Fortescue Metals Group Ltd & Ors v Warrie & Ors

[2020] HCATrans 65

[2020] HCATrans 065

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P57 of 2019

B e t w e e n -

FORTESCUE METALS GROUP LTD ACN 002 594 872

First Applicant

THE PILBARA INFRASTRUCTURE PTY LTD ACN 103 096 340

Second Applicant

FMG PILBARA PTY LTD ACN 106 943 828

Third Applicant

and

STANLEY WARRIE, KEVIN GUINNESS, JEAN NORMAN, ANGUS MACK, JUDITH COPPIN, JOYCE HUBERT, MICHAEL WOODLEY, PANSY SAMBO, MAISIE INGIE AND ESTHER PAT

First Respondent

STATE OF WESTERN AUSTRALIA

Second Respondent

ROBE RIVER MINING CO PTY LTD, HAMERSLEY EXPLORATION PTY LTD AND HAMERSLEY IRON PTY LTD

Third Respondent

GEORGINA HOPE RINEHART AND HANCOCK PROSPECTING PTY LTD

Fourth Respondent

YAMATJI MARLPA ABORIGINAL CORPORATION

Fifth Respondent

LINDSAY TODD, MARGARET TODD AND PHYLLIS HARRIS (TODD)

Sixth Respondent

Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY AND PERTH

ON FRIDAY, 29 MAY 2020, AT 11.29 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, QC:   May it please your Honours, I appear with my learned friend, MS J.D. WATSON, for the applicants.  (instructed by Green Legal)

MR V.B. HUGHSTON, SC:   May it please the Court, I appear with MS T.L. JOWETT, for the first respondents.  (instructed by Yindjibarndi Ngurra Aboriginal Corporation RNTBC)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with MR G.J. RANSON for the second respondent.  (instructed by State Solicitor’s Office (WA))

KEANE J:   Yes, Mr Walker.

MR WALKER:   If it please your Honours.  In our submission the merit of the application for special leave lies in that particularly significant role of the Court to ensure that jurisprudence in important areas of the law is consistent and presents a sufficiently resolved and reconciled body of doctrine as to permit a proper application to future cases, both as to decide disputes and as to quell controversies at the outset.  In native title law, in our submission, those are considerations that have, perhaps, a special and broadly societal importance as well.

In Yorta Yorta 214 CLR 402, there was a deal of holding by the Court venturing into what might be called the hard area of comparing that which falls to be determined under section 225 in accordance with recognition under section 223 based upon the acknowledgment of traditional laws and the observance of traditional customs. In particular, in Yorta Yorta there was, at the heart of the decision in the case, a need to decide what the findings of fact supported by evidence permitted concerning the necessary continuity.

In the reasons of Chief Justice Gleeson and Justices Gummow and Hayne at the passage commencing on page 446, paragraph 52 down to paragraph 57, their Honours were expressing part of what they called their “lengthy introduction” to the dispositive reasoning in that case.  It is clear from that passage, which I do not need to read, that there is a concerted and focused attention on the need to find continuity in such a way as would not exist were there what might be called a hiatus and the revival of cultural observance.

That was a particular way, pointedly, in that case, of demonstrating the demands made of continuity in the acknowledgement and observance that is necessary in order to produce the recognition under section 223 of rights antedating and existing at the point of sovereignty. The dispositive reasoning at 214 CLR 449, 450 in particular includes, in paragraph 65, holdings which, in our submission, simply cannot be reconciled with the approach taken by the Full Court in the case against which we seek special leave to appeal.

EDELMAN J:   It is paragraph 243 that really is the heart of your submission, is it not?

MR WALKER:   It is, yes. 

EDELMAN J:   If that paragraph is not read literally - according to its literal terms, then there may be no inconsistency between the Full Court’s approach and the approach in Yorta Yorta and other cases?

MR WALKER:   Your Honour, that would be to use the notion of literal in what we would call, with respect, a rather strained sense.  The paragraph in question is one which unquestionably culminates a line of reasoning by which the existence and implications and consequences of settlement and what might be called correctly clashes between societies should be put to one side for the purposes of the critical determination under 225 of that which existed and has continued under 223 for recognition.

In our submission, it is 1precisely in paragraph 65 of Yorta Yorta that there is put paid the notion that in order to achieve what might be called an ameliorative purpose of the Native Title Act one puts to one side the reality on the ground.  However tragic or perhaps given the tragedy, that reality on the ground, without involving extinguishment in the proper sense, nonetheless will produce the devastation and disruption referred to by their Honours in paragraph 65 of Yorta Yorta, a devastation and disruption which will factually answer the proposition that there has been continuity of acknowledgement and observance and if that is so, of course, there simply cannot be the section 223 recognition.

KEANE J:   But Yorta Yorta is concerned with the disappearance, for whatever reason, of the connection and the required continuity.  It is a different question, is it not, where there is no question about continuity and connection but as to the content of the laws that apply by reason of the connection and it is in relation to that latter that the Full Court here followed the earlier decision in Griffiths, which has stood for 15 years.

MR WALKER:   I think the short answer to your Honour’s proposition is that is how in terms of stare decisis the reasoning proceeded.  We do not have any criticism, as your Honours have seen, that there has been a misunderstanding of the Full Court of what can be spelled out and what was applicable, at least arguably, in this case from Griffiths.  There is no question about that.  That, in our submission, is one of the reasons why this is an issue, and this case provides a vehicle ripe for special leave because those are modes of reasoning which, in our submission, do put to one side the requisite continuity.

Now, there are a number of concepts, only some of which find linguistic reflection in the provisions.  Those which are to be found in the provisions of course are acknowledgement and observance, law and custom.  Those which are not in the statute but which this Court has regarded as important by way of reasoning, both factual and doctrinal, includes the significance one way or the other of what I am going to call “exercise”, a word that may be ordinarily used with respect both to law and custom – that is, enforcement, exercise of rights and exercise that is practice or custom.

Now, it is true that the exercise is something which is obviously therefore extremely vulnerable to the devastation and disruption of which the Court spoke in paragraph 65 of Yorta.  That is clear.  That is no reason of course to water down the requirement for the continuity.

KEANE J:   But do you say that the maintenance of the requirement for continuity in these cases could only have been met if the native title groups had sought to exercise their rights by acts of violence, acts of physical restraint upon others?

MR WALKER: No. But the drastic nature of your Honour’s inquiry and the confronting implications of the question is, again, a reason for special leave. This is a very significant question as to what is required by the jurisprudence that I will sum up in the one word of “continuity” for section 223 purposes when, by definition, by the historical premise preambular in nature to an understanding of the Native Title Act, there has been the, if you like, usurpation or destruction of former systems of authority.  That is plainly related to what I will call the sovereignty question – again, one word to pack in a complicated notion.

But, in our submission, that is a reason for special leave because there can be no doubt, on the one hand, of the requirement of continuity - that is what determined Yorta Yorta - and there is no doubt on the other hand of the need to avoid what might be called self‑defeating impossibility in an understanding of the Native Title Act, so far as it calls for the continuity to which I have referred and, in our submission, by the Full Court in its approach putting to one side, as it does - conceptually removes the effect of non‑Aboriginal European settlement - there has been, in our submission, a failure to reflect the proper approach which was taken by this Court in Yorta Yorta. 

EDELMAN J:  How do you explain paragraph 359 if you say that the Full Court really did put these considerations entirely to one side?  That is on pages 292 to 293. 

MR WALKER:   Yes, your Honour, I have it open.  Their Honours say at the top of page 293, by reference to Federal Court and Full Court authority, that what their Honours there refer to as exercise, that is traditional law and custom and enforcement in form or frequency was or was not possible in a practical sense against what their Honours there call usefully “Europeans” and then refers to the fact that that is not an automatic impossibility to prove the requisite continuity, which so much may be granted because it will be circumstantial in every case. 

However, in our submission, when their Honours there refer to the need to evaluate the significance of change so as to ascertain whether particular laws or customs have been lost or can no longer be properly described as traditional it is important, in our submission, to note the tension set up between, on the one hand, noting that traditional laws and customs are not acknowledged by or observed as customs by Europeans – so much may be taken for granted.  It is the whole point about the recognition under the law introduced by sovereignty of…..traditional law and custom. 

What their Honours have decided is that the circumstances with respect to the acknowledgement which goes, as your Honours know, beyond knowledge of ‑ as was pointed out in Yorta Yorta - knowledge of traditional law and custom is critically to be distinguished from its continuate, unbroken, uninterrupted acknowledgement and observance of custom.

Your Honours, that is also related to a similar and for us, with respect, obviously very important point concerning the notion of exclusive enjoyment of these native title rights and interests.  In that regard, in our submission there has been, as we have sought to explain in our written application, an insufficient account taken by their Honours of critical holdings, of which I will go to one, in Western Australia v Ward 213 CLR 1 at 82, in particular the passage commencing in paragraph 49 going over to paragraph 53.

Those are descriptions of the difficulty caused by what might be called the tide of history and European settlement with respect to a claim that there has been a continuing acknowledgement of laws and recognition and observance of customs which permit “against the whole world” – and that is the critical difference – the enjoyment of those interests under traditional law and customs against the whole world, the so‑called exclusive finding.

In our submission, the Full Court’s reasons do not engage at all with what is called in terms the difficulty of making such a finding where there has been a history which shows that there is a lack of observance of a custom or acknowledgement of a law by reason of a lack of any asserted position of being able to ‑ that is, entitled to – resist access by the whole world including the settlers.  That is why, with great respect, Justice Keane’s question is a matter that cuts most poignantly to the heart of the problem in this case.

EDELMAN J:  But you do not suggest, as I understand it, that there can never be a case where non‑exercise or impossibility of exercise of practices or beliefs necessarily means that the practice or belief, or traditional law could no longer exist ‑ ‑ 

MR WALKER:   No, that ‑ ‑ ‑ 

EDELMAN J:  In other words, it is not impossible for non‑practice or impossibility of exercise to co‑exist with a continuation of that traditional practice or belief. 

MR WALKER:   That must be so with the consequences in both directions that that has for my application.  To explain, it is of course a premise of the Native Title Act that there was a change in sovereignty.  It is a premise that that includes the permitted occupation and activities of the settlers.  It would therefore be an absurd and impossible reading of the Act to find that the fact displacing one system of law as the ultimate system of law, all other systems of law antedating that sovereignty, that change of sovereignty, cease to be enforceable and therefore the continuity is impossible.  That would be to prove too much in a way that none of our argument seeks to advance. 

EDELMAN J:  Does that not mean that this case is just simply a question of application to the facts of what H.L.A. Hart might have called the internal point of view?  Does the internal point of view still exist?

MR WALKER:   Your Honour, that was second point which does cut the other way and, yes, that is a matter with which we have to grapple, because of course we are bound to the proposition that these cases depend on their own circumstances and involve the application of the doctrine to the facts as they are found.  That does not mean that it is inappropriate for special leave because in our submission there is a mode of reasoning, to which now authority is given in the Full Court of the Federal Court, which does put to one side the way in which the conduct historically, among themselves of the formerly traditional Aboriginal society and the waves in their variability of European settlement have interacted so as to cast light on continuity.  That cannot be excluded from consideration.

In our submission that is what has happened in the crucial passage of reasoning in the Full Court.  It is for those reasons though – it is for those reasons that although it is of course always a conclusion which depends upon the facts of the case, the need is to ensure that doctrine is not obscured by the clear tension that exists between the Full Court’s approach, including in the passages to which specific reference has been made, and the High Court’s approach in the reasoning and outcome first in Yorta Yorta and then of Ward.  May it please the Court.

KEANE J:   Thanks, Mr Walker.  Yes, Mr Hughston.

MR HUGHSTON:   If your Honours please.  Your Honours, there is no disagreement amongst justices in the Federal Court in terms of jurisprudence on this particular area.  Griffiths was a unanimous decision, as too was Banjima, with a five‑member bench, as too was this particular case, Warrie, with a five‑member bench.  What is being suggested by the applicant would in fact turn native title on its head.  It fails to distinguish between the existence of a right and its exercise.  A right exists because it is possessed by people, whether they exercise it or can exercise it or not is a separate question. 

Now, the definition of native title rights and interests in section 223 is directed to the possession of rights and interests under traditional laws and customs acknowledged by and observed by the relevant people, so ‑ ‑ ‑

EDELMAN J:   I think the applicant accepts all of that, but the applicant says that paragraph 243 goes a lot further than that.

MR HUGHSTON:   If your Honour will just excuse me, I will go to 243.

EDELMAN J:   As I understand the applicant’s argument is that paragraph 243, it is not just drawing a distinction between the existence and the exercise of rights or beliefs, but it is saying that in considering whether connection and continuity has been established, one puts entirely to one side the questions of proof of post‑sovereignty non‑Aboriginal conduct and its legal and practical effect.

MR HUGHSTON:   Your Honour, that is not what is happening in that particular passage.  This passage appears in a portion of the Full Court judgment, commencing at paragraph 224, where they are talking about selected passages from Ward, Yarmirr and Brown that are relied upon by the appellant below and they are making the point that the passages that are being relied upon were passages which were dealing with the issue of extinguishment by inconsistent grant.  They were not dealing with connection. 

This is an area where native title right of exclusive possession had been extinguished by the grants of pastoral leases and mining leases. So at the time this case was heard, there was no legal right of exclusive possession. It is only because of the operation of sections 47A and 47B of the Native Title Act that the Court was able to recognise in a way which revived that right of exclusive possession.  So up until this determination was made there was no right of legal possession, there was no practical way of enforcing your rights and interests against Europeans prior to Mabo and prior to the Native Title Act in any event, but there was no legal way that they could have done it anyway, because this is all 47B and some 47A land.

Sections 47A and 47B are important remedial provisions in the overall statutory purpose of the Native Title Act because they do allow the revival of a right that has been extinguished.  So if you can bring yourself within the other requirements in those sections, the court will disregard the prior extinguishment.  But it is asking too much of Aboriginal people out in the Pilbara where pastoral lessees have been granted leases, mining lessees have been granted leases, to expect them be able to enforce their rights against those people and, in any event, they did not have that right. 

The grant of a pastoral lease, the grant of a mineral lease extinguishes a right of exclusive possession and that is what their Honours were talking about at 243.  They were talking about native title involves two types of inquiries.  One is interconnection and the other is into extinguishment and here they are saying these grounds of appeal clearly involve issues and only issues of connection and therefore issues of the grants to – grants of interest to Europeans and the practical effect of those grants is neither here nor there. 

Similarly, in 236 which is the other passage which the applicant complains about, their Honours are saying self‑evidently these appeal grounds do not concern extinguishment.  They relate to those 47A and 47B areas of land and 47A and 47B say that the court in making a determination must disregard the extinguishment of native title by those prior interests.

Now, I will not take your Honours to it – your Honours are no doubt familiar with it – Yorta Yorta, paragraph 84 in the plurality judgment - their Honours say that the definition of “native title” is directed to the possession of rights, not to their exercise and, accordingly, to demonstrate that there has been an interruption or break in the enjoyment or the exercise of native title rights does not answer the statutory question.  The question is whether people continue to acknowledge and observe traditional laws and customs under which they possess those rights and interests. 

If I could take your Honours briefly to Western Australia v Brown (2014) 253 CLR 507, which is a unanimous decision of this Court, your Honours will recall that this was a case involving mining interests that had been granted – the Mount Goldsworthy iron ore project. Leases were granted for 22 years in the 1960s with renewals - mineral leases with renewals for periods of 21 years. By the time this case was heard they had been renewed. It was a huge project requiring not just the mining of the ore but the construction of roads, construction of railways, wharfs and even towns. The Court says at paragraph 59 about arguments that were raised there ‑ this is at page 528:

The submission that there could be (and in this case was) extinguishment of native title by the exercise of rights granted by or under statute should be rejected.  As has already been explained, the submission is directly contrary to the principles established and applied in both Wik and Ward -

Towards the bottom of that paragraph they mention that Chief Justice Brennan in Wik pointed out that:

“[t]o postulate extinguishment of native title as dependent on the exercise of the private right of the lessee (rather than on the creation or existence of the private right) would produce situations of uncertainty, perhaps of conflict” –

and the argument there was because this was such a massive project with the right on the part of the miners, not only to dig large mines but to build whole towns, streets – sorry, houses, streets and the like, that it would not be possible for native title holders to exercise their non‑exclusive native title rights and interests in many parts of this claim area for many years.  The Court at paragraph 64 on page 529 said that:

In the end, then, the State’s narrower alternative argument reduces to the practical observation that two persons cannot occupy the one place.  When the joint venturers built a house in the town, native title holders could not (for example) hunt and gather on the land which that house occupied.  And the rights which the joint venturers had, and exercised, took and continue to take priority over the rights and interests of the native title holders for so long as the joint venturers enjoy and exercise those rights.  Any competition between the exercise of the two rights must be resolved in favour of the rights granted by statute.  But when the joint venturers cease to exercise their rights (or their rights come to an end) the native title rights and interests remain, unaffected.

So the fact that in that case, perhaps for 20, 30, 40 years, people would be unable to exercise their rights to hunt, camp, carry out ceremonies and the like on various parts of that area of land did not extinguish those rights.  The exercise is different from the possession or the existence of a right.  The right still exists.

EDELMAN J:   I do not think that is disputed, Mr Hughston.

MR HUGHSTON:   If your Honour pleases.  Your Honours, can I take you to the findings of the primary judge.  This is a case where the primary judge found that there had been continuity of acknowledgment and observance of a rule, a law, which required all strangers, black and white alike, to seek permission before going on to Yindjibarndi country.  The way the applicant and the State argued against continuity or that right below was they said that there was no such rule, that there was only really a matter of courtesy or respect, that people were expected to seek permission.  But if they did not do it, they did not do it.  It was not a rule or a law.

I should point out to your Honours, too, that there is no issue here that the claimants do possess non‑exclusive native title rights and interests – hunting, camping, fishing and all the rest – and no doubt there would have been interference with the enjoyment of those rights and interests.  They were effectively dispossessed from their lands, so there would have been an inability to exercise many of those rights as well.             Can I take your Honours to paragraph [98] in the primary judge’s reasons at page 37:

The State and FMG argued that notwithstanding the body of evidence to which I have referred, the requirement that a stranger seek permission before entering Yindjibarndi land was a mere matter of “respect” or courtesy, rather than a requirement of traditional and currently acknowledged Yindjibarndi law.  They also contended that in today’s world, not everyone, and particularly not all indigenous non‑Yindjibarndi persons, sought permission before entering Yindjibarndi country.

That was the argument put against us, that it was simply a matter of respect and not all non‑Yindjibarndi indigenous people asked for permission.  That was their case.  It is important then to go to paragraphs [106] and [107] to see we placed reliance upon what the Full Court had said in Banjima in particular.  Paragraph [106] is the evidence of Mr Warrie, that:

“when you are under the white man law, you’re … free to go wherever you want to … And it is a free country then.  But our laws still stand the same”.  He said that Aboriginal people still followed their law and culture even though “the white man law” had affected the way that Aboriginal laws are respected.  He said, But there’s still respect between Aboriginal people … But the white man doesn’t respect Aboriginal people’s laws”.  Nonetheless, if a stranger came onto Yindjibarndi land (regardless of the position under “the white man law”) without permission, that would break the Yindjibarndi law.

EDELMAN J:   Your submission is effectively that the courts are consistently saying that, although it is possible that post‑sovereignty non‑Aboriginal conduct can affect the continuity or existence of the rights, on the facts of this case it did not.

MR HUGHSTON:   Yes.  The Full Court accepted that the evidence is relevant, that it all depends on the facts of the case.  His Honour then quotes that passage from Banjima, which was particularly important in the way the claimants framed their case.  Looking at the last bit:

It follows that the conduct of Europeans in not seeking permission and not heeding the spiritual dangers of Banjima country or respecting sacred or religious sites created in the Dreaming says nothing about the acknowledgment and observance by Banjima and other traditional societies of Banjima traditional laws and customs.

The evidence which was led was directed towards that view of the law and, as the Full Court notes at paragraphs [351] to [356], there was no challenge to the correctness of the reasoning in either Banjima or in Griffiths that was raised before the primary judge.  As the Full Court said, both the primary judge and the Yindjibarndi were entitled to know if those decisions were in issue.

But you can see from what I have read to your Honours the very narrow compass of what the case was that we had to meet.  It was that other people, particularly non‑Yindjibarndi indigenous people, were not obeying the law and there was no suggestion that if we could adduce facts consistent with those two paragraphs from Banjima, if those facts were accepted, then we would have a right of exclusive possession.

This case is not a suitable vehicle for that reason, as it was for others, but for that particular reason we did not have the opportunity at trial to meet the type of argument which is now being put on appeal.  If I can take your Honours very quickly to the finding of the primary judge, and that is at page 48 of the application book, paragraph [149], and his Honour’s conclusion is that he is:

satisfied that, on the evidence before me, the Yindjibarndi continue to acknowledge their traditional laws and observe their traditional customs that have existed since before sovereignty that a manjangu must seek and obtain permission from an elder before entering on Yindjibarndi country or carrying out activity there (except if the person is simply driving through).

So on the facts of this case, his Honour was satisfied that that law had continued, and there is ample reference in the evidence, certainly, to other Aboriginal people acknowledging and observing it.  There was evidence called from members of neighbouring groups, which are referred to in the primary judge’s reasons, and also in the Full Court’s reasons.  There is said that yes, they have always been taught that they can get permission to go

over to Yindjibarndi country, in fact, and they did that, and there was evidence, too, of punishment being meted out to Aboriginal people who breached that particular law.

Angus Mack, a lawman, gave evidence about how a senior Yindjibarndi lawman had punished an Aboriginal trespasser from coming onto their country without asking.  So as the primary judge found, it was not just a question of strangers would be harmed by the spirits and therefore they can enter at their own risk.  No, the rule or the law that he found that was there was that people must ask permission.  And the consequences were, yes, that they would be punished by the spirits or they would be punished by the Yindjibarndi lawman.

So that body of law and custom to the Yindjibarndi people within that universe of Pilbara Aboriginal law has continued to operate, from sovereignty and before, right through until the present time.  And this challenge, which is thrown up now, is not a challenge which was thrown up in the Court below.  If your Honours please.

KEANE J:   Thanks, Mr Hughston.  Mr Solicitor.

MR THOMSON:   May it please the Court.  There are two essential reasons why we say that special leave ought not to be granted.  The first is that this is a case which does not present itself as a suitable vehicle, and even if it did, the second reason is that there is not sufficient merit in the propositions that are advanced.  In relation to the first point, Mr Walker has accepted in his submissions orally this morning that the applicant says that there are circumstances where a native title right, presumably he also includes in that a native title right of exclusive possession, may continue even when that right is not exercised and not practised.

It follows from that that there must always be a question of evidence.  In this case, the point that has been raised on the appeal was only raised at the tail end of the appeal, and it is clear from the way that the Full Court and the trial judge dealt with this matter that the evidence about the exclusive possession related to methods of control which prevented ‑ which were prevented, or mostly prevented, by European law.  You have already been taken to the passage of the trial judge at paragraph [106].  In that paragraph there was a statement by Mr Warrie that ‑ and this is at application book 39 ‑ there was a statement by Mr Warrie that:

However, in the present day, the Yindjibarndi themselves could not harm such a person ‑

who trespassed:

physically, by, for example, spearing him or her, because “the white man’s law’s in place.  We can’t do anything like that”.  Stanley Warrie explained (as did Middleton Cheedy, see at [71] above) that nowadays “you can’t kill anybody, because you get in gaol now”, but that “if I had my way, I would deal with him in my own law”.

Clearly, the Full Court was concerned about the fact that European law placed restrictions on enforcement in relation to the content of how the Yindjibarndi would enforce their rights and I say that by reference to two particular passages.  If you go to the summary that was provided by the Full Court reasoning at paragraph 223 on page 250 of the application book, you will see that Justices Jago and Mortimer said:

We consider the primary judge was correct in the way he approached the question of how Yindjibarndi traditional law on excluding manjangu manifested itself after effective sovereignty, and was correct to observe the restricted ability of Yindjibarndi people, in a practical sense ‑

The restricted ability in a practical sense:

to enforce their traditional law on those who came onto their land after white settlement. We also consider the primary judge was correct to see this argument by the appellant as effectively requiring the Yindjibarndi to have at their disposal the kinds of tools for the (non‑traditional) enforcement of native title that are only given to native title holders under the Native Title Act after a determination is made.

Then if you also go to paragraph 290 at page 271 of the application book, the same judges say:

It would be an intolerable irony if post‑sovereignty authorities and non‑Aboriginal peoples whose society has been responsible for the dispossession and oppression of Aboriginal peoples were able to use the inability of those peoples to enforce their customary law against those who entered and sought to exploit their land as a basis to continue the disenfranchisement. The objectives of the Native Title Act are not served by such an approach and nor do they countenance it.

EDELMAN J:  You would stress the word “enforce” in that sentence? 

MR THOMSON:   Yes.  So clearly the Full Court was concerned, as was the trial judge, with evidence about the means of enforcement which were restricted by the law.  And so, in truth, because this was a matter that was only raised in the appeal, other means of non‑traditional enforcement that did not contravene the law had not been explored in the evidence.  That is why this is not a suitable vehicle for considering this issue because at trial this was not a forensic issue about the circumstances and the means of enforcement that might have been adopted which were not contrary to law.  That is, Australian or European law.  And so for that reason, we say that this is clearly not a suitable vehicle, the matter having been only raised, if you like, at the death knock.  That is the first essential reason why we say that there should be no grant of special leave.

In relation to the second essential reason, that is to say that there is not sufficient merit in the point, in any event, can I begin by mentioning two factual matters and their significance and then explaining how, in truth, this really reduces to one special leave question, and that question has not sufficient merit to activate the Court giving it special leave. 

The two factual matters are these:  the first is that there was the factual concession made at the hearing of the appeal which was based upon the agreed position of the parties at the trial at both an effective sovereignty and actual sovereignty the parties agreed that the claimants had, under the traditional Aboriginal law and custom a right of exclusive possession.  So the starting point ‑ and its significance is that everyone accepts ‑ that at the point of sovereignty, traditional laws of the Yindjibarndi people acknowledged the right of a normative rule which justified the Yindjibarndi people excluding strangers from their land, and that was a traditional custom which was observed at the point of actual sovereignty, an effective sovereignty.  And there is no challenge to any evidence initially establishing that normative rule as a matter of objective fact and as a result ‑ and going back to my first point ‑ there was no particular need for that evidence to be elaborated.

The second factual matter is that the Full Court found that the Yindjibarndi people had continued to acknowledge that normative rule or law of exclusion from the point of sovereignty in a very particular way.  They had acknowledged it by – well, sorry – they acknowledged the continuation of the traditional law permitting exclusion of strangers by regarding it as necessary for strangers who they had called manjangu to seek permission to enter their land.  If they did not, the Yindjibarndi believed that trespassers would suffer harm inflicted by spirits.

Now, prior to Australian law applying, the Yindjibarndi people would themselves act to inflict that harm on behalf of the spirits by spearing or killing and so forth.  However, after Australian law applied the Yindjibarndi people could not themselves continue to inflict the harm on behalf of the spirits, but they still acknolwedged and understood that the spirits themselves might enforce the law by making a trespasser ill or by causing a trespasser to die and that is evident from the evidence of Middleton Cheedy, at paragraph [71] in the trial judge’s reasoning, which is at application book 32.

Now, it is significant, we say, that the rule of exclusion related to strangers generally.  Clearly, before European settlement there could be no exclusion of Europeans, but the rule itself related to strangers and did not differentiate according to the race of the strangers.  It is important to acknowledge that the normative rule included a belief or a perception that the spirits themselves would take action, and that was justified by reference to the story that Middleton Cheedy told at paragraph [71] of the trial judge’s decision to the effect that the person who trespassed would be subject to harm and could become ill and die as a result of it.

As a result of those matters we say that, really, the question that is generated on this case is whether indigenous acknowledgment of an established traditional law of exclusive possession which is supported by the understanding that there has been enforcement of that law by spiritual forces is sufficient to establish continuity of exclusive possession.  So that really seems to be the true question as really not advanced by trying to segregate the question into two parts, one about continuity and one about the enforcement of exclusive possession against indigenous people or against everyone, including Europeans.  We think that the second question is a question of application of a principle relating to all strangers. 

And we say that if you condense the question to that form which I have already tried to outline that there is no new principle which is raised by the continuity proposition which is advanced.  We say that for three reasons.  It is well established that rights may exist under native title law, even though they may not be exercised, and that is well established by Yorta Yorta and the passages out of the plurality judgment of Chief Justice Gleeson and Justices Gummow and Hayne.  And it was acknowledged by the Full Federal Court in State of Western Australia v Willis by Justice Jagot herself.

There is in fact no submission to the contrary put by the applicant in this case.  There is no dispute as well that there was continued acknowledgment of the traditional law in this case.  And there is no dispute that the applicable Australian law prevented the types of enforcement activity, such as spearing and killing, and other traditional means of enforcement so far as they were disclosed by the evidence.  And, again, the applicant has not suggested to the contrary.

We say it consequentially follows that the crux of the applicant’s case is that where traditional law is acknowledged but the traditional means

of enforcement are prohibited by Australian law, indigenous people cannot establish continuity and must inevitably lose their native title.  When you state that proposition in that form, which is the only form the evidence permits, then it is apparent that pursuing that proposition is without merit, and that goes back to the first point that I made that the court was very concerned at the Full Court level to prevent that type of proposition being accepted, and that is evident from the passages that I have mentioned.

Can I deal briefly with paragraph 243 of the judgment and what that says.  It is at application book page 255.  The passage at 243 is not the statement of a law but an exposition of a passage which has been previously quoted and it draws a distinction between, on the one hand, establishment of connection and continuity and, on the other hand, assessment of extinguishment.  It goes on and says that “Ward was principally concerned with the latter” question, the question of extinguishment, and that the “appeal grounds are concerned with the former”, that is, the preceding question of establishment of connection and continuity. Then there is a reference to section 47A and 47B.

It is a comment on the passages that have been quote above and we would make the submission that it does not say that you have to ignore all post‑sovereignty conduct – no, post‑sovereignty non‑Aboriginal conduct.  We make that submission based on what is said later in the judgment about and around paragraph 359 and 360, and there is also quite significant analysis of the way in which there has been an interface between post‑sovereignty conduct and the analysis of the type of evidence that I have already mentioned. 

There is nowhere in the judgment that expressly states a proposition, as far as we can see, that says for the purposes of assessing continuity that you must ignore post‑sovereignty non‑Aboriginal conduct and it is not a point that the applicants themselves take because they had the point or the concession about it being a matter of circumstances, which is the place where I started these submissions.  Those are our submissions why special leave should be refused.

KEANE J:   Thank you, Mr Solicitor.  Mr Walker, anything in reply?

MR WALKER:  May it please the Court. Your Honours, the evocation of the approach that would attribute to a perceived implication of our argument and intolerable irony in relation to the meaning and purpose of the Act is, in our submission, to evoke the very circumstances and attributes which fit this case for special leave. It is of great importance to understand to what extent the change of sovereignty with its inevitable effect on real enforcement of antecedent traditional law and custom has upon the cardinal requirement of section 223 that there be the continuity of which all counsel have spoken.

In our submission, the tension between Yorta Yorta in particular but also Ward on the one hand in this Court and in the sequence of Full Court Federal Court decisions, to which reference has been made by all counsel here, is a reason why that has a particular point.

We know that facts concerning enforcement and enforceability were in play.  That is why the passage to which both of my friends have gone, paragraph [106] at first instance, was germane.  We also know that the question in particular of the exclusivity which was claimed and granted naturally enough calls in question a reference to what I am going to call “facts on the ground” ‑ what has actually happened ‑ and entertaining, with respect, an ambition that one would like to broach, the law of the land with respect to injuring those who infringe traditional law, is not necessarily at all the same as a continued acknowledgment and observance. 

It is the reduction of that to a question entirely answered from the perspective of such witnesses, without considering those facts on the ground in relation to settlement that produces the error that we submit this Court should consider.  It is, as was also put against us, important for this Court to grapple with this aspect of intolerable irony, also conjured up by the phrase that it is asking too much of persons in the respondent’s position here that they act as if they were sovereigns.  No one asks that, least of all the Native Title Act in its requirement for continuity.  The premise of the whole exercise is that there has been that change of sovereignty.  It would have been asking too much of Yorta Yorta as well.

But your Honours appreciate that in paragraph 47, 50, 52 and then the culmination of 65 in Yorta Yorta, it was the very effect in the train of the alteration of sovereignty of colonisation and of – in Yorta Yorta’s Case – their treatment by white officers of the State that had the effect of the break in continuity, not seen as an intolerable irony with whatever irony it may have societally and historically.  Not seen, with respect, as asking too much of the Yorta Yorta but simply applying the law.  And it is not possible to see any reflection of that approach, hard as it may be in Yorta Yorta, to the question of the continued…..laws, observance of custom, as opposed to the mere continued knowledge of them, a distinction which in those passages in Yorta Yorta this Court has hitherto been astute to draw. 

The citation of Brown similarly shows, with respect, the importance of this point, because this is not an extinguishment case, this is a continuity case.  That is why 47A and 47B are simply not to the point.  And, in our submission, that adds to the reasons for the better protection of clear

statement of doctrine why this Court should take the case on by way of the grant of special leave.  May it please the Court. 

KEANE J:   Thanks, Mr Walker. 

The decision of the Full Court of the Federal Court was concerned with the application of settled principle.  The application to this Court raises no issue of principle that would warrant the grant of special leave to appeal.  The application should be dismissed with costs.

AT 12.27 PM THE MATTER WAS CONCLUDED