Blackburn v Wagonga Local Aboriginal Land Council - [2021] FCAFC 210

FEDERAL COURT OF AUSTRALIA
Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210

Appeal from: Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113

File number: NSD 983 of 2020

Judgment of: MORTIMER, PERRY AND O'BRYAN JJ

Date of judgment: 23 November 2021

Catchwords: NATIVE TITLE – non-claimant application – appeal against determination that native title does not exist in respect of certain land in New South Wales – where land in question is contained within larger registered native title claim application (the South Coast People’s claim) which is yet to be determined – where non-claimant application was opposed by the applicants in respect of the South Coast People’s claim – consideration of s 67 of the Native Title Act 1993 (Cth) – whether the primary judge erred in making findings in respect of the South Coast People’s claim – whether the primary judge’s reasons should have been confined to a consideration of the question whether the evidence adduced by the appellants “cast doubt” on the claimed non-existence of native title – whether the primary judge erred in holding that s 223(1)(b) requires that the relevant land was “significant”, “sacred” or “important” to Aboriginal people – whether the primary judge erred in inferring that, when the Aboriginal witnesses were speaking of “significance” of the land to Aboriginal people, they were in fact referring to the existence or otherwise of connection with the land under s 223(1)(b) – whether the primary judge erred in concluding that the evidence adduced by the appellants was not evidence of an ongoing connection with the land under s 223(1)(b) – the need for caution in respect of non-claimant applications concerning parcels of land that are within larger registered native title claims that are not determined – appeal dismissed

Legislation:
Native Title Act 1993 (Cth) ss 67, 85A, 223

Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth)

Aboriginal Land Rights Act 1983 (NSW) ss 36, 40(4), 42G(5)

Real Property Act 1900 (NSW)

Cases cited:
Akiba v Queensland (No 3) (2010) 204 FCR 1

Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301

Allesch v Maunz (2000) 203 CLR 172

Bodney v Bennell (2008) 167 FCR 84

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

CG v Western Australia (2016) 240 FCR 466

Commonwealth v Clifton (2007) 164 FCR 355

Commonwealth v Yarmirr (2001) 208 CLR 1

De Rose v South Australia (2003) 133 FCR 325

De Rosev South Australia (No 2) (2005) 145 FCR 290

Fejo v Northern Territory 195 CLR 96

Fox v Percy (2003) 214 CLR 118

Harkin on behalf of Nanatadjarra People v State of Western Australia [2020] FCA 1015

Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942

Kokatha Native Title Claim v State of South Australia [2006] FCA 838

Mabo v Queensland (No 2) (1992) 175 CLR 1

Mace v Queensland (2019) 274 FCR 41

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507

Moses v Western Australia (2007)160 FCR 148

Munn v State of Queensland [2002] FCA 486

Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442

Rose on behalf of the Kurnai Clans v State of Victoria [2010] FCA 460; 268 ALR 47

Western Australia v Graham (on behalf of the Ngadju People) [2013] FCAFC 143; 305 ALR 452

Western Australia v Sebastian (2008) 173 FCR 1

Western Australia v Ward (2002) 213 CLR 1

Western Australia v Willis (2015) 239 FCR 175

Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320

Wyman v Queensland (2015) 235 FCR 464

Yanner v Eaton (1999) 201 CLR 351

Division: General Division

Registry: New South Wales

National Practice Area: Native Title

Number of paragraphs: 159

Date of hearing: 24, 25 May 2021

Counsel for the Appellants: T Keely SC with T Jowett

Solicitors for the Appellants NTSCORP Limited

Counsel for the First Respondent: A Butt

Solicitor for the First Respondent: Maddocks

Counsel for the Second Respondent: E Lee

Solicitor for the Second Respondent: NSW Crown Solicitor’s Office
ORDERS

NSD 983 of 2020

BETWEEN:
AILEEN BLACKBURN

First Appellant

MARILYN PICKALLA CAMPBELL

Second Appellant

GWENDA JARRETT (and others named in the Schedule)

Third Appellant

AND:
WAGONGA LOCAL ABORIGINAL LAND COUNCIL

First Respondent

ATTORNEY GENERAL OF NEW SOUTH WALES

Second Respondent

AND BETWEEN:
ATTORNEY GENERAL OF NEW SOUTH WALES

Cross-Appellant

AND:
WAGONGA LOCAL ABORIGINAL LAND COUNCIL (and others named in the Schedule)

First Cross-Respondent

ORDER MADE BY:

MORTIMER, PERRY AND O'BRYAN JJ

DATE OF ORDER:

23 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The cross-appeal be dismissed.
3.There be no order as to the costs of the appeal.
4.The cross-appellant pay the first cross-respondent’s costs of the cross-appeal.
5.The costs referred to in Order 4 be awarded in a lump sum pursuant to r 40.02(b) of the Federal Court Rules2011 (Cth).
6.In the absence of agreement as to the quantification of the costs awarded under Orders 4 and 5, such quantification and the making of such further orders and directions in connection therewith be referred to a Registrar of the Court for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
THE COURT:
A. INTRODUCTION

This is an appeal from a determination of this Court made under the Native Title Act 1993 (Cth) (NT Act) that there is no native title in the land at 28 Costin Street, Narooma, New South Wales, being lot 923 in deposited plan 1094431. The land is referred to by the parties and in the judgment of the Court as the Isabel Street land (as Isabel Street in Narooma also abuts the land).
The Isabel Street land is approximately 17 hectares in area and is located within the urban area of Narooma. It is surrounded by industrial and residential development, with the Narooma Golf Course abutting its eastern boundary. As described by the primary judge, the land is vacant and presents generally as a large island of bushland in an otherwise urban environment.
The Isabel Street land is owned by the first respondent, the Wagonga Local Aboriginal Land Council (WLALC). The WLALC is a body corporate created by the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) to act as the Local Aboriginal Land Council for the Wagonga area (as constituted pursuant to the ALR Act). In December 1996, the WLALC made a claim in respect of the Isabel Street land as “claimable Crown land” under s 36 of the ALR Act. In May 1998, the relevant Minister notified the WLALC that its claim was successful, but title to the land could not be issued to the WLALC until a survey was conducted. It appears that the survey took some time. Nevertheless, in March 2006, the State of New South Wales transferred the Isabel Street land to the WLALC. As a result of that transfer, the Isabel Street land is owned by the WLALC in fee simple. Subsequently, at a meeting held on 13 September 2014, the WLALC resolved to sell the Isabel Street land. For reasons discussed below, this required the WLALC to obtain a determination of this Court that no native title rights existed in respect of the land.
On 8 March 2017, the WLALC filed a non-claimant application seeking that negative determination. The Attorney General of New South Wales (Attorney) was joined as respondent to the application.
On 3 August 2017, the South Coast People claim group filed a claimant application seeking a determination of native title in respect of an area comprising some 1.68 million hectares of land over the south coast of New South Wales (proceeding NSD 1331 of 2017). The claim was accepted for registration by the Registrar of the National Native Title Tribunal on 31 January 2018. The Isabel Street land is within the area of the South Coast People’s claim.
On 4 December 2017, the native title representative body for New South Wales and the Australian Capital Territory, NTSCORP Limited (NTSCORP), was joined as the second respondent to the WLALC’s non-claimant application.
The South Coast People claim group opposed the WLALC’s non-claimant application. On 10 April 2019, the named applicants in the South Coast People’s claimant application were also joined as respondents to the WLALC’s non-claimant application. They and NTSCORP are the appellants in this appeal. They seek an order setting aside the determination made by the primary judge and an order dismissing the WLALC’s application. As discussed further below, it is significant to note that the named applicants in the South Coast People’s claimant application were necessarily joined to this proceeding as respondents in their personal capacities, not in a representative capacity on behalf of the South Coast People claim group: see Munn v State of Queensland [2002] FCA 486 (Munn) at [9] per Emmett J and, most recently, Harkin on behalf of Nanatadjarra People v State of Western Australia [2020] FCA 1015 (Harkin) at [11] per Griffiths J (and the cases cited therein). The appellants therefore bring the appeal in their personal capacities to protect their personal native title claims or interests against erosion or dilution.
The appeal raises issues about the intersection of the NT Act, a law of the Commonwealth, and the ALR Act, a law of the State of New South Wales. The ostensible object of both statutes is to redress the historical dispossession of Aboriginal peoples (and, in the case of the NT Act, Torres Strait Islanders) of their land as a result of British settlement. However, the rights conferred or recognised under each statute are entirely distinct.
The ALR Act, which predates the NT Act, advances its object by the creation of statutory corporations called Local Aboriginal Land Councils for different regions of New South Wales, having the objects of improving, protecting and fostering the best interests of all Aboriginal persons within the Council’s region, and establishing a statutory framework by which Councils can make a claim for “claimable Crown land”. The relevant New South Wales Minister may grant the claim and transfer title to the land to the applicant Council. The title to land thus acquired by Councils under the ALR Act is an estate in fee simple under the Real Property Act 1900 (NSW). The land so acquired by Councils may be sold or leased subject to certain restrictions, discussed below, which are significant to the proceeding. As already noted, the WLALC acquired title to the Isabel Street land by way of a claim made under the ALR Act.
The NT Act advances the same object by establishing a statutory framework for the recognition and protection of native title, which is defined in s 223(1) of the NT Act in the following terms:
The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
These are the rights and interests of Aboriginal peoples and Torres Strait Islanders to their traditional lands and waters that have existed since time immemorial and which were first recognised by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo) and subsequently given statutory recognition through the NT Act. It is important to note that native title rights and interests are not created by the NT Act. Rather, the NT Act empowers the Federal Court to make a determination of whether or not native title exists in relation to a particular area of land or waters (see s 225). The determination recognises the pre-existing native title rights and interests held by a community or group of Aboriginal people or Torres Strait Islanders. It is also important to note that while native title rights and interests can properly be conceived of as including a form of proprietary rights, they are distinct from the proprietary rights and system of tenure recognised under the Australian legal system as emanating from the Crown (and which, in New South Wales, are governed by the Real Property Act 1900 (NSW)): see Commonwealth v Yarmirr (2001) 208 CLR 1 at [11]-[16] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. However, where native title rights existed in land at the time that British sovereignty was declared over Australia, those rights burdened or qualified the “ultimate” or “radical” title held by the Crown: Mabo at 52 per Brennan J and 86-87 per Deane and Gaudron JJ; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta) at [37] per Gleeson CJ, Gummow and Hayne JJ.
While the ALR Act and the NT Act have different modes and fields of operation, they have a point of intersection. The point of intersection arises because Crown land transferred (in fee simple) to a Local Aboriginal Land Council under the ALR Act is burdened by any native title rights and interests that may exist in the land. Relevantly, s 36(9) of the ALR Act provides that:
… any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.
Further, the ALR Act restricts the sale of land by a Local Aboriginal Land Council in two significant ways. First, s 42(1) of the ALR Act provides that:
An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).
In commencing this proceeding, the WLALC assumed that the effect of s 42(1) is to prohibit the sale of the Isabel Street land unless the WLALC first obtains a determination of native title under the NT Act from the Federal Court. That assumption has been previously accepted to be correct by the Court: Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 (Worimi) at [9] per Moore, Mansfield and Perram JJ; Mace v Queensland (2019) 274 FCR 41 (Mace) at [11] per Jagot, Griffiths and Mortimer JJ.
Second, s 42E of the ALR Act provides that a Local Aboriginal Land Council must not deal with land vested in it except in accordance with an approval of the New South Wales Aboriginal Land Council (NSWALC) under s 42G. The NSWALC is also a statutory corporation created by the ALR Act and, amongst other things, is the “peak” Aboriginal Land Council in New South Wales with oversight of Local Aboriginal Land Councils. Section 42G stipulates that the NSWALC must approve an application if it is satisfied that, relevantly, the members of the Local Aboriginal Land Council have passed a resolution in accordance with s 42G(5) and that the dealing is in accordance with that resolution (although the NSWALC may refuse to approve an application if it considers that the dealing is, or is likely to be, contrary to the interests of the members of the Local Aboriginal Land Council or other Aboriginal persons within the area of that Council).
Section 42G(5) of the ALR Act has some significance to this appeal. It stipulates that a resolution by a Local Aboriginal Land Council approving a land dealing must, amongst other things, be passed at a meeting by not less than 80 per cent of the voting members of the Council present at the meeting and must contain “a statement that the impact of the land dealing on the cultural and heritage significance of the land to Aboriginal persons has been considered in determining whether to approve the dealing”. Section 40(4) provides that:
… land is of cultural and heritage significance to Aboriginal persons if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aboriginal persons.
By force of those provisions, the WLALC was not permitted to sell the Isabel Street land unless it first obtained the approval of the NSWALC. In order to obtain that approval, the WLALC was required to put a resolution to its Council members which contained a statement that the impact of the sale on the cultural and heritage significance of the land to Aboriginal persons had been considered.
On 13 September 2014, the WLALC passed a resolution approving the sale of the Isabel Street land. The resolution stated that the Council had considered the impact of the proposed sale on the cultural and heritage significance of the land to Aboriginal persons. On 22 September 2016, at the WLALC annual meeting for that year, the Council passed a further resolution that the members of the Council, having considered the history and characteristics of the Isabel Street land, noted that:
(a)within the knowledge of the members of the Council, no traditional customs or laws are observed on the land; and
(b)the land has no cultural or heritage significance to the members of the Council.
As this proceeding highlights, the point of intersection between the ALR Act and the NT Act creates the potential for conflict between Aboriginal people and communities. There is also the potential for confusion with respect to the legal principles and concepts by which the conflict must be resolved. Most of the Aboriginal witnesses who gave evidence on behalf of the WLALC are also members of the South Coast People’s claim group (the exceptions being the Chief Executive Officer of the WLALC, Cheryl Moreton, who is an Aboriginal person but not a Yuin woman, and Norman Patten whose mother is Gunaikurnai and father is Yorta Yorta), although none of the WLALC witnesses are the applicants named in the South Coast People’s claimant application.
A large part of the evidence adduced on behalf of the WLALC witnesses was to the effect that the Isabel Street land was not significant, sacred or important to Aboriginal people and that there was no traditional or cultural use of the land. A conclusion that a parcel of land has no cultural significance or importance to Aboriginal persons (within the meaning of the ALR Act) is not determinative of the question whether native title rights and interests exist in the land. The legal test for the existence of native title rights and interests under the NT Act does not depend upon whether a particular parcel of land has cultural significance or importance to Aboriginal persons: Worimi at [76]; Mace at [181]. Native title rights and interests, as defined in s 223 of the NT Act, are rights and interests in relation to land or waters that (a) are possessed under the traditional laws acknowledged, and the traditional customs observed, by a particular community or group of Aboriginal peoples or Torres Strait Islanders and (b) where, by those laws and customs, the Aboriginal peoples or Torres Strait Islanders have a connection with the land or waters. The enquiry is twofold and focusses on the possession of rights and interests under traditional laws and customs, and the connection with the land and waters by those traditional laws and customs: see Western Australia v Ward (2002) 213 CLR 1 (Ward) at [18] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Further, as observed in Worimi (at [87]):
It is self-evident that a community or group of Aboriginal persons may have an ongoing connection with land, even though their access to, or use of, that land is restricted or spasmodic; that connection may be mainly spiritual rather than physical; it may have evolved over time to a less specific use of all or many parts of that land; it may not involve physical access to each and every part of the land: see for example De Rose v South Australia (2003) 133 FCR 325; De Rose v South Australia (No 2) (2005) 145 FCR 290; Northern Territory v Alyawarr (2005) 145 FCR 442. At least in each contested non-claimant application for the determination of native title, it is necessary to bear in mind that the particular area of land in question may be part only of a larger area of land over which there may be existing native title rights and interests. That is a matter to be determined on the facts of each case.

The appellants contend that the determination of the primary judge was against the weight of the evidence. They contend that the evidence adduced on behalf of the WLALC may have established that the Isabel Street land was not significant, sacred or important to Aboriginal people, but that did not negative a conclusion that the South Coast People hold native title rights and interests in the land. In substance, the appellants contend that the primary judge erred in her assessment of the effect of the evidence adduced on behalf of the WLALC and in the application of the relevant legal principles, established under the NT Act, to that evidence. For the reasons that follow, we are not persuaded that the primary judge erred in her assessment and characterisation of the primary evidence or application of the relevant legal principles.
In the hearing below, the Attorney neither supported nor opposed the application by the WLALC and advanced submissions that it was legally permissible for the primary judge to make the negative determination sought by the WLALC. However, the Attorney has now brought a cross-appeal seeking an order setting aside the negative determination made by the primary judge and a further order pursuant to s 67 of the NT Act that the WLALC application and that part of the South Coast People’s application that overlaps with the WLALC application be dealt with in the same proceeding. It is extraordinary for the Attorney to seek to set aside on appeal a determination that the Attorney did not oppose at first instance (and where the Attorney was a party at first instance and had the opportunity to participate fully in the hearing at first instance). For reasons explained below, we consider that the Attorney’s cross-appeal is untenable.
It follows, in our view, that both the appeal and the cross-appeal should be dismissed.
B. REASONS OF THE PRIMARY JUDGE
The primary judge noted that the Isabel Street land is located within the area of land that is the subject of the native title claim made by the South Coast People. As a consequence, NTSCORP and the named applicants for the South Coast People’s claim were each joined as respondents to the WLALC’s non-claimant application (at [3] of the primary judgment (PJ)). Her Honour also noted that procedural orders had been made enabling the WLALC’s application to be heard and determined separately from and in advance of the South Coast People’s claimant application (PJ at [8]). It will be necessary to return to those procedural orders in connection with the Attorney’s cross-appeal.
The primary judge had the benefit of a view of the Isabel Street land and its surrounds, and summarised the impressions gained as follows (PJ at [12]):
The Isabel Street land is some 17 hectares located within the urban area of Narooma. It is surrounded by industrial and residential development, with Narooma Golf Course abutting its eastern boundary. Before the Isabel Street land was transferred to WLALC in 2006 it was Crown land. The Isabel Street land is vacant and presents generally as a large island of bushland in an otherwise urban environment. The Isabel Street land contains some sewage and drainage infrastructure in the form of manholes and underground pipes. There has been some clearing of the vegetation to accommodate unmade rough tracks around the perimeter of and through the Isabel Street land. The Isabel Street land is steep in parts and contains gullies. I infer that during heavy rain water would run-off from the surrounding lands to the gully areas on the Isabel Street land. We observed an area of standing water on the Isabel Street land at a low point which appeared to be a ponding of run-off water. Long reeds or grasses were present on the periphery of this ponded area. There was some rubbish on the Isabel Street land such as an abandoned shopping trolley and other small areas of what appeared to be abandoned materials.
The WLALC called evidence from 17 Aboriginal witnesses, most of whom are Yuin people and members of the South Coast People’s claim group, and nine non-Aboriginal witnesses who live or work in and around the Isabel Street land. The primary judge accepted their evidence. At some risk of over-simplification, the WLALC’s Aboriginal witnesses gave evidence that they did not believe that the Isabel Street land had been used as a camping place or to hunt or gather natural materials or for cultural purposes and that the land was not regarded by Aboriginal people in the area as significant or having cultural or spiritual importance (see for example PJ at [17], [19], [20], [21], [33], [46]-[47], [52], [54], [57], [67], [92], [97], [98], [102], [106], [111], [115], [122], [127]-[128], [132]-[133], [139], [153], [155], [156], [158], [162], [181] and [185]‑[186]). Many of the witnesses acknowledged that all land is significant to Aboriginal people in some way, but said that some places, such as the Isabel Street land, lose connection (see for example PJ at [24], [31], [52], [64]-[65], [95], [127], [174] and [184]-[185]). However, a number of witnesses agreed in cross-examination that, as Yuin people, they held traditional rights to hunt, fish and gather natural materials throughout Yuin country (which includes Narooma and, necessarily, the Isabel Street land) (see for example PJ at [24], [42], [49], [55]-[56], [76], [94]-[95], [98]-[99], [128]-[129], [131], [165], [169] and [187]).
The appellants called evidence from four Aboriginal persons, all of whom were members of the South Coast People’s claim group and three of whom were named applicants, and an historian formerly employed by NTSCORP. The primary judge largely accepted their evidence, the exception being parts of the evidence of Owen Carriage, a member of the South Coast People’s claim group and the chair of the Batemans Bay Local Aboriginal Land Council. Again at some risk of over‑simplification, the appellants’ Aboriginal witnesses gave evidence concerning the extent of Yuin country (which includes Narooma), the traditional laws and customs that they had been taught by their elders and the location of significant sites of which they were aware (see for example PJ at [217]-[218], [223], [231], [233], [249], [260]-[261], [269]). Aileen Blackburn and Marilyn Campbell gave evidence that the Isabel Street land is part of Yuin country and that connection with the land had been maintained by the gathering of natural materials from the land including for traditional cultural purposes such as basket weaving or making artefacts (see for example PJ at [220], [222], [229], [235]-[237]). The primary judge did not accept the following aspects of Mr Carriage’s evidence: that, as a young boy, he had accompanied his uncles walking between Wallaga Lake and Narooma to access hunting and fishing spots along the way and had camped at various locations, including on the Isabel Street land (PJ at [255]-[256]); that he was told by his uncles that the Isabel Street land was a traditional camping area (PJ at [257]); and that the Isabel Street land was a learning site (PJ at [269]): see PJ at [405]-[412].
The primary judge recorded that the Attorney’s submissions were confined to legal issues and that the Attorney did not otherwise contend that the case of one or other party should be accepted or rejected (PJ at 348]).
The primary judge recorded the following principal submissions advanced by the appellants in opposition to the WLALC’s non-claimant application (PJ at [343]-[346]):
(a)When considering the evidence, the Isabel Street land cannot be viewed in isolation from the surrounding land and waters. In that regard, it was submitted that the WLALC’s Aboriginal witnesses gave extensive evidence about places and sites on land and waters in all directions surrounding the Isabel Street land which are of cultural significance to the South Coast People. When the evidence is considered in its entirety, it is apparent that Narooma and the surrounding lands and waters are littered with culturally significant areas which the South Coast People hold knowledge of and maintain a connection to.
(b)The Aboriginal witnesses all gave evidence of traditional laws acknowledged by and the traditional customs observed by the South Coast People or the Yuin including the existence of rights and obligations to maintain, protect and speak for cultural places and sites, the right to access and take resources from land and waters surrounding the Isabel Street land and the right to access and remain on and use land including the right to camp.
The primary judge accepted the submission for the appellants that the evidence indicated that there is a group of people called the Yuin or the South Coast People who continue to be unified in their acknowledgement and observance of certain traditional laws and customs by which they have an ongoing connection with some areas of land, and observed that that conclusion was not disputed by the WLALC (PJ at [396]). However, her Honour observed that the issue for determination was not the existence of a society or of traditional laws and customs, but the continued acknowledgement and observance of traditional laws and customs by which there is a connection with the Isabel Street land.
In that regard, a central factual issue in dispute between the parties concerned the meaning and effect of the evidence given by Aboriginal witnesses on behalf of the WLALC as to the (lack of) significance of the Isabel Street land to the traditional owners of the surrounding country. The primary judge addressed that issue as follows (PJ at [358]-[361] and [385]):
358 It may immediately be acknowledged that the existence or otherwise of native title in relation to land does not depend on the land being of “significance” to Aboriginal people: Mace at [181]. The NTA does not contain a criterion of “significance” to Aboriginal people as a determinant of the existence or non-existence of native title. The criteria established by s 223 of the NTA which determine the existence of native title are the possession of rights and interests under traditional laws and customs acknowledged and observed by the relevant Aboriginal people (in this case the communal or group rights and interests of the South Coast People as claimed in their native title claimant application) where those people, by those traditional laws and customs, have a connection with the relevant land or waters.
359In the present case, the relevant land is the Isabel Street land. As noted, the relevant Aboriginal people are the South Coast People as a group, as their claimant application claims rights and interests vested in that group as a whole.
360It is apparent from the above summary of the evidence of the Aboriginal witnesses called by both WLALC and the South Coast People that frequent reference is made to the “significance” and “cultural” or traditional “significance” or “importance” of land to Aboriginal people. In my view, when consideration is given to the evidence as a whole, it is apparent that it would be wrong to dismiss this evidence as immaterial to the question whether there are rights and interests possessed by the South Coast People under their traditional laws and customs where, by those laws and customs, those people have a connection with the land. I reject the submissions to that effect by the respondents. Rather, I infer that when the Aboriginal witnesses were speaking of the “significance” of the land to Aboriginal people they were in fact referring to the existence or otherwise of a traditional connection to the land; that is, a connection to the land under traditional laws and customs. Land was described as “sacred”, “significant” or “important” because of continued traditional physical and/or spiritual connections to that land. By equal measure, land was described as of “no significance” or “not important” because of the lack of continued traditional physical and/or spiritual connections to that land. This meaning was made express in the evidence of Mr Freeman and Mr Te-Kowhai and I consider that, on proper analysis, it underlay the evidence given by all of the Aboriginal witnesses. Those called by WLALC considered there was no continued traditional physical and/or spiritual connections to the Isabel Street land. Hence, the Isabel Street land was “not significant”. Those called by the South Coast People applicant (which includes NTSCORP as their representative) considered there was continued traditional physical and/or spiritual connections to the Isabel Street land. Hence, the Isabel Street land was “significant”.
361The fact that a number of the witnesses also spoke of “significant sites” (such as burials, middens, scarred trees and the like which may be registered under NSW heritage legislation) does not mean that when they said the Isabel Street land was of “no significance” their evidence was confined to the existence or otherwise of such sites. The witnesses spoke more broadly of the significance of the Isabel Street land to them as South Coast People and the reputation of the Isabel Street land amongst South Coast People. Because we are dealing with the existence or otherwise of the traditional laws and customs of a group of people, the South Coast People, the evidence of the reputation or status of the Isabel Street land amongst those people is critical.
…
385Accordingly, I do not accept the submission that the evidence of the witnesses called by WLALC did not deal with the issue of the existence or not [of] native title in relation to the Isabel Street land. I do not accept that the evidence of the significance of the Isabel Street land or otherwise was irrelevant. As Mr Freeman said, on the evidence in the present case, it is apparent that the concept of the significance of land, to the South Coast People, is integral to their continued traditional connection with land. This is what I consider they meant when they spoke of land being of Koori significance or not.
The appellants placed reliance on the evidence given by many of the WLALC’s Aboriginal witnesses that, as Yuin people, they held traditional rights to hunt, fish and gather natural materials throughout Yuin country, of which the Isabel Street land formed part. Her Honour considered that the evidence given was too general to establish native title in the Isabel Street land, finding (PJ at [390]):
390The evidence that a number of the Aboriginal witnesses called by WLALC gave about the right to access and take resources from the Isabel Street land involved generalised assertions without any identification of a traditional law and custom giving rise to the asserted rights in question in relation to the Isabel Street land. The evidence appeared to be based on a belief that because the whole of the claim area is considered to be traditional Yuin country Yuin people must have the right to access and take resources from anywhere and everywhere in the claim area irrespective of the considerations made relevant by the NTA including substantial continuity of connection under traditional laws and customs with the land in question. The evidence of this apparent belief does not have the effect of displacing the evidence from the very same people that the Isabel Street land was of no significance in a Koori sense – evidence which speaks of substantial discontinuity of traditional connection with the Isabel Street land.
The primary judge concluded that the evidence adduced by the WLALC proved, on the balance of probabilities, that the South Coast People by their traditional laws and customs do not have a continuing connection with the Isabel Street land (PJ at [392]-[393]):
392Taking the evidence adduced by WLALC as a whole I consider that the evidence proves, on the balance of probabilities, that the South Coast People by their traditional laws and customs do not have a continuing connection with the Isabel Street land. The unanimous evidence of the Aboriginal witnesses that the Isabel Street land has no significance, understood in the context of their evidence as a whole and what they meant by “significance”, demonstrates that insofar as the Isabel Street land is concerned there has been a profound discontinuity of connection. I consider that it is apparent from the evidence that there is a society, be it called Yuin or the South Coast People, which is unified in its acknowledgement and observance of certain traditional laws and customs which include the sharing of knowledge within a family and within the group more generally. The evidence also suggests that by those traditional laws and customs those people have a continuing connection with some land, including for example land such as Glasshouse Rocks. But when it comes to the Isabel Street land three matters stand out in WLALC’s evidence:
(1)the consistency of views that the Isabel Street land has no significance to them;
(2)the fact that the Aboriginal witnesses did not merely believe that the Isabel Street land was not significant, but also were adamant that they had never been told or heard of the Isabel Street land having any significance in circumstances where if it had any significance they insist they would have known about it; and
(3)the efforts made by Vivienne Mason in particular to ascertain the views of the wider community about the potential significance of the Isabel Street land which yielded the same result that none of those canvassed believed the Isabel Street land to be of any significance or had even heard of the Isabel Street land being of any significance.
393In an oral society, where knowledge of traditional laws and customs is shared by oral means from generation to generation, the absence of any knowledge of the Aboriginal witnesses called by WLALC about the Isabel Street land having any significance to their people is indicative of a discontinuity of connection between themselves and the Isabel Street land under their traditional laws and customs. This discontinuity is explicable on the evidence. The Isabel Street land is in the township of Narooma from which Aboriginal people were forcibly displaced by encroaching European colonisation. Aboriginal people were forced into missions and subjected to a permit system to control their movements. Aboriginal people and their culture were subjected to forcible suppression. Aboriginal people were subjected to racism and thus avoided the Narooma township. The areas surrounding the Isabel Street land were subjected to urban encroachment by a tip, the rear nine holes of the golf course, and the industrial development.
The primary judge concluded that the cumulative effect of the evidence adduced by the appellants, including the fact of registration of their native title claim, did not cast sufficient doubt on the WLALC’s case that, on the balance of probabilities, there is no native title in relation to the Isabel Street land because there is no continuing connection with that land under the traditional laws and customs of the South Coast People (at [415]). Specifically in relation to the fact that a native title claim had been made and registered on behalf of the South Coast People, her Honour observed that, because the claim is made in respect of a vast area, the claim can be given little weight when considering the question of the traditional connection of the South Coast People over an individual parcel of land (the Isabel Street land) which is not mentioned in the material supporting the claim (PJ at [416]).
Her Honour referred to the observation of the Full Court in Worimi at [87] (set out above) that a community or group of Aboriginal persons may have an ongoing connection with land, even though their access to, or use of, that land is restricted or spasmodic and that connection may be mainly spiritual rather than physical. Nevertheless, her Honour concluded that, having considered the totality of the evidence, she was persuaded to the requisite standard of the balance of probabilities of the lack of traditional laws and customs of the group known as the South Coast People or the Yuin by which there is a continuing connection to the Isabel Street land (PJ at [420]). Her Honour expressed her ultimate conclusions on the evidence as follows (PJ at [422]-[423]):
422While I accept the submission for the South Coast People that consideration must be given to the gravity of a negative determination of native title, and have given weight to that factor in my evaluation of the evidence, I find the weight of the evidence adduced by WLALC sufficient to conclude that there has been proved a lack of any continuing connection with the Isabel Street land of the South Coast People under their traditional laws and customs. I do not accept the submission that the evidence adduced by WLALC can be discounted on the basis that there is a differential spread of knowledge amongst the South Coast People. The striking things about the present case are twofold. First, there is the consistency of the direct and indirect evidence adduced by WLALC from a large number of people to the effect that, amongst the South Coast People, the Isabel Street land is not seen as having any significance. Second, there is the relative paucity of the evidence adduced by the South Coast People in support of any continuing traditional connection of South Coast People to the Isabel Street land. There comes a point when a lack of unity of knowledge may reflect a substantial discontinuity in the acknowledgement and observance of traditional law and custom in relation to land. The wealth of evidence adduced by WLALC in the present case supports a conclusion of a loss of traditional connection with the Isabel Street land. That evidence is both credible and sufficient even when weighed with the evidence adduced for the South Coast People and NTSCORP: Worimi at [74].
423The fact that the parties could not identify another case in which a non-claimant application has been made where there is an undetermined registered claimant application is not to the point. The case is to be determined on the evidence as presented. In particular, I do not accept that the evidence indicative of an arguable continuing traditional connection with other areas, including (arguably) Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (which are relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and Gulaga and Biamanga Mountains, can be taken as evidence of an ongoing traditional connection with the Isabel Street land given that it is an isolated piece of urban bushland surrounded by development on all sides (including the golf course). To be clear, the relevant issue on which this case turns is that of continuing traditional connection with the Isabel Street land. WLALC has not proved other negative propositions such as the non-existence of a group unified by their acknowledgement and observance of traditional laws and customs, or the lack of normative content of those traditional laws and customs, or the lack of substantial continuity of those traditional laws and customs, or that the group by those traditional laws and customs does not have an ongoing connection with some land. What it has proved on the balance of probabilities is that the South Coast People by their traditional laws and customs do not have a continuing connection with the Isabel Street land. That is sufficient for WLALC to succeed in its claim.
C. THE ATTORNEY’S CROSS APPEAL
Introduction

It is convenient to consider the Attorney’s cross-appeal before considering the appellants’ appeal.
The Attorney’s notice of cross-appeal contained a single ground of appeal as follows:
The Primary Judge erred in determining the Wagonga Local Aboriginal Land Council’s non-claimant application separately to, and in advance of, the South Coast People’s claimant application (Applicant on behalf of the South Coast People v Attorney General of New South Wales (NSD 1331 of 2017)) contrary to section 67 of the Native Title Act 1993 (Cth) as:
(a) the Attorney General was denied procedural fairness in not being able to respond to the Primary Judge’s findings that the South Coast People have an ongoing connection with some of the areas of land within the external boundaries of the South Coast People’s native title determination application (Reasons [396]) in the circumstances where:
(i) the Primary Judge did not make an order under section 67 of the Native Title Act 1993 (Cth) that the non-claimant application (Wagonga Local Aboriginal Land Council v Attorney General of New South Wales (NSD 328 of 2017)) be dealt with in the same proceedings as the claimant application (Applicant on behalf of the South Coast People v Attorney General of New South Wales (NSD 1331 of 2017));
(ii) the existence of the Yuin People’s and/or South Coast People’s connection with any areas of land or waters other than the Isabel Street land was not raised in the parties’ statement of issues; and
(iii) the existence of the Yuin People’s and/or South Coast People’s connection to any area of land or waters other than the Isabel Street land was not raised by the Primary Judge as a factor in determining the non-claimant application;
(b) no findings in relation to the existence of native title could have been made as the evidence in the case did not satisfy section 223 of the Native Title Act 1993 (Cth);
(c) all findings of continuing traditional connection to land or waters other than the Isabel Street land (Reasons [392], [423]) required an order under section 67 of the Native Title Act 1993 (Cth) for both the claimant and non-claimant application to be dealt with in the same proceedings; and
(d) the Primary Judge’s finding that the South Coast People had lost their native title on the Isabel Street land required findings that native title had historically existed on the land, which should not have been made in the non-claimant application (absent an order under section 67).
Paragraph (b) of the ground of appeal was not pressed by the Attorney.
As noted earlier, the Attorney sought an order setting aside the determination made by the primary judge and a further order pursuant to s 67 of the NT Act that the WLALC application, and that part of the South Coast People’s application that overlaps with the WLALC application, be dealt with in the same proceeding.
The WLALC filed a notice of objection to competency of the Attorney’s cross-appeal. The central contention advanced by the WLALC by that notice was that the Attorney’s cross-appeal impermissibly seeks to challenge, without the grant of leave, an interlocutory order of the Court to hear the WLALC’s application separately from the South Coast People’s application.
The appellants made no submissions in respect of the Attorney’s cross-appeal or the WLALC’s objection to competency.
Attorney’s submissions
The Attorney’s submissions commenced with a statement that the cross-appeal raised the question whether the primary judge was permitted to make an order that there is no native title in relation to the Isabel Street land in the circumstances that:
(a)WLALC’s non-claimant application and the South Coast People’s claimant application overlap each other; and
(b)the primary judge made an order on 16 April 2020 to hear and determine the WLALC’s non-claimant application separately and in advance of the South Coast people’s claimant application.
However, the written submissions did not address that question. Instead, the submissions advanced a different complaint: that the primary judge’s reasons should have been confined to a consideration of whether the evidence adduced by the appellants “cast doubt” on the WLALC’s claim (that native title does not exist in the Isabel Street land) and the reasons should not have made any findings in respect of the South Coast People’s claim (to hold native title over the area the subject of that claim). The Attorney submitted that the primary judge’s determination that there is no native title in the Isabel Street land is premised on issues (or findings) relating to the South Coast People’s claim. In that regard, the Attorney referred to the primary judge’s reasons at [392], [396] and [423] in which her Honour found that the evidence indicates that there is a society, whether called Yuin or the South Coast People, which is unified in its acknowledgement and observance of certain traditional laws and customs which include the sharing of knowledge within a family and within the group more generally, and that the evidence also suggests that by those traditional laws and customs those people have a continuing connection with some areas of land, arguably including Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (each of which is relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and the Gulaga and Biamanga Mountains. The Attorney submitted that those findings were beyond the “scope of the 16 April 2020 order” made by the primary judge. The Attorney contended that the primary judge should have notified the parties and received submissions that her Honour was going to deal with issues relevant to the South Coast People’s claim and, by not doing so, there was a denial of procedural fairness. The Attorney further submitted that, by considering issues relating to the South Coast People’s claim contrary to the order dated 16 April 2020, the primary judge contradicted the policy rationale behind s 67 of the NT Act, being to achieve fully informed decision-making and finality for overlapping claims: Kokatha Native Title Claim v State of South Australia [2006] FCA 838 (Kokatha) at [5] per Finn J. The Attorney argued that the primary judge could not have been “fully informed” when making findings in relation to:
(a)the existence of a society known as Yuin or South Coast People (PJ at [392]);
(b)that the Yuin or South Coast People are unified in their acknowledgement and observance of certain laws and customs (PJ at [396]);
(c)the Yuin or South Coast People’s continuing connection with some areas of land, including for example land such as Glasshouse Rocks (PJ at [392] and [396]); and
(d)that the traditional laws and customs include the need for permission to access and use certain land and the obligations to protect certain land (PJ at [396]).
In support of the submission that the primary judge should not have made any findings in respect of the South Coast People’s claim, the Attorney referred to statements made by the Full Court in Worimi at [56], which were approved by a subsequent Full Court in Mace at [55], to the effect that a non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at the time of sovereignty nor any general inquiry into how those rights and interests may or may not have continued. The Attorney argued that, by dealing with issues arising on the South Coast People’s claim, the primary judge conducted a “roving inquiry” as to the existence of native title held by the South Coast People contrary to the order made on 16 April 2020 and the approach required by Worimi at [56] and Mace at [55].
In the course of oral submissions, the Attorney took the argument further and contended that, in light of the order made on 16 April 2020, the primary judge ought not to have received evidence or made findings concerning any aspect of the South Coast People’s claimant application. The Attorney submitted that the primary judge erred in making findings concerning that application at [392], [396] and [423] as set out above. The Attorney acknowledged, though, that no objection was made on his behalf to either the form of the 16 April 2020 order when it was made or to the receipt by the Court, during the trial, of evidence adduced on behalf of the South Coast People’s claim group.
The Attorney argued that the appropriate course for the primary judge would have been to hear the evidence as to why native title did not exist on the Isabel Street land. Evidence adduced by the appellants concerning the possible existence of native title rights and interests would have been permissible to cast doubt on the WLALC’s application. If after hearing the evidence the primary judge considered that there existed the possibility that the South Coast People may hold native title rights and interests in some parts of their claim area but the rights and interests might have been lost over the Isabel Street land, the primary judge should have made an order that the WLALC’s non-claimant application and the South Coast People’s claimant application were to be dealt with in the same proceedings under s 67(1) of the NT Act.
In response to the WLALC’s objection to competency, the Attorney disavowed any challenge to the interlocutory order made on 16 April 2020. The Attorney submitted that its cross-appeal was directed to alleged error in the primary judge’s determination.
The WLALC’s submissions
The WLALC submitted that the only issue that was before the primary judge, and the only issue which her Honour in fact determined, was whether, having regard to the whole of the evidence, the WLALC had proved that there was no native title in the Isabel Street land. The Attorney’s cross-appeal is incompetent because it does not dispute the correctness of her Honour’s determination. Rather, the cross-appeal purports to dispute the primary judge’s power to make the findings at [392], [396] and [423]. The WLALC submitted that the short answer to the Attorney’s cross-appeal is that the primary judge did not make any determination in respect of the South Coast People’s claim: no formal order was made in respect of the claim and the factual findings made in respect of the South Coast People’s claim were qualified by the use of words such as “suggests” and “arguably”. Even if factual findings were made, they were properly made in the Court’s assessment of the facts and circumstances presented by the disputing parties in contemplation of the negative native title question being determined.
The WLALC further submitted that the cross-appeal amounts to an attempt to appeal the Court’s prior interlocutory orders of 6 May 2019 and 16 May 2020 to hear and determine the WLALC non-claimant application separately from and in advance of the South Coast People’s claimant application. The WLALC argued that it was not open to the Attorney to re-agitate those procedural orders without leave (which was not being sought).
Consideration of the cross-appeal
For the reasons that follow, we are not persuaded that the trial of the proceeding involved any procedural unfairness to the Attorney, or that the determination made by the primary judge involved error by reason of inconsistency with the orders of the Court made on 16 April 2020. We would therefore dismiss the cross-appeal. Although it does not affect the outcome of the cross‑appeal, the issues raised by the cross-appeal require some discussion of the requirements of s 67 of the NT Act in the circumstances of this proceeding and the appropriateness of the form of the order made on 16 April 2020.
As noted earlier, the WLALC’s non-claimant application was filed on 8 March 2017 and, in a separate proceeding, the South Coast People’s claimant application was filed on 3 August 2017. The Isabel Street land is within the area of the South Coast People’s claim. Thus, both applications covered the area of the Isabel Street land, with the WLALC seeking a negative determination that there was no native title in the land and the South Coast People claim group seeking a positive determination that they held native title in the land.
Section 67 of the NT Act addresses the circumstance of overlapping native title determination applications. It is expressed in mandatory terms as follows:
67 Overlapping native title determination applications
(1) If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.
Splitting of application area
(2) Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.
There is no doubt that s 67 applied to the WLALC and South Coast People claim group applications because those applications covered, in part, the same area, being the Isabel Street land. Section 67(1) requires the Court to make such orders as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding. A common form of orders made under s 67 is, first, to partition the native title applications by reference to overlapping areas and non-overlapping areas under s 67(2) and, second, to hear and determine the overlapping parts of the applications concurrently. In the present case, that would have involved partitioning the South Coast People application into two parts comprising the Isabel Street land and the remainder, and then hearing and determining the Isabel Street land part of the South Coast People application together with the WLALC application in respect of the same area.
A different approach was adopted in this proceeding with the approval or acquiescence of the parties, including the Attorney. First, on 10 April 2019, the named applicants in the South Coast People’s claimant application were joined as personal respondents to the WLALC proceeding. Second, on 6 May 2019, timetabling orders were made for the respondents to file evidence and submissions in the WLALC proceeding (in opposition to the WLALC’s non-claimant application). As noted earlier, the named applicants in the South Coast People’s claimant application were necessarily joined to this proceeding as respondents in their personal capacities, not in a representative capacity on behalf of the South Coast People’s claim group. In Munn, Emmett J concluded (at [9]) that the NT Act enabled applications to be brought in a representative capacity but that it was not appropriate to join any person as a respondent in a representative capacity. That conclusion has been followed in many cases. Most recently in Harkin, Griffiths J expressed agreement (at [11]) with the following observations of Reeves J in Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 (at [18]):
This issue arises because of various decisions of this Court that establish that where a person is seeking to be joined as a respondent to native title proceedings on the basis that he or she claims to hold native title rights and interests in an area of land or waters that may be affected by a determination in those proceedings, that person may only do so if he or she wishes to pursue a personal claim or interest in defensively asserting those native title rights and interests or, in other words, to protect them from erosion, dilution or discount: see Munn v Queensland [2002] FCA 486 (“Munn”) at [8], Davis-Hurst (on behalf of the traditional owners of Saltwater) v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315; [2003] FCA 541 at [27] per Branson J, Kokatha Native Title Claim v South Australia (2005) 143 FCR 544; [2005] FCA 836 at [24] per Mansfield J, Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (2007) 164 FCR 181; [2007] FCA 1357 at [16] –[17] per Bennett J and Bonner on behalf of the Jagera People #2 v Queensland [2011] FCA 321 (“Bonner”) at [18].
At the commencement of the trial of the WLALC proceeding, the Attorney advanced submissions (in the course of opening addresses) to the effect that the orders that could be made in the proceeding were either:
(a)that there was no native title in the Isabel Street land, upholding the WLALC’s non‑claimant application; or
(b)that the WLALC application be dismissed on the basis that the WLALC had failed to adduce sufficient evidence to prove the negative or the South Coast People claim group had adduced sufficient evidence to rebut the WLALC’s evidence.
The Attorney submitted that it was not open to the Court to make a determination that native title exists on the Isabel Street land, because the Court was only hearing the WLALC non‑claimant application. The transcript indicates that those submissions were accepted by the primary judge. The Attorney then advanced a submission that no orders had been made under s 67 to address the overlap between the WLALC’s non-claimant application and the South Coast People’s claimant application and that such an order should be made. After some discussion of the effect of previous procedural orders that had been made in the proceeding (including the orders made on 6 May 2019), the primary judge requested the Attorney to prepare draft orders addressing s 67, which the Attorney did. On the last day of the trial, on 16 April 2020, the Court made an order in the form proposed by the Attorney as follows:
Pursuant to section 67 of the Native Title Act 1993 (Cth), Wagonga Local Aboriginal Land Council’s non-claimant application (NSD328/2017) is to be heard and determined separately, and in advance of, the South Coast People’s claimant application (NSD1331/2017).
No party opposed the making of that order. In written closing submissions at trial, the Attorney submitted that the effect of the above order was that the Court could not make any orders or findings that native title exists on the Isabel Street land. That submission was correct. Subject to s 84D of the Act, a positive determination of native title in respect of an area of land or waters can only be made in respect of a duly authorised claimant application: see Commonwealth v Clifton (2007) 164 FCR 355 (Commonwealth v Clifton) at [57]. It cannot be made on the basis of a non-claimant application seeking a negative determination. The effect of the order made on 16 April 2020 was to confirm that the Court was not hearing or determining the South Coast People’s claimant application (which was the subject of proceeding NSD1331/2017), and was only determining the WLALC’s non-claimant application.
The primary judge did not act inconsistently with that order or otherwise beyond power. Her Honour upheld the WLALC non-claimant application and determined that native title did not exist in the Isabel Street land. That was an order that was open to the primary judge to make, as had been submitted by the Attorney at trial.
Despite that, the Attorney contends that the primary judge erred in the course of making her determination and denied the Attorney procedural fairness. As best can be understood from the Attorney’s submissions, the asserted error, and the denial of procedural fairness, arises from the fact that the primary judge made factual findings, on the basis of the evidence adduced at the trial (being evidence adduced by both the WLALC and the appellants), as to the existence of a society known as Yuin or the South Coast People who are unified in their acknowledgement and observance of certain traditional laws and customs and who, by those traditional laws and customs may have continuing connection with some areas of land (but not the Isabel Street land). The asserted error is not an error in fact finding affecting the outcome; in other words, the Attorney does not contend that different findings ought to have been made and, if such different findings were made, the primary judge may have reached a different determination. Rather, the asserted error is said to be the making of factual findings relating to the South Coast People’s claimant application in circumstances where the Court was not hearing or determining that application. It seemed to be said that that error infected the Court’s determination that native title did not exist, and gave rise to procedural unfairness because the Attorney was not expecting that outcome.

The Attorney’s submissions cannot be accepted.
First, the suggestion that the Attorney was denied procedural fairness in relation to the impugned findings of fact is untenable. The Attorney was a party to the WLALC proceeding from its inception. The Attorney must be taken to have been aware of all procedural steps taken in preparing the proceeding for trial (and the Attorney did not submit to the contrary). Those steps include the joinder of the appellants (as respondents) and timetabling orders for the appellants to file evidence and submissions in opposition to the WLALC’s non-claimant application. The Attorney participated as a party at the trial of the WLALC proceeding, and was aware of all of the evidence adduced at the trial on behalf of the WLALC and the appellants. There was extensive evidence adduced as to the existence of a society known as Yuin or the South Coast People and their acknowledgement and observance of certain traditional laws and customs. The Attorney did not object to that evidence.
Second, the suggestion that it was impermissible for the primary judge to make the impugned findings of fact is equally untenable. The Attorney misstates the effect of the Full Court’s reasons in Worimi at [56] and Mace at [55]. In each of Worimi and Mace, the Full Court affirmed that, whether there is a contradictor to an application for a negative determination of native title or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application (Worimi at [80]; Mace at [44]). The burden of proof is the balance of probabilities (Worimi at [67]; Mace at [54]). Whether the applicant has discharged its burden depends upon the facts of the case as established by the evidence before the Court, including particularly the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties (Worimi at [87]; Mace at [47] and [48]). The evidence adduced by the WLALC and the appellants concerning the existence of a society known as Yuin or the South Coast People who are unified in their acknowledgement and observance of certain traditional laws and customs was directly relevant to the consideration of the WLALC’s non-claimant application. Not only was it permissible for the primary judge to receive and make findings with respect to such matters, it was a necessary part of determining the application.
In Worimi at [56], the Full Court said:
The approach contended for by Worimi would involve a “roving inquiry” into whether any person, and if so who, held any, and if so what, native title rights and interests in the land and waters at settlement, and chronologically to the time of the application. Such approach is of the kind expressly rejected by the Full Court in Jango v Northern Territory (2007) 159 FCR 531 (Jango) at [84]. There may be a number of reasons why, at or by a particular time, no native title rights or interests exist in relation to particular land.
That statement was made in response to a contention advanced by the appellant in that case “that an applicant in a non-claimant application for a determination of native title under s 61 of the NT Act is required to establish the nature and content of pre-sovereignty native title rights and interests in relation to the land that is the subject of the application, and then must ‘deconstruct’ to show the contemporary state of affairs contrasted in order to demonstrate a lack of continuity or other reason by which native title no longer exists” (Worimi at [53]). The primary judge in that case rejected that contention, and the Full Court agreed in the passage cited above. The Full Court did not suggest that it is impermissible, in the context of a non‑claimant application, to receive evidence and make factual findings concerning the nature and content of pre-sovereignty native title rights and interests in relation to the land that is the subject of the application. The Full Court merely concluded that such evidence is not required as a matter of necessity in every case. In some cases, a negative determination that native title does not exist in respect of an area of land may be established by proof of an extinguishing grant of freehold title (Worimi at [58] and [59]; Mace at [49]). However, in other cases, an Aboriginal respondent may give evidence about that person’s connection, under traditional law and custom, to the land in question. As the Full Court explained in Mace at [51]-[52]:
51 … Where the Court has a non-claimant application before it, the Court will act on the evidence adduced in that application. It is the probative strength of the evidence adduced which will be weighed and assessed. Direct evidence from an Indigenous respondent about that person’s connection, under traditional law and custom, to the land in question may be sufficient to mean that an applicant in a non-claimant application may not discharge her or his burden of proof. Sometimes, direct evidence from an Indigenous respondent may be insufficient: it may contradict previous decisions about claims over the area; it may not be accepted; it may go to original connection but not continuity. The possibilities are many and varied. However, where there is no direct, or even indirect evidence of claims of connection arising from traditional law and custom to the land in question, then there may be little which could “cast doubt” on the case brought by the applicant in the non-claimant application that no native title exists.
52 Just as on a claimant application, the Court cannot be asked to decide a non-claimant application by a process of speculation as to what native title rights and interests might or might not exist in the land in question. The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant.
In our view, the primary judge’s factual findings, including the impugned findings, were entirely orthodox and consistent with the approach outlined in Worimi and Mace. For that reason, the Attorney’s cross-appeal must be dismissed.
As noted above, the Attorney’s cross-appeal did not involve any challenge to the order of the Court made on 16 May 2020. Due to the circumstances in which this order was made, there may have been many impediments to any such challenge. However, as foreshadowed above, the cross-appeal invites some reflection on the terms of that order in light of the requirements of s 67 of the NT Act in the circumstances of this proceeding.
Section 67 has been considered in a number of decisions of the Court, largely with a consistent approach. In Kokatha, Finn J observed (at [5]) that the policy informing s 67(1) is plain enough, being fully informed decision-making and finality in respect of determinations relating to the same area of land and waters (consistently with ss 13(1) and 61A(1) of the NT Act). In Commonwealth v Clifton, the Full Court said that the section required that native title applications that cover the same area are to be dealt with in the one proceeding (at [46] and [58]). So too, in CG v Western Australia (2016) 240 FCR 466 (Badimia), the Full Court observed (at [25]):
The purpose of s 68 — that there may be only one determination of native title in relation to any area of land — is facilitated by s 67. By s 67, if there are two or more native title determination applications that cover the same area the Court must ensure that, to that extent, the applications “are dealt with in the same proceeding”.
Each of those decisions is consistent with the view that s 67 imposes a mandatory requirement on the Court: that where two or more native title determination applications cover (or relate to) the same area of land or waters, the applications must be dealt with in the same proceeding to the extent (or in so far as) they cover the same area. The Court is given a discretion as to the form of orders to be made to achieve that end; but the Court is not given a discretion in relation to the requirement that, in so far as applications cover the same area, they are to be dealt with in the same proceeding.
In Rose on behalf of the Kurnai Clans v State of Victoria [2010] FCA 460; 268 ALR 47 (Rose), North J expressed the view that the requirement stated in s 67 was discretionary, not mandatory, stating (at [201]):
… Section 67(1) does not require the court to ensure that two or more applications are dealt with in the same proceeding if to do so would be inefficient or would not advance the proper administration of justice. That interpretation would conflict with the obvious purpose of the section. The intent of the section is to require the Court to determine whether it is in the interests of justice that the applications be dealt with in one proceeding and, if the Court so determines, then to require the Court to make appropriate orders to achieve that purpose. The section was not brought into operation in the present circumstances because it was not in the interests of the administration of justice for the two applications to be dealt with in the same proceeding.
It is difficult to reconcile the above statement with the terms of s 67. It is also difficult to reconcile the above statement with the statements of the Full Court in Commonwealth v Clifton and Badimia which indicate that the s 67 requirement is not discretionary, but is mandatory, although the manner in which the requirement is to be achieved is in the discretion of the Court. The above statement gains no support from the extrinsic materials. The current form of s 67 was inserted by the Native Title Amendment Act 1998 (Cth). The Explanatory Memorandum to the Native Title Amendment Bill 1997 (Cth) (at [25.63]) stated:
The Federal Court may be required to deal with applications for a determination of native title which cover part or all of the same area. It is intended that consideration by the Federal Court of an application for a determination of native title should involve consideration of all issues of native title in relation to that area. The Federal Court is required to make such orders as it considers appropriate so that, to the extent of the overlap, applications with overlapping areas are dealt with in the same proceeding [subsection 67(1)]. …
Respectfully, we consider that the above statement in Rose, to the effect that compliance with s 67 is subject to case management considerations, is not correct.
It follows, in our view, that the order of the Court made on 16 May 2020 in this proceeding, purportedly under s 67, did not in fact comply with s 67. It failed to comply with s 67 because it ordered that the WLALC non-claimant application, which related to the Isabel Street land, was to be heard and determined separately, and in advance of, the South Coast People’s claimant application despite the fact that part of the South Coast People’s claimant application covered the Isabel Street land.
No party objected to the 16 May 2020 order, or the conduct of the hearing in which the WLALC application was heard and determined separately from the South Coast People’s application, either prior to or during the hearing. No appeal has been brought on the basis that the trial was conducted in a manner inconsistent with the requirements of s 67. It may be inferred that the appellants, both in their individual capacities and as representatives of the South Coast People claim group, considered that they received a fair opportunity to present their case that they held native title interests in the Isabel Street land by reason of being joined as respondents to the WLALC proceeding and participating in that proceeding. Nevertheless, the mandatory requirement of s 67 should be reiterated. The purpose of the provision is to ensure that all native title claims made in respect of an area of land or waters, whether positive or negative, are heard and determined in the one proceeding. It is to ensure a “once and for all” determination: see Badimia at [61]. Compliance with the provision ensures that each claimant is given a full opportunity to present their case in respect of the area in question, whether that case be in support of the existence of native title or to negative the existence of native title. It must be acknowledged that compliance with s 67 might cause inconvenience for the parties to the overlapping applications, depending upon when they are filed, and the stage each has reached. This kind of situation might well be an opportunity for constructive and genuine attempts at mediation to minimise delay and inconvenience. If no negotiated outcome is possible, then when s 67 is read with s 68, the Court has no choice but to hear and determine the overlapped parts of the claims in the one proceeding.
D. THE PRINCIPAL APPEAL
Grounds of appeal and notice of contention
By their notice of appeal, the appellants state the following seven grounds of appeal:
1. The primary judge erred in finding that there is no continued connection within the meaning of s 223(1)(b) of the Native Title Act 1993 (Cth) (NTA) in relation to the land known as 28 Costin Street, Narooma being lot 923 in deposited plan 1094431 (Isabel Street land) and in determining that there is no native title in relation to that land (at [9], [392], [423] of the reasons for judgment in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 (Reasons)). The primary judge should have dismissed the First Respondent’s non-claimant application.
2. The primary judge erred:
(a) in finding that connection under s 223(1)(b) of the NTA was not satisfied because the evidence about the Isabel Street land did not establish that it was “significant”, “sacred” or “important” (Reasons at [314], [360], [363], [385], [390], [391], [392], [400], [422]); and
(b) in finding that, when the Aboriginal witnesses were speaking of the “significance” of the land to Aboriginal people (generally by reference to places such as burial sites, middens, scarred trees, tool sites, story places, travel routes or hunting, fishing or camping places), they were referring to the existence or otherwise of connection with the land within the meaning of s 223(1)(b) of the NTA (Reasons at [360], [363], [385]).
3. The primary judge erred:
(a)in finding that the use of the Isabel Street land by Ms Marilyn Campbell and her immediate family for purposes including obtaining wood (for their fire or for making artefacts), native cherries, charcoal and ochre is opportunistic in the sense that she uses it because of its physical proximity to her home, not in the exercise of rights and interests under traditional laws and customs acknowledged and observed by the South Coast People (Reasons at [401(2)(c)]), particularly having regard to the cultural nature of the relevant activities;
(b) in finding that the uses of the Isabel Street land by Ms Campbell do not evidence a continuing connection within the meaning of s 223(1)(b) of the NTA with the land (Reasons at [401(2)(c)]);
(c) in finding that Ms Campbell’s daughter, Ms Cathy Thomas, did not raise any issue about the Isabel Street land at a meeting of the Gulaga and Biamanga joint boards of management on 15 November 2016 because the uses did not strike her as being of any cultural or spiritual significance, as opposed to opportunistic (Reasons at [19], [401(2)(e)], [402]);
(d) in accepting Mr Ken Campbell’s characterisation of Ms Campbell’s activities in relation to the Isabel Street land as not being an expression of any traditional connection with that land in circumstances where Mr Campbell did not know of, and had not been told of, any such activities taking place on the land (Reasons [45], [46], [402]);
(e) in accepting Mr Ken Campbell’s above characterisation because Ms Marilyn Campbell had apparently not told anyone outside the immediate family about the uses she made of the Isabel Street land, because she made no mention of the Isabel Street land or the Narooma area in her affidavit made 28 June 2017 and because her daughter did to raise any issue about the land at the meeting referred to at (c) above (Reasons at [402]).
4. The primary judge erred in finding that connection under s 223(1)(b) of the NTA was not satisfied because the evidence did not establish that members of the South Coast Claim group have a sufficient unity of knowledge about activities carried out on the Isabel Street land (Reasons [391], [392(2)], [393], [401(2)], [422]), particularly in circumstances where:
(a) the relevant knowledge (namely that Ms Marilyn Campbell and her immediate family use the Isabel Street land for purposes including obtaining wood (for their fire or for making artefacts), native cherries, charcoal and ochre) related to matters of an everyday or regular kind;
(b) the unchallenged evidence was that there is a differential spread of knowledge amongst South Coast people (Reasons at [171], [422]);
(c) the area subject to the South Coast claim is 1.68 million hectares (Reasons at [3]);
(d) no anthropological evidence to explain such matters was adduced by the First Respondent (Applicant); and
(e) there was largely unchallenged evidence of various activities carried out under traditional laws and customs in the area around the Isabel Street land by reason of which the primary judge should have found that connection was established to the whole area or at least that an absence of connection to any part of that area had not been established (Reasons at [389], [390], [423]).
5. The primary judge erred in finding that the reputation or status of the Isabel Street land among the South Coast People is critical (Reasons at [361]).
6. The primary judge erred in finding that the evidence indicative of an arguable continuing traditional connection with other areas, including (arguably) Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (which are relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and Gulaga and Biamanga Mountains, was not evidence of an ongoing traditional connection with the Isabel Street land given that it is an isolated piece of urban bushland surrounded by development on all sides (including a golf course) (Reasons [423]), particularly in circumstances where:
(a) her Honour found that there is a society, being the Yuin or the South Coast People, which is unified in its acknowledgement and observance of certain traditional laws and customs (Reasons at [392]);
(b) her Honour found that, by those traditional laws and customs, those people have a continuing connection with some land, including for example land such as Glasshouse Rocks which is located about 1.2 km from the Isabel Street land (Reasons at [423], [392]); and (c) the Isabel Street land is a 17 hectare area of vacant bushland (Reasons at [12]), located in between, and proximate to, the inland waterway known Forsters Bay, Wagonga Inlet, the Pacific Ocean (including places such as Glasshouse Rocks and Handkerchief Beach), Little Lake and Bulengella Lake.
7. The primary judge’s finding that there was no continued connection to the Isabel Street land was against the weight of the evidence (Reasons at [360], [392]).
In their written submissions, the appellants organised the grounds of appeal into the following six questions which, in the appellants’ submission, all relate to the “connection” requirement under s 223(1)(b) of the NT Act:
(a)Question 1 (Ground 2): Did the primary judge err in holding that s 223(1)(b) requires that the relevant land or waters are “significant”, “sacred” or “important” to the relevant Aboriginal people?
(b)Question 2 (Ground 2): Did the primary judge err in inferring that, when the Aboriginal witnesses were speaking of “significance” of the land to Aboriginal people, they were in fact referring to the existence or otherwise of connection with the land under s 223(1)(b)?
(c)Question 3 (Ground 3): Did the primary judge err in finding that the accepted activities of Ms Campbell and her immediate family on the Isabel Street land:
(i)do not have their foundation in traditional laws and customs;
(ii)are opportunistic and do not happen in the exercise of rights and interests under traditional laws and customs; and
(iii)do not evidence a continuing connection under s 223(1)(b) of the South Coast People with the Isabel Street land?
(d)Question 4 (Grounds 4 and 5): Did the primary judge err in holding that s 223(1) requires “unity of belief” or “unity of knowledge” among the South Coast People about the activities of Ms Campbell and her immediate family on the Isabel Street land and that the reputation or status of the land among the South Coast People is critical?
(e)Question 5 (Ground 6): Did the primary judge err in holding that the evidence in relation to other areas, including Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (which are relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and the Gulaga and Biamanga Mountains, was not evidence of an ongoing connection under s 223(1)(b) with the Isabel Street land?
(f)Question 6 (Grounds 1 and 7): Did the primary judge err in holding that s 223(1)(b) requires evidence of uninterrupted connection to the Isabel Street land?

Second, her Honour found that the evidence given by the Aboriginal and other witnesses called by the WLALC proved, on the balance of probabilities, that the Yuin or South Coast People by their traditional laws and customs do not have a continuing connection with the Isabel Street land (at [389] to [392]). Her Honour found (at [393]) that the absence of any knowledge of the Aboriginal witnesses called by the WLALC about the Isabel Street land having any significance to their people is indicative of a discontinuity of connection between themselves and the Isabel Street land under their traditional laws and customs. Her Honour considered that the discontinuity was explicable on the evidence. The Isabel Street land is in the township of Narooma from which Aboriginal people were forcibly displaced by encroaching European colonisation. Aboriginal people were forced into missions and subjected to a permit system to control their movements. Aboriginal people and their culture were subjected to forcible suppression. Aboriginal people were subjected to racism and thus avoided the Narooma township. The areas surrounding the Isabel Street land were subjected to urban encroachment by a tip, the rear nine holes of the golf course, and an industrial development.
Third, her Honour found that the evidence adduced by the appellants did not undermine the effect of the evidence adduced by the WLALC (at [414]). Amongst other things, her Honour gave substantial weight to the consistency of the evidence of the Aboriginal witnesses called by the WLALC to the effect that they had never heard of the Isabel Street land having any significance to Aboriginal people, by which they meant that they had not heard of, and were personally unaware of, any traditional connection of the South Coast People to the Isabel Street land (at [421(2)]). Her Honour also gave substantial weight to the dislocating effects of European colonisation of the Narooma area and the displacement of the local Aboriginal people to reserves, as well as the urban development in the vicinity of the Isabel Street land which took place in the 1960s (the golf course rear nine holes) and 1970s (the industrial development) which must have substantially changed the character of the area (at [421(3)]). Her Honour found that the evidence adduced by the South Coast People was weak compared to that adduced by the WLALC (at [421(4)]).
In our view, the appellants are wrong to contend that the primary judge’s reasoning was based on a requirement of “unity of belief” or “unity of knowledge” among the South Coast People about the activities of Ms Campbell and her immediate family on the Isabel Street land. As discussed above, the primary judge found that Ms Campbell’s evidence did not support the inference that the use she makes of the Isabel Street land is an exercise of rights under traditional laws and customs acknowledged and observed by the South Coast People (at [401] and [421(4)(c)]). In making that finding, her Honour placed reliance on the fact that Ms Campbell’s use of the land was isolated, in the sense that there was no other evidence of any traditional use of the land, or any other acknowledgment or assertion of rights and interests in the land under traditional laws or customs (at [401(2)] and [402]). As her Honour explained at [401(2)], the relevant enquiry is whether the asserted rights and interests in the Isabel Street land are possessed under the traditional laws and customs acknowledged and observed by the South Coast People.
In our view, read in context, there is no error in her Honour’s statement at [361] that, because the Court is dealing with the existence or otherwise of the traditional laws and customs of a group of people, the South Coast People, the evidence of the reputation or status of the Isabel Street land amongst those people is critical. The statement makes the uncontroversial point that the evidence of the community about the land, and specifically the community’s acknowledgement and observance (or lack thereof) of traditional rights and interests in the land, will be important evidence on that question.
Nor do we consider that the primary judge’s statement at [422], that there comes a point when a lack of unity of knowledge may reflect a substantial discontinuity in the acknowledgement and observance of traditional law and custom in relation to land, indicates error in her Honour’s reasoning or conclusions. Respectfully, the meaning of that statement may be somewhat obscure. However, her Honour’s reasons, as expressed at [422], are clear. It is simply that the weight of the evidence adduced by the WLALC was sufficient to prove a lack of any continuing connection with the Isabel Street land of the South Coast People under their traditional laws and customs.
For those reasons, we would reject grounds 4 and 5 of the appeal.
Question 5
Submissions of the appellants
The appellants contend that the primary judge erred in holding (at [423]) that the evidence in relation to other areas, including Forsters Bay, Bill Smyth Oval and Glasshouse Rocks (which are relatively close to the Isabel Street land) and more distant locations such as Mystery Bay and the Gulaga and Biamanga Mountains, was not evidence of an ongoing connection under s 223(1)(b) with the Isabel Street land.
The appellants’ submissions focussed on Glasshouse Rocks, Bill Smyth Oval and Forsters Bay, all of which are relatively close to the Isabel Street land, being within a 1.2 km radius. The appellants submitted that the Aboriginal witnesses called by the WLALC gave the following evidence about those places:
(a)in relation to Forsters Bay, Ms Mason gave evidence about collecting bimbullas (cockles) (taught by Yuin woman Heather Pickalla) (see PJ at [345(2)(i)]) and Mr Mason also gave evidence that he believed that he had the right as a Yuin person to collect mud oysters from Forsters Bay (see trial transcript p. 72 lines 7-19);
(b)in relation to Bill Smyth Oval, Mr Mason gave evidence that his family had camped with other Yuin people near the oval (see at [150]), Ms Heycox gave evidence that there used to be some Aboriginal people camping at the oval a long time ago (see at [115]), Mr Patten gave evidence that there was a significant area for eating and hunting on one side of the oval (see at [156]) and Ms Mason gave evidence that she knew of a shell midden at the oval (see trial transcript p. 565 lines 44-45); and
(c)in relation to Glasshouse Rocks, many witnesses gave evidence that it is and has been used by the Yuin people as an area for fishing, diving and collecting of marine resources such as abalone, lobster and bait: Ms Field (at [95]); Ms Foster (at [99]); Mr Mason (at [132], [137] and [144]); Mr Patten at [158]; Mr Te-Kowhai (at [189]); and Mr Freeman (trial transcript at p 525 line 40 – p. 526 line 5).
The appellants submitted that there was also evidence about culturally significant activities or objects in other places in, or in the immediate vicinity of, the small town of Narooma including:
(a)at Wagonga Inlet (recorded by the primary judge at [147], [156]);
(b)at Apex Park (recorded by the primary judge at [157]-[158]);
(c)at Handkerchief Beach and Shark Point (recorded by the primary judge at [235], [242]); and
(d)in and around Narooma (recorded by the primary judge at [24], [107], [115], [144]‑[145]).
The appellants argued that native title in the Isabel Street land must be considered in context. It is 17 hectares within a claim for 1.68 million hectares. The authorities show that native title is not assessed on a lot by lot basis and that it is not necessary to show that rights have been exercised on every area of land, referring to Ward at [64]; De Rose v South Australia (2003) 133 FCR 325 at [170]; Moses v Western Australia (2007)160 FCR 148 at [238]; and Bodney at [175].
Consideration
There was no dispute about the applicable legal principles relied upon by the appellants. They have been referred to earlier in these reasons. The dispute concerns the application of those principles in the somewhat unusual circumstances of the present case. This is an unusual case in which:
(a)the land in dispute (the Isabel Street land) is an area of bushland within the township of Narooma in respect of which no act of extinguishment (within the meaning of the NT Act) has occurred;
(b)a claim for recognition of native title has been made over a large area of the South Coast on behalf of the South Coast People or Yuin people, which encompasses the Isabel Street land;
(c)a majority of the witnesses who gave evidence in the proceeding are Yuin and members of the claim group and gave evidence, accepted by the primary judge, consistent with the existence of an Aboriginal society which continues to acknowledge and observe its traditional laws and customs and a continuing connection to land within the South Coast People claim area by those laws and customs;
(d)one member of the South Coast People claim group, Ms Campbell, gave evidence, accepted by the primary judge, of activities undertaken on the Isabel Street land that might ordinarily be associated with the exercise of rights and interests under the traditional laws and customs of the South Coast People; and
(e)the vast majority of the Aboriginal witnesses who are also members of the South Coast People claim group believe that they have lost all connection with the Isabel Street land by their traditional laws and customs and, as such, do not accept that the activities undertaken by Ms Campbell are the exercise of rights and interests under those traditional laws and customs.
As explained in respect of grounds 4 and 5, the primary judge ultimately concluded that the evidence given by the Aboriginal witnesses called by the WLALC outweighed the evidence given on behalf of the appellants. Her Honour found that there had been a loss of connection with the Isabel Street land under the traditional laws and customs of the South Coast People.
In our view, the primary judge’s conclusion cannot be said to be inconsistent with established legal principle. The appellants’ submission, that it is not necessary to evaluate native title claims on a lot by lot basis, must be accepted in so far as it contemplates proof of use or occupation of particular parcels of land. As stated by the High Court in Ward at [64], connection within s 223(1)(b) is not directed to how Aboriginal people use or occupy land or water. The Full Court provided the following explication of the concept in De Rosev South Australia (No 2) (2005) 145 FCR 290 (at [62]-[64], emphasis in original):
62It would read too much into s 223(1)(a) to require the claimants to show a continuing physical connection to the land. “Connection” is dealt with in s 223(1)(b) and, as the High Court made clear in Ward (HC) at [64], para (b) is not directed to how Aboriginal peoples use or occupy land or water. It is directed to whether the peoples have a connection to land or water by the traditional laws acknowledged and the traditional customs observed by them. It is possible for Aboriginal peoples to acknowledge and observe traditional laws and customs throughout periods during which, for one reason or another, they have not maintained a physical connection with the claim area. Of course, the length of time during which the Aboriginal peoples have not used or occupied the land may have an important bearing on whether traditional laws and customs have been acknowledged and observed. Everything will depend on the circumstances.
63What sort of link, then, must be established between the rights and interests in relation to land or waters said to be possessed by a native title claimant community or group and its acknowledgement and observance of traditional laws and customs? In our view, it cannot be stated more precisely than that the community or group must show that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land or waters. Contrary to the Fullers’ submissions, s 223(1)(a) does not necessarily require claimants to establish that they have continuously discharged their responsibilities, under traditional laws and customs, to safeguard land or waters. Of course, the traditional laws and customs may provide that the holders of native title lose their rights and interests if they fail to discharge particular responsibilities. But s 223(1)(a) does not impose an independent requirement to that effect.
64Obviously enough, evidence that a native title claimant community or group has faithfully performed its obligations under traditional laws and customs would provide powerful support for its claim to possess native title rights and interests (assuming that the other requirements of s 223(1) are met). But evidence that members of the community or group have not faithfully met their responsibilities, for example as Nguraritja for particular sites, will not necessarily be fatal to their claim. It must always be a matter of fact and degree as to whether the community or group has acknowledged and observed the traditional laws and customs on which it relies to establish possession of native title rights and interests.
As the Full Court there explained, the assessment of continued connection to land under traditional laws and customs involves matters of fact and degree. The question is whether the community has shown that it has acknowledged and observed those traditional laws and customs that recognise them as possessing rights and interest in relation to the claimed land.
We do not read the primary judge’s statement at [423], that the evidence in relation to other areas was not evidence of an ongoing connection under s 223(1)(b) with the Isabel Street land, as a statement that such evidence was irrelevant to the assessment of native title in the Isabel Street land. We consider that her Honour’s statement says no more than such evidence is not sufficient to establish native title in the Isabel Street land. As stated by the Full Court in Bodney (at [175]), if native title in a specific area of land is put in issue, it will be necessary to evaluate whether connection to that area (under traditional laws or customs) has, in reality, been substantially maintained since the time of sovereignty. The fact that connection has been maintained in respect of other areas, even areas in close proximity, does not determine that evaluation.
In the present case, having heard and assessed the entirety of the evidence, the primary judge concluded that the relevant community had shown the absence of native title: that the community no longer acknowledged and observed its traditional laws and customs that recognise them as possessing rights and interest in relation to the Isabel Street land. That conclusion was based on an overall assessment of the evidence. As recognised by the Full Court in Wyman (at [190]-[191]), the long-standing principle of appellate restraint in reviewing factual findings of the trial judge has particular application in native title cases. It is difficult for this Court to engage in such a process of assessment and exercise of judgment when it has not, like the primary judge, heard the evidence and seen the witnesses.
For those reasons, we would reject appeal ground 6.
E. CONCLUSION
In conclusion, we are not persuaded the decision below is affected by error that is material to the result. We would therefore dismiss the appeal and the cross-appeal.
Although the appeal and the cross-appeal are to be dismissed, we wish to reiterate and emphasise the following matters that assume great importance in cases such as the present that involve the determination of a non-claimant application over a relatively small parcel of land that is the subject of a larger registered native title claim. Each of the matters suggests caution in the determination of such applications.
First, the registration of a claimant application that includes the parcel of land in question will suggest that there is an arguable claim to native title in that parcel of land. As the High Court plurality said in Fejo v Northern Territory 195 CLR 96 at [40] (referred to in the primary judge’s reasons at [342]):
Ordinarily, the fact that an applicant for an injunction is a registered native title claimant will suggest, if not demonstrate, that there is a claim to native title that is arguable (the Registrar being obliged to accept the application unless of the opinion that it is frivolous or vexatious or that prima facie the claim cannot be made out).
Second, s 67 of the NT Act imposes a mandatory requirement on the Court that, where two or more native title applications cover the same area of land or waters, the applications must be dealt with in the same proceeding to the extent they cover the same area. The rationale for an order under s 67 is as expressed by Finn J in Kokatha at [5]: namely, to ensure informed decision-making and finality for overlapping claims. It also facilitates the purpose of s 68 of the Act, as the Full Court explained in Badimia at [25]. Section 67 was not followed in the present case. However, all parties approved or acquiesced in the course taken in the present proceeding (which involved the separate determination of the non-claimant application), and no appeal has been brought on the basis the trial was conducted in a manner inconsistent with the requirements of s 67. Ordinarily, though, compliance with s 67 will best ensure that all relevant evidence is adduced to assess the competing contentions as to whether native title exists or does not exist in the land or waters in question.
Third, it is well established that, in proving continuing connection to an area of land or waters within s 223(1)(b), it is not necessary to prove continued use of the land or waters in question (Ward at [63]). In particular, in the course of determining a native title application over an area of land, the connection enquiry under s 223(1)(b) is not conducted separately in respect of each “lot” or “parcel” of land within the claim area. Rather, as explained in Ward at [64], the statutory question is whether, by the traditional laws acknowledged and the traditional customs observed by the Aboriginal people concerned, they have a “connection” with the land or waters in the claim area. That question requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the Aboriginal people with the land or waters in question. These statutory requirements serve to emphasise the importance of a proper examination of the native title claim as a whole, and in relation to the whole of the claim area, including particularly the identification of the content of traditional laws and customs, in any assessment of connection to land or waters. In turn, that highlights the importance of the requirement imposed by s 67.
Fourth, the Full Court plurality in Badimia (at [48] and [66]), in passages cited with approval by the Full Court in Mace (at [66]-[67]), emphasised the need for caution before making a negative determination of native title, even following the rejection of an application for a determination of native title, as follows (emphasis added):
48.The fact that a determination of native title binds the world and does not operate only between the parties applies to both positive and negative determinations. This fact warrants heightened scrutiny by the Court about its state of satisfaction both that the onus of proof has been discharged and that the terms of the determination to be made are supported in all respects by the findings. But the onus remains the civil standard of the balance of probabilities. If the circumstances are such that a native title claimant application has not been established to the requisite standard, the onus of proof to support a negative determination may or may not have been discharged. If not discharged, it necessarily follows that a negative determination may not be made. If discharged, however, it does not necessarily follow that a negative determination should be made. The propriety or otherwise of making of a negative determination in such a case will depend on a wide range of circumstances. As noted, the legal character of a determination, that it will bind the world at large and not just the parties, will necessarily inform the appropriate exercise of the discretion whether or not to make a negative determination.
…
66.…Whether it is appropriate to proceed to consider the making of a negative determination will depend in part upon the reasons why a claimant application has failed. It will depend in part also upon the extent to which, if at all, competing claimant applications have been heard at the same time. If the Court is satisfied that all the potentially competing claimants for the recognition of native title in respect of the claim area have participated in the hearing, and all have failed, a negative determination could be made if the Court is satisfied that there is no native title that can be recognised and protected. If that is not the case, the Court will no doubt consider whether, despite the notice of the claimant application given pursuant to s 66, there are reasons for notice of the prospect of a negative determination being given to some other person or persons, or indeed to the native title representative body for the particular area. Given that a negative determination is, as we have pointed out above, a determination in rem, it is important that the Court carefully consider such matters before it can be satisfied, on the balance of probabilities, that no native title right or interests exist in relation to a particular area.

In our view, the caution expressed in Badimia in the context of an unsuccessful claimant application applies with equal or greater force in the context of a non-claimant application over a parcel of land in respect of which there is an undetermined claimant application.
Ordinarily, though, where the parcel or parcels of land in question are the subject of a larger claimant application, s 67 will require an order to be made to ensure that the claimant application, in so far as it relates to that parcel or parcels, is heard and determined with the non-claimant application. The question of continuity under s 223(1)(b), in so far as it concerns the parcel or parcels of land, will be determined in light of the identification of the traditional laws and customs of the claimant group and the maintenance of connection to the parcel or parcels of land through or in accordance with the traditional laws and customs so identified. Neither the “significance” of the specific parcel of land to Aboriginal people, nor the continuing traditional use of the specific parcel, is determinative of the existence of native title. However, as the primary judge’s findings in this case demonstrate, it is also possible that connection to that parcel or parcels may no longer exist, irrespective of whether connection has been maintained to the remainder of the claim area. Where a s 67 order is made, such a conclusion may be available if the evidence supports it, and the conclusion will be a result of the more intense focus on the maintenance of connection over the parcel or parcels the subject of the non-claimant application.
While we are satisfied in the present case that the appeal and the cross-appeal should be dismissed, we consider this to be an exceptional case. The primary judge received considerable evidence from Aboriginal witnesses, many of them Yuin people and members of the South Coast People claim group, which her Honour found persuasive. The advantages of the trial judge in assessing that evidence are real, and important, especially as to the evidence of Aboriginal witnesses. The determination of the application is fundamentally one for the trial judge on the evidence (see Mace at [51]-[52]).
Finally, in relation to costs, the proceeding is subject to s 85A of the NT Act which provides as follows:
(1)Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.
Unreasonable conduct
(2)Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first‑mentioned party to pay some or all of those costs.
In respect of the appeal, the appellants raised arguable issues of fact and law of considerable importance. In our view, there is no reason to depart from the default position specified in s 85A of the NT Act that there should be no order as to costs.
In respect of the cross-appeal, and for the reasons expressed earlier, we consider that the contentions advanced on behalf of the Attorney were untenable and the bringing of the cross‑appeal can be properly characterised as unreasonable within the meaning of s 85A(2). An order for costs in favour of the WLALC should be made against the Attorney. In accordance with the modern practice of the Court, the costs should be awarded in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). In the absence of agreement between the parties as to the quantification of the costs, the quantification will be determined by a Registrar of the Court.

I certify that the preceding one hundred and fifty-nine (159) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Mortimer, Perry and O'Bryan.
Associate:
Dated: 23 November 2021
SCHEDULE OF PARTIES

NSD 983 of 2020

Appellants

Fourth Appellant:

WILLIAM CAMPBELL

Fifth Appellant:

WALLY STEWART

Sixth Appellant:

JOHN BRIERLY

Seventh Appellant:

MARK TINELT

Eighth Appellant:

DEAN KELLY

Ninth Appellant:

CATHY THOMAS

Tenth Appellant:

LESLIE SIMON

Eleventh Appellant:

TARESSA MONGTA

Twelfth Appellant:

PAUL MCLEOD

Thirteenth Appellant:

NTSCORP LIMITED

CROSS APPEAL

Second Cross-Respondent

AILEEN BLACKBURN

Third Cross-Respondent

MARILYN PICKALLA CAMPBELL

Fourth Cross-Respondent

GWENDA JARRETT

Fifth Cross-Respondent

WILLIAM CAMPBELL

Sixth Cross-Respondent

WALLY STEWART

Seventh Cross-Respondent

JOHN BRIERLY

Eighth Cross-Respondent

MARK TINELT

Ninth Cross-Respondent

DEAN KELLY

Tenth Cross-Respondent

CATHY THOMAS

Eleventh Cross-Respondent

LESLIE SIMON

Twelfth Cross-Respondent

TARESSA MONGTA

Thirteenth Cross-Respondent

PAUL MCLEOD

Fourteenth Cross-Respondent

NTSCORP LIMITED

Appeal from:	Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113
File number:	NSD 983 of 2020
Judgment of:	MORTIMER, PERRY AND O'BRYAN JJ
Date of judgment:	23 November 2021
Catchwords:	NATIVE TITLE – non-claimant application – appeal against determination that native title does not exist in respect of certain land in New South Wales – where land in question is contained within larger registered native title claim application (the South Coast People’s claim) which is yet to be determined – where non-claimant application was opposed by the applicants in respect of the South Coast People’s claim – consideration of s 67 of the Native Title Act 1993 (Cth) – whether the primary judge erred in making findings in respect of the South Coast People’s claim – whether the primary judge’s reasons should have been confined to a consideration of the question whether the evidence adduced by the appellants “cast doubt” on the claimed non-existence of native title – whether the primary judge erred in holding that s 223(1)(b) requires that the relevant land was “significant”, “sacred” or “important” to Aboriginal people – whether the primary judge erred in inferring that, when the Aboriginal witnesses were speaking of “significance” of the land to Aboriginal people, they were in fact referring to the existence or otherwise of connection with the land under s 223(1)(b) – whether the primary judge erred in concluding that the evidence adduced by the appellants was not evidence of an ongoing connection with the land under s 223(1)(b) – the need for caution in respect of non-claimant applications concerning parcels of land that are within larger registered native title claims that are not determined – appeal dismissed
Legislation:	Native Title Act 1993 (Cth) ss 67, 85A, 223 Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) Aboriginal Land Rights Act 1983 (NSW) ss 36, 40(4), 42G(5) Real Property Act 1900 (NSW)
Cases cited:	Akiba v Queensland (No 3) (2010) 204 FCR 1 Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 Allesch v Maunz (2000) 203 CLR 172 Bodney v Bennell (2008) 167 FCR 84 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 CG v Western Australia (2016) 240 FCR 466 Commonwealth v Clifton (2007) 164 FCR 355 Commonwealth v Yarmirr (2001) 208 CLR 1 De Rose v South Australia (2003) 133 FCR 325 De Rosev South Australia (No 2) (2005) 145 FCR 290 Fejo v Northern Territory 195 CLR 96 Fox v Percy (2003) 214 CLR 118 Harkin on behalf of Nanatadjarra People v State of Western Australia [2020] FCA 1015 Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 Kokatha Native Title Claim v State of South Australia [2006] FCA 838 Mabo v Queensland (No 2) (1992) 175 CLR 1 Mace v Queensland (2019) 274 FCR 41 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Moses v Western Australia (2007)160 FCR 148 Munn v State of Queensland [2002] FCA 486 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 Rose on behalf of the Kurnai Clans v State of Victoria [2010] FCA 460; 268 ALR 47 Western Australia v Graham (on behalf of the Ngadju People) [2013] FCAFC 143; 305 ALR 452 Western Australia v Sebastian (2008) 173 FCR 1 Western Australia v Ward (2002) 213 CLR 1 Western Australia v Willis (2015) 239 FCR 175 Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 Wyman v Queensland (2015) 235 FCR 464 Yanner v Eaton (1999) 201 CLR 351
Division:	General Division
Registry:	New South Wales
National Practice Area:	Native Title
Number of paragraphs:	159
Date of hearing:	24, 25 May 2021
Counsel for the Appellants:	T Keely SC with T Jowett
Solicitors for the Appellants	NTSCORP Limited
Counsel for the First Respondent:	A Butt
Solicitor for the First Respondent:	Maddocks
Counsel for the Second Respondent:	E Lee
Solicitor for the Second Respondent:	NSW Crown Solicitor’s Office

NSD 983 of 2020
BETWEEN:	AILEEN BLACKBURN First Appellant MARILYN PICKALLA CAMPBELL Second Appellant GWENDA JARRETT (and others named in the Schedule) Third Appellant
AND:	WAGONGA LOCAL ABORIGINAL LAND COUNCIL First Respondent ATTORNEY GENERAL OF NEW SOUTH WALES Second Respondent
AND BETWEEN:	ATTORNEY GENERAL OF NEW SOUTH WALES Cross-Appellant
AND:	WAGONGA LOCAL ABORIGINAL LAND COUNCIL (and others named in the Schedule) First Cross-Respondent

ORDER MADE BY:	MORTIMER, PERRY AND O'BRYAN JJ
DATE OF ORDER:	23 NOVEMBER 2021

NSD 983 of 2020
Appellants
Fourth Appellant:	WILLIAM CAMPBELL
Fifth Appellant:	WALLY STEWART
Sixth Appellant:	JOHN BRIERLY
Seventh Appellant:	MARK TINELT
Eighth Appellant:	DEAN KELLY
Ninth Appellant:	CATHY THOMAS
Tenth Appellant:	LESLIE SIMON
Eleventh Appellant:	TARESSA MONGTA
Twelfth Appellant:	PAUL MCLEOD
Thirteenth Appellant:	NTSCORP LIMITED

Second Cross-Respondent	AILEEN BLACKBURN
Third Cross-Respondent	MARILYN PICKALLA CAMPBELL
Fourth Cross-Respondent	GWENDA JARRETT
Fifth Cross-Respondent	WILLIAM CAMPBELL
Sixth Cross-Respondent	WALLY STEWART
Seventh Cross-Respondent	JOHN BRIERLY
Eighth Cross-Respondent	MARK TINELT
Ninth Cross-Respondent	DEAN KELLY
Tenth Cross-Respondent	CATHY THOMAS
Eleventh Cross-Respondent	LESLIE SIMON
Twelfth Cross-Respondent	TARESSA MONGTA
Thirteenth Cross-Respondent	PAUL MCLEOD
Fourteenth Cross-Respondent	NTSCORP LIMITED