Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors M19/2001

[2001] HCATrans 657

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M19 of 2001

B e t w e e n -

MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY

Applicant

and

STATE OF VICTORIA; NORTH-EAST REGION WATER AUTHORITY; GOULBURN VALLEY REGION WATER AUTHORITY; GOULBURN‑MURRAY RURAL WATER AUTHORITY

First Respondents

STATE OF NEW SOUTH WALES

Second Respondent

MURRAY IRRIGATION LTD; CAMPASPE SHIRE COUNCIL; GRAEME ROSS McPHERSON; FIELD AND GAME AUSTRALIA INC; MOIRA SHIRE COUNCIL; COLIN RAYMOND AND KATHLEEN MOORSE; ESTATE CHRISTOPHER STEPHEN RYAN DECEASED; GREATER SHEPPARTON CITY COUNCIL

Third Respondents

EMAT INDUSTRIES PTY LTD; VINCENT GRIMA; KENNETH LORD

Fourth Respondents

GEOFF BACKHOUSE; KEVIN AND JOY BARNES; GRAEME BARWICK; BOBBIE BURNS PTY LTD (RUTHERGLEN WINES); BONUM SAWMILLS PTY LTD; MICHAEL BOOTHBY; DAVID BOURCHIER; STAN BROWN; M.J. AND H.P. CALDWELL; KEFINA AND HELEN CAMPBELL; MICHAEL AND CHRISTINE CHAMBEYRON; A.J. & S.M. CHAMPION de CRESPIGNY; J.T. AND B.M. CLEMENT; COHUNA CLAY TARGET CLUB INC; GARY AND KIM COLMAN; L.G. COLMAN; MORVA & MAX COLMAN; COULTHARD CONSOLIDATED PTY LTD; GRAHAM AND GAIL COUTTS; DISCOVERY TOURIST CO PTY LTD:  WILLIAM AND GLENYS VICKERS; D.F. AND C.J. EDGE; W.S. & B.L. FORD; KEITH FYFFE; LYNNE MAREE GEMMILL; MR G. GILMOUR; I.E. & E.S. GUYATT; IAN & SUE HARRISON; JOH H. HAY; SIR DAVID HAY; L.M. HEPWELL; C. & G.J. JENSEN; WILLIAM JOHNSON; KIERAN KLEMM; JOHN KILLMISTER; WILLIAM JOHN LAFFAN; E.W. & H.M. LAMBERT; MAXWELL AND FAY MOOR; SHAYNE MOOR; MURRAY SHIRE LICENSED WATER USERS ASSOCIATION; GREG NEWMAN; GRAEME NORMAN; SIMON NOBLE; DOREEN A. NOTT; J.P. AND K.E. O’KEEFE; R. ORMOND; R. & M. PATERSON; NINA AND KEVIN PELL; MICK PELLIGRINO; C.A. & L.J. PETZKE; CHRISTOPHER PFEIFFER; QUANLEY PTY LTD; I.V., J.J. AND D.F. RALEIGH; N. & B.M. RENSHAW; J. ROSS‑SODEN & SON; WILLIAM & MARGARET ROSS‑SODEN; BRUCE SCHIER; KEITH SCHIER; DOUGLAS HAMILTON SCOTT; ANNE TIMM; B.J. & J.M. TREBILCOCK; ENOCH, NEIL AND ROBYN TRICKEY; KELVIN AND ELAINE TRICKEY; STUART ANDREW TRICKEY; STANLEY JOHN VALE; DEAN VINNICOMBE – KATANA ANNA NOMINEES PTY LTD; PETER WALLIS:  WEST CORURGAN PRIVATE IRRIGATION DISTRICT; G.M. & M.S.WASER; P.M., M.E. & G.W. WEBB; JOHN WEST; MEMBERS OF THE BARMAH FOREST CATTLEMEN’S ASSOCIATION:  G.F. & HEATHER FROSTICK, ROD POWER; GRAEME LAVIS; JOHN LINDSAY; ALAN, EUNICE & LESLIE LUBKE; M.E. & R.E. LUMBY PTY LTD; W.R. & P.J. MAHNCKE; TIM MANNION; BARRY J. MARTIN; MATHOURA JOINT WATER SUPPLY ASSOCIATION; D.J. & K.M. McCORMACK; J.M. & A.J. McDONALD; JOHN & JENNIFER McINNES; MOIRA BOARD OF MANAGEMENT, MOIRA PRIVATE IRRIGATORS DISTRICT; A.R. & A.M. MONTROSE; COLIN & HEATHER SPENCER; NORMAN C. STANTON:  CARLYLE IRRIGATORS CO‑OPERATIVE SOCIETY LTD; FRANK STORER; KEVIN JOHN STORER; KEVIN SWAN; ROBERT SWAN; G.W. & B.A. THORNTON; MEMBERS OF THE ROWAN SWAMP LANDHOLDERS GROUP:  JOHN ALEXANDER, BRUCE BINNIE, C.W. CHARLSTROM, T.J. CHARLSTROM, K.J. COOPER, R.M. DERBYSHIRE, BRIAN DOWLING, R.J. HUMPHRIES, B.J. MARTIN; MEMBERS OF THE NEW SOUTH WALES FOREST PRODUCE ASSOCIATION LTD:  ARBUTHNOTS PTY LTD, BONUM SAWMILLS PTY LTD, GRANTS SAWMILL PTY LTD, MURRAY RIVER SAWMILLS (ECHUCA) PTY LTD; MEMBERS OF VICTORIAN ASSOCIATION FOREST INDUSTRIES:  ARBUTHNOT SAWMILLS (ECHUCA) PTY LTD, RYAN & McNULTY PTY LTD, H.J. & B.M. SWAN

Fifth Respondents

MULWALA & DISTRICT SERVICES CLUB LIMITED; MULWALA WATER SKI CLUB LIMITED; YARRAWONGA BORDER GOLF CLUB LIMITED; BERRIGAN SHIRE COUNCIL; COROWA SHIRE COUNCIL; MURRAY SHIRE COUNCIL; JOHN BRIAN GORMAN; CATHERINE ANNE GORMAN

Sixth Respondents

MURRAY DARLING BASIN COMMISION

Seventh Respondent

TELSTRA CORPORATION LIMITED

Eighth Respondent

STATE OF SOUTH AUSTRALIA

Ninth Respondent

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Tenth Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2001, AT 10.20 AM

Copyright in the High Court of Australia

__________________

MR N.J. YOUNG, QC:   May it please the Court, I appear with my learned friends, MR K.R. HOWIE, SC and MR T.P. KEELY for the applicant.  (instructed by Arnold Bloch Leibler)

MR S.G.E. McLEISH:   If the Court pleases, I appear for the first respondent.  (instructed by Victorian Government Solicitor)

MR V.B. HUGHSTON, SC:   If your Honours please, I appear with my learned friend, MR J.A. WATERS, for the second respondent.  (instructed by the Crown Solicitor for the State of New South Wales)

McHUGH J:   Yes, Mr Hughston.  You seem to have had a dramatic effect on the proceedings.

MR G.E. HILEY, QC:   May it please the Court, I appear with my learned friend, MR G.J. MALONEY, for those of the third respondents who wish to appear.  (instructed by Suzanna Sheed and Associates)

MR A.C. NEAL:   May it please the Court, I appear for the fourth‑named respondent.  (instructed by J.G. Thompson)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear with my learned friend, MS J.H. DNISTRIANSKI, for the State of South Australia, the ninth respondent.  (instructed by Crown Solicitor for the State of South Australia)

MR J.E. CURTIS‑SMITH:   May it please the Court, I appear for the sixth respondent.  (instructed by Hargraves)

MR J. BASTEN, QC:   If the Court please, I appear for the tenth respondent.  (instructed by Chalk and Fitzgerald Lawyers)

McHUGH J:   The Deputy Registrar has certified that she has been informed by Suzanna Sheed and Associates, the solicitors for the third respondent group known as the “Sheed respondents” in this matter, that the following parties within the third respondent group have not filed a summary of argument and will submit to any order of the Court save as to costs.  They are the Greater Shepparton City Council, Campaspe Shire Council, Moira Shire Council, Colin Raymond and Kathleen Moorse and the Estate of Christopher Ryan Deceased.

The Deputy Registrar has also certified that she has been informed by Hargraves, the solicitors for the sixth respondents in this matter, that those respondents have not filed a summary of argument and will submit to any order of the Court save as to costs.

The Deputy Registrar has also certified that she has been informed by the solicitors for the Murray Darling Basin Commission, the seventh respondent in this matter, that the Murray Darling Basin Commission will submit to any order of the Court save as to costs and the Deputy Registrar also certified that she has been informed by the solicitors for Telstra Corporation Limited, the eighth respondent, that Telstra Corporation has not filed a summary of argument and will submit to any order of the Court save as to costs.

Yes, Mr Young.

MR YOUNG:   May I inform the Court that, at the invitation of the Registry, Mr Basten and myself have divided the time between us.  It is proposed that we would take 30 minutes and Mr Basten 10.

McHUGH J:   Yes.

MR YOUNG:   If the Court pleases, this case concerns a refusal of an application for a native title determination. The refusal was grounded on a finding that the observance of traditional laws and customs had ceased and been abandoned by 1881. That was a finding about a particular situation said to exist in the past. The trial judge reached that conclusion, virtually without addressing section 223. He did so, certainly without addressing the elements of section 223(1)(a) and (b) and he did so without making any findings of fact addressing the elements in those paragraphs.

KIRBY J:   Now, it seems to me this is potentially a very important question.  This decision was written before the decision of this Court in Yarmirr and it is in Yarmirr that the joint reasons at paragraph 7, and my own reasons at paragraph 349, make the point that the proper starting point is the Act. It seems an elementary point, but I have to say I read again what I said in Mason v Tritton and I think I made the same mistake.  It was a matter of looking at the common law instead of starting with the statute.

MR YOUNG:   Yes.  Fundamentally, your Honour, that is why we say this case raises points of public importance.

KIRBY J:   But is there a way – I mean, the prospect of this Court dealing with a case with 11,000 pages, or let it be 6,000 pages of transcript, is horrendous.  We are just not very well geared to do that sort of thing.  Now, is there a way to isolate two questions, the question with which you have started and the question of oral evidence in a way that would be determinative of the matter?

MR YOUNG:   Your Honour, the problem does not reach that sort of dimension because it is our case that not only did the trial judge and the Full Court approach the case the wrong way, but by essentially misdirecting themselves ‑ ‑ ‑

GUMMOW J:   Well, did anyone ask them to approach it the right way?

MR YOUNG:   Yes, your Honour. It was submitted, both before Justice Olney and before the Full Court, that the fundamental requirements were to address section 223(1)(a) and (b).

KIRBY J:   Justice Black makes this point because he says if you start in the present, because that is where the statute starts, but the primary judge and the majority appear to have, as it were, started in the past, started in 1788.

MR YOUNG:   Well, they started in the past, but more than that, Justice Olney tried to trace, generation by generation, the observance of particular laws and customs.  He found a vacuum in the evidence in the 1880s and that grounded his decision, and he never evaluated the evidence that was called which took one back to the turn of the century.

KIRBY J:   He did make some observations about it.

MR YOUNG:   He made some mention.

KIRBY J:   But I think they are expressed after he has made his decision in the matter.  Is that the court sequence?

MR YOUNG:   They are and it is simply making some mention.  The Chief Justice, Chief Justice Black, more extensively addressed the other evidence at paragraphs 78 to 82 that there was extensive evidence of the observance and acknowledgment of traditional laws and customs given by senior members of the community that reached back to their great‑grandparents at the turn of the century.

GUMMOW J:   But, look, the majority in the Full Court, at paragraph 100 of their judgment, went right in to section 223, did they not?

MR YOUNG:   I did not hear the end of your Honour’s comment.

GUMMOW J:   The majority of the Full Court – you said they ignored the relevant statutory basis in 223.  Well, it is evident they did not.  There are pages about it.

MR YOUNG:   No.  What the majority in the Full Court did was this:  they endorsed Justice Olney’s finding, notwithstanding absence of any findings under paragraphs (a) and (b).

GUMMOW J:   No, no.  I am dealing with the earlier point you made that the statute had been ignored as the relevant starting point.

MR YOUNG:   I was addressing that to Justice Olney and it is his critical finding ‑ ‑ ‑

GUMMOW J:   Yes, well, I am suggesting to you about the Full Court.

MR YOUNG:   Yes.  What the Full Court did was this, your Honour:  they found that paragraph (c) was a portal through which certain common law requirements, but only certain common law requirements, could be imported and needed to be addressed.  Now, in that regard, it is our submission that they are mistaken.  That finding that paragraph (c) allowed the importation of certain common law requirements stands in tension with this Court’s recent decision in Yarmirr and, moreover, it is our submission that the requirements they imported are not even properly requirements of the common law. Can I go to where the Full Court did that, commencing at paragraph 108, if the Court pleases? In 108 they commence with a rather curious statement:

that para 223(1)(c) is not concerned only with the kinds of rights and interests which may found a determination of native title under s 225 –

Then, as a first step, they incorporate via (c) the requirement that:

the holders of the native title are members of an identifiable community . . . and that the community has continuously since the acquisition of sovereignty by the Crown been an identifiable community the members of which –

observe traditional customs, et cetera.  The next thing they import via (c) is consistent with a recent High Court decision in Yarmirr, namely the requirement of consistency or lack of repugnancy.  Then, via (c) they import extinguishment, but additionally, they import a concept of expiry.  Halfway through the passage at the top of 139:

Under the common law, the native title to any area of land or waters will have so expired if, at any time since the Crown acquired the radical title to the land, the traditional laws and customs . . . ceased to be acknowledged and observed, or –

the connection ceased.  Now, that is imported via (c).  That is in tension with the recent High Court decision in Yarmirr. It is a view of section 223 in native title which is at odds with a differently constituted Full Court.

In Yarmirr Justices Beaumont and von Doussa adopted a quite different approaches to 223(c).  They, in essence, said that “the fundamental requirement” under that section “is not that the rights and interests were acknowledged and observed at any particular date, but that they follow from the acknowledgment of traditional laws and the observance of traditional customs.”  That is at paragraphs 65 and 67 of Yarmirr.  There is, therefore, a fundamental tension between the views expressed by two differently constituted Full Courts:  Justices von Doussa and Beaumont on the one hand, and Justices Branson and Katz on the other.

GUMMOW J:   Now, the relief you would seek from us appears at 191 of the application book.  It seems to be a retrial, does it not, paragraph (3)?

MR YOUNG:   Yes, that is why I answered his Honour Justice Kirby that the outcome of the case would necessarily be remitter and that is because the findings upon which these decisions were based were misdirected.  They were based upon a misconception that matters that have to be addressed be found include ‑ ‑ ‑

KIRBY J:   But in practical terms would it mean that the whole matter would have to be relitigated, or would you contemplate that shorn of the error of starting with the common law, instead of with the statute, the primary judge could reconsider the matter on the basis of the evidence already taken and approach the matter by reference to the correct legal principles.

MR YOUNG:   Yes, your Honour, it is the latter position.  His Honour should be directed to reconsider the matter on the basis of the correct legal principle than on the basis of the same evidence.

KIRBY J:   And does that go also to the question of tradition and the relevance of the oral testimony concerning Aboriginal tradition?

MR YOUNG:   It does, your Honour, yes.

KIRBY J:   Are they the two main points?  Have I correctly understood the two main points in the application?

MR YOUNG:   Well, there are essentially three tiers of points. The first is the proper construction and operation of section 223 ‑ ‑ ‑

GUMMOW J:   Well, let us look at the draft notice of appeal.  That is the best way to find, is it not, at 187?  We have to get to specifics.  Do you press all of those, or some of them, or what?

MR YOUNG:   Sorry.  Your Honour asked me about paragraph ‑ ‑ ‑

GUMMOW J:   I want to know whether you are pressing all of those grounds of appeal, or not, and then I want to know whether they can be pressed without the Court being required, in order to allow any one or more of those grounds, whether this Court would be required to canvas factual findings?

MR YOUNG:   The answer to your Honour’s first question is that we press all grounds down to (5).  We press ground (6).  We press ground (7).  Yes, we press ground (8).  All of those grounds go to the misdirected approach of the courts below and all of them can be addressed without rehearing evidence.

McHUGH J:   The point that you are going to have to face up to is the finding of fact that the facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors, through whom the claimants claim title, had ceased to occupy their traditional land in accordance with their traditional laws and customs and, while that finding of fact stands, it matters not, does it, whether their Honours or the trial judge or the majority went about 223 from the wrong end.  I mean, that is a finding of fact that really does not depend upon any question of law.

MR YOUNG:   Your Honour, when the finding of fact is examined it can be seen that it is so totally infected with an incorrect approach that it simply cannot stand.

McHUGH J:   But it is a question of factual reasoning.  I mean, one of the misfortunes of the abolition of juries is that practitioners and, for that matter, judges fail to distinguish facts and factual reasoning from questions of law and much of what the Chief Justice said in the Full Court seemed to me to be concerned with errors in factual reasoning, not questions of law.

MR YOUNG:   Can I take your Honour to what is said to be the crucial finding of fact?  It is at the start of the judgment of Justices Branson and Katz, paragraph 96.

McHUGH J:   Yes.

MR YOUNG:   The finding is in terms that:

the descendants of the original inhabitants –

have not –

occupied the land in the relevant sense since 1788 –

it is neither a requirement of the common law or the statute –

nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to land of their forebears.

That, too, we say, is neither a requirement of the statute nor the common law, but then the critical passage is this:

The facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs.

That is not a finding about the antecedent Aboriginal community.  It is a finding in context, and I will take the Court to it, of the particular biological forebears of some claimants and it is a finding based totally upon a vacuum in the evidence.

Can I take your Honour to what Justice Olney did commencing at paragraph 4 of his judgment, which is at page 10?  It is the first, second and third of the requirements there that his Honour then traces in his judgment.  First, he attempts to ascertain a biological link with the original occupants.  The second point is that he seeks to find out the nature and content of the traditional laws acknowledged, and traditional customs observed, by the original inhabitants.  Then he seeks to see whether that has been substantially maintained.

The approach his Honour adopted was then to say greater weight should be given to adventitious historical snapshots in diaries and the like, rather than oral evidence concerning traditional laws and customs from live witnesses about what was passed down to them under an oral tradition.  He then refers to Curr’s work at paragraph 117 on page 70.  This is the essential basis of the factual finding, the first sentence of 117.  The extracts from Curr:

have been selected with a view to providing an indication of what Curr observed in relation to a number of aspects of Bangerang life and culture that may have some bearing upon the traditional laws and customs of the ancestors of the claimant group which are said to have constituted a burden on the radical title of the British Crown –

Both in that passage and elsewhere his Honour treats the traditional laws and customs of the particular ancestors as the burden on the radical title of the Crown and that is why he tries to trace the particular laws and customs.  That, too, is an error.

His Honour then draws inferences from silence about, and I quote:

those aspects of traditional lifestyle to which reference is made in the –

previous passages.  His Honour then refers to dislocation and reduction in numbers of the community and then says:

there is no evidence to suggest that –

two individuals –

or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forebears in relation to land.

Now, there was evidence from the great‑great‑grandchildren that their great‑grandparents had passed down to them traditional laws and traditional customs.  Now, his Honour is simply making conclusions about particular aspects of traditional lifestyle.  His Honour then goes to the petition and says that is positive evidence of abandonment and it is on the basis of that material and nothing more that his Honour turns to what is described as his critical conclusion at page 73, line 5.

McHUGH J:   Well, it is a question of fact.

MR YOUNG:   No, it is not, your Honour, because what his Honour has made findings about is that there is an absence of historical material in about the 1880s about particular aspects of lifestyle referred to in the writings of Curr, and nothing more than that, and then it is used to found a conclusion about the position of:

those through whom the claimant group now seeks to establish native title –

as to whether those individuals –

ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim –

The short point is that his Honour tried to trace particular practices that he found referred to in Curr, and as soon as he found a gap in the historical evidence about those particular practices, he leapt to the conclusion that the whole community had therefore abandoned the observance of traditional laws and customs when that was contrary to the other evidence that the Chief Justice referred to.  That is why we say there is no finding of fact ‑ ‑ ‑

McHUGH J:   No, but it is a finding of fact.  He just preferred an inference he drew from one piece of evidence or pieces of evidence to what you rely on in respect of the evidence of traditional belief.

MR YOUNG:   It is not a finding of fact about the situation of the Aboriginal community and all its…..in the latter part of the 19th century which is how it was treated, and wrongly treated, by the Full Court.  It was infected by his whole approach that he was trying to trace particular aspects of lifestyle because he regarded those aspects of lifestyle as reflecting laws and customs that were, themselves, the burden on the radical title.  That is a mistake too.

So, at the end of the day, we say there is no finding of fact that is a barrier to the points we make. At the end of the day it is our submission that the Full Court’s approach to section 223 is inconsistent with that of another Full Court and in tension with the approach sanctioned by this Court in the recent decision in Yarmirr.

Secondly, we say, in any event, the requirements that the Full Court imported via paragraph (c) are neither properly reflective of the statute nor reflective of the common law and I was about to go to, if I can simply give the Court this reference, the way in which the Full Court approached the importation of those requirements.  I took the Court originally to paragraph 108.  May I take the Court then to paragraph 168 where those critical requirements are elaborated?  That is at page 157.  One finds in 168 the requirements set out.  Page 157 (a) and (b) reflect the proper construction of 223(1)(a) and (b), current acknowledgment, “current connection” and then inconsistency.  That would be consistent with a recent decision in Yarmirr, but then the majority imports (d):

the native title claimed has not at any time since the acquisition of sovereignty by the Crown been extinguished whether by –

(ii) and (iii) are what is critical –

cessation of the acknowledgment –

and (iii) –

a loss of connection . . . will be the necessary result of the disappearance of the community as a traditional indigenous community.

(iii) is contrary to what Justices Toohey and Brennan said in Mabo.  (ii) has applied in this case so as to require positive proof that each generation since 1788 has observed particular laws and customs.  It is not supported by the common law.  It is not supported by 223 and it would impose an impossible burden.  It is impossible to adduce positive evidence of actual observance of laws and customs in each decade through the 1800s.

McHUGH J:   No, it does not, Mr Young.

MR YOUNG:   Yes, your Honour.

McHUGH J:   If it is proven at one stage that they are observed and there is no contrary evidence, you would find that they continued.  This is a special case where you have a particular set of evidence in which the judge, rightly or wrongly, drew conclusions as to fact and the statement there does not mean that a claimant for native title has to prove the chain of title through every year since 1788.

MR YOUNG:   That is the way in which it was applied, both by Justice Olney and by the Full Court, because that was the finding his Honour made.  There was a gap in the evidence in the 1880s about the observance of particular matters mentioned in….  That cannot support logically the conclusion that therefore all members of the community, notwithstanding other evidence, had abandoned the observance of traditional laws and customs.

McHUGH J:   That comes back to what I put to you some time ago, that what you are really complaining about is an error in factual reasoning.

MR YOUNG:   With respect, no, your Honour.  We say there is error in factual reasoning but we say that the actual factual finding is irrelevant and inapplicable to a proper determination of native title.  That is because, if one goes to 223(1)(a), and adopting the approach of von Doussa and Beaumont J ‑ ‑ ‑

McHUGH J:   Which has its own problems, as Justice Merkel pointed out in his dissent in Yarmirr.

MR YOUNG:   Yes, and we know from Yarmirr, your Honour, that your Honour thought that Justice Merkel approached the matter in the right way and other members of the Court did not.

McHUGH J:   Well, they did not say anything, did they?

MR YOUNG:   No.  Well, that is why I have been using the expression “in tension”.

McHUGH J:   Yes.

MR YOUNG:   There is a tension between your Honour’s view and the view that was taken at paragraph (c) by the other members of the Court that likewise exist with Justice Merkel.  But, boiled down, we say that the proper approach to the connection that must be established is the traditional one referred to by Justices Beaumont and von Doussa, namely that if there is evidence of an oral tradition passing down laws and customs and referring to their observance, and there is oral evidence of that fact, that is the way in which the matter is to be ascertained and established under the Act.

It is not by requiring positive proof in the 1870s and 1880s that you can have somebody identify in an historical record positive evidence that traditional practices were being observed.  It is enough if you find direct oral evidence of forebears speaking about the 1900s that ceremonies were being observed then.  That evidence cannot be put to one side because of the gap in the historical record in the 1880s and if we are right about that, then, in our respectful submission, the factual finding made by Justice Olney, which is a very limited one, is no barrier to our case.  That is why, at the end of the day, we ‑ ‑ ‑

McHUGH J:   You keep complaining about this question of silence but the judge did also make a positive finding, did he not, in paragraph 118 where he said in the third sentence:

What the evidence does demonstrate is that the land on either side of the Murray had been taken up for pastoral purposes and that there had been both severe dislocation of the indigenous population and a considerable reduction in its numbers due to disease.  Furthermore, there is no evidence to suggest ‑ ‑ ‑

MR YOUNG:   Well, your Honour, dislocation and reduction in numbers ‑ ‑ ‑

McHUGH J:   At paragraph 119 he goes on to say that:

Apart from any conclusions which may be drawn from the absence of evidence . . . there is positive evidence emanating from the Aboriginals themselves -

and then he goes on to report ‑ ‑ ‑

MR YOUNG:   That is the petition, your Honour.

McHUGH J:   Yes, he refers to the petition.

MR YOUNG:   And the Full Court said that those conclusions really could not be founded on the petition.  The petition said no more than members of the tribe, having had their tribal land subjected to:

possession of by the Government and white settlers –

could no longer sustain themselves by hunting and wanted a land grant.  Now, that does not support the conclusion and the Full Court rightly said so.

Your Honour, our point is that abandonment, cessation of native title, cannot be approached in the way in which both Justice Olney and the Full Court approached the matter.  It is contrary to the Act.  It is contrary to the correct application of common law principles.  For instance, your Honour refers to dislocation and dispossession.  In Mabo it was said that physical separation from the land was no barrier at common law to the establishment of native title, the connection ‑ ‑ ‑

GUMMOW J:   That is very forward proposition and it was not necessary for that case anyway.

MR YOUNG:   No, but there is nothing – can I put it in the negative, your Honour?  There is nothing in Mabo to suggest that dislocation and reduction in numbers, and even dispossession of many of the tribal lands, is necessarily fatal to the maintenance of the native title claim.  That is certainly what was said by Justices Brennan and Toohey.

McHUGH J:   I know, but it is not easy to reconcile that with what Chief Justice Mason, Justice Brennan and myself said in Mabo.

MR YOUNG:   Well, your Honour, it is that uncertainty, the disparate views that have been expressed is precisely why we say this is an important matter warranting special leave.  Can I say one other thing, your Honour?  This is the first case in which abandonment has arisen.  There are many cases in the pipeline, many hundreds concerning more settled areas of land than have so far been the subject of adjudication.  Questions of abandonment and cessation because of lack of verification in the historical records is going to be a recurring issue in many of the cases awaiting adjudication.

KIRBY J:   In terms of claims under the Act in Victoria, is this the most important claim that has been heard so far, or is it ‑ ‑ ‑

MR YOUNG:   It is the most important claim heard so far. It is the only claim heard so far. I think only seven cases have gone to judgment. Of them, six related to land in remote Australia. Of the 590 cases in the pipeline, 77 relate to New South Wales, 20 to Victoria and one to Tasmania and many of those 590 cases relate to more settled parts of the country than have so far been the subject of adjudication in cases. Therefore, cessation, abandonment is going to be a critically important issue in many of these cases and we are left here with a case which, in our respectful submission, does not apply section 223. It reaches an outcome ‑ ‑ ‑

KIRBY J:   Well, that is a pretty fundamental threshold point.

MR YOUNG:   Yes, your Honour.

KIRBY J:   And I am not being overly critical of the primary judge.  It is really only since Yarmirr that the enlightenment is laid down by this Court that you have to start.  It seems absolutely rudimentary when you look at it.  I mean why do not lawyers address the statute?  Lawyers love the common law.  They hate statute.  We see it over and over again.

MR YOUNG:   Yes.

KIRBY J:   And that was the error that was called to notice in Yarmirr.

MR YOUNG:   Well, it had a fundamental and permeating effect right through the findings by Justice Olney and then the Full Court which endorsed those findings.

GUMMOW J:   Now, let me try and get you down to specifics again. 

MR YOUNG:   Yes, your Honour.

GUMMOW J:   If you are right as to the nature of the appeal, what would the contents of the appeal book be?

McHUGH J:   Well, there would have to be 11,664 pages of transcript, would there not?

KIRBY J:   Well, I hope not.

GUMMOW J:   As I understand it, on your theory it would not.  That is why I want to find out.

MR YOUNG:   Can I say this?  The Court would probably need to know of the existence of the additional evidence to which Chief Justice Black refers.

McHUGH J:   Well, there were 201 witnesses.  There were 48 witnesses’ statements.

MR YOUNG:   Yes.

McHUGH J:   The case went for 114 days and there were 11,664 pages of transcript, were there not?

MR YOUNG:   Yes, but can I answer your Honour’s question ‑ ‑ ‑

KIRBY J:   If the Court gave special leave on three questions, did the Court of Appeal and the primary judge err in starting the approach to the matter in terms of the common law or in not starting with the section?  Did the Full Court err in its approach to the issue of abandonment and did the Full Court err in its approach to what was traditional and the relevance of oral testimony in that regard?  Now, they are the three issues that you have isolated.

MR YOUNG:   Yes, your Honour.

KIRBY J:   Now, could we deal with that simply on the judgment of the Full Court and of the primary judge and, perhaps, some small supplement in terms of ‑ ‑ ‑

MR YOUNG:   Substantially the answer is, yes, for this reason.

GUMMOW J:   Substantially is a weasel word.

McHUGH J:   Substantially, perhaps, is not good enough.  Are you prepared to approach the case on the basis that there will be no reference to the oral evidence at all but that the case would be conducted on the judgments alone so that if error is exposed, as you say, then the matter would be remitted?

MR YOUNG:   Well, your Honour, can I answer that by saying this?  In our submission, examination of the questions ‑ ‑ ‑

GUMMOW J:   Because unless you can say that, you are not right when you say these are pure questions of law.

McHUGH J:   That is your dilemma, Mr Young.  You are going to have to face up to it.  There are no doubt some important questions of law here, but having read the submissions and having heard your oral submissions, it seems to me that you have to overcome this critical question of fact and it is one thing to isolate these questions of law.  It is another matter to take on the whole case.

MR YOUNG:   Yes.  Can I answer it in this way?  The answer we would give to the question is yes.  The appeal can be conducted within the confines just put to me but we make the additional submission that the Court would be assisted by having in front of it the evidence of traditional laws and customs to which Chief Justice Black referred in his judgment.

KIRBY J:   This is so simply to understand what his Honour is referring to?

MR YOUNG:   Yes, it is not to make findings but simply to understand why we say it miscarried. 

KIRBY J:   How big is that?  How many pages is it you are talking of?

MR YOUNG:   I will have to seek some assistance on that, your Honour, but can I say that much of the evidence to which the presiding judge referred concerned extinguishment which was never reached.  So, the scope of the relevant evidence is not of the kind indicated by the scope of the whole case before Justice Olney but it is our respectful submission that, yes, the case can be confined to those questions of law in that fashion but the Court would be assisted by having in the appeal books the evidence that was given orally concerning ‑ ‑ ‑

GUMMOW J:   Where does Chief Justice Black refer to it?

MR YOUNG:   It commences, your Honour, at page 126.

GUMMOW J:   I have sat on too many special leave applications conducted by senior counsel at a level of generality then eventually the chickens come home to roost.

MR YOUNG:   Yes, that is so.

GUMMOW J:   Well, it is best that the roost is shaken at the beginning.

MR YOUNG:   The evidence that we say the Court would be assisted by is referred to in paragraphs 78 to 86 of the Chief Justice’s judgment.  It includes in 79 other documentary evidence not mentioned by his Honour and it includes in 80 and 82 oral evidence given by senior members of the community.  Now, that is not for the purposes of asking the Court to make findings.

McHUGH J:   I know that, but paragraph 82 says:

The Court’s attention was drawn on the appeal to a very considerable body of evidence about the links with the past and the current beliefs and practices ‑ ‑ ‑

and I am afraid, like Justice Gummow, I have been sitting here too long and I have heard counsel say on special leave applications, “We really won’t have to get into the evidence” and then once they get to Canberra that is often all you do.

MR YOUNG:   Can I say this, your Honour.  We say the material would be of assistance if ‑ ‑ ‑

McHUGH J:   In what way?

MR YOUNG: For this reason: we would wish to demonstrate that the courts below misdirected themselves and the exercise miscarried? Part of that is to say that the findings under section 223(1)(a) and (b) would cover the field, you do not need to supplement that with this additional inquiry

into this historical tracing exercise, and to lend assistance to that argument that there has been a miscarriage of the inquiry here, the existence of this other evidence may be of some assistance, but if the Court says it does not want it, we have made our submission ‑ ‑ ‑

McHUGH J:   Speaking generally, parties in this area of the law are going to have to come to realise that the Full Court of the Federal Court is, speaking generally, the last court for these matters.  This Court just does not have the resources to be taking on large native title cases.  We have Ward argued earlier this year; still under reserve judgment.  Many thousands of pages.  We cannot just take on these cases unless there is some important point of principle.

KIRBY J:   I associate myself with what Justice McHugh has said, but I do think that during the early phases of the application of this Act, which after all has many novel concepts and is not like the Income Tax Assessment Act, this Court has to play its own part.

MR YOUNG:   Yes.  As I have answered the Court, yes, we say it can be conducted on that confined basis without this evidence.

McHUGH J:   Yes.  Anyway, I think you are long past your time, Mr Young.

MR YOUNG:   I am, your Honour.

McHUGH J:   Yes, Mr Basten?  Mr Young has taken up time so I hope you will be short.  You always are, Mr Basten.

MR BASTEN:   I will be brief, your Honour.

KIRBY J:   Some might say the Court took up a lot of Mr Young’s time.

MR BASTEN:   I think that has been said by some self‑represented litigants without success recently too.  I was merely going to say in answer to your Honour the presiding judge’s last comments, that having had some experience both in Ward and in this matter before the Full Court, I frankly do not see the sorts of difficulties which arose in Ward as having a likely reflection in this matter.

KIRBY J:   Ward was 15 cases.  It had 15 different points.

MR BASTEN:   Indeed it was.

KIRBY J:   Most of them were connected very much with the detail of the evidence of the particular claim.

MR BASTEN:   Yes, that is so.  That simply does not apply in relation to this matter.  The evidence is summarised by the Chief Justice.  I, for my part, would find it quite sufficient to argue on that basis.

McHUGH J:   After all, you were in the Full Court, were you not?

MR BASTEN:   Yes.

McHUGH J:   What do you say about the Chief Justice’s reference at paragraph 82 of the judgment, “considerable body of evidence about the links with the past”?  How considerable was it?

MR BASTEN:   I am sorry, it is at page ‑ ‑ ‑?

McHUGH J:   I am just working off the ‑ ‑ ‑

MR BASTEN:   Paragraph 82, I am sorry, yes.  Your Honour, I must confess that there were a number of people who argued mostly reasonably succinctly because many of the respondents had no great interest in this particular aspect of the case.  I think that what was said was that there was material available, to some of which the court was taken but the argument was run by the late Mr Castan and run succinctly, I would have thought.  There was not a lot of time spent on going through lengthy extracts from the evidence.  I certainly did not, in support of the applicants.  To be honest, I am not quite sure what precisely his Honour is referring to when he says that it was drawn to the attention of the court.  I do not think it was time spent on it.

Your Honours, I was simply going to make two points, if I might, in response to the matters that have fallen from the Court.  Firstly, apart from endorsing what has been said about the issue in relation to 223(1), it did seem to me that what your Honour Justice McHugh said in Yarmirr was actually addressed by one other member of the Court and that was I think your Honour Justice Kirby at paragraph 259. So that there is a very real sense in which the issue was raised, in particular paragraph 176 to 177 in your Honour Justice McHugh’s judgment, are still live issues.

Might I come back to the question which your Honour raised about the factual findings?  The point that we seek to make is that the errors of principle and the construction of the section do lead to large questions as to the proper approach to the evaluation of the evidence as a whole.  It is not, I think, your Honour’s suggestion that given the nature of the appeal to the Full Court, the Chief Justice misapplied himself to the questions properly raised, given the judgments of this Court of Jia and Allesch as to the nature of the appeal.  The differences of approach reflect different approaches to determining the existence of native title which are of great practical importance, and those differences explain the different conclusions reached by the Chief Justice in the majority.

McHUGH J:   That is the problem, it seems to me.  That is what I describe as “factual reasoning”.

MR BASTEN:   I understand your Honour’s point.  May I just try and explain why it is we say that there are different principles at stake here.  I will try and do it as succinctly as I can.

McHUGH J:   Yes, Mr Basten.

MR BASTEN:   There are three points.  The first is the manner in which the assessment of the existence of traditional laws and customs made, and the approach that the Court took to the historical records produced by the European settlers.  That was an issue which was addressed in the Canadian decisions, and particularly by Chief Justice Lamer in Delgamuukw in a passage which I need not take your Honours to, but it is indirectly cited by the Chief Justice at page 119 of the application books.  It is an issue which has arisen not only in this country.  The second point is that to focus on the past mainly ‑ ‑ ‑

McHUGH J:   Just before you go on.  What is the principle for which applicants will contend in relation to the traditional evidence?  We can hardly lay down a rule that there is a presumption that it should be accepted.  What do you say about it, Mr Basten?

MR BASTEN:   Your Honour, there is no presumption that it should be accepted.  The principle is that it should be evaluated in its own terms.  It may need to be ‑ ‑ ‑

KIRBY J:   I think Chief Justice Lamer says something to the effect that the courts have to recognise that for many indigenous people oral histories are the only record.

MR BASTEN:   Yes.

KIRBY J:   If you simply say, “Well, we will only look at what missionaries and pastoralists write” you have stacked the cards.

MR BASTEN:   Yes, that is so.

KIRBY J:   And that is what the Canadians in Delgamuukw recognised, and it seems that there is a divergence here between their approach and ours.  It is a pretty important point.

MR BASTEN:   Yes.

McHUGH J:   I am not sure that is right, is it?  The trial judge himself actually relied, did he not, at some stage ‑ ‑ ‑

KIRBY J:   He mentioned it as an afterthought after he had made his decision.  He said, “I can add some observations”.

MR BASTEN:   I think that, in effect, that that may be right, your Honour.  In what may not have been intended to be a dismissive passage, but I think it is one which was ultimately – I think it is at paragraph 128.

McHUGH J:   I would be very surprised, indeed, if this particular trial judge was dismissive of traditional evidence.

MR BASTEN:   Dismissive not of the people, your Honour because – and this is part of the point.  Mr Briggs, for example, he accepted as a credible and sincere witness.  He was dismissive of the evidence in terms of its weight and relevance.  That is the last sentence in paragraph 121 at line 20 on page 73.  It is dealt with as it were at the end of the chase.  May I say why that gives rise to problems.

If the trial judge had focused on the current evidence such as the positive evidence of Mr Briggs, as to the cultures, laws, traditions of these people, evidence which he would presumably have accepted given his finding as to his credibility and sincerity, he would have asked these questions.  Mr Briggs relied heavily on his grandmothers as the source of his knowledge of traditions.  That petition, which appears in full in the judgment of Justice Olney at page 71 to 72 of the application book ‑ ‑ ‑

KIRBY J:   Which had all the hallmarks of being actually written by the Aboriginals themselves I do not think.

MR BASTEN:   Yes.  With respect of course one would say, and I think the majority of the Full Court accepted that as well as the Chief Justice.  One can go a little further:  no woman signed that petition.  Furthermore, he had accepted Kitty Atkinson as a relevant ancestor for the purposes of the hearing.  One of her most famous sons, William Cooper, who himself prepared a petition, perhaps in slightly different terms to Queen Victoria, did not sign this petition.  There is a reference in paragraph 1 to:

That all the land within our tribal boundaries has been taken possession of by the Government and white settlers ‑ ‑ ‑

that, if it is intended to mean something which has legal consequences, would of course be seen as inaccurate.  The assessment which was made of the petition was not informed by the evidence which the current applicants had given and had the approach been adopted which, we say, should have been adopted, and I have said it rather more succinctly than I had intended, with respect the result may well have been different.

Finally, might I say this, your Honours.  We accept that there should be no re‑litigation of the evidence.  That seems to be the correct approach.  It may well be that in this case, as in many others, in these key areas where the principles are undefined, there will be no further hearing if the principles are settled by this Court.  That is a factor which, in the practical consequences of this litigation, one cannot simply ignore.  With respect, we support a grant of special leave.

McHUGH J:   Thank you, Mr Basten.  Mr McLeish, you are not putting any argument?

MR McLEISH:   No, that is correct, your Honour.

McHUGH J:   Yes, Mr Hughston?

MR HUGHSTON:   If your Honours please.  Your Honours, this application has at its very heart the applicant’s dissatisfaction with the finding of fact made by the judge, and that is the finding of fact that has been discussed this morning, your Honours, that at some time before the end of the 19th century the ancestors of the claimant group ceased to acknowledge the traditional laws and to observe the traditional customs which gave them their connection to the land.

KIRBY J:   But you would have to accept that if a judge starts with the incorrect starting point it is not going to be surprising that he or she will end up in the incorrect place.

MR HUGHSTON:   No, with respect, your Honour, I would not.  If there is an issue before the trial judge as there was here, a very large issue, as to whether there had been earlier extinguishment of native title by abandonment, well, his Honour having heard all the evidence, including the evidence from the applicants orally of what they believe to be their traditional laws and customs, if, having heard all that evidence, it concludes that no native title was extinguished at an earlier point in time, there is no need for him to expressly make findings in the judgment about 223(1)(a) or 223(1)(b).

KIRBY J:   I take account of that, but as Chief Justice Black said on his view, and I would have thought with respect on the statute’s view, you start with the present.

MR HUGHSTON:   His Honour did start with 223.  If one looks at the first page of the judgment at application book page 7 at about point 15 of the page, his Honour said:

The Act defines the key concept of native title in terms which are consistent with the language of Mabo No 2.

So it is the “key concept”.  He comes to it in the first paragraph and he sets it out.  Over the page, page 8, at about point 10:

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.

So his Honour had the right starting point and his Honour, in my respectful submission, was also correct to say that this definition has to at least be considered in the context of what this Court said in Mabo as to what common law native title is.  After all, the Act was ‑ ‑ ‑

KIRBY J:   Mabo was 1992.

MR HUGHSTON:   Yes, your Honour.

KIRBY J:   The statute came later.

MR HUGHSTON:   Yes, your Honour.

KIRBY J:   The common law concepts are in paragraph (c).  You still have to start with paragraphs (a) and (b), otherwise they might not well be there.  The question is whether, in paragraph 129, which is the critical paragraph, his Honour as it were said, “I am not going to look at what is the traditional position now of these applicants.  I am going to simply look at whether”:

in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs –

That is the question.

MR HUGHSTON:   With respect, his Honour did not say, “I am not going to look at what the applicants say the traditional laws and customs are” and in paragraph 122 ‑ ‑ ‑

KIRBY J:   Yes, but when he came to the critical decision, the critical point, at 129 at least arguably, it seems to me, that his Honour took – and I am not sure that I did not take the same view in Mason v Triton.  I am not being overly critical of his Honour but we now have the enlightenment of Yarmirr that you start with the Act.  That starts, as Chief Justice Black said, with the present and the position of whether present applicants are observing a traditional law.

MR HUGHSTON:   Your Honour, there are several ways at common law that native title can be extinguished.  One way is by the loss or abandonment of traditional laws and customs.  Another way is by inconsistent actions of the Crown.  Fejo is a case, opposed the Native Title Act where the registered native title claimants had made a claim to Crown land, but that Crown land had at some earlier point in time been subject to a freehold grant.  Now this Court held that that freehold grant in the 19th century extinguished native title at common law, and thus extinguished native title today, that the native title could not be revived.  There was no necessity there to say, “Shouldn’t there be some findings made about 223(1)(a) and (1)(b)?” because it was clear that the native title had been extinguished earlier at common law.

Now, his Honour here, having heard all of the evidence, including the evidence as to current laws and customs and making comments on those laws and customs and on the evidence and saying that he did not think it was continuous with the past; he thought they were contemporary practices, his Honour has gone to the big issue in the case, and this was the big issue, and he said, “The evidence satisfied me that native title was extinguished in the 19th century.”  The applicants, in my respectful submission, have to show that his Honour, in reaching that conclusion, has not taken into consideration the applicant’s oral evidence.

KIRBY J:   Fejo was a very different case.  It presented for the Court’s decision a very important principle of whether freehold extinguished native title, period.

MR HUGHSTON:   Yes.

KIRBY J:   That was a matter of general legal principle, and the Court said it did.  That is not this case.  This case is a case of complex evidence and detailed facts.

MR HUGHSTON:   That it is, your Honour.  It is a very big fact case.

KIRBY J:   It is, but ‑ ‑ ‑

MR HUGHSTON:   There were over 11,000 pages of transcript, 6,000 of which were before the Full Court.  My friend has indicated that the Chief Justice referred to some of that evidence in his judgment.  Your Honours will have noted from the judgment of their Honours Justices Branson and Katz, but they selected the evidence of other witnesses which, they said, supported his Honour’s finding.  So it is a large fact case.

KIRBY J:   What do you say about Mr Young’s point, that he is content to argue the case on the three issues that have been isolated, with only some of the evidence, so that the Court can understand what Chief Justice Black was referring to.

MR HUGHSTON:   Mr Young wants to put some of the evidence before the Court.  The respondents would want to put some of the evidence before the Court as well.

KIRBY J:   So be it, but we are not going to be burdened with 6,000 pages, so why tell us that?

MR HUGHSTON:   I think we would have to, your Honour, because if you are going to ascertain whether there has been an error in approach which has vitiated that finding of fact, one has to look at all of the evidence that was before the judge, to see, irrespective of any error in approach and the majority of the Full Court said, “His Honour may well have fallen into some error in his approach to native title”, but those errors do not affect that finding that 100 years earlier native title had been extinguished at common law.  That was the end of it.

KIRBY J:   Based very substantially on the writings of Mr Curr, a pastoralist, and Reverend Matthews, was it, a missionary.

MR HUGHSTON:   Your Honour ‑ ‑ ‑

KIRBY J:   The cards are then stacked.

MR HUGHSTON:   Not necessarily ‑ ‑ ‑

KIRBY J:   How can Aboriginal Australians get equal justice under law in a court or a tribunal, if they are really forced back and this Court sanctions a decision which says, “The contemporary writings support this.”?  This is a very natural thing for lawyers to say, so it really does - it weighs the balance.

MR HUGHSTON:   In my respectful submission, your Honour, one should not have any a priori views as to which evidence should or should not be accepted by a trial judge ‑ ‑ ‑

KIRBY J:   Exactly, quite.  That is what the Canadian judges have said.  Equal justice.

MR HUGHSTON:   His Honour did not say, “I am going to ignore the Aboriginal oral evidence here because it’s oral evidence and I’ll accept only the record of the written evidence”.  His Honour looked at all of the evidence, the oral evidence and the written evidence, and he came to the view, having heard the oral evidence, having read the written evidence, that on certain aspects he was preferring the written account.

GUMMOW J:   Can you tell me this:  what is the current state of the title to this land?  Is it land under the Real Property Act?  Freehold grant?

MR HUGHSTON:   No, most of it is Crown land, your Honour.  Most of it is State forests and reserves, working State forests I should say, but most of it is State forest ‑ ‑ ‑

GUMMOW J:   Right.  There is no, as yet, unresolved issue as to the significance of any State legislation at any time establishing these forests upon what would otherwise be native title?

MR HUGHSTON:   There were two huge issues in the case.  One was the loss or abandonment issue.  The other issue was extinguishment brought about ‑ ‑ ‑

GUMMOW J:   I realise that, but that may only be the beginning of the story.

MR HUGHSTON:   Yes.

GUMMOW J:   Is there any other issue in the case as to supervening legislation and its significance?

MR HUGHSTON:   Yes, your Honour, quite a deal of supervening legislation ‑ ‑ ‑

GUMMOW J:   Has that been tried yet?

MR HUGHSTON:   No it has not.  All of the material was put to his Honour, the submissions were heard, and in view of the finding that his Honour made, his Honour found it unnecessary to make findings on those points.

KIRBY J:   You would not lose those points on the proposition that Mr Young points out.  He says, “We have had a basic injustice because it wasn’t approached in the correct legal way.  We don’t ask that it go back to a different judge.  We don’t ask that it start again.  It should go back to Justice Olney but with the assistance of the clarification of the law on three points.”

McHUGH J:   I am not sure that it can go back to Justice Olney, having regard to his findings about “on credibility”.  It would immediately raise questions of apprehended bias.  He made some very strong findings on credibility against some – in respect of some witnesses.

MR HUGHSTON:   A number of witnesses, your Honour.  Your Honour will recall ‑ ‑ ‑

McHUGH J:   And as affecting the traditional evidence.

KIRBY J:   But this is the price Mr Young says his clients are willing to pay, because the matters goes back, as it were, part‑heard but rescued from an erroneous legal principle.  I, for my own part, do not see any problem with Justice Olney continuing his work and concluding the matter with the correct principle, if the principle is changed.  It may be you would win in this Court.

MR HUGHSTON:   Your Honour, I can only ‑ ‑ ‑

McHUGH J:   If you did not, your points are still alive.

MR HUGHSTON:   I can only maintain our submission that there is no erroneous point of principle, number one.  Number two, if there was some erroneous point of principle, it has not infected the finding of fact, and that was the finding of the majority of the Full Court.  They said, “Look, even if his Honour did make an error in his approach to the ascertainment of native title, that finding of fact does not depend upon that approach”, and that is fatal to the applicant’s claim.

McHUGH J:   It is a question of what comes first, the chicken or the egg.  If his Honour starts in a particular place and does not, as it were, start with the concept, which is a new concept that the Act puts into law of this country:  what is the position of the claimants now, today?

MR HUGHSTON:   Your Honour, my learned friends appear to be arguing that some different result would be obtained if one were to follow the approach which their Honours Justices Beaumont and von Doussa took to section 223 in Yarmirr’s Case.  In our submission, no different result would be arrived at at all.  If I could perhaps take your Honours very briefly to the decision of the Federal Court in Yarmirr.

McHUGH J:   Could I just ask, does the decision of this Court in Yarmirr, where the appeals were dismissed, both appeals, does that confirm the approach of Justices Beaumont and von Doussa?

MR HUGHSTON:   No, the issue does not really arise, your Honour.  It is Commonwealth v Yarmirr (2000) 101 FLR 171 at 191. I want to read to your Honours from paragraph 55, the foot of that page.

The common law rights and interests defined by s 223(1) are rights and interest “of Aboriginal peoples or Torres Strait Islanders in relation to land or waters ...”. The definition is descriptive of rights and interests in existence. It is not descriptive of rights and interests that were once held and have since lapsed or been extinguished. In our opinion, it is for this reason ‑ ‑ ‑

GUMMOW J:   This is all going round in circles.  This only arises because someone wants a determination.

MR HUGHSTON:   Yes, your Honour.

GUMMOW J:   You do not determine something exists if it no longer exists.

MR HUGHSTON:   No.  What I am saying, your Honour, is that there is criticism of Justices Branson and Katz because they said that it is paragraph (c), the definition of native title 223(1)(c), and the stipulation that native title must be recognised by the common law, which introduces into the definition the concept that the native title must not have been extinguished at some earlier point in time.  If I understand my friends’ argument correctly, they are saying that Justices Beaumont and von Doussa do not approach it that way, that there is no requirement that one show that there be no earlier extinguishment.

If I could just finish reading that passage, your Honour will see that although Justices Beaumont and von Doussa approach it from a different way, they still require continuity of connection.

In our opinion, it is for this reason unnecessary for the definition to refer to these topics.  If, in a claim by persons who apply under s 13 and Pt 3, it appears that rights and interest claimed have lapsed, or been extinguished by legislation or executive action, the claim must fail for that reason.

So, although their Honours are not importing that requirement under subsection (1)(c) as their Honours Justices Branson and Katz do, they are still incorporating that requirement overall into the definition of native title.  So on either approach, if there was positive evidence, as there was in this case, that native title had been extinguished at some earlier point in time, there could be no positive determination.  That position was also accepted by the applicants on appeal. 

If I can take your Honours to the application book at page 110.  This is reading from the judgment of his Honour Chief Justice at about point 30 of the page:

it was not in controversy on the hearing of the appeal that native title will no longer exist once its foundation has disappeared by reason of the disappearance of any real acknowledgment of traditional law and real observance of traditional customs.  Where such circumstances exist, the claimed rights and interests will no longer be possessed under what are truly “tradition” laws acknowledged and customs observed.

If I could take your Honours to page 117 of the application book at about point 20 of the page, paragraph 52:

The language used by his Honour in finding that native title expired long ago reflects that of Brennan J in Mabo (No 2) at 60.  The appellants did not dispute that native title will expire when its foundation disappears in the circumstances referred to by Brennan J in that well‑known passage, where his Honour referred to the “tide of history”.  The appellants did not dispute that such a circumstances, if properly established, would operate to defeat any claim for a determination of native title under the Act and that once expired native title cannot be revived.

KIRBY J:   To come to that factual conclusion, his Honour had to have a view concerning the relative weight to be given to the written record of Mr Curr and the reverend missionary, on the one hand, and the oral testimony brought by the applicants.

MR HUGHSTON:   Yes, and that is where one ‑ ‑ ‑

KIRBY J:   That is quite an important question.

MR HUGHSTON:   It is, your Honour, but that is an area ‑ ‑ ‑

KIRBY J:   It is the subject of commentary in a number of law review articles.  The divergence between our approach in Australia and the approach in Canada is called to notice.  Now, why should this Court not resolve that question?

MR HUGHSTON:   Your Honour, when it comes to assessing the weight to be given to particular evidence, in my respectful submission, that is an area for the discretion of the trial judge.

KIRBY J:   That is it.  He or she applies the correct test, and does not undervalue one and overvalue the other.

MR HUGHSTON:   The difficulty, your Honour, is laying down a test.

KIRBY J:   It may be difficult, but that is what we are here for.  Most of our cases are difficult.

MR HUGHSTON:   Your Honour, in my respectful submission, my friend has not pointed to anything in Justice Olney’s decision which shows that his Honour went into the assessment of the evidence with some preconceived notion which evidence he would prefer over the other ‑ ‑ ‑

KIRBY J:   Nobody is suggesting bias.  His Honour is a much respect judge.  He has a great background in this area, greater than mine.

MR HUGHSTON:   Yes, your Honour.

KIRBY J:   But the fact is that the issue that is presented is arguably an important question of principle.  His Honour did, as it were, seem to be talking – he says word to the effect, “It is as well that I add something about the oral testimony” but that is after he has made his decision, not before.  That is the thing that troubles me.

MR HUGHSTON:   Your Honour, that is perhaps just an artefact of the fact that when a judgment has to be written it has to go page after page.  The fact that his Honour may have ‑ ‑ ‑

KIRBY J:   I am not criticising the textural writing of the judgment.  I am asking did his Honour address the balancing of the written and the oral traditions equally before he reached his conclusion?

McHUGH J:   I think in fairness to his Honour that if you look at what he said, he did.  He was very, very cautious about using historical records.  He said at paragraph 58:

The diaries and notes of casual observers of Aboriginal people in mid‑colonial times need to be looked at with these qualifications and criticisms very much in mind.

MR HUGHSTON:   Your Honour might also note that at page 66 of the application book at about point 5 of the page, his Honour says:

Much of what subsequent writers have said about early Aboriginal life is necessarily based upon other than original observation and much is mere speculation.  Curr himself was not averse to a degree of speculation and to the extent that he indulged in that practise his opinion should not be accorded any weight but his record of his own observations and of what he was told by his Aboriginal informants, must be regarded seriously.

McHUGH J:   Paragraph 55, his Honour said:

For one thing, the use of historical material to answer a claim based substantially upon an orally‑transmitted tradition needs to take fully into account the potential richness and strength of the orally‑based traditions as well as the inherent difficulties ‑ ‑ ‑

MR HUGHSTON:   Yes, your Honour.

McHUGH J:   It is only my view, but I think it is not fair to say that this particular judge of all judges would not give evidence of an orally‑transmitted tradition full effect.

MR HUGHSTON:   I heartily concur with your Honour.  Also, your Honour, I would submit that it is for the applicant to positively demonstrate that his Honour did commit that error.  Not to say, “Simply because at the end of the day he has preferred the written evidence on some points here to the oral evidence, that that must necessarily demonstrate error on his part.  His Honour was very careful in his assessment of the evidence.

McHUGH J:   His Honour set out at paragraph 56 what Justice Merkel had said concerning Chief Justice Lamer’s comments in Delgamuukw.

MR HUGHSTON:   It should also be borne in mind, your Honour, that it was the applicants who introduced Mr Curr’s writings into evidence as their very first exhibit in the case.  There are extracts from the transcript attached to the front of the application book where senior counsel for the applicants waxed lyrical in his praise of Mr Curr.  We have also extracted in our written argument portions of the evidence of the applicant’s anthropologist and of New South Wales’ expert anthropologist, both of whom concur on the value of the Curr’s observations.  This is no casual ‑ ‑ ‑

McHUGH J:   I think your time is up, Mr Hughston.

MR HUGHSTON:   If your Honour pleases.

McHUGH J:   Mr Hiley, you appear for the Sheed respondents?

MR HILEY:   I do, your Honour. Your Honours, I only wish to say a little bit about the question of section 223. We have in fact briefly set out our contentions in our summary of argument which appears at application book 224.

Our first contention is the finding of fact point, and we say no more about that, that having been dealt with by Mr Hughston. Our second point, your Honour, is that the Court has now heard argument about the intended meaning of section 223 twice, once in Yarmirr and once in Ward.  We now have the benefit of the Court’s views, at least from the Yarmirr judgment.  No doubt more will be said about it in Ward.  We would submit ‑ ‑ ‑

KIRBY J:   Yes, but Justice Olney did not “have the benefit”, as you put it.

MR HILEY:   Quite so, your Honour, but I am addressing ‑ ‑ ‑

KIRBY J:   Nor did the Full Court.

MR HILEY:   Quite so, your Honour. I am addressing the point really to submit this, that it is not a special leave point to ask the Court to look at section 223 for a third time, because that really is the focus of the appellants’ grounds of appeal. By and large, most of their grounds are critical of the trial judge and of the Full Court for the way in which they interpreted 223.

KIRBY J:   But it would be.  I agree, that you would not take it on simply to elucidate a point already said.  If it is thought to be arguably critical to the way in which the primary judge and the majority in the Full Court approached the matter, then that is not an unimportant question, especially if it can be corrected and the case can then sail on in its ordinary way, correct?

MR HILEY:   Quite so, your Honour.  If I can add this though, that from what the Court has said in Yarmirr we submit that the approach adopted certainly by the majority in the Full Court is consistent with the views expressed at least by the four in the joint judgment and by your Honour Justice McHugh in Yarmirr. 

KIRBY J:   It is hard to see how it could be consistent because they were very significantly different.

MR HILEY:   We submit, your Honour, that ‑ ‑ ‑

KIRBY J:   Anyway, to elucidate a principle from a case you do not just count numbers.  You look at who are the majority Justices and from the majority concurring in the order, you then elucidate the principle.  You do not go just counting numbers however they decided the case.

MR HILEY:   Quite so, your Honour, but the main ‑ ‑ ‑

KIRBY J:   Four is enough.  If you have the four in the joint reasons, that is enough for you.

MR HILEY:   Yes.  I add in your Honour Justice McHugh because your Honour, with respect, expressed views consistent with those expressed by the other four but your Honour did go the extra step and actually indicated that it is appropriate to look at the various tests outlined by Justice Brennan in Mabo [No 2] when you are applying paragraph (c), whereas the four that wrote the joint judgment did not go that far.

KIRBY J:   It is a pretty important point of difference.  I agreed with the joint reasons on the primacy of the statute, which is such a rudimentary point.

MR HILEY:   It is, quite so.

KIRBY J:   It is amazing that so many clever lawyers, including myself, overlooked it.

McHUGH J:   There is a certain assumption in that question.

KIRBY J:   It was not a question.  It was an assertion.

McHUGH J:   Answer – in that answer.

MR HILEY:   I will not go near that, your Honour.  But, your Honours, the main point that I seek to make is that the applicants in the present matter are heavily relying upon the approach taken by Justices Beaumont and von Doussa in the Full Court.  We submit that that approach has now been expressly rejected by your Honour Justice McHugh and implicitly rejected by the four in the majority.  They have now set up what we submit is a test, that is, they referred to inconsistency between the asserted rights and the common law, and that is the test that the four in the joint judgment referred to at paragraph 40 of the joint judgment. 

We submit that if one applies that test – and I will just repeat that, that is, that one is to look at the question of inconsistency between the asserted rights, that is the asserted native title rights, on the one hand, and

the common law, on the other hand – that test will then cover not only this case but all other cases.  That means, your Honours, that applying that test as the Court did in Yarmirr, the public rights to fish and navigate were parts of the common law that were inconsistent with exclusive rights advanced in Yarmirr’s Case.  Applying the same test, your Honours, as you may well in Ward, the test also applies to questions of extinguishment by legislative and executive act, again, the test is the same, one of inconsistency between the common law and the asserted native title rights, and, thirdly, in this case, where we are talking about extinguishment as a result of the loss of relevant connection or the abandonment of laws and customs, again, that is the common law test referred to by Justice Brennan in Mabo [No 2] at pages 59 to 60 and ‑ ‑ ‑

McHUGH J:   Well, your time is up, Mr Hiley.

MR HILEY:   ‑ ‑ ‑ we submit that that test covers the field.  Thank you.

McHUGH J:   Yes, thank you.  Mr Neal, do you appear for the Thompson respondents?

MR NEAL:   I do, your Honour.

McHUGH J:   Yes.

MR NEAL: Your Honours, I only propose to touch on two matters in oral address, most of which have been dealt with by my learned friend, Mr Hughston. Really I have characterised what I want to say is the question of the importance of the divergence of views on the construction of section 223 and the way in which his Honour dealt with the evidence and the balance between the indigenous and non‑indigenous evidence. Considerable emphasis has been given in the address of my learned friend, Mr Young, about the tension in various versions of the construction of section 223 but, as I think my learned friend, Mr Hughston, was endeavouring to point out through Yarmirr, the substantive requirements for a successful claim are not necessarily influenced by the differing constructions that may have been put forward. 

As my learned friend, Mr Hughston, said, even in Yarmirr, where the focus was on section 223, in particular, the Court was astute to say that the question of lapse or extinguishment was still a requirement of a successful claim. So that notwithstanding differences in approach to the construction of section 223, the seminal finding of his Honour about the loss of traditional connection discretely, in my submission, would still have spelt the failure of this claim notwithstanding differing views about the contemporary position.

KIRBY J:   But that seminal finding, as you put it, did depend upon the weight that his Honour gave to all of the evidence but, most importantly, to the evidence in the oral tradition of the applicants and the written tradition that the respondents could call on.  You see you cannot get away from what his Honour said.  His Honour said that some reference should be made to the – his own words were:

some mention should be made of the evidence concerning the current beliefs and practices of the claimant group. 

It is as if it is an afterthought, “some mention should be made”, whereas this is the whole point of the applicant’s case.

MR NEAL:   Although I think it is at a subsequent paragraph, having reviewed all the contemporary evidence, at 129, his Honour, in my respectful submission ‑ ‑ ‑

KIRBY J:   That was at 121 that ‑ ‑ ‑

MR NEAL:   I am talking about 129.  Having reviewed the evidence of the applicant witnesses, in my submission, his Honour then makes perhaps his clearest and his fullest expression of finding in relation to the loss of traditional connection.  May I say, your Honour, that it would be an odd process to attribute to the trial judge to assume that he came to his conclusion about the 1881 position having no view at all about what the contemporary view might have been because his Honour would obviously have put himself in a very odd position if he said, “By 1881 I find that there had been an extinction of the traditional connection.  Now I will go on to deal with” ‑ ‑ ‑

KIRBY J:   All we have is the record and his Honour says “some mention should be made”, whereas that is the key to the applicant’s case.  He could say, “Well, this is what the applicant said and I reject it, or I don’t give it the same weight as I give Mr Curr and the missionary”.  It is the language of an afterthought, at least arguably.

MR NEAL:   Well, I think what his Honour says at 129 is the most unequivocal finding that he makes in the case, although I accept that he had made a similar and previous finding.  Could I just make the second point, your Honour, in relation to the evidentiary issues and I think taking up a point that Justice McHugh mentioned about his Honour Justice Olney and just cite briefly to the Court what his Honour Justice Olney said as trial judge in Yarmirr (1998) 156 ALR 370 at 399 and 400, and I quote:

What really matters is the evidence of the Aboriginal claimants . . . 

but with the caveat that such evidence must withstand the usual tests as to its credit and weight.

Coming back to the context of the present case, again, the ‑ ‑ ‑

GUMMOW J:   I am not sure that Mr Young does not really want to change the laws of evidence in some respect.  He may be right for this sort of case.

MR NEAL:   The difficulty of taking a constant view about the meaning of the oral tradition or oral evidence is that it must vary in case to case.  In the present case his Honour was dealing with a community which, on any view of it, had been much disturbed and long dispersed from its traditional country and with the consequence that it is, with respect, difficult to compare the value of the oral tradition of this community, because they do not have the advantage of, if you like, segregation of a western desert community where there is a vital process of ceremony and constant day‑to‑day inter‑generational contact whereby the transmission of knowledge may flow in a way that means that when you are speaking 200 years after sovereignty you may say that there is a process, a reliable process, by which the knowledge has been transmitted to the current generation.  This community did not have that advantage and I think ‑ ‑ ‑

KIRBY J:   That is a fair point but that, in a sense, tenders quite an important issue.  It is hard cases that are going to test the Act and the residual common law recognised by the Act and if a case like this fails, that has very significant consequences for claims in other developed parts of Australia.

MR NEAL:   With respect, not by reason of a misapplication of a legal test, in my respectful submission.

KIRBY J:   One would hope after Yarmirr that everybody will start with the statute.

McHUGH J:   Mr Neal, going back to the evidence, I am afraid I was mistaken earlier when I was supporting the approach of the learned trial judge.  At the time I had been looking at the judgment of the Chief Justice and when you look at what the trial judge says at paragraph 106, the last line on that page:

The oral testimony of the witnesses from the claimant group is a further source of evidence but being based upon oral tradition passed down through many generations extending over a period in excess of two hundred years, less weight should be accorded to it than to the information recorded by Curr.

Now, arguably that is a downgrading of the evidence of the oral testimony of the witnesses in the claimant group.

MR NEAL:   Yes.  I think the processes of his Honour were to say, “Using Curr to the advantage of the applicants, that in 1840 he had made contemporaneous observations of their laws and customs”, his Honour was prepared, in favour of the applicants, to relate that back to the date of sovereignty, a 50‑odd year period, and say that that was, he would assume or infer, a constant and then take the matter on from there.  But, as Mr Hughston pointed out, his Honour I think, with respect, not unduly dewy eyed about what Mr Curr had to offer.  He does say at application book page 41 at paragraph 53 that:

Neither Curr nor Robinson –

another potential source of evidence –

had any special qualifications . . . Nor was it their prime task in life –

to be doing what they were doing, but he obviously put some particular credence on Curr – and this appears particularly at application book page 66 – because he was relying on what Curr observed himself and what his Aboriginal informants were telling him.  At application book 67, at paragraph 110, he points out that a “long and close association” that Curr had to the claim area which was occupied by the ancestors who founded the successful element of the claim.

With respect, it is Curr’s evidence that gets some degree of preference, not all the European commentators, when his Honour is trying to do the difficult balancing act that he is forced to do in this case.  With respect, given that he was endeavouring to establish a custom at 1840 and before, Curr was probably the best available evidence to his Honour and he dealt with it accordingly, as the applicants had suggested he should as well.

KIRBY J:   Best available written evidence.

MR NEAL:   Yes.  It is a question of whether that was – well, yes, your Honour.

KIRBY J:   The deceased Mr Curr was not in court to give any oral evidence.  He just had left behind his writings, which are the sort of things Europeans did and do, whereas indigenous people have oral traditions.

MR NEAL:   I accept that, your Honour.  If the Court pleases.

McHUGH J:   Yes.  Well, your time is up, Mr Neal.  Yes, Mr Solicitor‑General for South Australia.

MR SELWAY:   Your Honours, I understood I had about five minutes, so if I could try to use that up.

KIRBY J:   You only want to put a rider, if a grant of special leave is given, that it must be on a condition that the applicants cannot raise questions about control of the flow of the water.

MR SELWAY:   Yes, your Honour.

KIRBY J:   They say that is a premature matter, but in any case, in the way in which this matter has been argued, is that really a live issue?  The most that would be done by this Court would be to address, at most, three isolated points.

MR SELWAY:   Your Honour, one of the problems with this case is that it proceeded to trial without proper pleadings.

GUMMOW J:   I was going to ask about that.  What is the pleading situation, Mr Solicitor?

MR SELWAY:   I am probably not the one to ask, your Honour, because I was not there.

GUMMOW J:   But you could be objective.

MR SELWAY:   I would find it hard to be objective, your Honour.  My understanding is that the case proceeded - the pleadings were drawn as a statement of claim of some sort and it seemed to develop in the course of the proceeding.  So far as I can tell, the claim changed over time and various attributes.  The evidence changed over time and the nature of the case changed over time.  This was one of the early cases and it started early.  I make no particular criticism of it.  The problems of it are obvious.  We say that if the matter had been properly pleaded we would never have been a party in the first place and that because the interests of South Australia are very narrow.

KIRBY J:   You just want the water of the Murray?

MR SELWAY:   Your Honours, what we say is that 90 per cent of the people of South Australia drink the water of the Murray. 

KIRBY J:   Amazing.

MR SELWAY:   It is a matter of some importance to us if it stopped and the nature of the claim as pleaded, at least initially, it looked like people were asserting a claim to all the water of the Murray.  That was a matter of some interest to South Australia.  It was proper that we were a party on that basis, proper to intervene.  That case could not be made out.  It was fundamentally flawed, the fundamental flaw being that by a statutory scheme enacted by South Australia, Victoria, New South Wales and the Commonwealth, South Australia had an entitlement to, I think it is 1,850 gigalitres of water.

KIRBY J:   That is by statute?

MR SELWAY:   By statute, enacted before the Racial Discrimination Act was passed; no question of its invalidity.  The latest confirmation of that Act is in the Murray Darling Basin Act 1993, again passed by all Parliaments.

KIRBY J:   Why are you so worried?  You have this wonderful statute passed before the Racial Discrimination Act.  The most that this Court would do would be to deal with three isolated questions.  We would never get into this point.  No one has dealt with it so far.

MR SELWAY:   With respect, your Honour, it has been conceded.  The applicant has already conceded, so far as South Australia is concerned, relevantly and appropriately, that our entitlements are not at the risk ‑ ‑ ‑

KIRBY J:   Why did you not ask to be dismissed from the suit?

MR SELWAY:   The concession was made, as I understand it, in almost final submissions after 11,000 pages of evidence and South Australia accepted the concession in the Full Court.  South Australia put in a written submission identifying that concession and saying we relied on it and did not wish to make further submissions.

In this Court we purported to do the same on the special leave and asking not to be heard to which we were met with a reply saying that the claim was still asserted.  It would seem to us a matter of some concern.  If one looks at the reply, which is at pages 246 to 247, so far as it affects South Australia, your Honours will see in paragraph 16 on page 247 ‑ ‑ ‑

KIRBY J:   They just say it is inappropriate for us to deal with this matter.

MR SELWAY:   With respect, your Honour, what we say is that it is all very interesting for parties to be here having a debate about extinguishment and such like, but if the effect of it - and we would say the most dramatic effect of this case if they were successful is that South Australia did not have any water and that matter has already been conceded ‑ ‑ ‑

KIRBY J:   I think that is unlikely.

MR SELWAY:   Why should South Australia, firstly, be bothering your Honours here today but, more particularly, bothering your Honours if the appeal is allowed.

KIRBY J:   At all.  It is never a bother to have you here, Mr Selway.

MR SELWAY:   I am gratified, your Honour, but what we say is that the issue that the applicants say in paragraph 16 is that their rights may have been affected by this legislation but are “not extinguished”.  That is an issue about which South Australia has no interest.  South Australia’s interest is its own rights and entitlements.  That is the concession that was made at trial.  Those concessions are at the appeal book page 251 by Mr Keely at about point 6 where Mr Keely says:

The ability of the commission –

meaning the Murray Darling Basin Commission –

to regulate the flow of the river is undoubted and if that clashes with any native title rights that someone wishes to exercise then the ability to exercise yields to that power.

Then on page 252 at about point 2, Mr Keely says:

As your Honour knows, South Australia is guaranteed a minimum allocation under the agreement and the applicants don’t suggest that they have got the right to engage in activities which might in any sense interfere with that.  However, provided there is no interference with that allocation, then there can be no inconsistency in our submission.

The final sentence is a matter about which South Australia has no interest, but the concession, we say, was properly made, clearly right on the law and it being there, the proper thing to do at this stage is to make it a condition of leave that that not be reargued.

McHUGH J:   Thank you, Mr Solicitor.

MR SELWAY:   If it please the Court.

McHUGH J:   Yes, Mr Young.  You were given more than your allotted time, so I hope you will be quite short.

MR YOUNG:   I will, your Honours.  Firstly, can I direct the Court to the passage in the judgment of Justices Beaumont and von Doussa in Yarmirr. It is at page 194, paragraph 67. Paragraph 67 draws upon 65, which I paraphrased earlier. This reflects the key difference in approach between this Full Court and the one below in this case. The Court will see:

The definition of native title in s 223(1) does not direct attention to whether the rights and interests in question were possessed at any particular time in the past. The definition requires only that the rights and interests are (presently) possessed under the traditional laws acknowledged and the traditional customs observed. This simplification overcomes complications of proof that would exist if the definition made it necessary to ascertain the date of acquisition of sovereignty of the area of land . . . and the situation prevailing in the community at that time.

Now, the question might be asked why was it that Justice Olney, having referred to the highly creditable oral testimony then made no findings about it in terms of section 223(1)(a) and (b). The reason is that in relation to Matthews’ time, the 1860s to the 1880s, the oral evidence did not reach directly to that period of time. It reached to a period shortly after then. In relation to that period of time his Honour recorded greater weight to Curr’s writings, which were limited in scope in any event.

His Honour adopted a very different approach to this.  He attempted to trace the position generation by generation or decade by decade.  That reveals a fundamental conflict in the two approaches.            It is our respectful submission that abandonment arises under (a) and (b) adopting the tradition‑based approach of Justices Beaumont and von Doussa.  It does not arise via the common law or via paragraph (c).  Now, those are issues of fundamental importance.

GUMMOW J:   Yes.  Now, on that, Mr Young, can you just go to your draft notice of appeal again?

MR YOUNG:   Yes, your Honour.

GUMMOW J:   Now, you said there were three matters of principle and I want you to connect those three matters of principle to particular grounds of appeal.

MR YOUNG:   Your Honour, each of the grounds of appeal raises one or other of those three grounds of principle.  None of the grounds of appeal go beyond the legal issues of  ‑ ‑ ‑

GUMMOW J:   Well, ground (8) is fairly meaningless, and if there are three grounds, why are they not in the ground of appeal stated as such?  Who draws these things?

KIRBY J:   Cautious lawyers who want to cover every ‑ ‑ ‑

GUMMOW J:   Well, that is not good enough.

MR YOUNG:   Paragraph (8) goes directly to the failure to make findings under section 223(1)(a) and (b).

GUMMOW J:   Well, is that the reply to my question?

MR YOUNG:   Yes, your Honour.  Each of the paragraphs of the notice of appeal goes to the three questions identified to ‑ ‑ ‑

KIRBY J:   Anyway, if you were granted special leave on the question of the approach to the section, the question of the approach to the oral tradition and the question of the approach to cessation or extinguishment, then you would redraft a notice of appeal in those ‑ ‑ ‑

GUMMOW J:   Well, you would need leave to do so.  That is why I want to know what they are now or otherwise I am not minded to grant you leave.  We are at crunch point.  We have been sitting here for an hour and a half.

MR YOUNG:   Your Honour, we are content to accept that statement of the three issues by Justice Kirby and, if necessary, we seek leave to redraft the notice of appeal accordingly to raise only those issues of principle.

GUMMOW J:   And does this notice of appeal to any degree fall outside those three grounds?

MR YOUNG:   No, your Honour, it does not.

GUMMOW J:   All right.

MR YOUNG:   That is the answer I gave to your Honour.  It is our submission that his Honour made no findings under paragraphs (a) and (b) and made no findings about oral evidence because his Honour was directing himself to the position in the 1880s because he adopted an approach to the section that required him to trace the situation decade by decade.

McHUGH J:   Your time is up.

KIRBY J:   Could you just have one minute to tell us why do you not let Mr Selway go away?  I mean, it does seem that there is a statute that deals with this.  It is before the Racial Discrimination Act.  You have made a concession.  Why do you keep bothering him?  How can you stop the people of South Australia having their water?

MR YOUNG:   There is no attempt to do that, your Honour.  It is only that there is a claim in relation to waters.  There is a concession that the South Australia legislation is valid and operates.  There may ultimately be issues that simply have to be addressed by the trial judge about the extent of any inconsistency.

KIRBY J:   But if the statute is pre‑Racial Discrimination Act, if it is valid, as you concede, then too bad.  There is an agreement.  There is a statute and that is it.

MR YOUNG:   I am agreeing with your Honour.  The statute will operate to its proper extent, but whether that eliminates all claim in relation to waters is a different matter and that is a matter for the trial judge.

GUMMOW J:   Anyhow, you would not be seeking to argue any of these matters on a grant of leave?

MR YOUNG:   Absolutely not.  Our point is that the conditions are premature and unnecessary.

McHUGH J:   Yes.  Very well.  The Court will adjourn to consider the course we will take in this matter.

AT 12.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.08 PM:

McHUGH J:   Special leave will be granted in terms of the draft notice of appeal at pages 187 and following of the application book on terms that the record in the Court and the written and oral submissions of the parties and interveners be confined to the pleadings, the notices of appeal, the judgments and orders in the Federal Court at trial and in the Full Court on appeal, and that the record not be supplemented by evidentiary material without the leave of a Justice first obtained.

Mr Solicitor for South Australia, we are not disposed to make the application conditional on the terms that you seek but it is a matter for you whether or not you wish to be represented on the construction arguments and ‑ ‑ ‑

MR SELWAY:   May it please the Court.

McHUGH J:   Yes.  The Court will now adjourn to reconstitute.

AT 12.09 PM THE MATTER WAS CONCLUDED