In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a Summary to accompany the judgment that is to be delivered today. However, it must be emphasised that the Summary forms no part of the judgment. The only authoritative statement of the Court’s reasons is the judgment itself.
This Summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete. The published Reasons for Judgment and this Summary will be available on the internet align="center">Bodney v Bennell [2008] FCAFC 63
In 2003 eighty Aboriginal persons made an application to the Court for a determination of native title. The application came to be called ‘the Single Noongar application’. The applicants alleged that in 1829 (the date of European settlement in Western Australia) there was a single Aboriginal community throughout the whole of the south‑west of Western Australia. The applicants called this the ‘Noongar community’ and claimed the 1829 rules governing the occupation and use of land, throughout the south-west, were the laws and customs of that community. The applicants said the Noongar community continues to exist, and they are part of it; and that its members continue to observe some of the community’s traditional laws and customs (including in relation to land), although with changes flowing from the existence and actions of the white community. The applicants seek a Determination of native title, in favour of all members of the present Noongar community, over a substantial portion of Western Australia. The boundary of the claimed area commences, on the west coast, at a point north of Jurien Bay, proceeds roughly easterly to a point approximately north of Moora and then roughly south-easterly to a point on the southern coast between Bremer Bay and Esperance. The Single Noongar applicants also claim rights and interests over Rottnest and Carnac Islands and coastal waters to a distance of three nautical miles from land. The whole of the land and waters claimed in the single Noongar application are described as the ‘claim area’.
The claim area includes the whole of the Perth metropolitan area as well as centres such as Bunbury, Busselton, Margaret River, Albany, York, Toodyay, Katanning, Merredin and many other towns. However, the applicants excluded from their claim all land and waters over which native title had been extinguished by a past act of the Commonwealth or State governments. The effect of that exclusion is to omit from the application all freehold land in the claim area, and probably most leasehold land. Having regard to the extent of urban development, and intensive farming, in the claim area, the result is that a large proportion of the land within the claim area is unaffected by the claim.
The Court decided…
Grounds of appeal
[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
Bodney v Bennell [2008] FCAFC 63
Case
[2008] FCAFC 63
Decision Date
CaseChat Overview and Summary
In the case of Bodney v Bennell, the Full Court of the Federal Court of Australia considered appeals by several parties against decisions regarding native title claims in Western Australia. The primary judge had dismissed claims by Mr. Bodney for native title rights and interests over certain areas, finding that Mr. Bodney had not established a connection to the traditional laws and customs of the Noongar people. The Full Court examined the primary judge's approach to questions of continuity in the acknowledgment and observance of traditional laws and customs, and the relevance of certain evidence to the determination of native title rights.
The legal issues before the court included whether the primary judge had asked the correct questions in assessing the continuity of traditional laws and customs and whether he had appropriately evaluated the evidence presented. The Full Court found that the primary judge had not applied the correct legal test for continuity, as articulated in Yorta Yorta v Victoria, and had failed to adequately consider certain evidence that demonstrated continued observance of traditional laws and customs. The court also noted that the primary judge did not sufficiently address the connection between contemporary practices and traditional systems.
The Full Court concluded that the primary judge had erred in his approach to the continuity issue and that the case should be remitted to the Western Australian native title provisional docket judge for further consideration. The appeals were dismissed, but the court allowed the appeals in part to set aside certain orders of the primary judge and to remit the question of continuity to the docket judge. No orders regarding the costs of the appeal were made, and the parties were given an opportunity to make further submissions on costs if desired.
Orders
Orders of the court
1. The appeal be dismissed.
1. The applicant have leave to appeal from the judgment below.
2. The appeal be allowed.
3. Orders 1 and 5 of the primary judge’s orders be set aside.
4. The separate question be remitted to the Western Australian native title provisional docket judge to be dealt with in the manner appearing at [211] of the Court’s reasons for judgment.
5. There be no order as to the costs of the appeal.
6. Any submissions by the appellant that there should be a costs order different from that in paragraph 5 be filed and served within 21 days from the publication of the Court’s reasons.
7. Any submissions by the respondents in reply to the appellant’s submissions be filed within 14 days of service of the appellant’s submissions.
1. The applicant have leave to appeal from the judgment below.
2. The appeal be allowed.
3. Order 1 of the primary judge’s orders as it relates to paragraph (iii) of the separate question be set aside.
4. Paragraph (iii) of the separate question be remitted to the Western Australia native title provisional docket judge.
5. There be no order as to the costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The third difficulty with his Honour’s treatment of boodjas is his statement at [785] that boodjas are “similar in concept” to pre‑settlement runs. Without any explanation of what this similarity involves, or any reference to evidence, this is largely meaningless as a finding in a continuity context. The problem is that his Honour made almost no findings about runs. It is therefore difficult to compare boodjas with runs in order to determine if one has developed in an allowable manner from the other. Even if his Honour’s finding of conceptual similarity, whatever that may mean, is made out on the evidence, it is not relevant. What is relevant is whether the contemporary boodja system is traditional in the sense understood in Yorta Yorta HC. No finding is made as to this, and it is not possible for this Court to reach its own conclusion in the absence of factual findings about the content of the run system. The State’s submissions focussed on the differences between the estate system and the boodja system. The differences are understandably great, and we don’t understand the primary judge to have suggested otherwise. However, since there is no suggestion that the boodjas are the contemporary equivalent of the original estates, those differences are of minimal relevance. Differences are inevitable when one is not comparing like with like.Disregard of continuity evidence The primary judge’s failure to address continued acknowledgment and observance of traditional law and custom between sovereignty and the present is underlined, and perhaps explained, by his “disregard” of opinions expressed by the anthropologists who gave evidence based on the writings of nineteenth and twentieth century anthropologists and observers. We use the word “disregard” because, while his Honour said he obtained no benefit or little assistance from this material, he did not positively disallow it, so that it was not part of the evidence before him. It is nevertheless clear that his Honour said he would not take it into account and that he did not do so. His Honour went on to order that the separate proceeding be remitted to the Western Australian native title provisional docket judge “for the making of such further orders and directions as may be necessary”. In his reasons (at [809]) the primary judge indicated that:… I do not propose to return an answer to sub-question (iii) of the separate question that would purport to specify the precise wording of any determination that may ultimately be made. The form of a determination concerning the nature and extent of native title rights and interests is always a matter of public importance. The parties ought to have a further opportunity of discussing that form. Hopefully, they can reach agreement about it; if not, any dispute may be resolved by another judge, in the same way as the second Ward Full Court resolved some outstanding disputes about the wording of the determination made in that case: see Attorney-General (NT) v Ward (2003) 134 FCR 16 (Ward FC2). What follows is simply my finding about the rights and interests that have been established by the evidence and which, it seems to me, ought to be included in a determination, subject to further consideration of their precise wording.
Decision
Reasons for decision
FINN, SUNDBERG AND MANSFIELD JJ
His Honour left open the question of whether any of those native title rights and interests were held to the exclusion of all others: at [840].The decision of the primary judge on Mr Bodney’s five applications Each of Mr Bodney’s applications were brought on behalf of a slightly differently described group, but it appears that the claimants in each application were essentially the same and can be loosely described as the Bodney family group. The primary judge did not make any finding as to the identity of the claimants other than Mr Bodney. Mr Bodney claimed that native title rights and interests in the areas of the Bodney applications were held by two “clans”, the Ballaruk and Didjarruk. He disputed the submission of the Noongar people that there was a single Noongar society holding native title rights over the area. The Single Noongar claimants acknowledged that Mr Bodney and those represented by him are members of the Noongar people but did not accept that Mr Bodney or his family had any exclusive rights in relation to the land and waters claimed in the Bodney applications. The learned primary judge rejected Mr Bodney’s evidence, finding that Ballaruk and Didjarruk were moieties or skin groups, rather than “tribes” or “clans”. His Honour also found that Mr Bodney had not established any connection between himself (or the other Bodney claimants) and anybody living at the date of settlement who was identifiable as Ballaruk or Didjarruk; and that Mr Bodney had not demonstrated continued adherence to whatever laws and customs relating to land were followed by Ballaruk and Didjarruk people. The applications by Mr Bodney in WAD 137 of 1998, WAD 138 of 1998, WAD 139 of 1998, WAD 140 of 1998 and part of WAD 149 of 1998 were therefore dismissed. His Honour did find, however, that Mr Bodney was descended from members of the single Noongar community and that he is entitled to enjoy whatever rights and interests were recognised in the foreshadowed determination in favour of that community.THE PARTIES TO THE APPEALS The principal respondents to the four appeals are the Noongar people. Each of the State, the Commonwealth and the Noongar people filed extensive written submissions prior to the hearing of the appeals and were represented by senior counsel at the hearing. WAFIC also made oral and written submissions to the Court on its appeal, which were limited in scope as will appear below. Mr Bodney, who appeared for himself, filed written submissions on his appeal prior to the Full Court hearing. Although he was present for part of the hearing, he was unable to attend the latter half due to illness and did not make any oral submissions. He was given permission to file further written submissions after the hearing, but he did not take up that opportunity. His appeal thus proceeded on the papers. Other than the four appellants and the Noongar people, several other respondent groups participated in the appeal proceedings. A group of 19 Perth metropolitan local governments (the Local Governments), named as the third respondents to the State’s and the Commonwealth’s appeals, filed written submissions and were represented at the hearing. The Local Governments supported the grant of leave to appeal to the State and the Commonwealth. In respect of the merits of the appeals, the Local Governments did not seek either affirmation or the setting aside of the primary judge’s answers to the separate question, but made submissions on some aspects of the correct legal test to be applied. Mr Peter David of the Noongar Land Council (NLC) and Mr Kevin Miller attended the hearing and expressed their desire to have the reasons of the primary judge upheld. Mr Miller and the NLC are respondents to the State’s and the Commonwealth’s appeals. We did not consider it necessary to hear further oral submissions from Mr David or from Mr Miller. Mr David’s application for leave to appear was thus refused.
Ratio Decidendi
Legal Principle Established
Established by:
FINN, SUNDBERG AND MANSFIELD JJ
At [791] the primary judge stated his ultimate conclusion on continuity in relation to the Single Noongar claim area as follows:The changes mentioned by counsel for the State, and counsel for the Commonwealth, raise important issues. There is no doubt that enormous forces have assailed Noongar society since 1829, making it impossible for many of the traditional laws and customs to be maintained. However, when I come back to the test stated in Yorta Yorta, and ask myself whether the normative system revealed by the evidence is ‘the normative system of the society which came under a new sovereign order’ in 1829, or ‘a normative system rooted in some other, different society’, there can be only one answer. The current normative system is that of the Noongar society that existed in 1829, and which continues to be a body united, amongst other ways, by its acknowledgment and observance of some of its traditional laws and customs’. It is a normative system much affected by European settlement; but it is not a normative system of a new, different society.Consideration of the appeals on continuityWrong question asked The appellants contended that the questions the primary judge posed (quoted at [49]) are the wrong questions. The Commonwealth submitted that the correct question is whether acknowledgement and observance of traditional laws and customs has continued substantially uninterrupted since sovereignty. It is to be answered by ascertaining whether, for each generation of the relevant society since sovereignty, those laws and customs constituted a normative system giving rise to rights and interests in land, and in fact regulated and defined the rights and interests which those people had and could exercise in relation to the land and waters. Since Yorta Yorta HC the approach propounded by the Commonwealth has been adopted in relation to the continuity issue. There at [87] the majority said:acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty. Were that not so, the laws and customs acknowledged and observed now could not properly be described as the traditional laws and customs of the peoples concerned. That would be so because they would not have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land as the body of laws and customs which, for each of those generations of that society, was the body of laws and customs which in fact regulated and defined the rights and interests which those peoples had and could exercise in relation to the land or waters concerned. In Risk v Northern Territory [2006] FCA 404 at [97(c)] (Risk TJ) Mansfield J said that applicants for native title must establish, amongst other things, thatthe acknowledgment and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty, and the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs.On appeal to the Full Court, the appellants did not attack that formulation, though they did unsuccessfully attack other parts of his Honour’s summary of the requirements for establishing native title: Risk v Northern Territory (2007) 240 ALR 75 at [78]‑[79]. The Full Court regarded the whole of his Honour’s summary, including that quoted above, as an accurate statement of the effect of the cases, including Yorta Yorta HC. See at [78] to [98].