maternal grandfather. Another factor which militates against drawing any inference is that George was born in the mid 1850s, well after European settlement, in the Tocumwal district from whence he is said to have originated. The disturbance of the Aboriginal population which followed European settlement was well under way by the time of George's birth and the mere fact of his birth at a place within the claim area cannot support a conclusion that he was a genealogical descendant of an original inhabitant of the claim area.

103. Sarah Walker was married to Freddy, a son of Edward Walker. To the extent that Sarah is said to be a known ancestor by reason of a line of descent through her children with Freddy, the applicants' case is not advanced. However, it appears that many claimants trace their line back to Sarah through her half-caste son Herbie who of course was not Freddy's child. Sarah was born at Moira in the 1850s of Aboriginal parents. Nothing more is known of her antecedents. The comments made above in relation to George Middleton are equally applicable in her case. There is no basis to infer that Sarah was a descendant of an original inhabitant of the claim area.

104. From the foregoing I conclude that only the descendants of Edward Walker and those of Kitty Atkinson/Cooper have been shown to be descended from persons who were in 1788 indigenous inhabitants of part of the claim area. Without going into detail, it is fair to say however, that a significant number of the claimant group, including some who specifically identify themselves as Bangerang, are descended from either Edward Walker or Kitty Atkinson/Cooper. There are however some claimants whose line of descent does not include either of these ancestors.

Traditional laws and customs

105. To demonstrate descent from the indigenous inhabitants of a particular area is but one step in establishing native title rights and interests. As the native title which (in the absence of extinguishment) the common law recognises reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands, (Mabo [No 2] at 15) it is necessary to identify the nature of the entitlement which the indigenous inhabitants enjoyed in relation to their traditional lands in accordance with their laws and customs and the extent of the traditional lands. These two elements are really different aspects of the same question but can conveniently be considered separately.

106. The most credible source of information concerning the traditional laws and customs of the area from which Edward Walker's and Kitty Atkinson/Cooper's early forebears came is to be found in Curr's writings. He at least observed an Aboriginal society that had not yet disintegrated and he obviously established a degree of rapport with the Aboriginals with whom he came into contact. His record of his own observations should be accorded considerable weight. The oral testimony of the witnesses from the claimant group is a further source of evidence but being based upon oral tradition passed down through many generations extending over a period in excess of two hundred years, less weight should be accorded to it than to the information recorded by Curr. Much of what subsequent writers have said about early Aboriginal life is necessarily based upon other than original observation and much is mere speculation. Curr himself was not averse to a degree of speculation and to the extent that he indulged in that practice his opinion should not be accorded any weight but his record of his own observations and of what he was told by his Aboriginal informants, must be regarded seriously. As has been done in considering the question of descent from the indigenous inhabitants, it will be necessary to draw inferences from known facts concerning traditional laws and customs observed in the 1840s in order to relate back to the time at or prior to the first exercise of British sovereignty.

107. Kitty Atkinson/Cooper is said to have been of the Wollithiga tribe and it is assumed that her 1788 forebears were of the same group. Reference has previously been made to the country occupied by the Wollithiga as being between about the junctions of the Goulburn and Campaspe rivers with the Murray. Curr's Tongala run was located on the south bank of the Goulburn at about the junction of that river with the Murray. Although his map published in The Australian Race (Vol III at p 566) shows Tongala as being in Kailtheban country it was close to the western boundary of that area and therefore close to the eastern limit of Wollithiga country. It may reasonably be inferred that Curr had contact with Wollithiga people.

108. Earlier in these reasons the area commonly referred to as Moira has been discussed. According to Curr's map, the area west of 'Lake Moira' was the country of the Moitheriban, the Moira people (Curr, p 174). The Wollithiga were the southern neighbours of the Moitheriban. From this it may reasonably be concluded that Edward Walker's forebears were probably from the Moitheriban tribe although no such tribal allegiance is assigned to Edward in any of the evidence. Given the proximity of the adjacent countries of the Wollithiga and Moitheriban to Tongala it is reasonable to infer that Curr's observations as recorded in his writings reflect the life and culture of both of these Aboriginal groups.

109. The evidence does not require the Court to look beyond the general areas formerly occupied by the Wollithiga and the Moitheriban as it is only the traditional laws and customs in relation to the land of the antecedents of Edward Walker and Kitty Atkinson/Cooper that have been shown to be of relevance in this proceeding. The fact that a number of other tribal groups spoke the same or a similar language does not justify the expansion of the traditional rights of the Wollithiga and Moitheriban to include the traditional lands of all Bangerang speaking tribes. Indeed, Curr's observations (to which reference is made below) suggest the contrary.

110. Through his long and close association with the Aboriginal people of the area in which he lived, an area which largely coincides with the part of the claim area occupied by the forebears of Edward Walker and Kitty Atkinson/Cooper, Curr obtained some understanding of the laws and customs in relation to land of the indigenous people with whom he made contact and what he later wrote about these matters provides a useful basis from which to proceed.

111. On the question of rights to land Curr wrote (Recollections, pp 243-4):

Besides the fact that the Bangerang territory was parcelled out between the two sub-tribes, [Curr's Wongatpan and Towroonban] and that fishing weirs on the numerous channels which conducted the flood-waters back into the Murray were owned by individuals, and descended to their heirs, I recollect, on one occasion, a certain portion of country being pointed out to me as belonging exclusively to a boy who formed one of the party with which I was out hunting at the time. As the announcement was made to me with some little pride and ceremony by the boy's elder brother, a man of five-and-twenty, I not only complimented the proprietor on his estate, on which my sheep were daily feeding, but, as I was always prone to fall in with the views of my sable neighbours when possible, I offered him on the spot, with the most serious face, a stick of tobacco for the fee-simple of his patrimonial property, which, after a short consultation with his elders, was accepted and paid. On two other occasions, also, if I remember right, some Blacks objected to hunt with me over certain land, on the plea that it did not belong to them. That both individuals and families amongst the Bangerang had particular rights to certain lands I have no doubt, but practically they were little insisted on. Had, however, anyone not of the tribe attempted encroachments, it would have been an instant casus belli.

112. The social organisation of the Bangerang is a topic upon which Curr dwelt at some length. He wrote (Recollections, p 244):

Amongst the Bangerang there was not, as far as could be observed, anything resembling government; nor was any authority, outside of the family circle, existent. Within the family the father was absolute. The female left the paternal family when she became a wife, and the male when he took rank as a young man. The adult male of the Bangerang recognized no authority in anyone, under any circumstances, though he was thoroughly submissive to custom. Offences against custom had sometimes a foreign aspect, and brought about wars with other tribes. Within the tribe they usually amounted to wrongs of some individuals, and for every substantial wrong custom appointed a penalty.

After describing the practices adopted to ventilate grievances Curr continued (at p 245):

But, though there was no government, there were certain important practices among the Bangerang which deserve to be called laws. Some of the principal of these had reference to the transfer of the young from one class to another (particularized hereafter), the knocking out of their teeth, making the ornamental scars on their backs, breasts, and arms, and restrictions with respect to food. There were also others which had reference to females. In the latter case only did infractions occur with some frequency, on which occasions, as I have already noticed, the persons aggrieved, when they chose, made their complaints publicly in the camp, and publicly vindicated their rights, the offender being often constrained by custom to go through the ordeal of having a certain number of spears thrown at him, and so run the risk of death or wounds in satisfaction for the injury done.

113. Perhaps the most relevant portion of Curr's observations for present purposes, insofar as it touches upon the question of rights and interests in relation to land, is the following paragraph (Recollections, pp 246-7):

Though each section of the Bangerang was thoroughly independent within the limits of its own territory, they were virtually one for the purposes of war. As regards war, however, as in other matters, there was no attempt to coerce any individual to join in an onslaught, or to adopt any course to which he was disinclined. A common danger or a common desire led to meetings and consultations, and so simple and uniform were interests generally that measures were usually proposed which met with the approval of all; but if anyone did dissent from them, he was at liberty to take his own course, and there was no attempt at coercion; and as there was no government, or attempt to govern, so there was no opposition. With the Wollithiga and Kailtheban the Bangerang were on very intimate terms, so that for war purposes they might almost be said to be one people. In addition, they were bound in a lesser, though a stout, friendship with the other six Bangerang-speaking septs, which, together with themselves, were surrounded by a number of tribes which looked on them as foreigners, and hated them in common; spoke a language different from theirs, and cut off stray members as opportunity offered, each tribe on its own account. Nor were these Bangerang intimacies barren of effect, for, besides a good deal of intermarriage, they did not resort to witchcraft against each other, and in the hour of need one tribe was at liberty to seek refuge in the territory of the other. At the same time, suspicion was not entirely absent amongst themselves; and had a few Bangerang men been found on the territory of any of the six tribes without some feasible explanation to offer, they would, as likely as not, have lost their lives. However, I remember, in the very early days, several of these tribes meeting together and sending a strong body of fighting men to meet the Ngooraialum at the Protectorate station, which occupied the present site of Murchison, and I am under the impression that alliances of the sort were frequent before the coming of the white man interfered with native policy.

114. It appears that in the Bangerang society the role of women was subservient to men. Curr records that in domestic life man was 'despotic in his own mia-mia or hut' (Recollections p 247); that children belonged to the tribe of the husband (p 249); and that prior to the coming of the whites the Bangerang, as a rule, 'enforced constancy on the part of their wives, and chastity on their unmarried daughters' (p 249).

115. With regard to their practices relating to the use of food resources, Curr wrote (Recollections, p 262):

It is a noteworthy fact connected with the Bangerang ... that as they neither sowed nor reaped, so they never abstained from eating the whole of any food they had got with a view to the wants of the morrow. If anything was left for Tuesday, it was merely that they had been unable to consume it on Monday. In this they were like the beasts of the forest. Today they would feast - aye, gorge - no matter about the morrow. So, also, they never spared a young animal with a view to its growing bigger.

And at p 263:

I have often seen them, as an instance, land large quantities of fish with their nets and leave all the small ones to die within a yard of the water.

The same subject matter is again touched on at p 265:

When out hunting, the game captured by each was his own property. If one of the party returned unsuccessful, he rarely asked for a share of another's game, nor did he take it ill if none were given him; but, if a bachelor, he would get some roots from any female relative he might have in the camp. If an individual killed a kangaroo without assistance, it belonged to him, though it would certainly be shared with many others; but if several assisted in the capture, the animal was divided amongst the party, the man who first drew blood, I believe, receiving the skin (which was valuable) in addition to his share of the meat.

116 One further topic calls for comment, notably, that of burial practices. At p 286 Curr wrote:

The Bangerang mode of burial had nothing remarkable about it. The dead were rolled up on their opossum-rugs, the knees being drawn up to the neck with strings, when the corpse was interred in a sitting posture, or on its side, generally in a sand-hill, in which a grave about four feet deep had been excavated. A sheet of bark was then placed over the corpse, the sand filled in, and a pile of logs about seven feet long and two feet high was raised over all. Round about the tomb it was usual to make a path, and not unfrequently a spear, surmounted by a plume of emu feathers, stuck at the head of the mound, marked the spot where rested the remains of the departed. Women were interred with less ceremony.

117. The foregoing extracts from Recollections are not intended to be a comprehensive survey of the laws and customs of the Bangerang as observed by Curr in the 1840s. Rather, they have been selected with a view to providing an indication of what Curr observed in relation to a number of aspects of Bangerang life and culture that may have some bearing upon the traditional laws and customs of the ancestors of the claimant group which are said to have constituted a burden on the radical title of the British Crown at the time it claimed sovereignty in respect of the colony of NSW. By the 1860s the disturbance of the way of life of the Aboriginal people to which Curr referred was further advanced. When Daniel Matthews settled in Echuca in 1864 he found people of many different tribal groups living in the area. Matthews himself was the architect of further disruption of traditional life. His practice of attracting Aboriginals from various parts of the country to Maloga and the policies adopted by him in suppressing the use of indigenous languages and the observance of traditional practices (including on occasions forcing people to marry contrary to customary laws) no doubt accelerated the process of disintegration of the former way of life of the people with whom he came into contact.

118. The evidence is silent concerning the continued observance in Matthews' time of those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr. Whether the former territorial areas of the various tribal groups were still recognised and protected as described by Curr is not something upon which there is any evidence. What the evidence does demonstrate is that the land on either side of the Murray had been taken up for pastoral purposes and that there had been both severe dislocation of the indigenous population and a considerable reduction in its numbers due to disease. Furthermore, there is no evidence to suggest that either Edward Walker or Kitty Atkinson/Cooper or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forebears in relation to land.

119. Apart from any conclusions which may be drawn from the absence of evidence of continued observance of traditional laws and customs in the period after the establishment of Maloga, there is positive evidence emanating from the Aboriginals themselves to the same effect. As evidence of one of what were said to be 12 significant attempts by the Yorta Yorta people to assert proprietary interests in their land (reference to which is made in paragraph 61) senior counsel for the applicants tendered in the course of his opening a copy of a petition to the Governor of NSW signed in 1881 by 42 Aboriginals, many of whom are known to have been resident at or otherwise connected with Maloga. The text of the petition (which is also reproduced in Appendix 10 to Mister Maloga) stated:

To His Excellency Lord Augustus Loftus, GCB, Governor of the colony of New South Wales - The humble petition of the undersigned Aboriginal natives, residents on the Murray River in the colony of New South Wales, members of the Moira and Ulupna tribes, respectfully showeth:

1. That all the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are used for sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious, and often reducing us and our wives and children to beggary.

2. We, the men of our several tribes, are desirous of honestly maintaining our young and infirm, who are in many cases the subjects of extreme want and semi-starvation, and we believe we could, in a few years support ourselves by our own industry, were a sufficient area of land granted to us to cultivate and raise stock.

3. We have been under training for some years and feel that our old mode of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry, that we may form homes for our families.

We more confidently ask this favour of a grant of land as our fellow natives in other colonies have proved capable of supporting themselves, where suitable land has been reserved for them.

We hopefully appeal to your Excellency, as we recognise in you, The Protector specially appointed by Her Gracious Majesty the Queen 'to promote religion and education among the Aboriginal natives of the colony', and to protect us in our persons and in the free enjoyment of our possessions, and to take such measures as may be necessary for our advancement in civilization.

And your petitioners, as in duty bound will ever pray.

The 42 signatories were:

Bobby Wilberforce (Cooper)

George Aben

Richard (X, his mark)

Bradshaw

Thomas Williams

Harry Fenton

Aaron Atkinson

Thomas Fenton

George Charles

Alowidgee

Freddy Walker

Johnny Galway

Daylight

Charlie Stewart

David Berrick

Ted Robertson

Peter Stuckey

Rochford Robertson

Jacky Wilberforce (Cooper)

Gibson Platt

Jimmy Turner

Jackie John

Sydney

Tommy Hawke

George Keefe

Robertson

James Coghill

Boney Cockie

Sampson Barber

Barralta

Bagot Morgan

Harry

John Atkinson

Jimmy Martin

Peter Blucher

Robert Taylor

Dick Richards

David Taylor

James Edgar

Jasper Angus

Whyman McLean

120. A number of observations can be made concerning the petition and the signatories. The petition was presented in 1881, some two years before the reserve at Cummeragunja was declared and whilst Maloga was still in operation. The petitioners are described as members of the Moira and Ulupna tribes, a description which is not found in Curr's writing but suggests that the individuals concerned identified with the two main pastoral properties in the region rather than as Bangerang or any of the other sub-groups referred to by Curr. The petition contains a frank acknowledgment that 'all land within (the petitioners') tribal boundaries has been taken possession of by the government and white settlers' a state of affairs which no doubt gave rise to their desire to change 'our old mode of life' in favour of 'settling down to more orderly habits of industry'. A number of the signatories, who apparently subscribed to these sentiments were persons who are either named in the applicants' list of the 18 known ancestors or were the children of persons so named. George Charles, Sampson Barber and Bagot Morgan are three of the 18; Freddy Walker was the son of Edward Walker; and Bobby Wilberforce (Cooper), Aaron Atkinson, Jacky Wilberforce (Cooper) and John Atkinson were children of Kitty Atkinson/Cooper. Other signatories who are readily identifiable with names on Treseder's 1891 list, prepared some ten years after the petition, include James Coghill, Whyman McLean and Peter Stuckey.

121. Whilst there can be little doubt that Matthews would have played a part in the composition and presentation of the petition it has not been suggested in this proceeding that the general thrust of the statements attributed to the petitioners was factually inaccurate or in any way misrepresented their views or their aspirations. In fact, the copy of the petition was tendered in the course of the applicants' counsel's opening address as evidencing a long history of efforts to obtain land. It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time. Although many of the claimant group reside within the claim area, many do not. No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. The claimant group clearly fails Toohey J's test of occupation by a traditional society now and at the time of annexation (Mabo [No 2], at 192) a state of affairs which has existed for over a century. Notwithstanding the genuine efforts of members of the claimant group to revive the lost culture of their ancestors, native title rights and interests once lost are not capable of revival. Traditional native title having expired, the Crown's radical title expanded to a full beneficial title (Mabo [No 2] per Brennan J at 60). It is however appropriate that some mention should be made of the evidence concerning the current beliefs and practices of the claimant group.

122. The main thrust of contemporary activity by members of the claimant group has to do with the protection of what are regarded as sacred sites and the proper management of the land. Oven mounds, shell middens and scarred trees were described by a number of witnesses as sacred and deserving of protection. Curr (Recollections, pp 236-9) describes the construction and function of ovens which, understandably, were used to cook food. Some were still in use in his time whereas others showed evidence of protracted disuse. From the size and location of the ovens Curr drew conclusions as to the density of population in earlier times. These mounds are regarded by contemporary Yorta Yorta people as sacred. So too are shell middens, which are nothing more than accumulations of the remains of shell fish frequently found on the banks of rivers. Trees from which bark has been removed to make canoes or other objects, such as coolamons, are also treated as sacred by some, and significant by others. Curr (at p 169 quoted above) refers to fine old red gums 'off which we noticed many a canoe had been stripped in old days'. There is no doubt that mounds, middens and scarred trees which provide evidence of the indigenous occupation and use of the land are of considerable importance and indeed, many are protected under heritage legislation, but there is no evidence to suggest that they were of any significance to the original inhabitants other than for their utilitarian value, nor that any traditional law or custom required them to be preserved.

123. Another contemporary practice which is said to be part of the Yorta Yorta tradition is the conservation of food resources. A number of witnesses gave evidence that they hunt and fish on the land and in the waters of the claim area and to some limited extent, gather 'bush tucker' for their personal consumption. Of these activities fishing appears to be by far the most popular but is currently engaged in as a recreational activity rather than as a means of sustaining life. It is said by a number of witnesses that consistent with traditional laws and customs it is their practice to take from the land and waters only such food as is necessary for immediate consumption. This practice, commendable as it is, is not one which, according to Curr's observations, was adopted by the Aboriginal people with whom he came into contact and cannot be regarded as the continuation of a traditional custom.

124. In earlier times, following European settlement in the area, it was the practice to remove skeletal remains located at Aboriginal burial sites and take them to Melbourne, and elsewhere, for scientific examination. In more enlightened times many such remains have been returned into the custody of representatives of the Aboriginal people for reinterment in the areas from which they were removed. In the claim area reburials have been conducted since about 1984. There can be no question about the importance of the returning of remains to the appropriate country but the modern practices associated with their reburial are not part of the traditional laws and customs handed down from the original inhabitants.

125. Similar considerations apply to the extensive involvement of Yorta Yorta people in activities associated with the conservation of the timber and water resources of the area. The advent of extensive logging of, and the introduction of cattle into, the forests in the claim area together with the interference with the natural flow of the river systems for irrigation purposes are all matters about which contemporary Yorta Yorta have expressed concern and sought to be consulted. To some extent their concerns have been recognised by government authorities. But these are issues of relatively recent origin about which the original inhabitants could have had no concern and which cannot be regarded as matters relating to the observance of traditional laws and customs.

126. The question of obtaining permission to enter upon or use the resources of the claim area was raised by a number of witnesses. The traditional position, according to Curr (Recollections, p 244), was that both individuals and families amongst the Bangerang had particular rights to certain lands but in practice they were rarely insisted on except in the case of an encroachment of a person not of the tribe. The evidence concerning current practices was not entirely consistent from one witness to the next. Some witnesses said that the earlier rules concerning seeking permission to enter the country of another clan no longer applied and that all Yorta Yorta now have rights in all parts of the traditional lands (Ella Anselmi (T 5887); Kenneth Briggs (T 4924-5)). Alfred Turner said that 20 to 30 years ago each sub-group would ask permission to go onto the land of another subgroup but that tradition is no longer observed (T 3578). Neville Atkinson Jr said that the Yorta Yorta can determine who will come onto Yorta Yorta land (T 3054-5) and Gary Nelson said that a lot of Aboriginal people ask permission before entering Yorta Yorta country (T 4143). But many of the senior members of the claimant group gave no evidence of any existing practice concerning the assertion of any rights to exclude others from the claim area and no-one suggested that even the former practices extended to excluding non-Aboriginals. There is overwhelming evidence that Aboriginals and non-Aboriginals alike enter, travel through, live, fish and hunt within the claim area without seeking permission other than such as may be required by State or Commonwealth law. The tide of history has undoubtedly washed away any traditional rights that the indigenous people may have previously exercised in relation to controlling access to their land within the claim area.

127. The applicants readily concede that they and their forebears have long since ceased to observe traditional practices in relation to initiation or to perform other ceremonial activities which are frequently, in other Aboriginal societies, indicative of spiritual attachment to the land. On one occasion Colin Walker gave evidence concerning a site (Boat Rock - ID 905) which he claimed had been a ceremonial ground associated with male initiation and which he asserted was off-limits to females, but his evidence proved only that in about 1989 he and another (now deceased) senior Aboriginal had decided it to be so even though women had in the past had free access to it. I do not regard Mr Walker as a reliable witness but rather as one prone to avoid direct answers to straightforward questions. He is one of the witnesses whose credit is called into question in relation to an incident referred to in paragraph 21. Another senior applicant, Mr Ken Briggs, who I found to be a thoroughly honest gentleman and a credible witness, gave evidence that he knew of places, the location of which was not disclosed, which he said were secret men's sites. This evidence was elucidated as the result of cross-examination and does not appear to have been a fact upon which the applicants relied as part of their case. No other relevant evidence was given concerning those sites and no conclusions, one way or the other, can be drawn from the evidence that was given.

128. Preservation of Aboriginal heritage and conservation of the natural environment are worthy objectives the achievement of which may lead to a more ready understanding and recognition of the importance of the culture of the indigenous people but in the context of a native title claim the absence of a continuous link back to the laws and customs of the original inhabitants deprives those activities of the character of traditional laws acknowledged and traditional customs observed in relation to land and waters which is a necessary element of both the statutory and the common law concept of native title rights and interests.

129. Brennan J observed in Mabo [No 2] (at 58) that 'it is necessary to ascertain by evidence the nature and incidents of native title' and accordingly the resolution of this proceeding must depend upon the conclusions of fact which are supported by the evidence adduced. The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to land of their forebears. The facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs. The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival. This conclusion effectively resolves the application for a determination of native title.

Extinguishment and related issues

130. Many of the difficulties inherent in litigating a complex native title determination application have been highlighted by what has occurred in this proceeding. A substantial portion of the enormous mass of evidence presented to the Court, prepared at considerable expense to the parties, deals with matters relating to the extinguishment of native title rights and interests, an issue which only arises in the event that the observance and acknowledgment of traditional laws and customs in relation to land are shown to have survived. As it has happened, in the light of the conclusion expressed above, it is unnecessary to embark upon a consideration of whether, and to what extent, native title rights and interests have been subjected to extinguishing events, nor does the question of the coexistence of native title and other rights arise. The time and expense expended in the preparation and presentation of a large part of the evidence has proved to be unproductive, a circumstance which calls into question the suitability of the processes of adversary litigation for the purpose of determining matters relating to native title.

131. Earlier in these reasons I have expressed my concurrence with the opinion of Demack J in Re Mining Lease Application No. 70149 to the effect that except in a case where there has been necessary extinguishment (for example by a freehold grant or an exclusive possession lease) the existence and nature of the claimed native title rights and interests must first be established before any question relating to inconsistent non-native title rights can be resolved. The logic of such a conclusion is obvious. It must necessarily follow that in a case in which native title has not been found to exist, there is no occasion to embark upon any further inquiry.

132. The Native Title Amendment Act 1998 deals extensively with matters relating to the extinguishment of native title. Section 23B now defines the concept of 'a previous exclusive possession act'. Section 23C confirms the extinguishment of native title by previous exclusive possession acts attributable to the Commonwealth while s 23E authorises States and Territories to adopt similar provisions in respect of previous exclusive possession acts attributable to the State or Territory. The effect of the extinguishment of native title is dealt with in s 237A which provides:

The word extinguish in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.

133. New ss 47A and 47B require that in some circumstances the prior extinguishment of native title is to be disregarded. One of the circumstances which triggers the operation of each section is that when the application is made, one or more members of the native title claim group occupy the area in question. It is unnecessary to recite the provisions of these sections as the only purpose in making reference to them is to draw attention to a note following subs (2) of each section, which states:

Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

The clear intention of ss 47A and 47B is to ameliorate the effect on native title of acts which would otherwise have an extinguishing effect. Neither section provides a basis for the creation of native title rights which either did not previously exist in relation to the land or which by reason of a circumstance other than an extinguishing act had ceased to exist. In the present case there is no scope for either section to have any application.

Conclusion

134. For the reasons expressed above the Court determines that native title does not exist in relation to the claimed land and waters.