NATIVE TITLE – determination of separate questions – whether native title exists in the claim area – whether claim group held rights and interests in the claim area at sovereignty – whether claim group were part of a regional society at sovereignty – whether there has been continued observance of pre-sovereignty laws and customs – whether there is continuing connection with land or waters by traditional laws and customs – whether regional society continues to exist – native title found not to exist – recommendation for law reform
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3) [2023] FCA 600
Case
[2023] FCA 600
Decision Date
CaseChat Overview and Summary
In Blucher on behalf of the Gaangalu Nation People v State of Queensland (No 3), the Federal Court was asked to determine the existence of native title over a claim area by the Gaangalu Nation People against the State of Queensland. The applicants sought a declaration that native title exists over parts of the claim area and requested the identification of the native title holders and the nature of their rights and interests. The State of Queensland opposed the claim, arguing that native title did not exist over the claim area due to significant changes in traditional laws and customs since British sovereignty.
The legal issues before the court included whether native title exists in the claim area, whether the Gaangalu Nation People held rights and interests in the claim area at the time of sovereignty, and whether there has been continued observance of pre-sovereignty laws and customs. The court also considered whether the Gaangalu Nation People were part of a regional society at sovereignty and if there was a continuing connection with the land or waters through traditional laws and customs. A critical issue was the extent to which the traditional laws and customs had been preserved, altered, or lost over time.
The court found that native title did not exist in the claim area. It concluded that the Gaangalu Nation People had not demonstrated a continuous observance of traditional laws and customs in relation to the acquisition, transmission, and exercise of rights and interests in the land and waters. The court emphasised that the traditional laws and customs must have been acknowledged and observed substantially uninterrupted since sovereignty. The evidence showed significant changes and loss of traditional laws and customs, particularly concerning land ownership and access, which were critical to the existence of native title. The court also noted that the Gaangalu Nation People had not been able to sufficiently demonstrate a continuing connection with the land or waters through their traditional laws and customs.
The court recommended law reform to address issues in the native title framework, suggesting changes to better accommodate the realities of contemporary Aboriginal societies while preserving the essence of native title rights. The parties were directed to confer and advise the court within 28 days on whether they had reached an agreement on appropriate orders.
Orders
Orders of the court
1. The separate questions be answered as follows:
a. But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the claim area?
Answer: No
b. In relation to that part of the claim area where the answer to (a) above is in the affirmative:
i. Who are the persons, or each group of persons, holding the common or group rights comprising the native title?
ii. What is the nature and extent of the native title rights and interests?
Answer: Not applicable.
2. The parties are to confer as to appropriate orders and advise the Court within 28 days as to whether they have reached agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
I will discuss the evidence of the Gaangalu witnesses in detail later in these reasons.Overview of the expert evidence The primacy of the evidence of Aboriginal witnesses does not mean that expert anthropological evidence is unimportant to the determination of issues in native title claims: see Wyman at [474]. In Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia (2003) 207 ALR 539; [2004] FCA 472 at [89], Mansfield J observed that anthropological evidence may, amongst other things, provide a framework for understanding the primary evidence of Aboriginal witnesses in respect of the acknowledgment and observance of traditional laws, customs and practices; and make use of historical literature and anthropological material to compare traditional laws and traditional customs and interpret the similarities or differences. In Jango v Northern Territory of Australia (2006) 152 FCR 150; [2006] FCA 318 (Jango) at [462], Sackville J noted that in the ordinary course, Aboriginal claimants adduce anthropological evidence to establish the link between current laws and customs and the laws and customs acknowledged and observed by the claimants’ ancestors at the time of sovereignty. The Court is not, however, bound by the opinions of expert anthropologists even where that evidence is uncontradicted: Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176 at [124] and [218]. That is particularly so where the evidence is upon an ultimate issue: Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [355] (Callinan J). The applicant adduced evidence from an anthropologist, Dr Kim de Rijke, and a historian, Dr Hilda Maclean. The State called an anthropologist, Dr Anna Kenny. Their expertise is not in dispute. Dr de Rijke Dr de Rijke has been engaged by the applicant since 2011 to investigate the Gaangalu claim. In September 2018, Dr de Rijke prepared a report entitled, Gaangulu Nation People Native Title Determination Application (QUD400/2012), Expert Anthropological Report (first report). Dr de Rijke relied upon published works and documents specific to the region and of more general relevance to Aboriginal life and culture, interviews with 68 Aboriginal people of region and personal observations, as well as his own specialised knowledge based on training study and experience. The 68 Aboriginal people included 19 of the 23 Gaangalu witnesses who gave evidence. Following the hearing of the lay evidence, Dr de Rijke produced a further report entitled, Gaangulu Nation People QUD33/19: Supplementary Expert Report (supplementary report) addressing the question of whether he continued to adhere to the opinions expressed in his first report. Dr de Rijke’s two reports were admitted into evidence. Dr de Rijke and Dr Kenny gave concurrent oral evidence in Brisbane on 28 and 29 June and 14 July 2021. Dr de Rijke was called by the applicant and Dr Kenny was called by the State. Dr Maclean
Decision
Reasons for decision
LISA J
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Ratio Decidendi
Legal Principle Established
Established by:
LISA J
I have accepted that it was an aspect of traditional law and custom that trade would take place between Gaangalu and other Aboriginal groups. There was some contemporary evidence of trade given by Steven Kemp, but I am unable to accept that there remains a normative law or custom concerning trade between Gaangalu and non-Gaangalu persons. Consideration: continuity of acknowledgement and observance of traditional laws and customs An issue arising under s 223(1)(a) of the NTA is whether the laws and customs acknowledged and observed by the claim group under which they claim to possess their claimed rights and interests in the claim area are properly described as traditional laws and customs. As Mortimer J (as her Honour then was) observed in Narrier at [823], the central question is whether the traditional laws and customs which relate to the acquisition, transmission and exercise of rights and interests in land and waters are recognised and observed by claim group members as a living normative system in substantially the same form that existed at sovereignty, allowing for permissible adaptation. In considering that central question, loss, change or adaptation of some traditional laws and customs will be more significant than loss, change or adaptation of others. For example, loss of traditional laws concerning social organisation may be less significant than loss of laws directly concerned with possession of rights and interests in land, although it must be kept in mind that there may often be a complex interrelationship between particular aspects of traditional law and custom. The extent of any relevant loss, change or adaptation of traditional laws and customs is also important. The applicant’s written submissions suggest that it is enough that the claimed rights and interests are “rooted in” traditional laws and customs, in the sense of having some connection with traditional laws and customs, citing Yorta Yorta at [53], [55], [75] and [79]. However, I do not understand Yorta Yorta to indicate that any connection between contemporary and traditional laws and customs, however slight, is enough. Instead, it was made plain, for example at [87], that acknowledgement and observance of the body of traditional laws and customs must have continued substantially uninterrupted since sovereignty. The applicant submits that traditional laws and customs relating to land ownership, including those directed to group membership, inheritance, inalienability and regulation of access to land and responsibilities for it, continue to be acknowledged and observed. The State submits that so little of the original system of laws and customs is known that it is impossible to meaningfully assess either what has been lost or the degree to which the modern system in fact reflects the traditional system. The State submits that statement of laws and customs at a general level, where they are largely inferred from anthropology outside the claim area, becomes almost self-fulfilling in that those laws and customs may remain identifiable even in situations of extensive loss or re-creation.