Members of the Yorta Yorta Aboriginal Community v Victoria

FEDERAL COURT OF AUSTRALIA
Members of the Yorta Yorta Aboriginal Community v State of Victoria
[2001] FCA 45
NATIVE TITLE - Native Title Act 1993 (Cth) – determination of native title claim – finding that native title had expired by the end of the 19^th century – whether trial judge recognised the ability of traditional laws and customs to adapt to changes in circumstances – need for traditional connection with land to have existed continuously from date of acquisition – use of historical documents
WORDS AND PHRASES – “traditional laws and customs” – “traditional”
Native Title Act 1993 (Cth) ss 223, 225
Native Title Bill 1993 (Cth)
Mabo v State of Queensland [No 2] (1992) 175 CLR 1 followed
State of Western Australia v Ward (2000) 99 FCR 316 applied
Commonwealth of Australia v Yarmirr (1999) 168 ALR 426 discussed
Ward v State of Western Australia (1998) 159 ALR 483 applied
Yanner v Eaton (1999) 166 ALR 258 discussed
Wik Peoples v State of Queensland (1996) 187 CLR 1 cited
Mason v Tritton (1994) 34 NSWLR 572 cited
Delgamuukw v British Columbia (1993) 104 DLR (4^th) 470 cited
Anderson v Wilson (2000) 171 ALR 705 referred to
Shaw v Wolf (1998) 83 FCR 113 referred to
Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193 referred to
Pareroultja v Tickner (1993) 42 FCR 32 referred to
Coe v Commonwealth of Australia (1993) 118 ALR 193 cited
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 cited
Biogen Inc v Medeva Plc (1996) 36 IPR 438 cited
MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY v STATE OF VICTORIA AND OTHERS
V 34 of 1999
BLACK CJ, BRANSON & KATZ JJ
8 FEBRUARY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 34 of 1999

On Appeal from a Judge of the Federal Court of Australia

BETWEEN:

MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY
Appellants

AND:

STATE OF VICTORIA AND OTHERS
Respondents

JUDGES:

BLACK CJ, BRANSON and KATZ JJ

DATE:

8 FEBRUARY 2001

PLACE:

MELBOURNE

EXPLANATORY STATEMENT
1.   The members of the Court who heard this appeal, Chief Justice Black, Justice Branson and Justice Katz, have prepared the following brief statement to accompany their reasons for judgment. The statement is intended to assist in an understanding of the essential nature of the appeal and the judges’ reasons for decision. It should be emphasised, however, that the only authoritative pronouncement of the Court’s reasons is that contained in the reasons for judgment; this statement is necessarily incomplete and deals only with certain aspects of the judgments.
2.   This an appeal against a determination by Justice Olney that native title does not exist over areas of land and waters in northern Victoria and southern New South Wales. The claim that native title does exist in these areas was made on behalf of the Yorta Yorta Aboriginal Community.
3.   The case before Justice Olney was notable for a number of reasons. It was the first application for a determination of native title to come on for trial after the enactment of the Native Title Act 1993 (Cth), the hearing of which was completed before the 1996 amendments to the Act came into force. Second, the case was very complex, including (initially) some 500 non-claimant parties to the proceeding. Third, the hearing of the case was particularly lengthy; altogether, the Court sat for 114 days and heard 201 witnesses. Some 48 witness statements were also admitted into evidence. The transcript of the hearing exceeds 11,000 pages. The Court sat to hear evidence at many places within the claim area.
4.   In essence, the trial judge refused the application because he found as a fact that by the end of the 19^th century, the impact of European settlement in the claim area was such that the forbears of the applicants had lost their traditional connection with the land. As a result, those forbears could no longer be said to have observed and acknowledged their traditional laws and customs, causing the foundation for any native title rights and interests to disappear at that time. Because native title, once expired, is not able to be revived, this finding determined the outcome of the applicants’ claim, notwithstanding what his Honour described as the genuine attempts of members of the claimant group to revive the lost culture of their ancestors. In these circumstances it was not necessary for his Honour to deal with arguments raised by some of the respondents that native title had in any event been extinguished. His Honour also found it unnecessary to make comprehensive findings about the current beliefs and practices of the claimant group.
5.   The appellants, the members of the Yorta Yorta Aboriginal Community, do not take issue with the proposition that native title rights and interests cannot be revived once they have been lost. Instead, their primary argument was that the trial judge erroneously adopted what their counsel described as a “frozen in time” approach and that his Honour failed to give sufficient recognition to the capacity of traditional laws and customs to adapt to changed circumstances. They also contended that in reaching his decision, the trial judge failed to take into account significant and important evidence in support of their case, particularly evidence about current practices and beliefs.
6.   The members of the Court are in substantial agreement about many of the principles to be applied in determining a claim for native title and they all acknowledge that the traditional laws and customs that form the foundation for native title may adapt and change. A “frozen in time” approach to the determination of native title would be incorrect.
7.   The judges have not, however, reached an unanimous decision about the outcome of this appeal.
8.   The majority, Justice Branson and Justice Katz, consider that the trial judge’s finding that there was a period of time between 1788 and the date of the appellants’ claim during which the relevant community lost its character as a traditional Aboriginal community was a finding that it was open to the judge to make and that a case has not been made out for disturbing that finding. In their view the trial judge’s finding provided a complete answer to the appellants’ claim and for that reason the appeal should be dismissed.
9.   In a separate judgment the Chief Justice concludes that although the learned trial judge did not adopt a strict “frozen in time” approach, he nevertheless was in error in that he applied too restrictive an approach to the concept of what is “traditional” when he made his finding that native title expired before the end of the 19^th century. In his reasons for judgment the Chief Justice discusses what he considers to be the difficulties and dangers in making findings about the expiration of native title at a particular point of time in the past. The Chief Justice also considers that various aspects of the evidence should have been the subject of findings by the learned judge. The Chief Justice would allow the appeal and order that the case should be referred back to the trial judge for further consideration and for those findings to be made.
10. As will be apparent from the judges’ reasons, the task of the Court in hearing a claim for the determination of native title involves interpreting the law, making findings of fact and applying the law to the facts as found. The applicable law is to be found in the Native Title Act and the decisions of the courts, including the binding decisions of the High Court of Australia in cases such as Mabo (No 2). The task of this Court on appeal is essentially to determine whether appealable error has been shown in connection with this process. As to this, the judges in the present appeal have reached differing ultimate conclusions. It is appropriate to emphasise two things concerning the role of the Court. First, it is not the role of the Court, nor of individual judges, to determine native title claims by reference to any considerations other than those dictated by the law as interpreted and the facts as found. Secondly, the interpretation of the law concerning native title is an ongoing process of considerable complexity. Indeed, two important appeals in this area from decisions of Full Courts of this Court are currently listed for hearing before the High Court of Australia.
The result is that the appeal must be dismissed and the Court has so ordered.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V34 OF 2000
On Appeal from a Judge of the Federal Court of Australia

BETWEEN:
THE MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY
APPELLANTS

AND:
THE STATE OF VICTORIA AND OTHERS
RESPONDENTS

JUDGES: BLACK CJ, BRANSON AND KATZ JJ

DATE OF ORDER: 8 FEBRUARY 2000

WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
The appeal be dismissed.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V34 OF 2000
On Appeal from a Judge of the Federal Court of Australia

BETWEEN:
THE MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY
APPELLANTS

AND:
THE STATE OF VICTORIA AND OTHERS
RESPONDENTS

JUDGES: BLACK CJ, BRANSON AND KATZ JJ

DATE: 8 FEBRUARY 2001

PLACE: MELBOURNE
REASONS FOR JUDGMENT
BLACK CJ:
Introduction:

An application was made to the Court under the Native Title Act 1993 (Cth) by eight applicants on behalf of the Yorta Yorta Aboriginal Community for a determination that native title exists over areas of land and waters in northern Victoria and southern New South Wales. After a lengthy hearing, the trial judge rejected the application and made a determination that native title did not exist over the areas claimed. This is an appeal against that determination.
The trial judge’s determination is in respect of “the areas of land and waters identified in Schedule ‘D’ to Native Title Determination Application VN 94/1 accepted by the Native Title Registrar on 26 May 1994”. That description encompasses over 200 individual pieces of public land, many of them contiguous with other such pieces, within an area described by the trial judge as being more or less oval in shape and covering large areas of northern Victoria and southern New South Wales. Speaking generally, the River Murray bisects the area from east to west, although it should be noted that the area includes the southerly flowing section of the Murray commencing at about Picnic Point and continuing to Echuca, where the river turns to flow in a north westerly direction towards Cohuna and Gunbower, and beyond there to where the Darling joins it near Mildura.
The claim area extends from about Chiltern near Beechworth in the east to Cohuna in the west, and from near Euroa in the south to near Jerilderie in the north. Cities and towns within the claim area include Echuca, Kyabram, Shepparton, Mooroopna, Benalla, Glenrowan, Wangaratta, Rutherglen, Corowa, Berrigan and Finley. The public lands within the claim area over which the existence of native title was claimed are, again speaking generally, mostly along or close to the courses of the Murray River, the Goulburn River and the Ovens River. Substantial contiguous areas of public land over which native title was claimed are in the region of the Barmah Forest and, further west, in the region of Gunbower Island and Cohuna. The Murray River runs more or less through the centre of these substantial contiguous areas.
This was the first application for a determination of native title to come on for trial after the enactment of the Native Title Act. The hearing of the application, which was completed before the 1996 amendments to the Act came into force, was necessarily lengthy and complex. There were initially some 500 non-claimant parties to the proceeding. Subsequently, other parties obtained leave to be joined, and others withdrew. Many of the respondents took an active part in the hearing. Altogether, the Court sat for 114 days and heard 201 witnesses. The transcript exceeds 11,000 pages. A total of 48 witness statements were also admitted into evidence without formal proof. The Court sat to hear evidence at many places within the claim area. For the purposes of the appeal the transcript was reproduced electronically, but even so there are in excess of 6,000 pages in the appeal books, contained in 11 volumes. At one point in the submissions on the appeal it was said that “boxes” of historical material had been tendered during the course of the trial. Clearly, the task of the learned primary judge was an exceptionally complicated and difficult one.
The appellants called 60 witnesses, 56 of whom are of Aboriginal descent and all but two of whom are members of the claimant community. They also called two anthropologists (Mr Rod Hagen and Dr Deborah Rose), an archaeologist (Dr John Craib) and a linguist (Dr Heather Bowe). Some of the respondents also adduced expert evidence. Victoria called two historians (Dr Marie Fels and Ms Susan Priestley) and a professional genealogist (Ms Helen Harris); New South Wales called an anthropologist (Professor Kenneth Maddock) and a linguist (Dr Bruce Sommer); and a group of other represented respondents called a second anthropologist (Dr Ronald Brunton).
The numerous parties to the proceeding took differing positions in relation to the claim. These are summarised in the trial judge’s reasons for judgment. On the appeal, the principal submissions on behalf of the respondents were made by the respective counsel for the States of Victoria and New South Wales, the Murray Darling Basin Commission, Emat Industries Pty Ltd and Field and Game Australia.
In his reasons for judgment the trial judge drew attention to what he described as the difficulties inherent in litigating a complex native title determination application. He pointed out that a substantial portion of “the enormous mass of evidence presented to the Court” dealt with matters relating to the extinguishment of native title rights and interests, an issue that his Honour noted only arose in the event that the observance and acknowledgment of traditional laws and customs in relation to the land are shown to have survived.
The judge was satisfied that the descendants of either of two people, Edward Walker or Kitty Atkinson/Cooper, had been shown to be descended from “persons who were in 1788 indigenous inhabitants of part of the claim area” and concluded that a significant number of the claimant group (but not all) were descended from either of these two people. The claim failed, however, because the judge concluded that before the end of the nineteenth century those through whom the claimant group sought to establish native title “were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim”.
His Honour held that, traditional native title having expired, the Crown’s radical title expanded to a full beneficial title and native title, once extinguished, could not be revived. It was thus unnecessary for his Honour to rule on other issues in the case, but he added that it was “appropriate that some mention be made of the evidence concerning the current beliefs and practices of the claimant group”.
The primary submission of Mr Castan QC, who appeared with Mr R Howie for the appellants, was that the trial judge had misdirected himself as to the way in which a court hearing an application for the determination of native title under the Native Title Act should approach the central issue of the existence or otherwise of native title in respect of the claimed area. He contended that the judge had erroneously adopted what he described as a “frozen in time” approach. The States of Victoria and New South Wales, and some of the other respondents who made submissions on the primary point, contested this; they argued that the judge’s approach did not involve any “frozen in time” concept and that the approach he adopted gave proper recognition to the capacity of traditional laws and customs to adapt to changed circumstances.
The judge’s finding that by the end of the 19^th century native title had expired assumed central importance on the hearing of the appeal. The appellants contended that this finding was a manifestation of the “frozen in time” approach. They said that the judge had wrongly equated the existence of native title with the existence of a “traditional society” or a “traditional lifestyle”. They also contended that the finding was flawed in other fundamental respects. Specifically, they contended that in making the finding his Honour had ignored historical evidence of a continuing connection with the land and the evidence of living witnesses bearing upon the situation in the late 19^th century. The States of Victoria and New South Wales, and some of the other respondents, argued that the finding of expiry was correctly made, that it was a finding that was open on the evidence to the judge to make, and that it had not been shown to be wrong. They argued that it was properly determinative of the whole case. Accordingly, they submitted, even if there were errors in the judge’s approach to other aspects of the case, the finding that native title had expired by the end of the 19^th century necessarily resolved the case against the appellants.
A related issue on the appeal concerned what was said to be the failure of the trial judge to make necessary findings of fact, particularly in relation to the traditional laws presently acknowledged and the traditional customs presently observed by the members of the Yorta Yorta community. Counsel for the appellants submitted that the judge had approached the matter from the wrong point in time and that he should have commenced with the present instead of commencing, as they said he had, with the past. In this they were supported by submissions made on behalf of the New South Wales Aboriginal Land Council. It was submitted that the terms of the Native Title Act itself revealed that an assessment of the present laws and customs of the claimant group was the correct starting point. It was also said that a failure to adhere to that process, by beginning instead with an analysis of the situation as at 1788, would result in a court placing undue and potentially misleading reliance on historical documents, and was liable to lead it to overlook permissible adaptations in behaviours and practices. In other words, it was argued, the nature of an inquiry that begins in the past and traces forward is, in itself, likely to result in an erroneous “frozen in time” approach being adopted.
I should mention at this point that the submissions made by Mr Castan QC in this appeal were the last that he made before his untimely passing two months later. He was leading counsel for two of the plaintiffs in Mabo v Queensland (No 2) (1992) 175 CLR 1 (“Mabo (No 2)”) and had a close involvement in this developing area of Australian law.

The trial judge’s reasons:

With this general overview of the primary submissions in mind, I now outline the way in which the primary judge approached the evidence and the issues in the case, before returning to consider the questions raised by this appeal.
Early in his consideration of the evidence his Honour made findings about the appellants’ witnesses. He found that the oral evidence of “many of [them] was in some respects both credible and compelling”. This was particularly so with the more senior members of the applicant group, although not always so. The judge was critical of the evidence of “some of the younger members of the claimant group”, which he considered to be less impressive than that of their senior colleagues and the subject of embellishment. In a later portion of his reasons, his Honour made a specific finding about the credibility of one of the senior members of the applicant group, Mr Ken Briggs, whom he found to be a “thoroughly honest gentleman and a credible witness”.

The judge observed that a substantial portion of the oral testimony of the senior members of the claimant group was directed towards establishing their genealogical links with earlier generations. He described the depth of knowledge of these witnesses as most impressive and noted that for the most part, with only minor exceptions, they proved to be accurate. In relation to evidence about traditional laws and customs his Honour observed, at [22]:
“Many witnesses also described what they understood to be the traditional laws and customs of their ancestors, information which was frequently said to have been derived from parents or grandparents, or simply ‘from the old people’. The cogency of such evidence does not necessarily depend upon the credibility of the individual witnesses, but must be assessed in the whole context of the case including, where it exists, evidence derived from historical records and the recorded observations of people who witnessed activities and events about which the members of the claimant group know only what has been passed down to them by their forebears.”
Some observations follow about the considerable body of evidence called by the respondents. The judge noted that it was extremely detailed in content and that its primary focus was directed to what he described as the related questions of whether the traditional laws and customs of the original inhabitants had continued to be acknowledged and observed and whether any pre-existing native title rights and interests had been subjected to extinguishing acts. The judge commented specifically and favourably about the evidence tendered by the States of Victoria and New South Wales concerning the tenure history and current status of the claimed land and waters. His Honour did not, however, make any finding at this point about the respondents’ evidence concerning the observance of traditional laws and customs, and extinguishment. He noted that expert evidence had been called, but expressed no findings at that stage about that evidence. Later, at [25], he said that he had derived little assistance from the evidence of the experts who had given evidence in the proceeding as he considered that much of it was based upon speculation.
His Honour then wrote of the difficulties inherent in proving facts about a time when, for the most part, the only record of events was oral tradition, but he concluded that the inference that “indigenous people occupied the claim area in and prior to 1788 is compelling”. The judge outlined the course of European settlement in the claim area, saying that he was conscious of the need to avoid assuming the role of historian and that his commentary was based upon material tendered by the applicants in support of their case, much of it drawn directly from the applicants’ anthropological report. The outline begins with the traverse of the claim area by Hamilton Hume and William Hovell in 1824 and Major Thomas Mitchell’s explorations in 1836. It outlines the establishment of pastoral runs and the general expansion of settlement into the Murray Goulburn Valley. Aspects of European contact with Aboriginal people are dealt with, including the appointment of squatters as “guardians” and official policy involving the relocation of children to stations where they could be properly “educated” away from parents and “other traditional distractions”. Some were sent to Coranderrk, near Healesville. The narrative continues with a brief account of the work of Daniel Matthews and his establishment, in 1874, of a school and mission station at Maloga and the establishment in 1888 of a new settlement called Cummeragunja. The historical account for the next 100 years centres upon Cummeragunja. His Honour observed that the account includes numerous instances of discrimination and deprivation.
His Honour then considered the question of descent and, as I have noted, concluded that only the descendants of Edward Walker and those of Kitty Atkinson/Cooper had been shown to be descendants from persons who were, in 1788, indigenous inhabitants of part of the claim area. In the course of this analysis his Honour was to some extent critical of the evidence of Mr Hagen, the anthropologist called on behalf of the appellants.
The judge considered historical evidence about traditional laws and customs. Counsel for the appellants were very critical of aspects of this part of his Honour’s reasons and it is necessary that I refer to them in some detail. The judge held that the most credible source of information about traditional laws and customs was to be found in the writings of the pastoralist Curr. This was because he had “at least observed an Aboriginal society that had not yet disintegrated and he obviously had established a degree of rapport with the Aboriginal people with whom he came into contact”. His Honour considered that Curr’s record of his own observations should be accorded considerable weight. As to the oral testimony of the witnesses from the claimant group, his Honour said that his was “a further source of evidence, but being based upon oral tradition passed down through many generations extending over a period of 200 years, less weight should be accorded to it than to the information recorded by Curr”. The judge then set out extracts from Curr’s work “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 at the time it claimed sovereignty in respect of the colony of New South Wales”. His Honour concluded that by the 1860s the disturbance of the way of life of the Aboriginal people to which Curr had referred was further advanced and that when the missionary, Daniel Matthews, settled in Echuca in 1864 he found people of many different tribal groups living in the area. Matthews himself, the judge noted, was the architect of further disruption of traditional life and his Honour referred to suppression of the use of indigenous languages and of the observance of traditional practices.
There follows a paragraph which, because of its importance in the submissions made on behalf of the appellants, it is desirable that I set out in full. I do so, together with the opening sentence of the paragraph that follows it, which was likewise the subject of much attention during the hearing of the appeal:
“[118] The evidence is silent concerning the continued observance in Matthews’ time of those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr. Whether the former territorial areas of the various tribal groups were still recognised and protected as described by Curr is not something upon which there is any evidence. 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 that either Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forebears in relation to land.
[119] Apart from any conclusions which may be drawn from the absence of evidence of continued observance of traditional laws and customs in the period after the establishment of Maloga, there is positive evidence emanating from the Aboriginals themselves to the same effect.”
The positive evidence to which his Honour referred, and to which he gave substantial weight, was a petition to the Governor of New South Wales signed in 1881 by 42 Aboriginal people, many of whom were known to have been resident at, or otherwise connected with, Maloga. The petition sought a grant of land. It is set out in full in his Honour’s reasons and I reproduce here only the recitals, which are as follows:
“1.      That all the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are used for sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious, and often reducing us and our wives and children to beggary.
2.        We, the men of our several tribes, are desirous of honestly maintaining our young and infirm, who are in many cases the subjects of extreme want and semi-starvation, and we believe we could, in a few years support ourselves by our own industry, were a sufficient area of land granted to us to cultivate and raise stock.
3.        We have been under training for some years and feel that our old mode of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry, that we may form homes for our families.”
His Honour said that whilst there could be little doubt that Matthews, the missionary, would have played a part in the composition and presentation of the petition, it had not been suggested that the general thrust of the statements attributed to the petitioners was factually inaccurate or in any way misrepresented their views or aspirations. It was at this point that the judge made the factual finding that was determinative of the appellants’ claim:
“It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time. Although many of the claimant group reside within the claim area, many do not. No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. The claimant group clearly fails Toohey J’s test of occupation by a traditional society now and at the time of annexation (Mabo No 2, p 192) a state of affairs which has existed for over a century. Notwithstanding the genuine efforts of members of the claimant group to revive the lost culture of their ancestors, native title rights and interests once lost are not capable of revival. Traditional native title having expired, the Crown’s radical title expanded to a full beneficial title (Mabo No 2 per Brennan J at p 60).”
Having made this finding, the judge concluded that section of his reasons for judgment by stating that it was appropriate that “some mention should be made of the evidence concerning the current beliefs and practices of the Yorta Yorta people”. Since the manner, and what was said to be the limited scope, of his Honour’s treatment of the evidence of current beliefs and practices is relied upon by the appellants as demonstrating error, it is desirable that I should now outline what his Honour said about that matter.
His Honour found that the “main thrust of contemporary activity by members of the claimant group has to do with the protection of what are regarded as sacred sites and the proper management of the land”. He referred to oven mounds, shell middens and scarred trees, but concluded that whilst these provided evidence of indigenous occupation and use of land, there was no evidence to suggest “that they were of any significance to the original inhabitants other than for the utilitarian value, nor that any traditional law and custom require them to be preserved”. Likewise, he considered that the contemporary practice of conservation of food resources should not be regarded as the continuation of a traditional custom. Fishing was currently engaged in as a recreational activity, rather than as a means of sustaining life. The judge also referred to the evidence of witnesses to the effect that, consistent with traditional laws and customs, it was their practice to take from the land and waters only such food as was necessary for immediate consumption. His Honour’s observation about this practice was that it was not one which, according to Curr’s observations, was adopted by the Aboriginal people with whom he came into contact and it could not be regarded as the continuation of a traditional custom. In relation to the practice of re-burial, his Honour observed that there could be no question about the importance of returning remains to the appropriate country, but “the modern practices associated with their re-burial are not part of the traditional laws and customs handed down from the original inhabitants”. His Honour made similar observations about the extensive involvement of the Yorta Yorta people in activities associated with conservation. He also made findings about the granting of permission to enter upon land. He observed, too, that the applicants readily conceded that they and their forbears had long since ceased to observe traditional practices in relation to initiation or to perform other ceremonial activities frequently, in other Aboriginal societies, indicative of spiritual attachment to the land. Moreover, whilst the preservation of Aboriginal heritage and conservation of the natural environment were worthy objectives, “the absence of a continuous link back to the laws and customs of the original inhabitants” deprived those activities of the character of traditional laws acknowledged and traditional customs observed in relation to land and waters.
His Honour concluded, at [129]:
“The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to land of their forebears. The facts in this case lead inevitably to the conclusion that before the end of the 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. The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs. The foundation of the claim to native title in relation to the land previously occupied by those ancestors having disappeared, the native title rights and interests previously enjoyed are not capable of revival. This conclusion effectively resolves the application for a determination of native title."

Tradition and Change:

This appeal raises questions about the impact of European settlement, dispossession and the consequent abandonment of a traditional lifestyle, upon native title rights and interests. It also raises questions about the way in which evidence should be approached in a native title case when it is said that, over a century ago, the foundation for native title disappeared by reason of the cessation of any real acknowledgment of traditional laws and any real observance of traditional customs: see Mabo (No 2), at 60, per Brennan J; Wik Peoples v Queensland (1996) 187 CLR 1 at 182-184, per Gummow J. How should the evidence be approached in a case in which a determination of native title is sought and it is said that the rights and interests that are claimed to be enjoyed currently are not traditionally based but, rather, to the extent that they exist at all, are really no more than a revival in a modern form of customs or rights lost long ago when the ancestors of the Aboriginal people asserting those rights were dispossessed of their traditional lands and when their traditional lives on those lands came to an end?
I begin the discussion of the legal framework within which the issues are to be resolved by noting that the common law as expounded in Mabo (No 2) recognises the universal reality of change, as a system based upon rationality would necessarily do. Thus, Brennan J, in one of the most frequently cited passages from his judgment in Mabo (No 2), said (at 61):
“Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.”
(Emphasis added.)
The practicability of observing, in the face of change, customs based upon tradition was acknowledged as a relevant matter by Brennan J in an earlier passage in his judgment in Mabo (No 2), where his Honour said (at 59 - 60):
“Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise.” (Emphasis added.)
That the notion of practicability in relation to the observance of customs was seen as significant by Brennan J is confirmed by his later reference to that notion when writing of the circumstances in which the foundation of native title disappears (at 61). Later, in stating in summary form what he held to be the common law of Australia with reference to native title, Brennan J said (at 70):
“It is immaterial that the laws and custom have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains.”
Other members of the Court in Mabo (No 2) referred to changes in traditional laws and customs in terms that suggest that even substantial changes will not necessarily bring native title to an end. Deane and Gaudron JJ said (at 110):
“The traditional law or custom is not, however, frozen as at the moment of establishment of a Colony. Provided any changes do not diminish or extinguish the relationship between a particular tribe or other group and particular land, subsequent developments or variations do not extinguish the title in relation to that land.”
Toohey J said (at 192):
“An argument to the effect that, regardless of the state of things at the time of annexation, the Meriam people now do not have title because they no longer exercise ‘traditional’ rights and duties and have adopted European ways also fails. There is no question that indigenous society can and will change on contact with European culture. Since annexation a school, a hospital, the Island Court, the Island Council, a police force and other government agencies have been introduced to the Islands. Christianity has had a profound influence; so too have changed means of communication. The economy of the Islands is now based on cash from employment rather than on gardening and fishing.
But modification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot, as it were, surrender its rights by modifying its way of life.”(Footnotes omitted.)

Nothing in section 223 of the Native Title Act casts doubt upon the potential for native title, as now defined for the purposes of the Act, to survive change, and cases decided since the enactment of the Act have demonstrated that native title may continue to exist notwithstanding that profound changes have impacted upon those by whom the relevant native title rights and interests are possessed.
Section 223 relevantly provides:
“Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
…”
The definition is in the language of the present, and so in applying the statutory definition of native title the question is whether the claimed rights and interests are possessed under the traditional laws acknowledged – that is to say now acknowledged – and the traditional customs observed – now observed – by the Aboriginal peoples. A critical question, of course, in the application of the definition is whether the relevant laws and customs are “traditional”. It will be necessary to return to that question, but 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 “traditional” laws acknowledged and customs observed.
It is wrong, however, to see “traditional” as, of its nature, a concept concerned with what is dead, frozen or otherwise incapable of change. As Beaumont and von Doussa JJ observed in Commonwealth v Yarmirr (1999) 168 ALR 426 at [65], citing The Macquarie Dictionary, 3^rd ed., the meaning of “traditional” is that which is “‘handed down by tradition’ and ‘tradition’ is ‘the handing down of statements, beliefs, legends, customs etc., from generation to generation, especially by word of mouth or by practice’”. The Oxford English Dictionary gives a very similar definition, again emphasising that tradition is the handing down of statements etc., especially by word of mouth or by practice, and not by writing. Far from being concerned with what is static, the very notion of “tradition” as involving the transmission from generation to generation of statements, beliefs, legends and customs orally or by practice implies recognition of the possibility of change.
Given the historical and legal context of s 223 of the Native Title Act, the relevant “tradition” for the purposes of s 223 must, however, at least have had its roots in the laws and customs that provided the foundation for the native title that burdened the radical title acquired by the Crown. Nevertheless, the nature of the concept of “traditional” in the context of s 223 implies that adapted and evolved laws and customs which, in their essence, still reflect the continuity of tradition, will fall within the concept of “traditional” for the purposes of a determination of native title. The recent cases support this view.
Such has been the impact of European settlement upon Aboriginal people that questions may well arise as to whether particular customs are “traditional” in the sense that I have described, or whether their link with the past is so tenuous they can no longer be seen as “traditional”. It may be, however, that even in the latter case the asserted “traditional” law or custom may nevertheless provide indirect support for rights founded upon what are truly “traditional” laws and customs. Practices that are not “traditionally based”, in the sense that they are not rooted in the past, may still illuminate and support other practices that are “traditional” in the sense used in s 223.
I now turn to the recent cases, all but one of which were decided after the decision of the learned primary judge in the present case. In Yanner v Eaton (1999) 166 ALR 258 the High Court considered whether a magistrate was right in acquitting the appellant on a charge of keeping fauna without a permit, contrary to the Fauna Conservation Act 1974 (Qld), on the ground that the appellant was exercising native title rights and interests protected by the Native Title Act. The appellant had used a traditional form of harpoon to catch two juvenile estuarine crocodiles in a creek near the Gulf of Carpentaria. The appellant (and other members of his clan) ate some of the crocodile and froze the rest of the meat, and the skin, which he then kept at his home. The magistrate found that it was a traditional custom of the appellant’s clan to hunt juvenile crocodiles for food and that the evidence suggested that the taking of juvenile rather than adult crocodiles had “tribal totemic significance and [was based on] spiritual belief”.
The case provides an example of the survival of a native title right in the face of legislative regulation of an activity, and profound changes in the circumstances in which the traditional activity was carried out. In their joint judgment, Gleeson CJ, Gaudron, Kirby and Hayne JJ pointed out, at [38], that native title rights and interests must be understood as “a perception of socially constituted fact” as well as “comprising various assortments of artificially defined jural right”. They went on to say that an important aspect of the socially constituted fact of native title rights and interests recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land did not sever the connection of the Aboriginal peoples with the land. Section 211 of the Native Title Act necessarily assumed, in any event, that a conditional prohibition of the kind in issue in that case did not affect the existence of the native title rights and interests in relation to which the activity which was pursued.
The other feature of the case that illustrates the continued existence of native title rights in the face of change was the method used to hunt the crocodiles. As appears from the reasons for judgment of Gummow J, at [68], Mr Yanner hunted the estuarine crocodiles with a traditional harpoon-type weapon, known as a “wock”, but using a dinghy powered by an outboard motor. Gummow J observed:
“This was an evolved, or altered, form of traditional behaviour. That is, the use of this mechanical device to provide transport during the hunt was not a method of hunting known to the appellant’s tribe before contact with non-indigenous people.” (Footnote omitted.)
Gummow J noted that, at trial, the magistrate had held that this method of hunting was consistent with the traditional custom of the appellant’s indigenous community and that that finding was not challenged. His Honour later noted, at [70], that it was not challenged that the appellant’s conduct in eating part of the crocodiles, sharing part and freezing the remainder with the skins and keeping them at this home, was at all times within the customs of his community.
While recognising that the content and manner of exercise of the asserted native title right or incident was not in issue, it is, I think, legitimate to note that the existence of such a right to hunt was accepted in circumstances that necessarily involved very large changes from what must have been the method of exercise of the right and the disposition of the products of the hunt at a time long before the invention of the outboard motor (or indeed any practical form of mechanical propulsion over water) and long before the invention and ready availability of any method of freezing food in the tropics. Moreover, the changes just mentioned cannot, of their very nature, be isolated simply to the presence or otherwise of an outboard motor and a refrigerator. The mere presence and use of such devices implies much else.
It can readily be appreciated how hunting with the use of an outboard motor (or to take examples accepted by at least some of the present respondents as adaptations – hunting with a motor vehicle or a firearm) is an adaptation of a traditional right to hunt and thus can be seen as a form of the exercise of a traditional right. Once this is recognised, however, it can also be readily appreciated how less physical or tangible manifestations of traditional laws and customs can be seen to be rooted in the past and to be traditional customs in the adapted form currently observed. Adaptations of this nature may manifest themselves in many ways including, to take one possible example, changed leadership structures within modern Aboriginal society.
Issues concerning change have been considered in this Court. In Commonwealth of Australia v Yarmirr, an appeal from a determination of native title in respect of an area of sea and the sea-bed in the vicinity of Croker Island in the Northern Territory, Beaumont and von Doussa JJ noted, at [64], that whilst it could be argued that the date of acquisition of sovereignty remains central to the determination of native title, from a practical viewpoint the particular date was not of importance because of the recognition that the laws and customs of indigenous people may undergo change subsequent to the acquisition of sovereignty and that the means of enjoyment of native title rights and interests can change with the times. The important requirement discussed in Mabo (No 2) was, their Honours stressed, that native title rights and interests that the common law protects are those the indigenous people possess under traditional laws acknowledged and traditional customs observed.
Questions of change and its effects were considered by a Full Court (constituted by Beaumont, von Doussa and North JJ) in Western Australia v Ward (2000) 99 FCR 316 (“Ward”). That was an appeal against orders made by Lee J determining that native title existed in a large area in or in the region of the East Kimberley. Beaumont and von Doussa JJ delivered a joint judgment allowing the appeals in part and dismissing a cross-appeal by the Kimberley Land Council. Essentially, von Doussa and Beaumont JJ allowed the appeals in part because of the view they took about the issues of extinguishment. Although North J dissented on the issues of extinguishment, he expressly agreed with the reasoning and conclusions of Beaumont and von Doussa JJ on the native title issues discussed in paragraphs [222] – [280] of the joint judgment, except as to a reference to extinguishment in [279]. The passages to which I now refer, therefore, represent the unanimous view of the three members of a Full Court on important questions concerning the requisite connection with land in a native title claim and the observance of traditional laws and customs in the face of profound change.
Although, obviously, the issue of connection raises questions of fact to be decided according to the particular circumstances of each case, Ward shows that the requisite connection may be maintained despite massive changes impacting upon the Aboriginal people who occupied the claim area at the time of settlement, and their descendants: see Ward at [126]. Beaumont and von Doussa JJ noted, at [138], that Lee J had observed that the “degree of dislocation and decimation caused by the arrival of settlers and miners in the East Kimberley in the 1880s and 1890s, and thereafter, cannot be underestimated in its effect of dispossessing Aboriginal inhabitants and of fracturing their communities”. Later in their joint reasons their Honours said at [241]:
“It is common ground that, in order to establish entitlement to native title, the applicants are required to establish that connection with the land has been substantially maintained through the acknowledgment and observance, so far as practicable, of traditional laws and customs. With the arrival of European settlement, the ways in which the indigenous people were able to possess, occupy, use and enjoy their rights and interests in the land underwent major change. The indigenous population was substantially reduced in numbers, and land uses introduced by the settlers killed or frightened off much of the resources of the land upon which the indigenous inhabitants depended for their day to day sustenance. In these circumstances, the presence of members of the community on large areas of the determination area understandably diminished. In some areas of concentrated settler activity the reasonable inference is that Aboriginal presence became impracticable, save as people employed in the pastoral enterprises that had moved on to their lands. The evidence paints a clear picture of it being impracticable after European settlement for members of the indigenous population to maintain a traditional presence on substantial parts of the determination area. However, it does not follow that the surviving members of the indigenous population have not substantially maintained their connection with the land.”
(Emphasis added)
Their Honours rejected the submission of the State of Western Australia that physical occupation of the claimed land is a necessary requirement for the proof of continuing connection with the land. Referring, at [244], to the observations of Toohey J in Mabo (No 2) at 188, their Honours observed that Toohey J was not to be “understood as laying down the requirement of actual physical presence as essential to the maintenance of a connection by traditional laws and customs, in circumstances where that physical presence is no longer practicable in circumstances where access to traditional lands is restricted or prevented by the activities of European settlers”. They pointed out that whether or not a spiritual and cultural connection with the land had been maintained in other ways was a question of fact, involving matters of degree, to be assessed in all the circumstances of a particular case.
Consistent with this view, their Honours rejected the challenge to the finding of the trial judge that there was a relevant continuing connection with the areas now covered by Lake Kununurra and Lake Argyle and held that by continuing to acknowledge and observe traditional laws and customs involving ritual knowledge, ceremony and customary practices, the spiritual relationship with the land could be maintained. It was open on the evidence, they held, for Lee J to hold that this was the case in respect of the areas inundated by the lakes: see at [252].
It can be seen, therefore, that in determining issues concerning the existence and content of native title rights and interests, the considerations to be borne in mind include the following:
· The definition of native title in s 223 of the Native Title Act directs attention to the present.
·    The laws presently acknowledged and the customs presently observed must be shown to be “traditional” but laws and customs that are adapted or evolved may still be “traditional”. They will be “traditional” if, in their essence, they still reflect a continuity of tradition and are rooted in the laws and customs that provided the foundation for the native title that burdened the radical title acquired by the Crown.
·    Native title rights and interests may continue to exist notwithstanding profound impacts upon and changes to Aboriginal society or to a particular community.
·    Native title rights and interests may continue to exist notwithstanding the dispossession of traditional lands.
·    Native title rights and interests may persist despite the cessation of a traditional – in the sense of pre-contact – lifestyle.
Consequences
The points set out in the preceding paragraph are of particular relevance to the present case; they are not, of course, intended to constitute a comprehensive list. Their primary present relevance is that they identify features that suggest, particularly in combination, that the correct approach to an application for the determination of native title will, ordinarily, involve the making of comprehensive findings of fact about what are claimed to be the traditional laws presently acknowledged and the traditional customs presently observed that provide the foundation for the asserted native title rights and interests. Such an approach will, obviously, involve an inquiry as to whether the laws and customs in question – which may very well be adapted or evolved laws and customs - are in fact “traditional” in the sense in which that concept is to be understood in this area of the law. A process that begins, however, with an assessment of what is claimed at the present time has the fundamental advantage of allowing adaptations and evolution to be seen for what they are and, in some instances, to be recognised at all. This is the approach for which the appellants argued and which was also a central element in the submissions on behalf of the New South Wales Aboriginal Land Council.
The approach taken by the judge in this case was quite different. It was, in substance, an approach that involved making findings about the past and then progressing forward from that point. Because, in the course of that process, his Honour reached a conclusion that native title had expired over 100 years ago, it did not become necessary for him to make findings about what the appellants contended were fundamental aspects of their case concerning what they said are the traditional laws currently acknowledged and the traditional customs currently observed. His Honour did discuss current beliefs and practices, but he did so after he had already made a finding that native title had expired and he prefaced his remarks by saying that it was appropriate “that some mention” should be made of the evidence concerning current beliefs and practices. The earlier finding was determinative of the claim adversely to the appellants.
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 circumstance, 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. They contended, however, that the finding made by his Honour was not the finding required to amount to a finding of cessation of the kind referred to by Brennan J.
It is desirable at this point to set the whole of the paragraph in which the critical observations of Brennan J appear and in which he also made an important reference to “practicability” in relation to the observance of customs and referred to laws and customs “based on” the traditions of an indigenous clan or group. This language is reflected in subsequent cases. The whole paragraph reads:
“Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. But that is not the universal position. It is clearly not the position of the Meriam people. Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditional of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interest to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown’s radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.”

A conclusion, soundly based, that at some point in the past there has ceased to be any real acknowledgment and observance of laws and customs based on tradition may relieve a court of the necessity to make findings about what are claimed to be contemporary laws and customs based on tradition. To be soundly based, however, such an approach will need to overcome difficulties of a formidable nature.
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 orally-based traditions as well as the inherent difficulties to which the learned judge adverted. It is necessary too, to bear in mind the particular difficulties and limitations of historical assessments, not least those made by untrained observers, writing from their own cultural viewpoint and with their own cultural preconceptions and for their own purposes.
Merkel J discussed some of these problems in Commonwealth of Australia v Yarmirr at [342 – 352]. He pointed out that the requirement of traditional observance “so far as it is practicable to do so” introduces two difficult concepts, the first being that the qualification of “practicability” acknowledges that laws and customs undergo change over time, and the second involving the circumstances in which it can be said that there has been a loss of connection by reason of an “abandoning of law and customs based on tradition”. He then drew attention to some of the difficult problems of fact and degree. Merkel J pointed out that the difficulties are exacerbated by the fact that customs and laws of indigenous people were not recorded in written form and were little understood by the colonial society with whom the indigenous people came into contact. He pointed out, too, that when oral evidence of the customs and laws conflicts with the general historical records, the difficulty is further heightened. Merkel J continued, at [347 - 350]:
“Lamer CJC in Delgamuukw at 231 (Delgamuukw v British Colombia (1997) 153 DLR (4^th) 193) observed that the question is ultimately one of weight. However, assessments of the weight to be given to a general historical record or account, when compared with oral history, are imbued with problems of their own.
Traditionally, Anglo-Australian culture has placed greater value on written material than on oral accounts. Oral accounts are often considered to be subjective in comparison to written records’ assumed objectivity and the spoken word is understood as being susceptible to modification over time as it is retold from one person to another: see Gray J, ‘Saying It Like It is: Oral Traditions, Legal Systems and Records’, Archives and Manuscripts 26:2 (1998) 258. In comparison, the written word tends to become immutable once recorded, less vulnerable to change and strengthened each time it is relied upon as authority.
Thus, in Delgamuukw the trial judge treated oral history as only confirmatory evidence. That led Lamer CJC to observe (at 236), in the Canadian context, that such an approach would have the consequence that:… the oral histories of Aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system.
As Lamer CJC said (at 231) courts hearing indigenous peoples rights litigation have had to ‘come to terms with the oral histories of Aboriginal societies’. See also Mason v Tritton at 588-9 per Kirby J.”
Merkel J concluded this part of the discussion by referring to his own decision in Shaw v Wolf (1998) 83 FCR 113 in which he expressed the need for judicial caution in acting on a general historical account as evidence disproving a version of history or of ancestry based on oral history. He added, at [351], that it was “desirable for the courts to consider whether the historical record of account of observers at the time, whether trained or untrained, were not invalidated by a particular preconception, bias or prejudice of the author”, pointing out that the fiction of terra nullius was maintained by the common law until Mabo(No 2) in part by reason of historical preconceptions about Aboriginal society in Australia.
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. The external and casual viewer of another culture may see very little because the people observed may intend to reveal very little to an outsider, or because the observer may be looking at the wrong time, or because the observer may not know what to look for, or for any one of numerous other reasons. Even a conscientious attempt in past times to provide a complete record would run into difficulties of this nature. The dangers inherent in giving particular authority to the written word, and more authority when it is repeated, need to be borne constantly in mind as well. The phenomenon of repetition strengthening authority is, of course, a familiar one, to be found in other areas of scholarship.
The problems that have been encountered can be greater still when the object of a later inquiry involves a process of adaptation which, whilst it was occurring, may well have been misunderstood or even not appreciated at all. Yet another danger lies in what might be termed the historical snapshot of adventitious content, which may in any event reveal little or nothing of a process of adaptation and change then taking place. It may well be necessary to have regard to events over a long period if misconceptions about adaptation and change are to be avoided. Recognition of the extent to which adaptation and evolution can take place without laws and customs ceasing to be “traditional” is of critical importance when any comparison is made between the situation at two widely separated points of time.
In considering these difficulties, therefore, special attention needs to be given to the essential nature of the subject matter of inquiry. The inquiry, when it is said that native title expired in colonial times, is not an inquiry about a single historical event concerning which the written record may be a very good guide – such as whether a vessel was lost with all hands – but something entirely more complicated and likely to involve a consideration of events over a lengthy period.
Another difficulty lies in determining that there is a point in time at which acknowledgment and observance has ceased to the extent that the foundation for any native title rights or interests has disappeared. If each of the factors that I have already identified as difficulties is held up against the task of determining whether the foundation for any native title rights or interest has disappeared, a compelling case emerges against reaching any conclusion about expiry without considering a very substantial time frame. Ordinarily, the question of expiry will need to be viewed within a substantial time frame if the real likelihood of a false conclusion is to be avoided. The difficulties of this nature may arise in a acute form where the issue is whether a particular practice is in truth “traditional” or whether, properly characterised, it is no more than a “revival”.
The remaining matter to be mentioned at this point was not the subject of argument on the hearing of the appeal, but it is convenient to note it here as one of the issues likely to arise when expiry is being considered. It should not be assumed that the removal of the foundation for native title rights and interests by expiry is an all or nothing affair. If native title is seen as a bundle of rights as to which there may be the extinction of some, but not others, it may well be that the expiry of laws and customs that provide the foundation for, say, a right of exclusive possession, may nevertheless not involve the expiry of traditionally-based laws and customs that provide a sufficient foundation for other rights, such as a usufructuary right. The concept of partial extinguishment by statutory grant is to some extent analogous, although it has to be said that the analogy is by no means perfect: see, generally, The Wik Peoples v The State of Queensland; see also Ward at [109] per Beaumont and von Doussa JJ, Anderson v Wilson (2000) 171 ALR 705 at [83] – [97], [140] per Black CJ and Sackville J. The analogy is imperfect because the extinguishing grant may not diminish, as a practical matter, the totality of the factual foundation for the full range of native title rights and interests. Where, however, concepts of expiry are concerned and there is an issue as to whether some rights remain, the question will be whether they remain notwithstanding a diminished factual foundation. The situation may nevertheless be that although much may have been lost, sufficient may remain to provide a foundation for some rights and interests, such as a right to be on the land for a particular purpose. My views about this matter are similar to those expressed by Merkel J in Yarmirr at 502.
Caution is compelled by the difficulties to which I have referred, and also the irreversible consequences for indigenous people of a finding that, long ago, their ancestors ceased to acknowledge traditional laws and observe traditional customs, so that the foundation for any native title rights and interests of their ancestors vanished in those earlier times.
Frozen in Time?
I now turn to consider the contention that the judge’s determinative finding that any real observance of traditional laws and customs ceased before the end of 19^th century was fundamentally flawed because it was based upon an erroneous view of the law, characterised by the appellants as involving a “frozen in time” approach. Also, as already noted, it was complained that there was no consideration of the evidence of the living witnesses for the appellants concerning their own beliefs and practices which, it was said, was highly relevant to any proper consideration of whether the acknowledgment and observance of traditional laws and customs had ceased at some earlier time.
What might be termed a strict or rigid “frozen in time” approach would exclude from the notion of “traditional” laws and customs any that were not virtually the same as those that were proved to have been observed by the ancestors of the claimant community. Although such an approach might allow for some adaptation and evolution, it could only allow for very little. I understood the appellants’ argument to extend as far as suggesting that the judge did adopt a “frozen in time” approach of this very strict or rigid nature.
The origin of the erroneous approach was said to be found in a passage in the introduction to his Honour’s reasons, where he said (at para [4]) that one of the matters that had to be established in a native title claim was “the nature and content of the traditional laws acknowledged, and the traditional customs observed by the indigenous people, in relation to their traditional land…” It was argued that this meant, in the context, “the indigenous people who occupied… the claimed area prior to the assertion of Crown sovereignty”. It was submitted that there was a further and related error in the same paragraph, where his Honour said:
“…it is not until each of these elements has been proved that it will be possible to determine whether the laws acknowledged and the customs observed by a contemporary clan, group or community should be afforded the protection of Australian law.”
I do not accept the submission that the trial judge adopted the very strict and rigid “frozen in time” approach suggested by the appellants. It appears that none of the respondents conducted their cases at trial on the footing that “traditional” laws and customs are “frozen in time” but recognised that significant adaptations could take place, such as hunting with a firearm or hunting an introduced species, such as a rabbit. (It must be said, however, that a rigid “frozen in time” argument of a somewhat different type did seem to emerge from the submissions made by senior counsel on behalf of the State of Victoria when he suggested that hunting for wild food could not be said to be the exercise of a traditional custom if the hunter obtained his ordinary sustenance by buying food at a supermarket.) The principal obstacle in the way of the appellants’ argument that a very “strict” or “rigid” approach was adopted is that the language used by the learned judge is in this respect equivocal and, having regard to the fact that such an approach was apparently not put forward by any of the respondents at the trial, a submission that the judge fell into an error of this nature needs more than equivocal language to support it.
There is, however, substantial support for the broader argument of the appellants and the New South Wales Aboriginal Land Council that his Honour adopted an approach that did not give appropriate recognition to the extent to which “traditional” laws and customs can adapt and evolve and still have the character of “traditional laws and customs”, capable of providing a continuing foundation for native title rights and interests. The reference by Brennan J to “traditional laws and customs” in the passage from his judgment in Mabo(No 2) at 60 in which he discussed the expiry of native title must be a taken to be reference to what is “traditional” in the sense in which I have been discussing it. Otherwise the notion of expiry would be inconsistent with the whole framework of native title as recognised and defined by the Native Title Act itself.
It emerges from paras [105] and [106] of his reasons that his Honour set out to determine the content of the traditional laws and customs observed by the ancestors of the claimants in 1788 and that this was to be wholly or primarily achieved by drawing inferences from “known facts concerning traditional laws and customs observed in the 1840s”. It was in this connection that his Honour said that the most credible source of information concerning the traditional laws and customs of the relevant area was to be found in the writings of Edward Curr and that this was to be accorded greater weight than the oral evidence of the witnesses from the claimant group.
This approach carries with it, however, the danger of producing what is in effect a “frozen in time” approach to traditional laws and customs by giving paramountcy to historical observations made about a period in time long ago (a period of, perhaps, no more than a decade) over an oral tradition that was of its very nature likely to be reflective – and indeed expository – of changes in laws and customs that occurred over time. His Honour’s conclusion that Curr’s observations, based upon him having “some understanding of the laws and customs in relation to the land of the indigenous people” would provide a “useful basis” from which to proceed illustrates the danger.
The danger was, to my mind, realised when his Honour commented later in his reasons that the evidence is silent concerning the continued observance in Matthews time of “those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr”. His Honour contrasted this with the evidence of dislocation at this time. The passage that follows, that there is “no evidence to suggest that either Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forbearers in the land” does support, in my view, the conclusion that even if a very strict or rigid “frozen in time” approach was not in fact adopted, the approach nevertheless failed to give proper recognition to the relevance of adaptation and change in the traditional laws and customs of the claimants’ ancestors at about this time. The time in question was a time at which change was to be most expected since it was the time at which European settlement was having its most direct and invasive impact.
If due recognition is to be given to the capacity of native title to survive transition from its existence within a fully traditional lifestyle to its existence within a lifestyle changed by contact with a very different culture, any consideration of a period in which changes were taking place consequent upon the impact of European settlement must take full account of the possibility of adaptation to the changing circumstances of the time. If it is correct to recognise adapted and evolved laws and customs as they exist at the present time, it must surely be correct to acknowledge the importance of such matters at an earlier time in history when contact with non-indigenous people was undoubtedly bringing about massive changes. Assuming, for present purposes, that the evidence was indeed silent concerning the continued observance in Matthews’ time (a period from about the mid-1860s to the mid-1880s) of the particular aspects of traditional lifestyle to which reference is made in the passages quoted from Curr (a conclusion that the appellants contest), the comparison that this implicitly involves seems to me necessarily to divert any attention from the existence of adaptation and evolution.
The learned trial judge’s further reference in para [118] of his reasons to the land on either side of the Murray having been taken up for pastoral purposes, and to the severe dislocation of the indigenous population and reduction in its numbers due to disease, is made by way of contrast to what he considered was the silence of the evidence about the continued observance of aspects of traditional lifestyle. But this, to my mind, is again indicative of the possibilities of adaptation and evolution being put to one side. The taking up of land for pastoral purposes and the dislocation of the indigenous population may be accepted as historical fact, and whilst that may mean that the traditional lifestyle was severely interrupted and in time displaced, it does not mean that that was a displacement of traditional laws and customs to the extent that all native title rights and interests came to an end. The final sentence in this critical paragraph of his Honour’s reasons, in which he said that there was no evidence to suggest that either Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants, continued to acknowledge the traditional laws or observe the “traditional customs of their forbears in relation to land”, is likewise open to the same criticism.
The same observations must be made about the 1881 petition to the Governor of New South Wales which the learned judge saw as providing “positive evidence emanating from the Aboriginals themselves” to the same effect as the conclusions that might be drawn from the absence of any evidence of continued observance of traditional laws and customs. The recognition at that time by some Aboriginal people that their land had been “taken possession of by the Government and white settlers” and their hunting grounds used for pastoral purposes, may be accepted as evidence of the abandonment of a traditional lifestyle by some Aboriginal people, but that state of affairs, and a desire to change “our old mode of life” in favour of “settling down” does not deny the continuance, in adapted or evolved form, of an acknowledgment of laws and an observance of customs that can properly be characterised as “traditional”. There are other problems associated with the use of the petition – essentially a political document - as evidence, but the fundamental point is the one that I have just mentioned. As the judgments in Ward, both at first instance and on appeal show, circumstances such as land having been “taken possession of by the Government and white settlers”, the use of hunting grounds for pastoral purposes and a change from the “old mode of life” do not equate with an inability to acknowledge laws and to observe customs that can properly be seen as “traditional”. The point is also to be made that the understanding of the expression “taken possession of” by the signatories to the petition or, indeed, its author may have been wrong.

The uncertainty as to precisely what his Honour intended to convey in paras [105], [106] and [109] of his judgment means that it is appropriate to give consideration to the significance for the outcome of this appeal of the possibility that his Honour did proceed on the basis that the appellants’ claim could only succeed if they were able to demonstrate that the laws and customs acknowledged and observed by the occupants of the claimed lands and waters in 1788 had continued thereafter to be observed until the present time. If his Honour did proceed on this basis, he was, in our view, wrong to do so (see paras [122] and [127] above). However, we conclude for the reasons set out below that, even if it be assumed that his Honour was in error in this regard, the error does not affect the outcome of this appeal.
At para [118] of his judgment the learned primary judge stated:
“The evidence is silent concerning the continued observance in Matthew’s time [ie 1864 and the years following] of those aspects of traditional life style to which reference is made in the passages quoted from Curr. Whether the former territorial areas of the various tribal groups were still recognised and protected as described by Curr is not something upon which there is any evidence. 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 that Edward Walker or Kitty Atkinson/Cooper, or their immediate descendants continued to acknowledge the traditional laws or observe the traditional customs of their forebears in relation to land.”
His Honour found that Edward Walker was born in the 1830s and that Kitty Atkinson/Cooper was born at about the same time or even earlier.
In para [119] of his judgment, the learned trial judge identified certain “positive evidence emanating from the Aboriginals themselves” to the effect that in the period after the establishment of the Maloga school and mission station on the claimed lands in 1874 traditional laws and customs ceased to be acknowledged and observed. His Honour referred particularly to a copy of a petition to the Governor of New South Wales signed in 1881 by 42 Aboriginals, many of whom are known to have been resident at or otherwise connected with Maloga. The petition recited:
“1.That all the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are used for sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious, and often reducing us and our wives and children to beggary.
2.We, the men of our several tribes, are desirous of honestly maintaining our young and infirm, who are in many cases the subjects of extreme want and semi-starvation, and we believe we could, in a few years support ourselves by our own industry, were a sufficient area of land granted to us to cultivate and raise stock.
3.We have been under training for some years and feel that our old mode of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry, that we may form homes for our families.”
The evidentiary weight to be given to the contents of a petition, almost certainly drawn with European help, in an endeavour to obtain a land grant, and not signed by all, or possibly even the majority, of the asserted Aboriginal community or group, will be limited. However, the petition cannot, in our view, be said entirely to lack relevance to the issue of the continuing observance by the community or group of traditional laws and customs. It tends to suggest, or at least to be consistent with a finding, that the petitioners had lost their traditional means of support and were turning away from traditional ways. It may also, of course, reflect an appreciation that the Governor and his advisers might place little positive value on adherence to traditional Aboriginal laws and customs.
At para [121] of his judgment his Honour noted that it had not been suggested in the proceeding before him that “the general thrust of the statements attributed to the petitioners was factually inaccurate or in any way misrepresented their views or their aspirations”. His Honour concluded:
“It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs based on tradition which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time. Although many of the claimant group reside within the claim area, many do not. No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. The claimant group clearly fails Toohey J’s test of occupation by a traditional society now and at the time of annexation (Mabo No 2, p 192) a state of affairs which has existed for over a century.” (emphasis added)
We note incidentally that his Honour’s reference to “laws and customs based on tradition” in this passage tends to suggest against his Honour having adopted a “frozen in time” approach.
His Honour’s ultimate conclusion concerning the issue of abandonment of acknowledgment and observance of traditional laws and customs concerning the claimed land and waters is set out in para [96] above.
Criticisms may be made concerning certain aspects of his Honour’s approach to the question of extinguishment of native title to the claimed lands and waters. However, unless his Honour’s finding that the Aboriginal community to which the appellants could establish genealogical links via Edward Walker and Kitty Atkinson/Cooper had, at some time later than 1788, ceased any real acknowledgment of its traditional laws and any real observance of its traditional customs, and had ceased to exist as a traditional indigenous community, can be successfully challenged, the finding is fatal to the appellants’ case.
As is demonstrated in para [98] above, the appellants’ claim is in respect of asserted communal interests in land and waters. In para [114] above, reference is made to a passage from the judgment of Brennan J in Mabo [No 2] at 61 which stresses that a communal native title will survive only so long as “the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs …”. In our view, it is plain that s 223(1) is intended to reflect his Honour’s view in this regard.
A reading of the whole of the learned primary judge’s judgment, and of para [129] (which is set out in para [96] above) in particular, makes it plain that his Honour was not satisfied that it had been shown that, throughout the entire period of time between 1788 and the date of the appellants’ claim, the relevant indigenous community had maintained its character as an identifiable community the members of which lived under its laws and customs. Indeed, his Honour, as we read his judgment, was positively satisfied that the relevant community had, before the end of the 19^th century, abandoned its traditional way of life and its traditional culture and thus ceased to exist as a traditional indigenous community. That is, that the continuity of community acknowledgment and observance of laws and customs providing a connection with the claimed lands and waters necessary to establish native title, whether or not such laws and customs had evolved and changed over time, had not been demonstrated.
It is of interest to note that in Mabo [No 2] Brennan J identified the likelihood of findings such as the crucial finding made by the learned primary judge in this case. In Mabo [No 2] at 68-69 Brennan J observed:
“As the Governments of the Australian Colonies and, latterly, the Governments of the Commonwealth, States and Territories have alienated or appropriated for their own purpose most of the land in this country during the last two hundred years, the Australian Aboriginal peoples have been substantially dispossessed of their traditional lands. Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation. … except for certain transactions next to be mentioned, nothing has been done to extinguish native title in the Murray Islands. There, the Crown has alienated only part of the land and has not acquired for itself the beneficial ownership of any substantial area. And there may be other areas of Australia where native title has not been extinguished and where an Aboriginal people, maintaining their identity and their customs, are entitled to enjoy their native title. Even if there be no such areas, it is appropriate to identify the events which resulted in the dispossession of the indigenous inhabitants of Australia, in order to dispel the misconception that it is the common law rather than the action of governments which made many of the indigenous people of this country trespassers on their own land”. (emphasis added)
His Honour had earlier observed at 59-60:
“Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. … when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.”
In our view, there was more than adequate evidence before his Honour to support his Honour’s finding that there was a period of time between 1788 and the date of the appellants’ claim during which the relevant indigenous community lost its character as a traditional community. This loss of traditional character resulted, as his Honour found, from physical separation from traditional lands following European settlement and from drastic reduction in numbers consequent upon disease and conflict (see particularly paras [36-47] of his Honour’s judgment).
We interpolate that it may be that his Honour took the view that, before the appellants could succeed at trial, they had to show not only that they were members of an identifiable Aboriginal community the members of which had continuously since the acquisition of sovereignty by the Crown acknowledged and observed traditional laws and customs upon which their native title was founded, but also that they presently occupy the land in the sense that the original inhabitants can be said to have occupied it (see paras [121] and [129] of his Honour’s judgment). If his Honour did take this view, we consider that he applied too stringent a test. The correct position in respect of occupation, in our opinion, was expressed (after the date of his Honour’s decision) by Beaumont and von Doussa JJ in State of Western Australia vWard at para [244], with whom North J agreed at para [682], where their Honours said:
“In circumstances where it is impracticable for the descendant community to continue a physical presence, it may nevertheless maintain its spiritual and cultural connection with the land in other ways. Whether it has done so will be a question of fact, involving matters of degree, to be assessed in all the circumstances of the particular case.”
That is, in our view, where an indigenous community is effectively prevented from occupying its traditional lands this may result, either immediately or with the passage of time, in its ceasing to acknowledge its traditional laws and observe its traditional customs. In this case, the learned primary judge found that dispossession together with a drastic reduction in numbers consequent upon disease and conflict did have this result. However, dispossession will not inevitably lead to a community ceasing to acknowledge its traditional laws and observe its traditional customs and thereby losing its connection with the land. Whether in any case it has done so will be, as Beaumont and von Doussa JJ have pointed out, a question of fact to be assessed having regard to all of the circumstances of the particular case.
By way of illustration of the evidence that was before his Honour which supported his crucial finding, the evidence of Mr Kenneth Briggs, a senior member of the appellant community, and a witness upon whose evidence the appellants placed considerable weight, included a concession that most of the traditional laws and customs of the Yorta Yorta community that existed before the mission days have now been lost. Mr Kenneth Briggs also agreed in cross examination that he had never been taught by anyone about the Yorta Yorta laws of descent or about any particular laws or customs that made him a Yorta Yorta person; he had never learned the Yorta Yorta language; he had not himself been taken through any ceremony to initiate him into manhood, nor had he witnessed any ceremony of this kind; and that he had not been taught about Yorta Yorta ceremonies or learnt any Yorta Yorta dance steps.
Mrs Elizabeth Hoffman, another senior member of the appellant community, gave evidence that a number of persons now regarded as elders of the Yorta Yorta community had only about six months earlier not regarded themselves as members of the Yorta Yorta community but rather as members of the Bangerang community. Mrs Hoffman agreed that during talks over the last six months an understanding was reached by reference to “genealogy and things” that the two communities enjoyed a common connection. This evidence may be thought to suggest strongly against the appellants being representatives of a community which has, since the acquisition of sovereignty by the Crown, remained “as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs” (Mabo [No 2] per Brennan J at 61).
Mr Colin Walker, also a senior member of the appellant community, gave evidence of the renaming of various sites in the Barmah Forest because knowledge of original names had been lost. He said:
“… we are trying to, as I said, to put everything back together. It is like a jigsaw puzzle that has been destroyed and we are now in the process of putting it all back.”
In re-examination Mr Colin Walker said:
“We are a knowledgeable people. We could pick up the trads [sic], if you like to put it that way, or we – as I say, a lot of our stuff is laying dormant, but we could fire that up again. We believe we could fire that up again.”
Mr Colin Walker’s evidence referred to above was supported by the evidence of Mrs Frances Mathyssen, another senior member of the appellant community, who said in her evidence “Our culture’s been asleep and it’s been awakened”. Mrs Mathyssen’s cross examination continued as follows:
“MR HUGHSTON:     When you say it has been asleep and it has been awakened, have you noticed in the last 10 or 15 years a renewed interest on the part of Aboriginal people in this area in learning about Yorta Yorta country and Yorta Yorta culture?
FRANCES MATHYSSEN:      Yes, our people are working towards that.
MR HUGHSTON:      Okay. But is not one of the problems that you have in trying to revive interest in that culture that you have lost so much of your knowledge and traditional knowledge that once existed.
FRANCIS MATHYSSEN:       No, it’s been revived and it’s not hard for us to revive it.”
Professor Kenneth Maddock, Emeritus Professor in Anthropology, Macquarie University, who gave evidence on behalf of the States of New South Wales and Victoria, expressed the opinion in his principal report that the traditional laws and customs of the Yorta Yorta/Bangerang people had substantially vanished and that “[a]t most there is a shadowy and vestigial survival”.
His Honour’s finding that there was a period of time between 1788 and the date of the appellants’ claim during which the relevant community lost its character as a traditional Aboriginal community is not to be lightly disturbed on appeal to this Court. A finding that an indigenous community has lost its character as a traditional indigenous community involves the making of a judgment based on evidence touching on a multitude of factors. The hearing before his Honour was long and complex. As is mentioned in para [95] above, evidence was taken from 201 witnesses and his Honour visited, and took evidence on, the claimed land on many occasions. The transcript of the hearing comprises 11,664 pages. The preparation of a written judgment that explicitly rehearsed and evaluated every part of this evidence would have been an exceptionally burdensome task.
It is not to be expected that, following a hearing of the length of the trial of this matter, the judge at first instance will make reference in his or her judgment to every matter which influenced his or her findings on a complex issue such as the maintenance of a traditional indigenous community. We see no reason to conclude from the failure of his Honour expressly to refer to, or evaluate, particular aspects of the evidence, that he did not take them into account.
Special difficulties which face an appeal court that is invited to re-evaluate evidence received by a trial judge in a case concerning a determination of native title were identified by Beaumont and von Doussa JJ in State of Western Australia v Ward at paras [222-225]. It is likely that there were special difficulties in Ward that may not have been experienced in this case, or not experienced to the same extent. Nonetheless, considerable caution is appropriate before this Court infers that crucial evidence was not evaluated and necessary findings of fact were not made.
In a case of this kind, the need for appellate caution adverted to by Lord Hoffmann in Biogen Inc v Medeva Plc (1996) 36 IPR 438 (HL) at 452 is particularly strong. His Lordship there said:
“The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance …, of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”
In our view, the appeal from his Honour’s determination must be dismissed.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson and the Honourable Justice Katz.

Associate:
Dated: 8 February 2001

Counsel for the Appellants:

Mr A R Castan QC

Mr K R Howie

Solicitor for the Appellants:

Arnold Bloch Liebler

Counsel for the State of Victoria, Goulburn Valley Region Water Authority, Goulburn-Murray Rural Water Authority, and North-East Region Water Authority:

Mr M Wright QC

Ms M Sloss

Mr S G E McLeish

Solicitors for the State of Victoria, Goulburn Valley Region Water Authority, Goulburn-Murray Rural Water Authority, and North-East Region Water Authority:

Victorian Government Solicitor

Counsel for the State of New South Wales:

Mr V B Hughston

Mr J A Waters

Solicitors for the State of New South Wales:

Crown Solicitor for the State of New South Wales

Counsel for Murray Irrigation Limited, Field and Game Australia Inc, Graeme Ross McPherson, Greater Shepparton City Council, Campaspe Shire Council, Moira Shire Council, Estate of Christopher Stephen Ryan decd and C.R. and K.R. Moorse:

Mr G E Hiley QC

Mr G J Moloney

Solicitors for Murray Irrigation Limited, Field and Game Australia Inc, Graeme Ross McPherson, Greater Shepparton City Council, Campaspe Shire Council, Moira Shire Council, Estate of Christopher Stephen Ryan decd and C.R. and K.R. Moorse:

Suzanna Sheed & Associates

Counsel for Emat Industries Pty Ltd, V. Grima and K. Lord:

Mr A C Neal

Solicitors for Emat Industries Pty Ltd, V. Grima and K. Lord:

J G Thompson Solicitor

Counsel for Barmah Forest Cattlemen's Association, NSW Forest Products Association Limited, Rowan Swamp Landholders Group, Victorian Association of Forest Industries & Ors:

Mr G B Carolan

Solicitors for Barmah Forest Cattlemen's Association, NSW Forest Products Association Limited, Rowan Swamp Landholders Group, Victorian Association of Forest Industries & Ors:

Corrs Chambers Westgarth

Counsel for Mulwala & District Services Club Limited, Mulwala Water Ski Club Limited, Yarrawonga Border Golf Club Limited, Berrigan Shire Council, Corowa Shire Council, Murray Shire Council, and J.B. and G.A. Gorman:

Mr J E Curtis-Smith

Solicitors for Mulwala & District Services Club Limited, Mulwala Water Ski Club Limited, Yarrawonga Border Golf Club Limited, Berrigan Shire Council, Corowa Shire Council, Murray Shire Council, and J.B. and G.A. Gorman:

Hargraves

Solicitors for Murray Darling Basin Commission:

Blake Dawson Waldron

Solicitors for Telstra Corporation Ltd :

Blake Dawson Waldron

Solicitors for State of South Australia:

Crown Solicitor for the State of South Australia

Counsel for New South Wales Aboriginal Land Council:

Mr J Basten QC

Mr R W Blowes

Solicitors for New South Wales Aboriginal Land Council:

Chalk & Fitzgerald

Date of Hearing:

18 August 1999

19 August 1999

20 August 1999

23 August 1999

24 August 1999

25 August 1999

26 August 1999

Date of Judgment:

8 February 2001

[2001] FCA 45

8 FEBRUARY 2001

Key Legal Topics

Areas of Law

Constitutional Law

Indigenous Peoples & Native Title Law

Legal Concepts

Constitutional Validity

Native Title

Standing

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 34 of 1999

BETWEEN:	MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY Appellants
AND:	STATE OF VICTORIA AND OTHERS Respondents

JUDGES:	BLACK CJ, BRANSON and KATZ JJ
DATE:	8 FEBRUARY 2001
PLACE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V34 OF 2000

BETWEEN:	THE MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY APPELLANTS
AND:	THE STATE OF VICTORIA AND OTHERS RESPONDENTS
JUDGES:	BLACK CJ, BRANSON AND KATZ JJ
DATE OF ORDER:	8 FEBRUARY 2000
WHERE MADE:	MELBOURNE

Counsel for the Appellants:	Mr A R Castan QC Mr K R Howie
Solicitor for the Appellants:	Arnold Bloch Liebler
Counsel for the State of Victoria, Goulburn Valley Region Water Authority, Goulburn-Murray Rural Water Authority, and North-East Region Water Authority:	Mr M Wright QC Ms M Sloss Mr S G E McLeish
Solicitors for the State of Victoria, Goulburn Valley Region Water Authority, Goulburn-Murray Rural Water Authority, and North-East Region Water Authority:	Victorian Government Solicitor
Counsel for the State of New South Wales:	Mr V B Hughston Mr J A Waters
Solicitors for the State of New South Wales:	Crown Solicitor for the State of New South Wales
Counsel for Murray Irrigation Limited, Field and Game Australia Inc, Graeme Ross McPherson, Greater Shepparton City Council, Campaspe Shire Council, Moira Shire Council, Estate of Christopher Stephen Ryan decd and C.R. and K.R. Moorse:	Mr G E Hiley QC Mr G J Moloney
Solicitors for Murray Irrigation Limited, Field and Game Australia Inc, Graeme Ross McPherson, Greater Shepparton City Council, Campaspe Shire Council, Moira Shire Council, Estate of Christopher Stephen Ryan decd and C.R. and K.R. Moorse:	Suzanna Sheed & Associates
Counsel for Emat Industries Pty Ltd, V. Grima and K. Lord:	Mr A C Neal
Solicitors for Emat Industries Pty Ltd, V. Grima and K. Lord:	J G Thompson Solicitor
Counsel for Barmah Forest Cattlemen's Association, NSW Forest Products Association Limited, Rowan Swamp Landholders Group, Victorian Association of Forest Industries & Ors:	Mr G B Carolan
Solicitors for Barmah Forest Cattlemen's Association, NSW Forest Products Association Limited, Rowan Swamp Landholders Group, Victorian Association of Forest Industries & Ors:	Corrs Chambers Westgarth
Counsel for Mulwala & District Services Club Limited, Mulwala Water Ski Club Limited, Yarrawonga Border Golf Club Limited, Berrigan Shire Council, Corowa Shire Council, Murray Shire Council, and J.B. and G.A. Gorman:	Mr J E Curtis-Smith
Solicitors for Mulwala & District Services Club Limited, Mulwala Water Ski Club Limited, Yarrawonga Border Golf Club Limited, Berrigan Shire Council, Corowa Shire Council, Murray Shire Council, and J.B. and G.A. Gorman:	Hargraves
Solicitors for Murray Darling Basin Commission:	Blake Dawson Waldron
Solicitors for Telstra Corporation Ltd :	Blake Dawson Waldron
Solicitors for State of South Australia:	Crown Solicitor for the State of South Australia
Counsel for New South Wales Aboriginal Land Council:	Mr J Basten QC Mr R W Blowes
Solicitors for New South Wales Aboriginal Land Council:	Chalk & Fitzgerald
Date of Hearing:	18 August 1999 19 August 1999 20 August 1999 23 August 1999 24 August 1999 25 August 1999 26 August 1999
Date of Judgment:	8 February 2001