Bodney v Bennell

[2008] FCAFC 63

STATE OF WESTERN AUSTRALIA,

COMMONWEALTH OF AUSTRALIA,

WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL and

CHRISTOPHER BODNEY

v

ANTHONY BENNELL and OTHERS

WAD 287 of 2006

WAD 288 of 2006

WAD 289 of 2006

WAD 290 of 2006

SUMMARY

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

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

The application was heard by Justice Wilcox commencing in October 2005. On 19 September 2006 the Judge answered the separate question as follows: “But for any question of extinguishment of native title by inconsistent legislative or executive acts carried out pursuant to the authority of the legislature under Divisions 2, 2A, 2B or Part 2 of the Native Title Act1993 (Cth) or under the Titles (Validation) and Native Title (Effect of Past Acts) Act1995 (WA), native title exists in relation to the whole of the land and waters in the area of the separate proceeding, other than off‑shore islands and land and waters below low‑water mark.”

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

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

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

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

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

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

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

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

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

FEDERAL COURT OF AUSTRALIA

Bodney v Bennell [2008] FCAFC 63

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

Native Title Act 1993 (Cth) ss 11(1), 62(1)(b), 62(2)(a), 62(2)(b), 64, 67, 67(1), 84C(1), 94A, 223(1), 223(2), 225

Evidence Act 1995 (Cth) ss 60, 79, 135, 136

Federal Court Rules O 29 rr 2, 5

Bennell v State of Western Australia (2006) 153 FCR 120 reversed

Bodney v State of Western Australia [2003] FCA 890 cited

Bodney v Bropho (2004) 140 FCR 77 cited

Anderson v State of Western Australia [2003] FCA 1423 cited

Wilkes v State of Western Australia [2003] FCA 1206 cited

Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 cited

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

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

Northern Territory v Alyawarr (2005) 145 FCR 442 applied

Western Australia v Ward (2000) 99 FCR 316 applied

Risk v Northern Territory of Australia [2006] FCA 404 approved

Risk v Northern Territory (2007) 240 ALR 75 followed

Neowarra v Western Australia (No 1) (2003) 134 FCR 208 considered

Sampi v Western Australia [2005] FCA 777 cited

Jango v Northern Territory (No 4) 214 ALR 608 cited

Daniel v Western Australia (2000) 178 ALR 542 cited

Quick v Stoland Pty Ltd (1998) 87 FCR 371 cited

Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queensland [2000] FCA 1548 cited

Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) (2003) 130 FCR 424 cited

R v Welsh (1996) 90 A Crim R 364 cited

Lee v The Queen (1998) 195 CLR 594 cited

Borowski v Quayle [1966] VR 382 followed

PQ v Australian Red Cross Society [1992] 1 VR 19 followed

H v Schering Chemicals [1983] 1 WLR 143 followed

Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 followed

Gumana v Northern Territory (2005) 141 FCR 457 cited

R v Patents Appeal Tribunal; Ex parte Baldwin & Francis Ltd [1959] 1 KB 105 cited

Griffiths v Northern Territory [2007] FCAFC 178 considered

Western Australia v The Commonwealth (1995) 183 CLR 373 cited

Commonwealth of Australia v Yarmirr (2001) 208 CLR 1 cited

State of Western Australia v Ward (2002) 213 CLR 1 applied

Mason v Tritton (1993) 70 A Crim R 28 cited

Fejo v Northern Territory of Australia (1998) 195 CLR 96 cited

Neowarra v State of Western Australia [2003] FCA 1402 cited

Harrington-Smith on behalf of theWongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 cited

De Rose v South Australia (No 2) (2005) 145 FCR 209 applied

Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 cited

Gumana v Northern Territory of Australia (2007) 158 FCR 349 cited

Yanner v Eaton (1999) 201 CLR 351 cited

Daniel (on behalf of the Ngarluma People) v State of Western Australia [2003] FCA 666 cited

Griffiths v Northern Territory of Australia [2006] FCA 903 cited

Attorney-General (NT) v Ward (2003) 134 FCR 16 cited

Attorney-General for the Province of British Columbia v Attorney-General for the Dominion of Canada [1914] AC 153 cited

Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 cited

Re Association of Architects of Australia;  Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 cited

Bonyhady, The Law of the Countryside (1987)

Wigmore on Evidence (3^rd ed), vol 2

ALRC Interim Report No 26, Evidence (1985) vol 1

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

WAD 287 OF 2006

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

WAD 288 OF 2006

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

WAD 289 OF 2006

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

WAD 290 OF 2006

FINN, SUNDBERG AND MANSFIELD JJ
23 APRIL 2008
PERTH

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

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

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

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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

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

BETWEEN:	COMMONWEALTH OF AUSTRALIA Applicant
AND:	ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS Respondents
JUDGES:	FINN, sundberg and mansfield jJ
DATE OF ORDER:	23 APRIL 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

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

2.The appeal be allowed.

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

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

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

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

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

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

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

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

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

THE COURT ORDERS THAT:

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

2.The appeal be allowed.

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

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

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

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

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

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

BETWEEN:	STATE OF WESTERN AUSTRALIA Applicant
AND:	ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS Respondents
JUDGES:	FINN, sundberg and mansfield jJ
DATE OF ORDER:	23 APRIL 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

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

2.The appeal be allowed.

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

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

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

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

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

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

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

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

BETWEEN:

CHRISTOPHER (CORRIE) BODNEY
Appellant

AND:

ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS
Respondents

BETWEEN:

COMMONWEALTH OF AUSTRALIA
Applicant

AND:

ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS
Respondents

BETWEEN:

WESTERN AUSTRALIA FISHING INDUSTRY COUNCIL (INC)
Applicant

AND:

ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS
Respondents

BETWEEN:

STATE OF WESTERN AUSTRALIA
Applicant

AND:

ANTHONY BENNELL, ALAN BLURTON, ALAN BOLTON & ORS

Respondents

JUDGES:

FINN, SUNDBERG AND MANSFIELD JJ

DATE:

23 APRIL 2008

PLACE:

PERTH

REASONS FOR JUDGMENT

INTRODUCTION

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

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

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

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

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

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

   PROCEDURAL HISTORY

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

   The Perth metropolitan claims

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

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

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

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

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

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

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

   The Single Noongar Application

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

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

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

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

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

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

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

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

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

    The separate question in the separate proceeding

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

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

16. The separate question in its final form reads as follows:

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

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

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

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

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

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

    THE PRIMARY JUDGE’S ANSWER TO THE SEPARATE QUESTION

    The decision of the primary judge on the Single Noongar Application

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

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

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

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

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

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

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

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

    (a)       to access and live on the area;

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

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

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

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

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

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

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

23. 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

24. 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.

25. 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.

26. 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.

1. 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.

2. 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

3. 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.

4. 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.

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

   THE ISSUES ON THE APPEALS

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

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

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

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

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

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

   A

   THE BENNELL APPEALS

   CONTINUITY

   Meaning of “traditional”

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

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

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

11. Because it is the normative system that is the source of the rights and interests, it is necessary in order to prove native title that the normative system has had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist: Yorta Yorta HC at [47]. It is therefore necessary for native title claimants to show that the normative system that existed at sovereignty is substantially the same as the one that exists today. If it is not, then any rights and interests are not “possessed under the traditional laws acknowledged and traditional customs observed”.

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

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

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

    Primary judge on continuity

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

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

    3.2whether that community continues to exist today, with members, including at least some of the Applicants, who continue to acknowledge and observe at least some of those laws and customs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Spiritual beliefs

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

    some beliefs were held by virtually all the witnesses, despite their variation in ages and the fact that they came from widely‑scattered parts of the claim area. In combination, they ‘illustrate a rich and active spiritual universe and one that admitted of mysteries’, as Dr Host [the historian called by the claimants] described …

    There were some differences between the beliefs of particular witnesses about a particular subject; the most striking examples being different views about messenger birds and totems. Frances Humphries [an aboriginal witness] explained the first example by saying: ‘Particular birds bring messages to different people’.

    However, there was a high degree of consistency in relation to the most widespread beliefs (the need to appease the spirits, wirrnitjs, the creation snake story, wagyls, wudatji, mabarn). This says something about both the unity of the people across the claim area and their adherence to traditional ways.

    Marriage

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

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

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

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

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

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

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

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

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

    Death and funerals

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

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

    ·Noongars are never cremated as fire would burn the spirit

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

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

    ·burial places should be respected and cared for.

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

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

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

    Hunting, fishing and other food‑gathering

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

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

    Laws and customs concerning land

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

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

1. The primary judge said at [685]:

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

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

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

   Primary judge’s conclusion on continuity

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

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

   He continued at [776]:

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

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

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

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

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

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

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

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

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

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

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

   Consideration of the appeals on continuity

   Wrong question asked

7. 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.

8. 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.

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

   the acknowledgment and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty, and the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs.

   On appeal to the Full Court, the appellants did not attack that formulation, though they did unsuccessfully attack other parts of his Honour’s summary of the requirements for establishing native title: Risk v Northern Territory (2007) 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].

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

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

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

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

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

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

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

    counsel [for the State] rightly say the claims made by the witnesses in these cases do not distinguish between ‘home areas’, inhabited by estate groups, and ‘runs’, larger areas to which they have access without the need for permission. Each of the witnesses only identified a relatively large area of land, his or her boodja, or country, to which he or she had access (as a matter of Noongar law, although often not under wajala law) without the need for permission.

    It seems to me that ‘home areas’ have effectively disappeared. Today’s boodjas are similar in concept to ‑ although probably larger in area than ‑ the ‘runs’ of pre-settlement times. I agree this is a significant change. However, it is readily understandable. It was forced upon the Aboriginal people by white settlement. As white settlers took over, and fenced, the land, Aborigines were forced off their home areas; the ‘bands’ or ‘tribes’, comprising several related families, were broken up. Surprisingly, the social links between those families seem to have survived, but the related families ceased to be residence groups, together occupying a relatively small area of land. The ability to maintain the ‘home area’ element of the pre‑settlement normative system was lost.

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

    Yet … change … may, in a particular case, take on considerable significance in deciding the issues presented by an application for determination of native title. The relevant criterion to be applied in deciding the significance of change to, or adaptation of, traditional law or custom is readily stated (though its application to particular facts may well be difficult). The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified?

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

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

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

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

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

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

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

20. 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

21. 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.

1. 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”.

2. 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.

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

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

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

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

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

   Answer to (iii): 

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

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

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

   (Emphasis added.)

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

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

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

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

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

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

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

    CONCLUSION:  THE BENNELL APPEALS

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

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

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

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

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

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

    B

    THE BODNEY APPEAL

    Background

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

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

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

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

    The Primary Judge’s Reasons for Dismissing the Bodney Claims

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

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

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

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

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

    Notice of Appeal

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

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

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

    …

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

    …

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

1. As to landholding, ground 6 claims: 

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

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

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

   The Appeal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    CONCLUSION:  THE BODNEY APPEAL

16. We will order that the appeal be dismissed.

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

Associate:

Dated:          23 April 2008

Mr C Bodney appeared in person.
Counsel for the Commonwealth:	Ms R Webb QC
Solicitor for the Commonwealth:	Australian Government Solicitor
Counsel for the Western Australian Fishing Industry Council:	Mr M McKenna
Solicitor for the Western Australian Fishing Industry Council:	Hunt & Humphry
Counsel for the State of Western Australia:	Mr K Pettit SC with Mr S Wright
Solicitor for the State of Western Australia:	State Crown Solicitor (WA)
Counsel for the Bennell respondents:	Mr V Hughston SC with Ms T Jowett
Solicitors for the Bennell respondents:	South West Aboriginal Land & Sea Council
Counsel for the Perth metropolitan local councils:	Mr P Wittkuhn
Solicitors for the Perth metropolitan local councils:	McLeods Barristers & Solicitors
Counsel for the Group 17 Pastoralist interveners:	Mr J Allanson
Solicitors for the Group 17 Pastoralist interveners:	Blake Dawson Waldron
Date of Hearing:	16-19 April 2007
Date of Judgment:	23 April 2008