Members of the Yorta Yorta Aboriginal Community v State of Victoria

[1998] FCA 1606

FEDERAL COURT OF AUSTRALIA

CATCHWORDS

ABORIGINES – Native title – Native Title Act 1993 – application for a determination of native title – claim to ownership and exclusive possession, occupation, use and enjoyment of land, waters and natural resources.

EVIDENCE – Native title – proof of descent from indigenous inhabitants – proof of traditional laws and customs of ancestors – evidence based upon oral tradition – use of historical and ethnographic material – whether continued acknowledgment and observance of traditional laws and customs.

Aboriginal Land Rights Act 1983 (NSW) s 22;

Crown Lands Occupation Act 1861 (NSW);
Irrigation Act 1912 (NSW);
Irrigation Corporations Act 1994 (NSW);
Native Title Act 1993 (Cth) ss 3, 23B, 23C, 23E, 47A, 47B, 61, 82, 94A, 223, 225, 237A, 253;
Native Title Amendment Act 1998 (Cth) Schedule 5, Part 3 item 8, Part 5 item 24, Part 9 item 36;
River Murray Waters Act1915 (Cth);
Water Act 1912 (NSW).

Fejo v Northern Territory 156 ALR 721 Refd;
Mabo v Queensland (No 2) 175 CLR 1 Appl;
Re Mining Lease Application No 70149, unreported, Supreme Court of Queensland, 5 June 1998 Appl;
The Wik Peoples v Queensland 187 CLR l Refd;
United States v Santa Fe Pacific Railroad Co (1941) 314 US 339 Refd;
Western Australia v The Commonwealth 183 CLR 373 Refd.

THE MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY v THE STATE OF VICTORIA AND OTHERS.

VG No 6001 OF 1995

OLNEY J
MELBOURNE
18 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	NO VG 6001 of 1995

BETWEEN:  

THE MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY

Applicants

AND
  THE STATE OF VICTORIA AND OTHERS

Respondents

DETERMINATION OF NATIVE TITLE PURSUANT TO THE NATIVE TITLE ACT

JUDGE:	OLNEY J
DATE OF ORDER:	18 DECEMBER 1998
WHERE MADE:	MELBOURNE

The Court determines that native title does not exist in relation to the areas of land and waters identified in Schedule D to Native Title Determination Application VN 94/1 accepted by The Native Title Registrar on 26 May 1994.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	NO VG 6001 of 1995

BETWEEN:

THE MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY

Applicants

AND:

THE STATE OF VICTORIA AND OTHERS

Respondents

JUDGE:	OLNEY J
DATE:	18 DECEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1.The matter presently before the Court is an application for a determination of native title made pursuant to the Native Title Act 1993. The Native Title Act was Parliament’s response to the decision of the High Court in Mabo v Queensland (No 2) 175 CLR 1 (Mabo No 2).   Its objects include making provision for the recognition and protection of native title and the establishment of a mechanism for determining claims to native title (s 3).   The Act defines the key concept of native title in terms which are consistent with the language of Mabo No 2.Section 223 provides:

223(1)  The expression “native title” or “native title rights and interests” means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders;  and

(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters;  and

(c)the rights and interests are recognised by the common law of Australia.   

(2)   Without limiting subsection (1), “rights and interests” in that subsection includes hunting, gathering, or fishing rights and interests.

2.The judgments in Mabo No 2  speak only of the rights and interests of indigenous peoples in their lands;  there is no reference to rights and interests in water.   However, the Native Title Act has application in relation to native title rights and interests in both land and waters. Section 253 defines “land” to include the airspace over, or subsoil under, land but does not include “waters”; whereas “waters” is defined to include, inter alia, a river, a lake or subterranean waters or the bed or subsoil under, or airspace over any waters. The definition also extends to offshore waters but this case has no offshore element. It does however have a very substantial connection with the Murray and Goulburn Rivers and other rivers and watercourses in Victoria and New South Wales within the area of the claim.

3.Although s 223 provides a definition of native title for the purposes of the Native Title Act, it is necessary to understand the context in which the definition was developed and to do this it is of assistance to refer briefly to several passages from the judgments in Mabo No 2.   Mason CJ and McHugh J, with the authority of the other members of the Court, said at p 15:

… the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands …

At p 57 Brennan J provided a definition which is clearly the origin of s 223. He said:

The term “native title” conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.

In his discussion of the nature and incidents of the native title which he had earlier (at p 57) held to constitute a burden on the radical title of the Crown, Brennan J observed (at p 58):

Native title has its origin in and is given its content by the traditional laws acknowledged  by and the traditional customs observed by the indigenous inhabitants of a territory.   The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.

Having again asserted that “it is necessary to ascertain by evidence the nature and incidents of native title”, His Honour proceeded to identify some “general propositions” about native title which could be stated without reference to evidence.   The first proposition is that, absent any pre-existing laws which provide for the alienation of interests in land to strangers, the rights and interests which constitute native title can be possessed only by the indigenous inhabitants and their descendants (p 59).   In this context Brennan J observed (at pp 59-60):

Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it.   But that is not the universal position.   It is clearly not the position of the Meriam people.   Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.   The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise.   However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.   A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.   Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so).   Once traditional native title expires, the Crown’s radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.

Toohey J observed (at p 187) that it is inconceivable that indigenous inhabitants in occupation of land did not have a system by which land was utilised in a way determined by that society and then went on to say (at pp 187-188):

There must, of course, be a society sufficiently organized to create and sustain rights and duties, but there is no separate requirement to prove the kind of society, beyond proof that presence on land was part of a functioning system.   It follows from this discussion that requirements that aboriginal interests be proprietary or part of a certain kind of system of rules are not relevant to proof of traditional title.

In general the approach taken in the North American authority is to be preferred.   So, what is required to prove title?

The requirements of proof of traditional title are a function of the protection the title provides.   It is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights.   Presence would be insufficient to establish title if it was coincidental only or truly random, having no connexion with or meaning in relation to a society’s economic, cultural or religious life.   It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title.   Thus traditional title is rooted in physical presence.   That the use of land was meaningful must be proved but it is to be understood from the point of view of the members of the society.

His Honour referred to three factors relevant to the kind of presence on, or use of, land to which reference is made in the passage quoted.   First, presence on land need not amount to possession at common law in order to amount to occupancy (p 188).   Hence, a nomadic lifestyle is not inconsistent with occupancy (p 189).   Second, in considering the length of time that presence on land must continue before it amounts to occupancy, his Honour posed the question (at p 189):

If occupation by an indigenous people is an established fact at the time of annexation, why should more be required?

The third factor relates to the question of exclusive occupancy.   Having referred to a passage from the decision in United States v Santa Fe Pacific Railroad Co (1941) 314 US 339 at p 345 which suggests that “Indian title” was dependent upon the exclusive occupation of definable territory, Toohey J said (at pp 189-190):

This principle of exclusive occupancy is justified in so far as it precludes indiscriminate ranging over land but it is difficult to see the basis for the rule if it precludes title merely on the ground that more than one group utilizes land.   Either each smaller group could be said to have title, comprising the right to shared use of land in accordance with traditional use;  or traditional title vests in the larger “society” comprising all the rightful occupiers.   Moreover, since occupancy is a question of fact, the “society” in occupation need not correspond to the most significant cultural group among the indigenous people.

The need to establish occupancy as an essential element of a claim to traditional title is again highlighted by the observation (at p 192):

Traditional title arises from the fact of occupancy, not the occupation of a particular kind of society or way of life.   So long as occupancy by a traditional society is established now and at the time of annexation, traditional rights exist. 

4.It follows from the above that a claim to native title necessarily involves a number of distinct avenues of inquiry.   First, it is necessary to prove that the members of the claimant group (whether it be described as a clan, a community or otherwise) are descendants of the indigenous people who occupied (in the relevant sense) the claimed area prior to the assertion of Crown sovereignty;   second, the nature and content of the traditional laws acknowledged, and the traditional customs observed by the indigenous people, in relation to their traditional land must be established; third, it must be demonstrated that the traditional connexion with the land of the ancestors of the claimant group has been substantially maintained since the time sovereignty was asserted;  and the claimed rights and interests must be rights and interests recognised by the common law of Australia.   Leaving aside for the moment any question of extinguishment, it is not until each of these elements has been proved that it will be possible to determine whether the laws acknowledged and the customs observed by a contemporary clan, group or community  should be afforded the protection of Australian law.

5.The common law does not recognise native title which has been extinguished (Mabo No 2 per Mason CJ and McHugh J, at p 15).   As it is an element of the statutory definition of native title that the rights and interests in question are recognised by the common law of Australia (s 223(1)(c)) it necessarily follows that it is fatal to a claim for a determination of native title under the Native Title Act if the native title rights and interests claimed have been extinguished.   Indeed it would seem to be unarguable that if extinguishment is established nothing more need be considered.  The circumstances giving rise to the extinguishment of native title are discussed in each of several land mark High Court decisions, notably Mabo No 2, Western Australia v The Commonwealth 183 CLR 373, The Wik Peoples v Queensland 187 CLR 1 and Fejo v Northern Territory 156 ALR 721. Apart from any statutory provision now in force, it has always been the case, and remains so, that a grant of freehold title or a lease granting exclusive possession of land will extinguish any native title rights that may previously have existed in relation to that land. In such a case proof of prior occupation of the land and the traditional laws and customs of the claimant group in relation to the land is irrelevant. Such is not the case in circumstances in which the grantee’s rights confer less than the right of exclusive possession. Such was the position in Wik. In his postscript in that case Toohey J said (at p 133):

So far as the extinguishment of native title rights is concerned, the answer given is that there was no necessary extinguishment of those rights by reason of the grant of pastoral leases under the Acts in question.   Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established.   If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.   Once the conclusion is reached that there is no necessary extinguishment by reason of the grants, the possibility of the existence of concurrent rights precludes any further question arising in the appeals as to the suspension of any native title rights during the currency of the grants.

A freehold grant or an exclusive possession lease would amount to “necessary extinguishment” but in cases where the rights and interests granted do not necessarily extinguish the rights and interests of native title holders the existence and nature of such latter rights must first be established before the extent of any inconsistency can be ascertained.   Such a conclusion was reached by Demack J in Re Mining Lease Application No 70149 (unreported, Supreme Court of Queensland, 5 June 1998), a conclusion with which I respectfully agree. In the present case substantial arguments have been presented which assert “necessary extinguishment” in respect of all but a very small portion of the claimed land.

THE APPLICATION

6.This proceeding was initiated by an application made to the Native Title Registrar on 21 February 1994 in accordance with the then existing law. Originally, the applicant was named as The Yorta Yorta Murray Goulburn Rivers Clans Incorporated and the application was said to be made on behalf of the Yorta Yorta Aboriginal community but it did not otherwise identify any person or persons who made the application or on whose behalf it was made. At that time, s 61(1) of the Native Title Act provided that a native title determination application could be made by a person or persons claiming to hold native title either alone or with others.   In the latter case, the application was required to describe or otherwise identify those others but in so doing,  it was not necessary  to  name them  or to  say how many there were (s 61(3)).    An incorporated body was obviously not encompassed within the description of  “a person or persons claiming to hold the native title either alone or with others” and by letter dated 2 May 1995 application was made to the National Native Title Tribunal (the NNTT) to substitute eight named persons as applicants on behalf of the members of the Yorta Yorta Aboriginal community.   Those named as applicants are: Ella Anselmi, Wayne Atkinson, Geraldine Briggs, Kenneth Briggs, Elizabeth Hoffman,

Desmond Morgan, Colin Walker and Margaret Wirrpunda. The matter has since proceeded on that basis.

7.The application was accepted by the Native Title Registrar on 26 May 1994 and on 23 May 1995, following the internal procedures of the NNTT as they then applied, the matter was referred to the Federal Court for decision.    There were initially approximately 500 non-claimant parties to the proceeding (referred to hereafter as respondents).    Subsequently other parties obtained leave to be joined whilst others withdrew.   Full particulars of the parties to the proceeding are on record in the Court’s file.  At the first directions hearing, I ordered that the heading to the proceeding be amended to describe the applicants as “The members of the Yorta Yorta Aboriginal Community” and the respondents as “The State of Victoria and others”.

8.Many, but not all, of the respondents took an active part in the trial.   The States of Victoria and New South Wales were actively involved at all stages as were various groupings of respondents who had common interests.   As a matter of convenience these groups are frequently referred to by the name of the solicitors representing them.   For example, the parties represented by Messrs Corrs Chambers Westgarth were commonly identified as “the Corrs respondents” and similar designations were assigned to parties represented by Messrs Hargraves, Scott Thompson & Co and Suzanna Sheed & Associates.   Other respondents, notably the Murray Darling Basin Commission and Telstra Corporation Limited, attended only on occasions when their particular interests were involved whereas the State of South Australia and the New South Wales Aboriginal Land Council participated only to the extent of making submissions.  Particulars of the respondents who took an active part in the proceeding appear in paragraph 19 of these reasons.

9.The persons on whose behalf the application was made (the claimant group) are described generally as the members of the Yorta Yorta community, a term which the application more precisely defines as comprising men, women and children of Aboriginal descent who are descendants of the original inhabitants of an area identified by reference to a map attached to the application (the claim map).   All of the land and waters within the outer boundary of the area defined in the claim map is referred to hereafter as the claim area.   In some documents and in the evidence it is occasionally described as the original lands. The claim area is more or less oval in shape and encompasses large areas of northern Victoria and southern New South Wales.   The Murray River (the southern bank of which marks the border between the two States) more or less bisects the area from east to west.   There is no evidence before the Court to indicate the precise basis upon which the boundary of the claim area was established.   It does not appear to follow any particular geographic or other feature.  Within the claim area there are a number of substantial towns, the more notable (in the context of this case ) being Shepparton, Mooroopna, Echuca, Mathoura, Yarrawonga and Wangaratta.   Insofar as the applicants seek a determination of native title, they seek it only in respect of certain specified parcels, both of land and waters, within the claim area.   Those parts of the claim area which are the subject of the claim to native title are referred to as the claimed land and/or waters as the case may be.

10.Paragraph A6 of the application (which requires the applicant to provide a description and map of the area of land and waters claimed) states:

The area claimed is “public land” including an area of approximately 5 hectares of land, being an ochre mine which exists on a 42,000 acre grazing occupation permit held by the Registered Proprietor of a 2071 hectare property known as Moira Station (“the property”).   A full title search of the property is set out in Schedule 1.

Public land areas within the geographic boundaries of the claimed land are detailed in the attached map set forth in Schedule B being the areas coloured green.   This map, produced using a Public and Aboriginal Lands digital spatial databases (“PAL”) shows the geographic boundaries of the claimed land, and some of its natural features.   A description of the PAL data used in the production of the map is also set out in a PAL manual at Schedule B.

Details of the public lands claimed within NSW and Victoria are set out at Schedule D.   The area contains a large number of archaeological sites.   Some of these are set out in a Victorian Archaeological survey report (see Schedule C).

(The schedules referred to are of course schedules to the application).

The map comprising schedule B to the application has previously been referred to as the claim map.   There was some debate in the course of the trial as to whether or not the Edward River is claimed, it being suggested by the applicants that it is coloured green on the claim map although not otherwise described in the details of public lands set out in schedule D to the application.   The Edward River is shown on the claim map as a blue line running through an area coloured green but the scale of the map is such that no real conclusion can be drawn from a mere perusal of the colours depicted.   There can be no doubt however that the application confines “the public lands claimed within NSW and Victoria” to that detailed in schedule D to the application.

The PAL manual forming part of schedule B to the application assists in the interpretation of the details which appear in two lists, one marked A described as “Crown Lands – Public Access/Interests:  Victoria”, the other marked B described as “Crown Lands – Public Access/Interests:  NSW”.   Each list describes the various parcels of land by reference to an identification number and for the most part by a name;  and each parcel is identified by one or other of the following descriptions:

State forest

State park

Reference area

Water supply reserve

Water reserve

Aboriginal freehold land

Flora reserve

Flora and fauna reserve

Vacant Crown land

Reserved Crown land

Park

Scenic reserve

Special purpose reserve

Forest reserve

Mine

Ninety-eight parcels are identified in list A (Victoria) and 53 parcels in list B (NSW).  Each parcel has been assigned an identification (ID) number.  In some cases other information such as reserve numbers, gazette references and Crown allotment numbers are provided.

In their statement of facts and contentions the applicants provide a brief description of the process of land and water identification that took place in consultation with the States of Victoria and New South Wales.   In the result the applicants agreed (for the purposes of this proceeding only) that native title has been extinguished and is not now claimed in relation to two areas in Victoria (ID Nos 177 and 225) and two areas in New South Wales (Parts of each of ID Nos 96 and 120).

As a result of the further information becoming available through consultation with the States, the applicants were able to update the description of the various parcels of claimed land and in schedules 7 and 8 to their statement of facts and contentions they provide a more detailed description of the land claimed in Victoria (schedule 7) and in New South Wales (schedule 8).

In their amended statement of facts and contentions the applicants say (in paragraph 28):

To dispel any doubt, the applicants’ claim includes a claim to all water which, from time to time, may be found within the claimed areas, whether such waters are, at any time, stationary or flowing, or located in natural or man made water courses, dams etc.   Such claims extend to the banks and beds, underlying or supporting such waters, and all natural resources found therein.   Such claims do not extend to casual waters found in the claimed areas from time to time eg. non-permanent pools following heavy rain.

11.The determination sought by the applicants has been variously expressed; first in the original application, later in the applicants’ formal statement of facts, issues and contentions and subsequently in their written submissions. The final form, as expressed in a draft minute annexed to a written submission tendered to the Court on 2 November 1998 (which takes into account the amended form of s 225 after 30 September 1998) seeks a determination that communal native title exists in relation to the whole of the claimed land and waters except those parts thereof where native title has been extinguished by a previous exclusive possession act (the determination area) and all waters and natural resources located, from time to time, therein; further a determination is sought identifying the native title holders as “the members of the Yorta Yorta Aboriginal community”. The nature and extent of the native title rights claimed in relation to the determination area, the waters and natural resources are:

(a) rights to possession, occupation use and enjoyment of the determination area, the waters, and natural resources, to the exclusion of all others;

(b)the interest of ownership of the determination area, the waters and natural resources according to traditional law and custom and the right to be recognised as the owners of the determination area,  the waters, and the natural resources, according to traditional law and custom;

(c)the right to possession, occupation, use and enjoyment of the determination area, the waters and the natural resources;

(d)the right to participate to the fullest extent practicable in the making of decisions by non native title holders, being decisions made pursuant to a law, regulation, order or administrative arrangement by Government or its agencies about access to, occupation, use and enjoyment of the determination area, the waters and the natural resources, including the right to be consulted about such decisions;

(e)the right to access and occupy the determination area and the waters;

(f)rights to use and enjoy the determination area, and the waters and the natural resources, to hunt, fish, forage for traditional foods and medicines and camp; for burial, ceremonial and educational purposes; and for any other purpose deemed appropriate by the native title holders;

(g)the right to protect places and areas of importance in and on the determination area and the waters.

THE TRIAL

12.This was the first proceeding of its kind to come to trial under the Native Title Act and it was necessary for some innovative procedures to be adopted in order to fulfil the Court’s obligation under s 82 to provide a mechanism of determination that is fair, just, economical, informal and prompt. This was particularly so because of the large number of parties and the fact that for the most part they, and many of the potential witnesses, were resident at places considerably removed from the major population centres. It was also thought appropriate to modify the normal procedures in relation to pleadings and discovery.

13.The first directions hearing was held at the Town Hall in Shepparton, Victoria, on 2 August 1995.   Subsequent directions hearings were held in Melbourne.   Case management conferences were held in Melbourne on 3 May 1996 and 7 June 1996.  The trial commenced in Melbourne on 8 October 1996 with the opening address of counsel for the applicants.   The hearing was then adjourned until 28 October 1996 when evidence was called first at a temporary shelter at the Rumbalara Community near Mooroopna (Victoria) and subsequently at approximately 65 other locations in Victoria and New South Wales.   The evidence concluded on 30 October 1997.   Final submissions were ultimately concluded on 15 May 1998.   Subsequent to the passing of the Native Title Amendment Act 1998 the parties were invited to make further written submissions concerning the effect of the amendments made by that Act and the Court sat again for 2 days in the week commencing 2 November 1998 to allow the parties to make oral submissions. Altogether the Court sat on 114 days and heard 201 witnesses. A total of 48 witness statements were also admitted into evidence without formal proof. The transcript runs to 11,664 pages.

14.The procedures to be observed in relation to a native title determination application were significantly changed when the Native Title Amendment Act 1998 came into operation on 30 September 1998 but nothing in the amendments has affected the competence of the present proceeding. (Native Title Amendment Act Schedule 5, Part 3, item 8, and Part 9, item 36). By the time the amending legislation took effect the evidence had been completed and judgment had been reserved. Some of the changes effected by the amending legislation relate to extinguishment issues whilst others relate to procedural matters.

15.Section 82 (the marginal note to which is “Federal Court’s way of operating”) previously provided:

82.(1) The Federal Court must pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt.
     (2) The Court, in conducting proceedings, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

(3) The Court, in  conducting proceedings, is not bound by technicalities, legal forms or rules of evidence.

In its amended form there is no longer any provision equivalent to the former subsection (1).    The thrust of the remaining subsections has been significantly altered.   The section, as it now applies, is as follows:

82 (1)   The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

(2) In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party in the proceedings.

The whole of the trial was conducted in a manner consistent with section 82 in its original form. Particular attention was paid to observing the requirement of the former subsections (1) and (2). The changes made by the amendment have no bearing upon the matters referred to in those subsections. But the amended provision relating to the application of the rules of evidence raises a question as to whether the Court should now apply the more stringent provision of the amended section in its analysis of the evidence. In my opinion the case should be decided on the evidence which was properly admitted during the trial in accordance with the law as it applied at the time the evidence was given. No party has suggested that any other approach should be adopted.

16.Section 225, which sets out the requirements of a “determination of native title”, has been replaced and re-enacted in a significantly different form. The section now provides:

225.A determination of native title is a determination whether or not  native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

a) who the persons, or each group of persons, holding the common or group rights comprising the native title are;  and

b)the nature and extent of the native title rights and interests in relation to the determination area;  and

c)the nature and extent of any other interests in relation to the determination area;  and

d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act);  and

e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Schedule 5, Part 5, item 24 of the Native Title Amendment Act 1998 provides:

The repeal of section 225 of the old Act and insertion of section 225 in the new Act by this Act apply to all determinations made after the commencement of this Act, regardless of when any native title determination application (if relevant) was made.

Furthermore, s 94A (which is an entirely new provision) requires that:

An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).

In these circumstances, any order which the Court may make must comply with the requirements of the new s 225.

17.It is unnecessary to comment further upon the mechanisms of determination adopted by the Court in order to fulfil its statutory obligations. However, it is appropriate to observe that the special procedures that were previously ordained by s 82 do not authorise the Court to depart from two basic principles of litigation in this Court namely that the standard of proof is on the balance of probabilities and that the Court will have regard only to evidence which is relevant, probative and cogent. In particular, pure speculation, of which there has been much, must be disregarded. Nor is there any warrant within the Native Title Act for the Court to play the role of social engineer, righting the wrongs of past centuries and dispensing justice according to contemporary notions of political correctness rather than according to law.

18.As the whole of the claimed land and waters is said to be public lands in either Victoria or New South Wales it was to be anticipated that each of those States would take a major role in the proceeding and this proved to be so.   Both States deny the existence of any native title in respect of the claimed land and waters within its jurisdiction.   Apart from the two States, other individual respondents and groups of respondents claim that their interests are likely to be affected by a determination of native title in the terms sought.   In some, but not all cases, the existence of native title has been put in issue.   In the following paragraph the various interests of the participating respondents (other than Victoria and New South Wales), and the respective positions adopted by them in response to the applicants’ claim, are summarised.

19. (1) Murray Darling Basin Commission

The Murray Darling Basin Commission (MDBC) is responsible for the supervision and management of the River Murray system. As observed earlier in these reasons, the main course of the River Murray roughly divides the claim area in half between the States of New South Wales and Victoria. The entire River Murray system comprises the main course of the River Murray, its effluents and anabranches, tributaries entering the River Murray upstream of Albury, the Darling River downstream of the Menindee Lakes, the Dartmouth and Hume Dams and Yarrawonga Weir, the Lake Victoria storage, the various weirs and locks along the River Murray and Lower Murrumbidgee River, barrages near the River Murray mouth, and the Menindee Lakes Storage.

The MDBC’s predecessor, the River Murray Commission, was established in 1917 upon the proclamation of the River Murray Waters Act 1915 (Cth) and similar legislation enacted by Victoria, New South Wales and South Australia. This legislation was enacted in accordance with the River Murray Waters Agreement made between the Commonwealth, New South Wales, Victoria and South Australia in 1914. Over a period of approximately 70 years the initial River Murray Waters Act and Agreement was followed by a succession of similar agreements each of which was ratified and supported by legislation. In 1987 the River Murray Commission was re-named the Murray Darling Basin Commission, and its responsibilities were extended to the whole of the Murray Darling Basin, not just the main River Murray stem. The MDBC’s functions are currently regulated by the Murray Darling Basin Acts of the Commonwealth, New South Wales, Victoria and South Australia, and the Murray Darling Basin Agreement made in 1992 that is a schedule to the Murray Darling Basin Acts.

The River Murray Commission was initially established to resolve conflicts of interest between the States as to the management of the River Murray. A key function of the Commission is to ensure an equitable distribution of water flow between the States of New South Wales, Victoria and South Australia in accordance with a statutory formula. Waters are also distributed between New South Wales and Victoria in a manner that meets their irrigation requirements. Other key functions relate to river management and regulation, the various River Murray works, and flood plain planning. The functions of the MDBC are subject to the direction of the Murray Darling Basin Ministerial Council which is responsible to the Parliaments of the States and the Commonwealth.

The MDBC’s primary submission is that the MDBC statutory and management scheme is inconsistent with the applicants’ claim to the waters within the claim area. The MDBC contends that any native title rights to water which may otherwise have existed were extinguished by the comprehensive regulation of the River Murray system and in particular the creation of an artificial flow pattern within the system.   The MDBC’s position is however that its management could and should take account of the special interests of the Aboriginal communities of the Murray Darling Basin by way of consultation, and would take account of any native title rights recognised by the Court.

(2) Telstra Corporation Limited

Telstra Corporation Limited (‘Telstra’) occupies a site within ID 223 at Mt Glenrowan in the Warby Ranges State Park.  This site was the subject of a license granted to the Gas and Fuel Corporation of Victoria in 1975 to permit the operation of a radio transmitter. Telstra occupies a portion of the site subject to the license, and the Country Fire Authority also occupies the site.

Telstra installed 8 sections of optical fibre cable in different parts of the claimed land  between 1989 and 1997.  There is also evidence that some copper cabling, known as the Customer Access Network, may also have been installed in the claimed land, although no part of it has been positively identified as lying within it.

Telstra submits that any surviving native title has been extinguished by the Crown in relation to the Mt Glenrowan site, and has also been extinguished to the extent that it is inconsistent with Telstra’s right to maintain its facilities. These submissions are provisional on a finding by the Court that native title exists, an issue on which Telstra has made no submission.

(3) Recreational Users

Field and Game Association Inc (FGAI) (formerly known as Victorian Field and Game Association Inc), the members of that association and Graeme Ross McPherson were referred to during the proceeding as the ‘recreational users’.

It is claimed that FGAI represents the recreational, hunting, and shooting interests of game hunters and sporting shooters in Victoria.   Its membership in Victoria exceeds 9000 persons, and it has 9 branches within the applicants’ original lands. FGAI members use various parts of the claimed land and waters for target shooting, fishing, camping, boating and water skiing, and other recreational activities. Mr McPherson is a prominent identity in the Shepparton area and a member of the FGAI, whose interests include a publishing and media business located in Shepparton.

The recreational users submit that the evidence fails to establish that the applicants hold any native title in relation to any particular area of the claimed land or waters. They further submit that any native title rights that may have existed have been completely extinguished by the combination of legislative and executive acts in respect to the claim area and the physical use made of the land and waters. The recreational users also adopt in large measure the submissions on native title of New South Wales and Victoria and the extinguishment submissions of New South Wales, Victoria and the MDBC.

(4) Murray Irrigation Limited

Murray Irrigation Limited (MIL) is a privately owned class 2 irrigation corporation incorporated in New South Wales pursuant to the Irrigation Corporations Act 1994 (NSW). In February 1995, by order made pursuant to the Irrigation CorporationsAct, MIL had vested in it the business undertaking of its immediate predecessor, the Water Administration Ministerial Corporation (a New South Wales statutory corporation).  This undertaking is essentially comprised of the operations of four domestic and stock water supply irrigation districts (the Wakool, Berriquin, Deniboota and Denimein districts) and one irrigation area (the Tullakool Irrigation Area). The irrigation districts and area were established pursuant to the Water Act1912 (NSW) and Irrigation Act 1912 (NSW) respectively.

MIL’s area of operation covers a specific part of the Murray Darling Basin.   It currently has approximately 2400 shareholders, each of whom is a farmer or other person entitled under MIL’s memorandum and articles of association to certain water rights and entitlements. All shareholders are dependent on MIL for the supply of irrigation water to their farms. MIL’s main function is to draw water from the Murray and Edward Rivers to supply irrigators. To this end it maintains and manages the infrastructure required to supply water and operates pursuant to several licenses.

MIL’s submission is substantially similar to that of the recreational users, and it also adopts in large part the submissions of New South Wales and Victoria dealing with native title and those of New South Wales, Victoria, and the MDBC in respect to extinguishment.

(5) Other Sheed Respondents

The Greater Shepparton City Council, the Campaspe Shire Council, the Moira Shire Council, the estate of Christopher Stephen Ryan, and CR and KD Moorse constituted the parties referred to as the other Sheed respondents.  (The firm of Suzanna Sheed & Associates also acted as solicitors for the recreational users and MIL).

The Court heard evidence from the chief executive officers of each council dealing with its current municipal boundary and area of operation, the nature of its operations and responsibilities, and the area of land within its responsibility that is within the claim area.   The legal personal representatives of the estate of the late Christopher Stephen Ryan hold on behalf of the estate an annual grazing license abutting the Goulburn River and a diversion license entitling the estate to use, take and pump water from the Goulburn River. Mr and Mrs Moorse are the registered proprietors of land adjoining the Murray River and operate a holiday farm business that utilises part of the claimed land and waters for recreational purposes.    The Moorses also hold a surface license entitling them to take, use and pump water from the Murray River adjoining their land.

The Shire Councils adopt the native title and extinguishment submissions of New South Wales and Victoria. The representatives of the estate of Christopher Ryan adopt the extinguishment submission of Victoria so far as it relates to the interests of the estate. The Moorses adopt the extinguishment submission of New South Wales and the submissions of the recreational users and the Corrs respondents as they relate to their own interests.

(6) Scott Thompson Respondents

Emat Industries Pty Ltd, Vincent Grima and Kenneth Lord were referred to during the proceeding as the Scott Thompson respondents they being represented by solicitors  Scott Thompson & Co.

Emat Industries is a company that conducts timber-cutting activities principally in the Barmah and Perricoota State Forests in Victoria and New South Wales respectively. These activities are conducted pursuant to licenses granted by the New South Wales Forestry Commission and the Victorian Department of Natural Resources and Environment.  

Mr Lord lives on a property at Lord’s Road, Bunbartha, near the Loch Garry State Forest.   He is concerned to maintain a levee bank adjacent to his property that protects his property from flooding.    He gave evidence dealing with past and present use of the Loch Garry State Forest, including recreational activities, the construction and use of levee banks, and charcoal burning.

Mr Grima conducts a timber milling and firewood enterprise based at Mooroopna, pursuant to a forest operations license. The license permits general timber harvesting as a chainsaw operator, tree feller and machine operator. Mr Grima has conducted these activities in the Goulburn River State Forest north of Shepparton and in the general Coonboona district.

The Scott Thompson respondents submit that the applicants have failed to establish any native title rights and interests and that any native title held to exist has been extinguished on the basis that it is inconsistent with the activities of the Scott Thompson respondents.  To this end the Scott Thompson respondents adopt the native title and extinguishment submissions of New South Wales and Victoria where relevant.

(7) Corrs Respondents

Corrs Chambers Westgarth represented various individuals, families, associations and groups referred to in the proceeding as the Corrs respondents.  This group holds a wide variety of interests in the claim area including timber, grazing, tourism and water related licenses.  Many Corrs respondents hold freehold title to property in respect of which they exercise rights pursuant to license over adjacent land.   These licenses typically grant rights to use and pump water from rivers, cut timber from state forests, graze cattle in state forests, conduct tourism or recreational activities, and occupy and use waterfront land.

The Corrs respondents submit that the applicants have failed to prove the existence of any native title rights and interests and that any surviving native title has been extinguished by past acts where the native title is inconsistent with the Corrs respondents’ rights. They also adopt various submissions of New South Wales and Victoria.

(8) Hargraves Respondents

The Berrigan Shire Council, Corowa Shire Council, Murray Shire Council, the Mulwala and District Services Club Ltd, the Mulwala Water Ski Club Ltd, the Yarrawonga and Border Golf Club Ltd, and various individuals represented by Messrs Hargraves were referred to during the proceeding as the Hargraves respondents.

The general managers of the councils each gave evidence concerning the respective duties of the councils and the assets in the claim area that each council uses or controls. Other witnesses gave evidence dealing with the history of the claim area, their relationship to various parts of the claim area, recreational activities undertaken by them, and the presence or otherwise of Aboriginal persons on the claimed land and waters.

The Hargraves respondents submit that the applicants have failed to establish that native title exists in respect of the claimed land and waters.   They also submit that Crown grants and legislative acts, Crown appropriation and use, and other use of the claimed land and waters mean that any previously existing native title has been washed away by the tide of history and thereby extinguished. The Hargraves respondents adopt the native title and extinguishment submissions of New South Wales and Victoria.

(9) South Australia

The State of South Australia’s submissions relate to the applicants’ claim to the waters of the River Murray and its tributaries and reflect its interest in those waters pursuant to the Murray Darling Basin Acts and the Murray Darling Basin Agreement. The State submits that the applicants have failed to prove native title rights and interests in the River Murray and its tributaries and that, even if native title has survived, it has been extinguished by the various Acts and agreements relevant to the waters. South Australia adopts the submissions on extinguishment of New South Wales, Victoria and the MDBC.

(10) New South Wales Aboriginal Land Council

The New South Wales Aboriginal Land Council (NSWALC) is a statutory body constituted pursuant to s.22 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). It represents Aboriginal land councils in New South Wales and the interests of Aboriginal communities throughout New South Wales, particularly in relation to land.

The ALR Act created a regime for the transfer of land to Aboriginal land councils. To this end it allowed vacant Crown land to be claimed by local Aboriginal land councils or by NSWALC on behalf of the local council for the particular area. Successful claims resulted in land being transferred to local councils either in fee simple or by perpetual lease.    By this process 11 portions of freehold land at Cummeragunja (ID 130) are vested in the Yota Yota Local Aboriginal Land Council (‘Yota Yota Council’). NSWALC submits that the transfer to and vesting of land in the Yota Yota Council was and remains valid and did not extinguish native title rights in the land. The NSWALC makes no submissions on other issues concerning the existence of native title or its extinguishment.

THE EVIDENCE

20.The applicants called a total of 60 witnesses, 56 of whom were of Aboriginal descent and of the latter all but two were part of the claimant group.   The remaining 4 witnesses were two anthropologists (Mr Rod Hagen and Dr Deborah Rose),  an archaeologist (Dr John Craib) and a linguist (Dr Heather Bowe).  As part of the pre-trial procedures the applicants filed and served written statements of the lay witnesses they proposed to call.   It was agreed that this be done in the course of counsel’s opening address and in fact on that occasion counsel tendered a volume of some 30 statements.   In the events which happened, not all of those statements were proved.   With one exception, the witnesses who were called identified and adopted (often with minor corrections) the statement in their name previously tendered.   In the exceptional case, a witness who had given a statement was not asked to adopt the statement.   It is not possible to say whether this resulted from oversight or a deliberate decision.   No explanation was offered for the failure to call a number of people whose written statements were included in the tendered volume, although in one case there was other evidence that the gentleman in question was extremely old and not in good health.   In another case there was other evidence to suggest that the potential witness was somewhat antagonistic to the claim.   In the absence of the consent of the respondents, I have paid no regard to the contents of the statements of persons who were not called to give evidence.   I have not read those statements and do not regard them as being part of the evidence.

21.The oral evidence of many of the applicants’ witnesses was in some respects both credible and compelling.   This was particularly so with the more senior members of the applicant group.   Regrettably, this was not always so.   In one instance two senior members of the claimant group were caught out telling deliberate lies, albeit about a relatively minor matter, but nevertheless incidents of that nature tend to cast a shadow over the other evidence of those witnesses.   The testimony of some of the younger members of the claimant group was less impressive than their senior colleagues.   Evidence based upon oral tradition passed down from generation to generation does not gain in strength or credit through embellishment by the recipients of the tradition and for this reason much of the testimony of several of the more articulate younger witnesses has not assisted the applicants’ case.   Another unfortunate aspect of much of the applicants’ evidence was frequent, and in some instances, prolonged,  outbursts of what can only be regarded as the righteous indignation of some witnesses at the treatment they, and their forebears, have suffered at the hands of the colonial, and later the various State, authorities.   As I have commented earlier, this case is not about righting the wrongs of the past, rather it has a very narrow focus directed to determining whether native title rights and interests in relation to land enjoyed by the original inhabitants of the area in question have survived to be recognised and enforced under the contemporary law of Australia.  

22.A substantial portion of the oral testimony of the senior members of the claimant group was directed towards establishing their genealogical links with earlier generations.   The depth of knowledge of these witnesses was most impressive, and for the most part (with only minor exceptions) proved to be accurate.  Many witnesses also described what they understood to be the traditional laws and customs of their ancestors, information which was frequently said to have been derived from parents or grandparents, or simply “from the old people”.   The cogency of such evidence does not necessarily depend upon the credibility of the individual witnesses but must be assessed in the whole context of the case including, where it exists, evidence derived from historical records and the recorded observations of people who witnessed activities and events about which the members of the claimant group know only what has been passed down to them by their forebears.    In addition to the oral testimony of the witnesses, the applicants tendered and rely upon a considerable volume of documentary material.   Much of it is of an historical nature and is uncontentious, but much of it has to do with events and activities which have no bearing upon any of the issues the Court is called upon to determine.

23.The respondents who took an active part in the conduct of the proceeding also called a considerable body of evidence which for the most part relates to the status and use of the land and waters under claim. This evidence is extremely detailed in content.   Its primary focus is directed to the related questions of whether the traditional laws and customs of the original inhabitants have continued to be acknowledged and observed and whether any pre-existing native title rights and interests have been subjected to extinguishing acts.   Each of the States of Victoria and New South Wales tendered evidence concerning the tenure history and current status of the claimed areas of land and waters within their respective jurisdictions.   It is fair to say that in the result the Court has before it an enormous volume of detailed information, much of it going back many decades into the nineteenth century.   It is not possible to say with absolute certainty that every dealing and transaction affecting every piece of the claimed land and waters has been placed before the Court but I was very favourably impressed by the diligence and attention to detail displayed by the witnesses who testified as to the nature of the available records and the processes whereby the required information was extracted and collated.   In some cases documents which would otherwise have been made available could not be located, presumably because they had been lost or destroyed.   The latter explanation was in fact the case in respect of some early records from New South Wales known to have been destroyed in a major fire.    On the whole I am satisfied that the best available land tenure evidence has been put before the Court and I accept as credible the expressions of opinion of witnesses familiar with the relevant processes relating to dealings in land in circumstances where documentation is not available.  Some of the respondents also adduced expert evidence.    Victoria called two historians (Dr Marie Fels and Ms Susan Priestley) and a professional genealogist (Ms Helen Harris);  New South Wales called an anthropologist (Professor Kenneth Maddock) and a linguist (Dr Bruce Sommer);  and a group of other represented respondents called a second anthropologist (Dr Ronald Brunton).

24.The difficulties inherent in proving facts in relation to a time when for the most part the only record of events is oral tradition passed down from one generation to another, cannot be overstated, but great as they obviously are, they are not insuperable. In Mabo No 2, the task was relatively straight forward.    Sovereignty had not been asserted until a century after the original annexation of New South Wales in 1788, nor until after there had been significant involvement of the colonial authorities and others in the affairs of the indigenous people of the Murray Islands.   There was clearly a body of evidence to call in aid.   But in the present case the first European contact with the indigenous people did not occur until nearly 50 years after sovereignty was asserted when the early explorers visited the area prior to the arrival of the first permanent settlers in the late 1830s.

25.Despite the absence of any direct evidence of the indigenous occupation of the claim area in 1788 it is possible to infer that it was in fact occupied at that time.   The early explorers recorded making contact with Aboriginals in the general vicinity of the claim area  as did the first settlers.   The area is clearly well watered and fertile.   There is undisputed evidence in the form of burial sites, oven mounds and shell middens, particularly along and near to the banks of rivers, which testify to the presence of people within the claim area over a considerable period.   The inference that indigenous people occupied the claim area in and prior to 1788 is compelling. Whether or not the indigenous people who were found in occupation of the claim area in the 1830s and 1840s, and about whom there are available records, were the descendants of those who occupied the area at the time sovereignty was asserted, is a matter to be addressed later.  It is the descendants of the people who occupied the area in 1788, and whose traditional laws and customs in relation to the land became, at the time of sovereignty, a burden on the radical title acquired by the Crown who are entitled, in appropriate circumstances, to recognition as the native title holders.

EUROPEAN SETTLEMENT IN THE CLAIM AREA

26.It is necessary to say something concerning European settlement in the claim area.   I am conscious of the need to avoid assuming the role of historian and accordingly the following commentary is based upon material tendered by the applicants in support of their case.  Much of what follows is drawn directly from the applicants’ anthropological report (exhibit A 17).

27.The claim area was first traversed by white explorers in the 1820s and 1830s.   Hamilton Hume and William Hovell were the first known Europeans to visit the area.   In 1824 they travelled along a route close to what is now the Hume Freeway, on their way to Port Phillip.   On their return journey they travelled some distance along the Goulburn River near what is now the town of Murchison.

28.In 1836 Major Thomas Mitchell’s route to the Glenelg River took him close to the western boundary of the claim area in the vicinity of Gunbower.   On his return journey he crossed the Goulburn River near Mitchellstown, and after traversing a section of the claim area he crossed the Murray near Howlong.   His route, marked by deep wheel ruts, became the guide for overlanding stock for many years.   Mitchell clashed with Aboriginal groups along the Murray downstream from the claim area but he provided no information of value about Aboriginal traditions, customs and territorial interests.

29.Joseph Hawdon, John Gardiner and John Hepburn brought cattle to Port Phillip down Mitchell’s route at the end of 1836.   A little over a year later, in January 1838, Hawdon and Charles Bonney overlanded cattle from Victoria to Adelaide by way of the Goulburn and Murray Rivers.   Hawdon’s party met a group of Aboriginal people in the vicinity of the junction of the Campaspe and Murray Rivers (the site of Echuca). His account of this meeting strongly suggests that the primary desire of the Aboriginal people was for Hawdon and his party to be gone.

30.Edward John Eyre travelled through shortly after Hawdon, attempting a direct overland trip from Albury to Adelaide.   He was forced back on to the Murray, following the route taken by Hawdon and Bonney.

31.Charles Sturt travelled down the Murray from Albury to South Australia with 300 cattle and 14 men in 1838.   His contacts with Aborigines in the vicinity of the claim area were positive.   His party was joined by a number of local Aboriginal people at a station west of Albury.   Other Aboriginal people met them along the way and guided them along tracks between the reeds and the gum trees.   Sturt’s account of his travels along the Murray (then called the Hume) suggests a significant Aboriginal population in the area. He first met significant groups of Aboriginal people on 6 June, 1838, somewhere between the junctions of the Ovens and Edward rivers with the Murray, probably in the vicinity of the present day towns of Cobram or Tocumwal.   He provides numerous references to meetings with Aboriginal groups in the area.   He later commented on evidence of a small-pox epidemic.   He wrote:

I observed many of them as if pitted by the Small Pox, so that it would appear the disease which was raging with such a fearful effect upon them when I was on the Banks of the Darling in 1828 and of the Hume in 1829, had been universal.   It must have committed dreadful havoc amongst them, since on this journey I did not see hundreds to the thousands I saw on my former expeditions.

After crossing the Goulburn River, Sturt passed peacefully out of the claim area and followed Hawdon’s route to Adelaide.   Although he did not record the identity of any of the Aboriginal groups that he met, he provides evidence of a significant Aboriginal population in the area prior to any settlement near the red gum forest along the Murray.

32.George Augustus Robinson, Chief Protector of Aborigines of Port Phillip from 1839 to 1849, made 22 expeditions into the then remote parts of Victoria, recording, amongst other things, the distribution and identity of the Aboriginal inhabitants.   Several of his journeys took him to the claim area. His records are of particular value, but his material concerning the location of people and the identity of particular groups associated with particular areas is not complemented by any serious examination of underlying principles or structures.

33.Edward M. Curr was one of the first squatters to occupy land in the claim area in the vicinity of Echuca.   He lived there from 1841 to 1851 and some years later he wrote extensively about his experiences in two books;  “Recollections of Squatting in Victoria” (hereafter referred to as Recollections) first published in 1883, and a much more ambitious work in  four volumes “The Australian Race: its origin, languages, customs, place of landing in Australia, and the routes by which it spread itself over that continent” published in 1886 (hereafter referred to as The Australian Race).

34.Land in the vicinity of Albury was occupied by William Wise in 1836, and most of the land along “The Major’s Line” had been taken up by 1840.   In 1837, 1838 and 1839 tens of thousands of head of stock were moved through the eastern part of the claim area.  George Faithfull, Dr G.E. Mackay, and the Reverend Joseph Docker occupied land in the Wangaratta area in 1838.   The letters, journals and “reminiscences” of the first decade of settlement suggest a high level of initial conflict with the indigenous people, particularly in the eastern part of the claim area although individual squatters developed more positive relationships.   After the initial settlement along Mitchell’s line, land along the Goulburn was occupied in around 1840.   Overlanders also used Hawdon’s route along the Goulburn and the Murray to take sheep and cattle to Adelaide.   Curr met a party with 5000 sheep making such a journey at Mitchellstown in early 1841.   “Runs” had already been established at Toolamba, Ardpatrick, St Germain and Wyuna along the Goulburn north west of Shepparton by this time.   By the end of the next decade all of the land between the Campaspe and the Goulburn had been occupied from Seymour to the Murray.  Conflict occurred at numerous stations.   In many cases large, organised groups of Aborigines were involved.    Even Curr, who generally enjoyed a good relationship with the indigenous people, on establishing an outstation on the northern side of the Murray had his shepherds attacked and sheep driven off.    Some Aboriginal people obtained casual employment on the squatting runs of the more sympathetic pastoralists such as Curr near Echuca and Docker near Wangaratta.

35.The expansion of settlement into the Murray Goulburn Valley coincided with the development of the Port Phillip Protectorate which was placed under the control of G.A. Robinson.    Under him there were four Protectors, each with responsibility for a particular district.  Most of the claim area fell within the domain of the Goulburn Protectorate, initially headed by James Dredge, who established a headquarters initially at Mitchellstown but moved to Murchison two years later.   Murchison remained a Protectorate station until 1850, by which time it had increased to 50 square miles.  It remained a reserve, and was used as a medical and ration issuing centre, for some years.   The reserve was revoked in 1858.

36.By the 1850s physical resistance to settlement had ceased.   The Aboriginal population of the area had been drastically reduced in number by disease and conflict.  The white population had grown dramatically, and was to grow even more rapidly following the discovery of gold.    An 1857 census found only 1769 Aborigines left in Victoria.   In 1858 a Select Committee was appointed to “inquire into the present condition of the Aborigines of the colony, and the best means of alleviating their absolute wants”.   Missions and reserves were established in several places to pursue such a course but in the claim area, only ration depots were developed notably at Echuca, Gunbower, Durham Ox, Wyuna, Toolamba, Cobram, Ulupna and Murchison.   Local squatters were appointed as “guardians”.  A further component of official policy involved the relocation of children where possible to stations where they could be properly “educated” away from parents and other traditional distractions.   In the late 1860s some people, mainly children and young single women, were sent to Coranderrk near Healesville, well outside of the claim area.

MALOGA MISSION

37.In 1864 Daniel Matthews established a hardware, firearms and ships’ supply store in Echuca.   In the same year he attended a corroboree at Moira Lakes involving some 300 Aborigines and began visiting camps along the Murray and Goulburn Rivers.   In 1865 he and his brother William took up a selection of 121 acres at Moira on the New South Wales side of the Murray.   They extended their holding to 800 acres in 1868.   Fringe camps already existed at Echuca by this time, and many Aboriginal people were living along the river or on nearby stations.   Matthews visited Coranderrk in 1866.    He had been instrumental in the transfer of a number of Echuca women and children to Coranderrk and began looking for ways to develop a similar station on the Murray.   After discovering that the land which they had selected contained an area traditionally used as a meeting place the brothers decided to set aside 20 acres on the river for a mission station.   They renamed their property “Maloga”.

38.In 1874, Matthews established a school and mission station at Maloga.   His diaries record the arrival and life of many of the people who appear in the upper levels of the genealogies of the present claimants.   During the early years residence at Maloga tended to be intermittent.     Most of those at Maloga were from Moira, and moved between the mission, a camp at Moira Station and camps around the Moira Lakes and Barmah Forest.   By the end of 1876 there were sixteen Aboriginal people in residence at Maloga, either living in the school house or camping within the grounds.    Numbers increased steadily during 1877, with 30 new arrivals recorded for that year.   Some of those who had been sent to Coranderrk from the Murray before Maloga was established returned.   In 1880 there were 59 people on the mission.   By 1882 there were 113 residents, either staying at the mission itself or at an old people’s camp on the river flats while receiving rations from Matthews.   In 1883 the population fluctuated between 90 and 125.   In 1886 the Maloga population peaked at 153.

39.The Maloga Mission reports suggest that those who came to it in the early years were very mobile.   Most of Matthews’ early efforts were directed towards getting children brought to the mission to attend school.   Apart from a core group, most adults came and went;  either returning to the forests along the river between Echuca and Albury, or seeking casual work on the stations of the area.   In 1884 proposals for dispersing “half castes” from missions and stations were circulated in Victoria and an Act to the same effect came into force in 1886.   The Act had profound implications for many Aboriginal people living in Victoria.   Extended families were split up, or forced to move away from places which had been their homes for many years.   Maloga, over the New South Wales border where such provisions did not then apply, became a popular destination for some Coranderrk residents, particularly those who already had ties there by descent or marriage.

40.Problems began to emerge at Maloga in early 1880.   Many people resented moves by Matthews in the 1870s to limit traditional ceremonial activity and the sanctions imposed, such as loss of rations, if people failed to attend Christian services.  Disputes arose over many aspects of life.   Residents were expelled for “immorality”, for failing to attend services, and even for going to cricket matches or foot races.   Matthews also saw it as his role to physically beat children and young women if they committed offences of a moral or religious nature.  The Maloga men, who were in demand as labour on stations in the region, resented the intrusions on their freedom and demanded greater autonomy.   When this was refused, some left.   Health problems were also an issue.   Tuberculosis was a common cause of death in the 1880s.   The older people, born before the arrival of whites and who had survived the period of conflict immediately after white occupation, were dying out.  Matthews was also fighting to retain control of Maloga.   The Aborigines Protection Association (of New South Wales) placed its support behind a new manager, George Bellenger, who effectively replaced Matthews as head of the mission in 1887.   In 1888, Bellenger, with the aid of disaffected Maloga residents, moved the houses, huts and most of the other buildings from Maloga to 1800 acres of land adjacent to Maloga, which had been created as a reserve in 1883.   The new settlement was called Cummeragunja.   (In official records and other published works the name of the new settlement is spelt in a variety of ways.   In these reasons, except when quoting from such records and works, the currently accepted form, Cummeragunja, is used).

CUMMERAGUNJA

41.Bellenger proved extremely unpopular once separated from Matthews.   Some residents attempted to return to Maloga.   Bellenger threatened to cut off the rations of any who did so.  Promises by Bellenger of individual farming lots for those who moved to Cummeragunja proved illusory.   Major illnesses including typhoid also broke out.   Bellenger resigned in 1891 but unrest continued under a succession of managers until George Harris was appointed in the mid 1890s.   During this period many people left to set up camps along the river, or sought work on stations in the area but the recession of the early 1890s made work hard to find.

42.Between 1895 and 1898, 20 farm lots, each of 40 acres, were established at Cummeragunja. Despite a depressed rural sector in the 1890s, floods and plagues of rabbits the block holders had succeeded in operating many of the blocks profitably by the turn of the century. Another change of manager occurred in 1905 and the blocks were resumed in 1908. At this time New South Wales was contemplating the introduction of an “exclusion” system for “half castes” on reserves similar to the arrangements made in 1886 in Victoria. In 1909, the Aborigines Protection Act (NSW) was passed, enabling the removal of “any Aboriginal person who … in the opinion of the Board, should be earning a living away from the reserve”. These provisions were subsequently used to exclude some of those who protested when the blocks were resumed. Much of the land itself was subsequently leased to a neighbouring white farmer.

43.Cummeragunja reached a peak population of 394 in 1908.   By 1915 only 252 remained.   The remainder had left, either as a result of direct expulsion or to keep families together when other members had been expelled.   Much of the reserve land had been leased to white farmers after 1921.   The irrigation system failed around 1927 and was not repaired, making it impossible to grow sufficient vegetables or even fodder for dairy cattle.   Cash wages were abandoned for work on the mission in 1929 and most equipment was removed to other reserves.   Employment generally became harder to find as the white work force was swelled with returned soldiers and increased settlement, and the need for labour shrunk with increasing mechanisation.     In the 1930s, funding for the reserve was cut back and work became even harder to find.   The problem was compounded by official policies in New South Wales which provided able bodied men and their families with no options.   Aboriginal people living on reserves were not eligible for State unemployment relief.   Nor were able bodied Aboriginal people eligible for rations.  Many people moved to camps in Victoria where State relief and pensions were more readily available.  In the mid 1930s at least forty people were already living in bag humpies at Barmah on the Victorian side of the river.

44.By 1937 the situation at Cummeragunja had deteriorated badly.   Twenty one cottages had been pulled down while the occupants were away working, seemingly to prevent them returning to live on the reserve .   The people at Cummeragunja were very dissatisfied with the manager who they felt used the withholding of rations as a disciplinary measure to control those who disagreed with his way of running the reserve.   They were also dissatisfied with the quality of education offered, which was limited to 3^rd grade primary standard by a NSW government ruling.   Aboriginal children living on reserves were not legally allowed to enrol in public primary or secondary schools in New South Wales at that time.

45.In February, 1939 all but four of the remaining families at Cummeragunja crossed over the river and set up camp near Barmah in Victoria, where those who had been expelled in earlier years had lived.   After several months some people drifted back to Cummeragunja.   Some of those who did, returned again after discovering no improvement at Cummeragunja.   Some families stayed on the Barmah side for many years.   Some moved to Melbourne.  Some returned to Cummeragunja.   Many others moved to Mooroopna, where other relatives were living.   Many families from Cummeragunja had been working the fruit season in Mooroopna during the 1930s travelling and working as families, and camping on the river flats.   During the Second World War, employment opportunities in the fruit industry increased and Mooroopna became the largest residential centre for Aboriginal people of the claim area.

46.The war brought greater employment opportunities.   As well as seasonal work such as shearing, harvesting and fruit picking it became possible to obtain work in Melbourne and other major centres.   A significant group became established in Melbourne.   Apart from the availability of some local work, the situation for those camped at Mooroopna was similar to that at Barmah after the walk-off.   There were roughly 300 people from Cummeragunja at Mooroopna by 1941.   Although many people had moved to Mooroopna, others continued to live around Barmah.   The Cummeragunja population fell dramatically and in 1953 it was announced that the station would be closed.   Many moved to Barmah.   All but 200 acres of the reserve was released for use by neighbouring white farmers and the resident manager was removed.   Some residents were moved to Echuca and Moama.   Despite the closure, a small core group of people remained in Cummeragunja.   In 1956 many were forced out by floods and moved to Echuca.    There were 36 people living on Mooroopna tip in 1956, four families in housing commission houses and some 200 people living on the river flats.   In 1957 police evicted many residents from shacks on the tip and the flats without notice and burnt their homes.  In 1958, a “transitional housing” project was established at Rumbalara near Mooroopna on five acres of Crown land.   The houses were small, cold and poorly fitted out and totally inadequate for the number of people involved.   Rumbalara was too small to accommodate the hundreds of people living in the area.   Some people returned to Cummeragunja while others moved to other centres such as Echuca and Rushworth.

47.In 1960 there were around 70 people living at Cummeragunja.   The effective reserve had been reduced to 200 acres as a result of the leasing of land by the New South Wales government to neighbouring white farmers.   After a delegation of Cummeragunja men approached the government, the New South Wales Crown Solicitor found that these leases had been improperly issued.   The leases were revoked and in 1966 the land was made available to the Aboriginal people.   Despite financial difficulties the people at Cummeragunja grew 50 acres of wheat and 15 acres of tomatoes in 1966, obtained some cattle and grew vegetables.   A drought in 1967 provided a set back, but in 1969 the community was able to obtain a loan from the Commonwealth Capital Fund for Aboriginal Enterprises to continue its operations.  In 1972 Rumbalara was officially closed as a transitional housing estate.  It is now used as a medical and administrative centre, and as a meeting place.   Its residents moved into houses in Shepparton, Mooroopna and other centres.  Those camped over the river from Cummeragunja moved into houses in Barmah or returned to Cummeragunja.   Others went to Echuca or Moama.

48.In 1984, as a consequence of the operation of provisions of the Aboriginal Land Rights Act 1983 (NSW), an estate in fee simple in the former reserve land at Cummeragunja was vested in the Yota Yota Local Aboriginal Land Council. Subsequently, the Council acquired by purchase two further parcels in the same area. The whole of the land has since been leased to Cummeragunja Housing and Development Corporation for a term of 99 years expiring on 31 December 2084.

49.The Yota Yota Local Aboriginal Land Council is a body corporate constituted under the Aboriginal Land Rights Act (NSW). Its membership is open to all adult Aboriginal people residing within the Yota Yota Local Aboriginal Land Council area and to other Aboriginal people who have an association with the Local Aboriginal Land Council area.

And your petitioners, as in duty bound will ever pray.

The 42 signatories were:

Bobby Wilberforce (Cooper)  George Aben

Richard (X, his mark)  Bradshaw
  Thomas Williams  Harry Fenton
  Aaron Atkinson  Thomas Fenton
  George Charles  Alowidgee
  Freddy Walker  Johnny Galway
  Daylight  Charlie Stewart
  David Berrick  Ted Robertson
  Peter Stuckey  Rochford Robertson
  Jacky Wilberforce (Cooper)  Gibson Platt
  Jimmy Turner  Jackie John
  Sydney  Tommy Hawke
  George Keefe  Robertson
  James Coghill  Boney Cockie
  Sampson Barber  Barralta
  Bagot Morgan  Harry
  John Atkinson  Jimmy Martin
  Peter  Blucher

Robert Taylor  Dick Richards

David Taylor  James Edgar

Jasper Angus  Whyman McLean

120.A number of observations can be made concerning the petition and the signatories.   The petition was presented in 1881, some two years before the reserve at Cummeragunja was declared and whilst Maloga was still in operation.   The petitioners are described as members of the Moira and Ulupna tribes, a description which is not found in Curr’s writing but suggests that the individuals concerned identified with the two main pastoral properties in the region rather than as Bangerang or any of the other sub-groups referred to by Curr.   The petition contains a frank acknowledgment that “all land within (the petitioners’) tribal boundaries has been taken possession of by the government and white settlers” a state of affairs which no doubt gave rise to their desire to change “our old mode of life” in favour of “settling down to more orderly habits of industry”.   A number of the signatories, who apparently subscribed to these sentiments were persons who are either named in the applicants’ list of the 18 known ancestors or were the children of persons so named.   George Charles, Sampson Barber and Bagot Morgan are three of the 18;  Freddy Walker was the son of Edward Walker;  and Bobby Wilberforce (Cooper), Aaron Atkinson, Jacky Wilberforce (Cooper) and John Atkinson were children of Kitty Atkinson/Cooper.   Other signatories who are readily identifiable with names on Treseder’s 1891 list, prepared some 10 years after the petition, include James Coghill, Whyman McLean and Peter Stuckey.

121.Whilst there can be little doubt that Matthews would have played a part in the composition and presentation of the petition it has not been suggested in this proceeding that the general thrust of the statements attributed to the petitioners was factually inaccurate or in any way misrepresented their views or their aspirations.   In fact, the copy of the petition was tendered in the course of the applicants’ counsel’s  opening address as evidencing a long history of efforts to obtain land.   It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time.   Although many of the claimant group reside within the claim area, many do not.   No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it.   The claimant group clearly fails Toohey J’s test of occupation by a traditional society now and at the time of annexation (Mabo No 2, p 192) a state of affairs which has existed for over a century.  Notwithstanding the genuine efforts of members of the claimant group to revive the lost culture of their ancestors, native title rights and interests once lost are not capable of revival.   Traditional native title having expired, the Crown’s radical title expanded to a full beneficial title (Mabo No 2 per Brennan J at p 60).   It is however appropriate that some mention should be made of the evidence concerning the current beliefs and practices of the claimant group.

122.The main thrust of contemporary activity by members of the claimant group has to do with the protection of what are regarded as sacred sites and the proper management of the land.  Oven mounds, shell middens and scarred trees were described by a number of witnesses as sacred and deserving of protection.   Curr (Recollections, pp 236-9) describes the construction and function of ovens which, understandably, were used to cook food.   Some were still in use in his time whereas others showed evidence of protracted disuse.   From the size and location of the ovens Curr drew conclusions as to the density of population in earlier times.  These mounds are regarded by contemporary Yorta Yorta people as sacred.   So too are shell middens, which are nothing more than accumulations of the remains of shell fish frequently found on the banks of rivers.   Trees from which bark has been removed to make canoes or other objects, such as coolamons, are also treated as sacred by some, and significant by others.  Curr (at p 169 quoted above) refers to fine old red gums “off which we noticed many a canoe had been stripped in old days”.   There is no doubt that mounds, middens and scarred trees which provide evidence of the indigenous occupation and use of the land are of considerable importance and indeed, many are protected under heritage legislation, but there is no evidence to suggest that they were of any significance to the original inhabitants other than for their utilitarian value, nor that any traditional law or custom required them to be preserved.

123.Another contemporary practice which is said to be part of the Yorta Yorta tradition is the conservation of food resources.   A number of witnesses gave evidence that they hunt and fish on the land and in the waters of the claim area and to some limited extent, gather “bush tucker” for their personal consumption.   Of these activities fishing appears to be by far the most popular but is currently engaged in as a recreational activity rather than as a means of sustaining life.   It is said by a number of witnesses that consistent with traditional laws and customs it is their practice to take from the land and waters only such food as is necessary for immediate consumption.   This practice, commendable as it is, is not one which, according to Curr’s observations, was adopted by the Aboriginal people with whom he came into contact and cannot be regarded as the continuation of a traditional custom.

124.In earlier times, following European settlement in the area, it was the practice to remove skeletal remains located at Aboriginal burial sites and take them to Melbourne, and elsewhere, for scientific examination.   In more enlightened times many such remains have been returned into the custody of representatives of the Aboriginal people for reinterment in the areas from which they were removed.   In the claim area reburials have been conducted since about 1984.   There can be no question about the importance of the returning of remains to the appropriate country but the modern practices associated with their reburial are not part of the traditional laws and customs handed down from the original inhabitants.

125.Similar considerations apply to the extensive involvement of Yorta Yorta people in activities associated with the conservation of the timber and water resources of the area.   The advent of extensive logging of, and the introduction of cattle into, the forests in the claim area together with the interference with the natural flow of the river systems for irrigation purposes are all matters about which contemporary Yorta Yorta have expressed concern and sought to be consulted.  To some extent their concerns have been recognised by government authorities.   But these are issues of relatively recent origin about which the original inhabitants could have had no concern and which cannot be regarded as matters relating to the observance of traditional laws and customs.

126.The question of obtaining permission to enter upon or use the resources of the claim area was raised by a number of witnesses.   The traditional position, according to Curr (Recollections, p 244), was that both individuals and families amongst the Bangerang had particular rights to certain lands but in practice they were rarely insisted on except in the case of an encroachment of a person not of the tribe.  The evidence concerning current practices was not entirely consistent from one witness to the next.   Some witnesses said that the earlier rules concerning seeking permission to enter the country of another clan no longer applied and that all Yorta Yorta now have rights in all parts of the traditional lands (Ella Anselmi (T 5887);  Kenneth Briggs (T 4924-5)).   Alfred Turner said that 20-30 years ago each sub-group would ask permission to go onto the land of another subgroup but that tradition is no longer observed (T 3578).   Neville Atkinson (Jr) said that the Yorta Yorta can determine who will come onto Yorta Yorta land (T 3054-5) and Gary Nelson said that a lot of Aboriginal people ask permission before entering Yorta Yorta country (T 4143).   But many of the senior members of the claimant group gave no evidence of any existing practice concerning the assertion of any rights to exclude others from the claim area and no-one suggested that even the former practices extended to excluding non-Aboriginals.  There is overwhelming evidence that Aboriginals and non-Aboriginals alike enter, travel through, live, fish and hunt within the claim area without seeking permission other than such as may be required by State or Commonwealth law.   The tide of history has undoubtedly washed away any traditional rights that the indigenous people may have previously exercised in relation to controlling access to their land within the claim area.

127.The applicants readily concede that they and their forebears have long since ceased to observe traditional practices in relation to initiation or to perform other ceremonial activities which are frequently, in other Aboriginal societies, indicative of spiritual attachment to the land.   On one occasion  Colin Walker gave evidence concerning a site (Boat Rock – ID 905) which he claimed had been a ceremonial ground associated with male initiation and which he asserted was off-limits to females, but his evidence proved only that in about 1989 he and another (now deceased) senior Aboriginal had decided it to be so even though women had in the past had free access to it.   I do not regard Mr Walker as a reliable witness but rather as one prone to avoid direct answers to straightforward questions.   He is one of the witnesses whose credit is called into question in relation to an incident referred to in paragraph 21.   Another senior applicant, Mr Ken Briggs, who I found to be a thoroughly honest gentleman and a credible witness, gave evidence that he knew of places, the location of which was not disclosed, which he said were secret men’s sites.   This evidence was elucidated as the result of cross-examination and does not appear to have been a fact upon which the applicants relied as part of their case.   No other relevant evidence was given concerning those sites and no conclusions, one way or the other, can be drawn from the evidence that was given.

128.Preservation of Aboriginal heritage and conservation of the natural environment are worthy objectives the achievement of  which may lead to a more ready understanding and recognition of the importance of the culture of the indigenous people but in the context of a native title claim the absence of a continuous link back to the laws and customs of the original inhabitants deprives those activities of the character of traditional laws acknowledged and traditional customs observed in relation to land and waters which is a necessary element of both the statutory and the common law concept of native title rights and interests.

129.Brennan J observed in Mabo No 2 (at p 58) that “it is necessary to ascertain by evidence the nature and incidents of native title” and accordingly the resolution of this proceeding must depend upon the conclusions of fact which are supported by the evidence adduced.   The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to land of their forebears.        The facts in this case lead inevitably to the conclusion that before the end of the 19^th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs.  The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs.   The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival.   This conclusion effectively resolves the application for a determination of native title. 

EXTINGUISHMENT AND RELATED ISSUES

130.Many of the difficulties inherent in litigating a complex native title determination application have been highlighted by what has occurred in this proceeding.   A substantial portion of the enormous mass of evidence presented to the Court, prepared at considerable expense to the parties, deals with matters relating to the extinguishment of native title rights and interests, an issue which only arises in the event that the observance and acknowledgment of traditional laws and customs in relation to land are shown to have survived.   As it has happened, in the light of the conclusion expressed above, it is unnecessary to embark upon a consideration of whether, and to what extent, native title rights and interests have been subjected to extinguishing events, nor does the question of the coexistence of native title and other rights arise.  The time and expense expended in the preparation and presentation of a large part of the evidence has proved to be unproductive, a circumstance which calls into question the suitability of the processes of adversary litigation for the purpose of determining matters relating to native title.

131.Earlier in these reasons I have expressed my concurrence with the opinion of Demack J in Re Mining Lease Application No 70149 to the effect that except in a case where there has been necessary extinguishment (for example by a freehold grant or an exclusive possession lease) the existence and nature of the claimed native title rights and interests must first be established before any question relating to inconsistent non-native title rights can be resolved.   The logic of such a conclusion is obvious.   It must necessarily follow that in a case in which native title has not been found to exist, there is no occasion to embark upon any further inquiry.

132.The Native Title Amendment Act 1998 deals extensively with matters relating to the extinguishment of native title. Section 23B now defines the concept of “a previous exclusive possession act”. Section 23C confirms the extinguishment of native title by previous exclusive possession acts attributable to the Commonwealth while s 23E authorises States and Territories to adopt similar provisions in respect of previous exclusive possession acts attributable to the State or Territory. The effect of the extinguishment of native title is dealt with in s 237A which provides:

237AThe word extinguish in relation to native title, means permanently extinguish the native title.   To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.

133.New sections 47A and 47B require that in some circumstances the prior extinguishment of native title is to be disregarded. One of the circumstances which triggers the operation of each section is that when the application is made, one or more members of the native title claim group occupy the area in question. It is unnecessary to recite the provisions of these sections as the only purpose in making reference to them is to draw attention to a note following subsection (2) of each section, which states:

Note:    The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

The clear intention of ss 47A and 47B is to ameliorate the effect on native title of acts which would otherwise have an extinguishing effect. Neither section provides a basis for the creation of native title rights which either did not previously exist in relation to the land or which by reason of a circumstance other than an extinguishing act had ceased to exist. In the present case there is no scope for either section to have any application.

CONCLUSION

134.For the reasons expressed above the Court determines that native title does not exist in relation to the claimed land and waters.

I certify that this and the preceding

71 pages are a true copy of the

Reasons for Judgment of the

Honourable Justice Olney.

Associate:

Dated:18 December 1998  

Counsel for the applicants:  Mr B.A. Keon-Cohen QC

Mr K.R. Howie

Mr T.P. Keely

Solicitors for the applicants:  Arnold Bloch Leibler

Counsel for the State of Victoria,  Mr H. McM. Wright QC

Goulburn Valley Region Water Authority,         Ms M. Sloss

Goulburn-Murray Rural Water Authority,         Mr S.G.E. McLeish

and North East Region Water Authority:

Solicitors for the State of Victoria,  Victorian Government Solicitor

Goulburn Valley Region Water Authority,

Goulburn-Murray Rural Water Authority,

and North East Region Water Authority:

Counsel for the State of New South Wales:      Mr V.B. Hughston

Mr J. Waters

Solicitors for the State of New South Wales:     New South Wales Crown Solicitor’s

Office

Counsel for Murray Irrigation Limited,   Mr G. Hiley QC

Field and Game Australia Inc    ,  Mr G.J. Moloney

Graeme Ross McPherson,

Greater Shepparton City Council,

Campaspe Shire Council,

Moira Shire Council,

Estate of Christopher Stephen Ryan

decd

and C.R. and K.R. Moorse:

Solicitors for Murray Irrigation Limited, Suzanna Sheed & Associates

Field and Game Australia Inc    ,

Graeme Ross McPherson,

Greater Shepparton City Council,

Campaspe Shire Council,

Moira Shire Council,

Estate of Christopher Stephen Ryan

decd

and C.R. and K.R. Moorse:

Counsel for Emat Industries Pty Ltd,                Mr A. Neal

V. Grima and K. Lord:

Solicitors for Emat Industries Pty Ltd,   Scott Thompson & Co

V. Grima and K. Lord:

Counsel for Barmah Forest  Mr T. Brennan

Cattlemen’s Association & Ors:  Mr M. Love

Solicitors for Barmah Forest  Corrs Chambers Westgarth

Cattlemen’s Association & Ors:

Counsel for Mulwala & District            Mr J.E. Curtis-Smith

Services Club Limited,

Mulwala Water Ski Club Limited,

Yarrawonga Border Golf Club Limited,

Berrigan Shire Council,

Corowa Shire Council,

Murray Shire Council,

and J.B. and G.A. Gorman:

Solicitors for Mulwala & District  Hargraves

Services Club Limited,

Mulwala Water Ski Club Limited,

Yarrawonga Border Golf Club Limited,

Berrigan Shire Council,

Corowa Shire Council,

Murray Shire Council,

and J.B. and G.A. Gorman:

Counsel for Murray Darling Basin  Mr R.S. Osborn QC

Commission:  Ms M.L. Warren QC

Solicitors for Murray Darling Basin                   Blake Dawson Waldron

Commission:

Counsel for Telstra Corporation Ltd:                Mr P.J. Hanks

Solicitors for Telstra Corporation Ltd    :          Holding Redlich

Counsel for State of South Australia:                Mr M.P. Walter QC

Mr R. Smith

Solicitors for State of South Australia:   South Australian Crown Solicitor’s

Office

Counsel for New South Wales             Mr J. Basten QC

Aboriginal Land Council:

Solicitors for New South Wales  Andrew Chalk & Associates

Aboriginal Land Council:

Dates of Hearing:  8 – 9 October 1996

28 – 31 October 1996

4 – 7 November 1996

11 – 14 November 1996

18 – 21 November 1996

25 – 28 November 1996

3 – 5 December 1996

9 – 12 December 1996

10 – 13 February 1997

18 February 1997

24 – 27 February 1997

11 – 13 March 1997

17 – 20 March 1997

24 – 27 March 1997

17 April 1997

5 – 7 May 1997

12 – 16 May 1997

19 – 21 May 1997

27 June 1997

4 – 8 August 1997

11 – 14 August 1997

25 – 29 August 1997

1 – 3 September 1997

8 – 11 September 1997

15 – 18 September 1997

22 – 25 September 1997

13 – 16 October 1997

20 – 23 October 1997

27 October 1997

29 – 30 October 1997

4 – 8 May 1998

11 – 15 May 1998      

2 November 1998

4 November 1998       

Date of Judgment:  18  December 1998