Risk v Northern Territory of Australia & Ors

[2007] HCATrans 472

[2007] HCATrans 472

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D5 of 2007

B e t w e e n -

WILLIAM RISK HELEN SECRETARY AND PAULINE BABAN ON BEHALF OF THE LARRAKIA PEOPLE

Applicant

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

DARWIN CITY COUNCIL

Second Respondent

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Third Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 AUGUST 2007, AT 9.33 AM

Copyright in the High Court of Australia

__________________

MR S.J. GAGELER, SC:   If the Court pleases, I appear for the Larrakia people with MR S.A. GLACKEN.  (instructed by Northern Land Council)

MR V.B. HUGHSTON, SC:   May it please the Court, I appear for the first respondent, the Northern Territory of Australia, with my learned friend, MS S.L. BROWNHILL.  (instructed by Solicitor for the Northern Territory)

MR G.E. HILEY, QC:   May it please the Court, I appear with my learned friend, MS R.J. WEBB, QC, for the second respondent, Darwin City Council.  (instructed by Cridlands Lawyers)

MR K.M. PETTIT, SC:   May it please the Court, I appear for the Commonwealth Attorney‑General, who was the intervener below.  (instructed by Australian Government Solicitor)

KIRBY J:   Yes, Mr Gageler.

MR GAGELER:   May I take your Honours immediately to the judgment of Justice Mansfield, which relevantly for my purposes can be started at page 8 of the application book.  My purpose is to demonstrate that his Honour did apply a wrong legal test, and that his Honour did not adequately analyse the lay evidence.  Now, the judgment is very long and I propose to be very short.

What your Honours can see at page 8 is a table of contents, which is the best way of picking up the structure of the judgment. Your Honours will see a heading at page 9 “CONSIDERATION OF THE EVIDENCE”. Your Honours will see a heading at page 10 “CURRENT LARRAKIA SOCIETY”, and a heading at page 11 “CONCLUSIONS REGARDING S 223(1) OF THE NATIVE TITLE ACT”.

What his Honour does in the judgment is under the heading “CONSIDERATION OF THE EVIDENCE” he discusses the documentary evidence and the expert evidence, and he does that chronologically by reference to four periods, the periods your Honours will see set out at page 9.  The first of those periods is 1825, the date of sovereignty, through to 1910, throughout which his Honour says in the judgment that he was satisfied that the Larrakia people observed the same laws and customs, so it was the position up until 1910.

The second period is then 1910 through to World War II, and by the end of that period, on the documentary evidence and the expert evidence, his Honour says, “Well, I am not so sure”, but he parks that question.  He goes on then to the period World War II through to 1970, which he deals with very briefly, or comparatively briefly in a very long judgment, that period encompassed significantly in the political life of the Larrakia people – the cattleman strike of the early 1950s which was led by a man called Fred Nadpur, a person who appears in the Commonwealth Law Reports as Fred Waters in Waters v The Commonwealth in the mid-1950s.  He was elected king of the Larrakia people in 1954.

The final period with which his Honour deals in this part of the judgment is the period from the 1970s, and he has that under the heading “Larrakia Land Claims”.  Beginning in the early 1970s and really continuing ever since the Kenbi land claim resulted in a report that was produced in 1999 and then this land claim took over after that.  Beginning in that period the Larrakia people had been involved in a series of land claims, first in Darwin, then more broadly in the Cox Peninsula, now with this one back in Darwin, which in the early days of the 1970s was manifested in civil disobedience, marches in the streets, flag raisings, sit down protests, led by a man called Bobby Secretary.  Now, some of that is recounted in the judgment.

Then one gets to the heading “CURRENT LARRAKIA SOCIETY” and it is under that heading that his Honour discusses the evidence of some 47 lay witnesses.  At the beginning of that section of the judgment, what his Honour says – and I am reading from page 176 at the top of the page:

This section of my consideration of the evidence and my findings looks at the contemporary nature of the Larrakia people’s society, as it has been presented over the last decade or so to the present.

That is exactly what he does. Then, not chronologically but thematically, what he is doing is looking at the current Larrakia society and he is doing that thematically by reference to various topics that describe the current society, and you pick up those topics at pages 10 and 11. Then one gets to the conclusions regarding section 223(1) of the Native Title Act.  I will come to the statement of those conclusions in his judgment in a moment, but to summarise what those conclusions are, having looked at the historical evidence by reference to documents and expert testimony, and then having looked at the lay evidence in the context of examining current Larrakia society, his Honour says this.

His Honour says, well, although I find that the Larrakia people now are a “strong, vibrant and dynamic society” - that is the language he uses – “strong, vibrant and dynamic society”, and although I find that they are the same society that existed in 1825 and existed in 1910 I find that the laws and customs now observed by the Larrakia people are not traditional within the meaning of section 223(1) of the Native Title Act for two reasons, and they are intertwined to some extent and the two reasons are these.

One, he says, “I find that significant changes in those laws and customs have occurred from the time of sovereignty” and the second reason he says is that there has been a substantial interruption in the practice of those laws and customs at some time in the 20th century.  Now, his Honour is not particularly clear what that time in the 20th century is, but it appears to be, you can infer, that at some time from around 1950 before 1970 when he says there was a great revival in the Larrakia culture.

HAYNE J:   Now, these findings are those at application book 251, paragraphs 820 through and following, are those the findings to which you are referring?

MR GAGELER:   Yes, in particular, your Honour, 835 he brings it together - I was going to come to this in just a moment – and he seeks to summarise that even further at 839.

KIRBY J:   There is a clue as to a third way in which his Honour came to his conclusion in 839, which is at 244, where essentially he seems to be saying that there was this severance and then by reason of the land claims of which people became aware, they as it were revived or sought to revive the Larrakia culture.

MR GAGELER:   They rediscovered their culture through the process of the land claims.

KIRBY J:   I did not know whether to read that as a suggestion that this was an opportunistic reinvention of something which was not really linked continuously to Larrakia culture or not.

MR GAGELER:   No.  No, his Honour was prepared to accept the veracity ‑ ‑ ‑

HAYNE J:   There is no suggestion of opportunism, is there?

MR GAGELER:   No.  The answer is no.  The short answer is no.

CRENNAN J:   They key to it I think is in paragraph 820 where his Honour says:

The oral evidence, in my judgment, confirms that the current Larrakia society, with its laws and customs, has not carried forward the traditional laws and customs of the Larrakia people so as to support the conclusion that those traditional laws and customs have had a continued existence and vitality since sovereignty.

The finding on the oral evidence that there was not a continued existence of the laws and customs seemed to me to be a key to his Honour’s conclusions.

MR GAGELER:   Well, that is one of the two keys.  That is the interruption point.  Now, we do not say that a finding of that nature would not be legally sufficient to deny us the claim that we made.

HAYNE J:   Can I jump ahead?

MR GAGELER:   Your Honour can, yes.

HAYNE J:   Mr Gageler, are we concerned with an appeal?  Would you have an appeal about fact or an appeal about principle?

MR GAGELER:   We have an appeal about principle.  We only ever sought to have the matter sent back to his Honour for a proper analysis.  There are the two findings.  One is not the same laws.  In our submission, that involves a straight legal error applying the wrong test, and I will need to show your Honours exactly how that occurs.  We have the finding about substantial interruption in observance and practice, and there we say that there was an error of process.

Yes, his Honour did make what can be seen as a key finding at page 250, paragraph 820, as your Honour Justice Crennan has pointed out.  What he did not do though was to properly analyse the lay evidence chronologically to say how he could come to the conclusion that during the lives of very significant people in the Larrakia community, Fred Nadpur, Bobby Secretary, these lions of the land rights movement, some time during their lives according to his Honour’s inferred finding, Larrakia laws and customs dwindled to the point of extinguishment, or sufficient interruption so that they could be seen as no longer traditional.  That is a finding which, if it were to be made, ought be measured up against the considerable body of lay evidence.  That is really the second point.

KIRBY J:   Now, this is an important distinction I think, or at least you suggest it is, from Yorta Yorta, in that Yorta Yorta involved a severance in the 19th century, whereas one would think that there would have been people alive at the time of the litigation who could take the matter back to 1910.

MR GAGELER:   Well, your Honour, it is referred to, it is really the second point, I am jumping ahead of myself.  But in the judgment of the Full Court your Honours will see reference to a timeline chart.  Now, we have given your Honours that timeline chart, which is behind tab 7 of our materials.  What you see if you open it out is at the top in blue the life spans of significant elders and significant figures within the Larrakia community, including if you look about four up from the bottom of the blue, Fred Waters, or Fred Nadpur, and two up from the bottom of the blue, Bobby Secretary, who was alive through to 1984.  What we have done under that is give the life spans, continuing in 2005, of some of the lay witnesses before his Honour.

KIRBY J:   Who is this “Prince of Wales”?

MR GAGELER:   Well, the Prince of Wales was a nickname for a significant figure within the Larrakia community.  There is a King George, your Honour will see as well.  These were whitefella’s names for significant Larrakia elders.  But, yes, there is, during this apparent period of cessation, which his Honour really inferred without explaining in his judgment, a significant overlap between the life of the people he had before him and the lives of these very important people when there was obvious ‑ ‑ ‑

KIRBY J:   Florence Devine, going back, being born in 1919, presumably she would have memories of grandparents and ‑ ‑ ‑

MR GAGELER:   Exactly, exactly.  We have also given your Honours behind tab 8 the evidence of Jim Fejo, this was his written evidence.  I am not going to go through the detail of it.  The way in which this was dealt with in the Full Court was to say, well, look, if you look through the thematic presentation of current Larrakia society that you find in that section of his Honour’s judgment you will see that he is ‑ ‑ ‑

KIRBY J:   What happened in 1910 that caused his Honour to use that as a divider?

MR GAGELER:   Well, I think that that was when the Commonwealth took over in the Northern Territory, your Honour.  I think that was the year of cessation from South Australia and really the commencement of Commonwealth administration.  It was just a convenient time.  There is a whole bunch of records around that time.

HAYNE J:   At the end of the day, Mr Gageler, would you have this Court say that the trial judge’s findings of fact were not supported?

MR GAGELER:   We would have on this point your Honour say what your Honour said in Waterways v Fitzgibbon, your Honour would say for us here that there was a defect in the primary judge’s fact finding – I am looking behind tab 6, paragraph [133], and here I am dealing only with the interruption point, your Honour - paragraph [133], second sentence.  We would have your Honour say in relation to the finding of interruption at some stage during the lives of these witnesses there is a:

defect in the primary judge’s fact finding [that lies] in the failure to evaluate all of the evidence bearing upon the relevant issue of fact.

HAYNE J:   Well, it is to be remembered that Fitzgibbon was a visitation case.

MR GAGELER:   Yes.

HAYNE J:   Do you say this is a visitation case?  That is to say, do you say there is no point of principle; it is in the interests of justice in the particular case that leave go?

MR GAGELER:   On that point.  The other point, which is undoubtedly a significant point of principle, the other way in which we lost is that his Honour said that the laws as currently exist are not the laws that existed in 1825, are not the laws that existed in 1825, and that was another reason why we lost.  That is an extremely important point of legal principle.  In our submission, his Honour applied the wrong test.

Can I just demonstrate how that wrong test manifests itself?  If your Honours go to page 55, bottom of the page, his Honour says at about line 20:

The evidence is to be considered having regard to the matters which the applicants are required to establish to make out their claim or claims, and which the Territory disputes.  They are:

. . . 

(b)whether the present day body of laws and customs are the body of laws and customs acknowledged and observed by the ancestors of members of the Larrakia people, or as the Territory contends, the differences between the laws and customs disclosed in the historical material and the present day evidence are significant and substantial.

At page 98 your Honours will then see at the very bottom of the page a continuation of the same theme, last line:

It is the events of the 20th Century upon which the respondents then relied to challenge the applicants claims that:

(a)they continue to have and practise the same traditional laws and customs as the Larrakia people did at sovereignty –

He then said ‑ ‑ ‑

HAYNE J:   Yes, read on to (b) where he acknowledges the possibility of alteration.

MR GAGELER:   Yes, that is a separate point.  It is cumulative, it is very much cumulative, and you see it most clearly perhaps at page 156 where he says, line 5 or so:

I will turn to my ultimate findings or conclusions on whether those rights and interests under those laws and customs –

that is, the current laws and customs –

are in essence the same as those which existed at sovereignty and whether their acknowledgement and observance has continued substantially uninterrupted since sovereignty.

Two points, and then you see those same two points to some extent intertwined at page 255, line 10, second sentence of that paragraph:

There are also in my view significant changes in those laws and customs from those which existed at sovereignty . . . I find that the present laws and customs of the Larrakia people are not simply an adaptation or evolution of the traditional laws and customs of the Larrakia people in response to economic, environmental and historical and other changes.

Now, the error, in our submission, is really quite a significant error, and it involves saying that traditional laws and customs within the meaning of section 223 of the Native Title Act are laws and customs that existed at the time of sovereignty, and for current laws and customs to be traditional they have to be the same as those existed at sovereignty or no more than some fairly limited adaptation or evolution of those laws and customs.  That is what his Honour did wrong, and the Full Court did exactly the same thing, although they spelt it out even more clearly.

HAYNE J:   Therefore, do you put in issue what is said in paragraph 88 of Yorta Yorta?

MR GAGELER:   No, perhaps the interpretation of what is said in paragraph 88 of Yorta Yorta, but we say, your Honour, that Yorta Yorta was a case, as his Honour Justice Kirby pointed out, that turned not on lack of identity between current laws and practices and historical laws and practices, but on a finding of substantial interruption.  That is what the case turned on, and that substantial interruption had occurred according to the trial judge in that case as interpreted by the Full Court here, that substantial interruption had occurred by the end of the 19th century.  We rely upon paragraph 46 of Yorta Yorta in relation to the content of laws and customs.

What your Honours said in paragraph 46, and your Honour Justice Kirby said it in paragraph 114, I think, is that what you have to find in relation to the content of the laws and customs is that the origins are in what existed before sovereignty.  One does not have to find that the laws and the customs are the same, albeit in a transmogrified form.  Your Honours, we have given you Justice Brennan’s very important statement in Mabo at page 410 of the application book. The word “traditional” in section 223 was obviously intended to mean traditional in the sense used by Justice Brennan in Mabo.  The Act would not serve its purpose if there was not that connection.

What is explained in Yorta Yorta, in our submission, is nothing more than an elaborate and principled exposition of what Justice Brennan was saying.  On the approach taken here – I know I am over time ‑ ‑ ‑

CRENNAN J:   Justice Brennan was referring not only to the origins of the content but also the continuous existence and vitality, two matters.

MR GAGELER:   And there are the two elements in his Honour’s judgment.

CRENNAN J:   Yes.

MR GAGELER:   One, the error of principle, the content, his Honour just got it wrong as a matter of law, in our submission.  In relation to interruption, we cannot say his Honour got it wrong as a matter of law, but we can say that the interruption that his Honour must have found was extremely brief, extremely recent, in the lives of these lay witnesses who now he accepts as forming a vibrant, dynamic community, his Honour really needed to explain precisely where and when that occurred and to line it up against the significant evidence of these people.

KIRBY J:   Talking about interruption, I think I had better interrupt.  But just before you sit down, one thing concerns me.  How long did this case run before Justice ‑ ‑ ‑

MR GAGELER:   Sixty eight days.

KIRBY J:   The High Court, as you would well know, is not very well equipped and it really is not its function to go through 68 days of transcript and to be trying to pore over a Fox v Percy type analysis of whether the trial judge made wrong findings of fact and conclusions.

MR GAGELER:   Yes.  We have never put ‑ ‑ ‑

KIRBY J:   It is a very awkward thing to ask the High Court to do that.

MR GAGELER:   Two things, your Honour.  We say in one respect he applied a wrong legal test.  We say in another respect he did not analyse the evidence - he referred to the evidence - he did not analyse the evidence in a way that supported – or sufficiently explained his finding of fact.  Neither of those involve your Honours looking through 68 days of ‑ ‑ ‑

CRENNAN J:   And the wrong legal test?

MR GAGELER:   The wrong legal test is the identity of the content of the laws and customs.  There are two prongs to it, content on the one hand, wrong legal test, and on the other hand, interruption, error of process.  That is what we say, and we wanted to go back to ‑ ‑ ‑

KIRBY J:   Well, I can understand how that could be analysed by the High Court basically by looking at the judgment below and maybe some other supplementary evidence to see things that are not in the reasons for judgment ‑ ‑ ‑

MR GAGELER:   Yes.

KIRBY J:   ‑ ‑ ‑ but where you are attacking the factual conclusions we would, would we not, have to go into quite a lot of the factual material of the very lengthy trial before Justice Mansfield?

MR GAGELER:   The case was – I am just trying to remember how big the appeal book before the Full Court was.  It was, we think, four or five volumes, and that included his Honour’s judgment which was a whole volume in itself, so we would not be seeking to go beyond the material we sought to present to the Full Court.

KIRBY J:   Does the evidence show the size of the Larrakia community?

MR GAGELER:   The current size of the Larrakia community?

KIRBY J:   Yes.

MR GAGELER:   It would.  It does, but I cannot tell you.  It is hundreds of people.  Thirteen hundred people.

KIRBY J:   And I see Mr Fejo is named here.  Fejo stands, the freehold is not affected.

MR GAGELER:   No.

KIRBY J:   Where is the land that is the subject of the claim in relation to the city of Darwin?

MR GAGELER:   It is within the limits of the city of Darwin, and it is ‑ ‑ ‑

KIRBY J:   What is it at the moment?  Is it parkland or scrub?

MR GAGELER:   Yes, it is those areas of vacant Crown land where – at least there is an argument that extinguishment has not occurred.  So you might recall the history of this – sorry, your Honour.

CRENNAN J:   Can I just make sure I understand the content point?

MR GAGELER:   Yes.

CRENNAN J:   You are saying, are you, that his Honour looked at the content in a comparative way and he should have looked at the origins of the content?

MR GAGELER:   Exactly, and the Full Court said when they got to this content point, that is exactly what his Honour should have been doing.  What his Honour did was exactly what he should have been doing, that is, he should have been asking whether the content now is the same as the content that previously existed subject to evolving adaptations.  They did not look at the origins.

KIRBY J:   Well, I think you have had a fair crack of the whip, Mr Gageler.

MR GAGELER:   I have.

KIRBY J:   You would not have got this out of the Chief Justice, but you have a most indulgent Bench here this morning.

MR GAGELER:   Sorry, your Honours, I will sit down.

KIRBY J:   Yes, Mr Hughston.

MR HUGHSTON:   If your Honour pleases, I am delighted to hear that I have an indulgent Bench.

KIRBY J:   Do not count on it.

HAYNE J:   Do not push it, Mr Hughston.

MR HUGHSTON:   If your Honour pleases.  Your Honours, the first special leave question which is identified in the applicant’s summary of argument is the place that a comparison of the laws and customs of a present day Aboriginal community with those of their forebears has in determining whether present day laws and customs can be seen as traditional, and our first response is that there is no special leave point here because the relevant legal principles have already been elucidated by this Court in Yorta Yorta.

The Court recognised in Yorta Yorta, and particularly at paragraph 82 of the joint judgment of the Chief Justice and their Honours Justices Hayne and Gummow, that the application of those principles in any particular case will inevitably raise difficult questions of fact and degree, and that there is no bright line test that can be laid down to guide a trial judge in his assessment of those matters, and that is particularly so in cases like this where there has been significant change as a result of European settlement.

KIRBY J:   But there is a very significant factual difference from Yorta Yorta.  Yorta Yorta really was time washing over or lost in the pages of history, whereas this is really nine – we are talking about the last century, and people would be still alive who could give evidence of that, and the question is whether that was adequately addressed.

MR HUGHSTON:   Yes, and I will get to that, but that is the second point, whether his Honour adequately considered that evidence.  But it must also be recalled that there are findings in there, although we are told the period of interruption is not as long as in Yorta Yorta.  For example, one of the findings which the Full Court sets out in paragraphs 16 to 18 where they summarise the findings which the judge made on the contemporary evidence was that the most important Larrakia spiritual being, …..the creator of all their lands, that knowledge of…..was only acquired by the Larrakia people, witnesses, during the course of the hearings of the Kenbi land claim, and that was in the 1980s and 1990s.  So that central spiritual being which created their land, people only were learning about that, or learnt about that, in the 1980s or 1990s.  So again it is ‑ ‑ ‑

KIRBY J:   But there is a certain offensiveness to principle.  If your search is for traditional connection ‑ ‑ ‑

MR HUGHSTON:   Yes.

KIRBY J:   ‑ ‑ ‑ that the European settlement displaces the Aboriginal people, and in this case only for a relatively short interval in the 20th century, and then they have to be a better hurdle jumper than Jana Pittman.  They have to jump over continuous hurdles even though they can establish that racially and ethnically they are part of the Larrakia, the same people, they are living in the same area, and it really ought not be all that difficult to infer that they have a traditional connection with their land and culture.

MR HUGHSTON:   Again, your Honour, in the joint judgment in Yorta Yorta, to which I have referred, their Honours noted the difficulties that are involved in the forensic process of trying to prove continuity over such a lengthy period of time, but nonetheless in the joint judgment their Honours said, but that is the requirement of the law, and that is what they have to do.  I mean, certain inferences can be drawn.  It is beneficial legislation, but nonetheless, at the end of the day there is a test of continuity which must be passed, and in this case the Larrakia lost, not because of any changes or adaptations of their laws and customs, but because of that interruption, an interruption which his Honour found to be, and the Full Court looking at the same evidence also found to be, very significant.

Your Honours, Mr Gageler has said that the applicants lost on two distinct points, one was that there had been changes in their laws and customs, and secondly, that there had been an interruption.  We have addressed that in our summary of argument.  They lost for only one reason, and that was the interruption reason.  His Honour said that, yes, there had been significant changes to their laws and customs, and yes, there are significant inconsistencies in their laws and customs, but he did not say that that was fatal to their claim.

What his Honour said at paragraph 835 is that those changes, if you like those inconsistencies, were the result of the interruption.  Mr Gageler would have it the other way, that the interruption was the result of those changes, but that simply was not the case.

KIRBY J:   But Yorta Yorta and other cases I think in this Court have acknowledged that it is inevitable that the Aboriginal laws and customs, like any laws and customs, will adapt to changing times and changing circumstances.

MR HUGHSTON:   Yes.

KIRBY J:   So to some extent there is going to be some change.  There has been enormous change in our legal system, why should we deny that to the Aboriginal legal system?

MR HUGHSTON:   No reason in the world, and his Honour did not deny that to these applicants.  His Honour correctly, as the Full Court point out, that it is impossible to accept that his Honour misunderstood the Yorta Yorta test, and that is the Full Court at paragraph 87 application book 333, because he sets out all the relevant passages from the joint judgment in Yorta Yorta to which I have referred your Honours.

If I could take your Honours, for example, to application book page 44, paragraphs 52 to 58 is where his Honour starts to set out the relevant tests.  Your Honours will see in particular at paragraph 54 that his Honour quotes from paragraph 46 and 47 of Yorta Yorta, and they are the paragraphs which the applicants are relying upon as setting out the correct test which his Honour did not follow.  Your Honours will see there towards the bottom of the page in the quotation:

First, it conveys an understanding of the age of the traditions:  the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown.  It is only those normative rules that are “traditional” laws and customs.

So his Honour has correctly instructed himself on the law.  Indeed, if we could jump ahead to paragraph 802 of the judgment, which is at application book page 244 where his Honour commences to set down his conclusions regarding 223(1).  At the bottom of page 244, his Honour is setting out what they need to establish:

The first applicants accept that it is necessary to show that they are members of the Larrakia Native Title Claim group who are descendants of the society which, at sovereignty, enjoyed rights and interests under their traditional laws and customs giving them then a connection with the land and waters of the claim area.

As my learned friend, Mr Gageler, has informed the Court, his Honour was satisfied on that point.  But he said –

They also accept that it is necessary to show that they now have, and observe, a body of traditional laws and customs which have their origin in the society which existed at sovereignty –

Now, that is almost the same ‑ ‑ ‑

KIRBY J:   Well, yes, but in the facts of this case they did not have to go back to 1815 or 1810.

MR HUGHSTON:   Yes.

KIRBY J:   It was enough that they go back to 1910, which is not all that – that is in the life of people who are still alive.

MR HUGHSTON:   Yes.

KIRBY J:   So that it is not such a big ask.

MR HUGHSTON:   That is the interruption point, your Honour, but we are looking here at whether his Honour misapplied the principles in terms of the extent to which the laws and customs must be identical with the laws and customs at sovereignty.  In setting out the requirement there in those terms, his Honour is setting out the requirement in almost identical terms to the way the applicants have expressed what they say is the central error.  In the applicant’s reply in paragraph 4 at application book page 412 point 10, the applicants say that:

The central error is that neither the primary Judge nor the Full Court asked whether the laws and customs presently acknowledged and observed by Larrakia have their origins, or are rooted in, the structures and practices of Larrakia society and its members in place at the time of sovereignty -

Well, they are almost exactly the same words that his Honour is using there, and yet they say, that is the central error, that his Honour failed to ask that particular question.  Well, clearly, his Honour did ask that question.

HAYNE J:   I think the quotation is from paragraph 89 of Yorta Yorta.

MR HUGHSTON:   If your Honour pleases.  Your Honour, while we are on that page in this section of the judgment if I could take your Honours down to the bottom of the page at page 245.  His Honours says:

It is necessary that the Larrakia people show that they still possess rights and interests under the traditional laws acknowledged, and the traditional customs observed by them, and that those laws and customs give them a connection with the land and waters of the claim area.

His Honour then quotes from again paragraphs 46 and 47, and I have taken your Honours to that earlier quotation from 46 and 47, and again in 46 the quotation is that:

the origins of the content of the law or custom concerned are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown.

Now, Mr Gageler would have you believe that his Honour has put that particular passage there for no particular purpose whatsoever.

KIRBY J:   Well, you love this first point, and I think you have done it to death.

MR HUGHSTON:   If your Honour pleases.

KIRBY J:   What about going over the second point?

MR HUGHSTON:   If your Honour pleases.

KIRBY J:   That is where you look a bit wobbly to me.

MR HUGHSTON:   Well, not particularly, your Honour, with respect.

KIRBY J:   But can I ask you this?  Looking at it from the perspective of this Court ‑ ‑ ‑

MR HUGHSTON:   Yes.

KIRBY J:   ‑ ‑ ‑ Yorta Yorta laid down the general principle ‑ ‑ ‑

MR HUGHSTON:   Yes.

KIRBY J:   ‑ ‑ ‑ but is it not true that that principle having been laid down, the development of cases, actual applications for land or native title in Australia is now going to be very greatly affected by how the Yorta Yorta principle – severance, disconnection, end of traditional - is dealt with, and if that is so then we have here a case where it is said his Honour did not adequately address the issues of severance and break with the past.  We have an established community who are not disputed to be the Larrakia people who were in the Darwin area at the time of sovereignty and at the time of Federation and at the time of acquisition of the Territory, and we are told that there are about 1,200 of them and that this is important land in the centre of Darwin.

Now, if you look at it from the perspective of this Court, looking at how these cases are being dealt with in the Federal Court, where they should be dealt with, and where this Court has said they should be dealt with, is this issue not the critical issue now the application of the Yorta Yorta principle to native title claims?

MR HUGHSTON:   Your Honour, it is a critical issue but it is a critical issue of fact.  If I could take your Honour to paragraph 82 of the joint judgment in Yorta Yorta?  Your Honour, in our respectful submission, it is not possible to lay down tests saying, well, the interruption must be longer than 40 years or longer than 50 years and ‑ ‑ ‑

KIRBY J:   Of course not.  But if you have a substantial body in factual circumstance, of evidence in factual circumstance, where the period in time is relatively short, we are talking of 1910 at the earliest and 1950s or 1960s at the latest, the life of people who were living and who would have grandparents and parents, then it really is not a big ask for Australian law to say, well ‑ ‑ ‑

MR HUGHSTON:   We are probably dealing with a period of 60‑odd years, your Honour, from 1910 where his Honour said ‑ ‑ ‑

KIRBY J:   It just seems a little unreal to say the Larrakia people who are ‑ ‑ ‑

MR HUGHSTON:   ‑ ‑ ‑ it is certainly on the wane, to the 1970s where his Honour says, there is now a revival.  If your Honours read his Honour’s judgment carefully your Honours will see that during the 1970s when this revival started that there were only a handful of people identifying as Larrakia.

KIRBY J:   That is why I asked that question about the land claims, and I was rather wondering, was his Honour suggesting that all of this was dying out, but lo and behold, along came the land claims and opportunistically people who are not really Larrakia have come to the party because they want to get their fingers in the honey pot.

CRENNAN J:   His Honour certainly never made any observations of that sort.

MR HUGHSTON:   Well, he certainly does make the ‑ ‑ ‑

CRENNAN J:   He recognised that they were a vital community, and he ‑ ‑ ‑

MR HUGHSTON:   Yes, today, your Honour.

CRENNAN J:   ‑ ‑ ‑ never ever suggested there was any opportunism about the laying of the claim.

KIRBY J:   I wonder why he referred to the land claim issue.

MR HUGHSTON:   Could I take your Honours to the summary at paragraph 839?  Now, bear in mind earlier in the judgment his Honour said that during the 1970s, this period when the land claims were first starting to be made, there was only a handful of people identifying as Larrakia, and now there is 1,300.  At paragraph 839, application book page 256 where his Honour is summarising his findings, his Honour says:

To summarise, in my judgment, the Larrakia people were a community of Aboriginal people living in the claim area at the time of sovereignty.  The settlement of Darwin –

et cetera, et cetera, down to about point 7 ‑ ‑ ‑

KIRBY J:   There is no doubt that the people – the claimants are ethnically and ‑ ‑ ‑

MR HUGHSTON:   They can trace descent to Larrakia people, yes.

KIRBY J:   ‑ ‑ ‑ if you look at their DNA, their DNA is Larrakia.

MR HUGHSTON:   That is right, your Honour, but can I read, it:

led to the reduction of the Larrakia population, the dispersal of Larrakia people from the claim area, and to a breakdown in Larrakia people’s observance and acknowledgement of traditional laws and customs.  In the 1970s the land claims drew interest to the Larrakia culture and there has since been a revival of the Larrakia community and culture.  A large number of people who now identify as Larrakia only became aware of their ancestry during these land claims, and acquired much ‘knowledge’ at this time.

So, your Honour, we have had an exponential ‑ ‑ ‑

KIRBY J:   That is a beneficial aspect of the recognition, belated recognition, of native title in Australia.

MR HUGHSTON:   It certainly is, your Honour.

KIRBY J:   It is a beneficial one, and the question is whether the criticism can be fairly made, and it has been made, that the Aboriginal people had their hopes raised by the Mabo decision and that it has been snuffed out, and substantially it is said by decisions of this Court.

MR HUGHSTON:   Well, again, your Honours, I was going to take you to paragraph 82 of Yorta Yorta, if I could do that very briefly? It is at page 455 in the joint judgment of their Honours, the Chief Justice and Justices Gummow and Hayne. Their Honours say:

It is, however, important to notice that demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement.

I pause to say, when their Honours are referring to the need to demonstrate the content of the pre-sovereignty laws and customs, it is because one must demonstrate the continuity between those laws and customs and those which are acknowledged today.  One does not just look at the present.

KIRBY J:   What ever happened to the inference of continuity, the inference?  I mean, that is a well-established inference in the common law ‑ ‑ ‑

MR HUGHSTON:   Yes, your Honour.

KIRBY J:   ‑ ‑ ‑ that if things are done at a certain time you will infer that they were done in the past.

MR HUGHSTON:   If your Honour pleases, if I could just read on?  Their Honours say:

In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted.  It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant.  Indeed, so far as the second of those issues is concerned, it would be wrong to attempt to reformulate the statutory language when it is the words of the definition to which effect must be given.

Now, again, in our respectful submission, the principles have been set out fully in Yorta Yorta.  The Court has recognised that the application of those principles in any case will involve difficult questions of fact and degree but the Court can offer no bright line test on the application of those principles.

KIRBY J:   What is there in the statutory word except the word “traditional” in 223(1)?

MR HUGHSTON:   Only “traditional”, that is right, your Honour.

KIRBY J:   That is all it is, it all hangs on the word “traditional”.

MR HUGHSTON:   It does, your Honour, but in Yorta Yorta it was decided that the word “traditional” had three functions.  One, it indicated that the laws and customs had been transmitted from generation to generation.  Secondly, and importantly, and this is going back to 46 and 47, it was an indication of the age of the traditions.  The laws and customs with which the definition dealt were the laws and customs which existed at sovereignty.  The third requirement of “traditional”, to show that they were possessed under traditional laws and customs, this Court said that that meant that you must show that there has been a continuous acknowledgement and observance of that body of laws and customs from sovereignty to the present, albeit ‑ ‑ ‑

KIRBY J:   I am not familiar with all the evidence, but is it not accepted that there was a thin stream of still – of elders, I thought I read, of the Larrakia people?  There may not have been many of them and their numbers were increased as a consequence of the native title law, but ‑ ‑ ‑

MR HUGHSTON:   Well, your Honour, if your Honours ‑ ‑ ‑

KIRBY J:   Was there not, as it were, a golden thread that linked them back amongst the elders to their traditional and undisputed traditional Larrakia community?

MR HUGHSTON:   Your Honour, if I could take your Honour to page 311 of the appeal book, there the Full Court extract the findings which his Honour made in relation to the Larrakia oral evidence.  I know their Honours set out some findings about elders here.

KIRBY J:   But where do they deal with that?  I thought I read that there were ‑ ‑ ‑

CRENNAN J:   Well, the trial judge dealt with the elders in paragraph 831, 253 of the application book.

MR HUGHSTON:   Yes.

KIRBY J:   You see, this was the problem in Yorta Yorta, was it not?  There had been a distinct severance in the 19th century ‑ ‑ ‑

MR HUGHSTON:   Yes.

KIRBY J:   ‑ ‑ ‑ whereas in this community there may not have been many of them but there was still a core of the elders who were keeping the Larrakia traditions alive.

MR HUGHSTON:   Well, they were not keeping Larrakia traditions alive, and that is what his Honour’s findings are all about, that there was a substantial interruption.  One of his Honour’s findings was that there had not been the transmission of the laws and customs from generation to generation, and I can find that for your Honours if your Honours – at paragraph 831, page 253 of the application book.  I might start firstly at paragraph 823, page 251 ‑ ‑ ‑

HAYNE J:   Well, we have read it all, Mr Hughston.  You have had your 20 minutes, how long do you really want?

MR HUGHSTON:   Your Honour, just one or two more minutes.  If I could say that ‑ ‑ ‑

KIRBY J:   Well, I think we had better be even-handed with you, although I notice there ‑ ‑ ‑

HAYNE J:   There is a raft of respondents who presumably are all going to assert 20 minutes.  Have you reached an arrangement, Mr Hughston, with the other respondents?

MR HUGHSTON:   No, I have not.  Well, yes ‑ ‑ ‑

MR HILEY:   …..15 minutes of my time, your Honour.

KIRBY J:   Well, you have been given a little trade-off.

MR HUGHSTON:   A little lifeline, thank you.  Your Honour, I will be brief.

KIRBY J:   We will hold you to that, Mr Hiley.

MR HUGHSTON:   Can I say in relation to the complaint that the evidence was not properly considered.  We have referred to in our written argument the fact that the Federal Court was satisfied that his Honour had in fact considered all of the evidence ‑ ‑ ‑

KIRBY J:   Well, we know all that, we know all that.

MR HUGHSTON:   ‑ ‑ ‑ and they also considered that that evidence did not bear upon the issue of interruption, that the evidence was basically about childhood memories, but none of those older witnesses gave evidence about the continuation into their adulthood of the practices and customs which they observed as children.  Now, that is an important finding.

KIRBY J:   Yes, all right.

MR HUGHSTON:   Your Honours, in relation to this complaint that his Honour did not properly consider the evidence or did not make findings, the Full Court has found that his Honour did consider the evidence.  The applicants concede that the evidence would support the finding of substantial interruption.  The only relief they seek is that the matter be remitted to the judge for reassessment on the existing evidence.  All that would occur in that circumstance is that his Honour with the evidence to justify his conclusion would come to the same conclusion but he would cross the t’s and dot the i’s to give the additional factual findings that the applicants have sought.

KIRBY J:   Well, that is not an assumption one should make about judges.  If judges are told by an appellate court that they have not taken into account a particular evidence – I mean, I have myself sat in appeals where that has happened to me, and I have considered evidence and changed my mind.

MR HUGHSTON:   Your Honour, the argument of the applicants is not that he did not consider the evidence.  The Full Court has found that he did, and there is no challenge to that, he fully considered it.  Their argument is what the Full Court described as a process type complaint in that he did not make specific findings about that period of interruption sufficient to disclose his reasoning process, so there is no complaint that he did not consider.  If your Honours please, the red light has gone.

KIRBY J:   Yes, there might be a view that for the Aboriginal people process is important.

MR HUGHSTON:   If your Honour pleases.  May it please the Court.

KIRBY J:   Yes, Mr Hiley.  Now, you have lost about a quarter of an hour of your time.

MR HILEY:   I did not think he spoke for that long.

KIRBY J:   Well, we will say 10 minutes.

MR HILEY:   Thank you, sir.  If the Court pleases.  Really just two further points to add.  One is ‑ ‑ ‑

HAYNE J:   Are they different or are they repetitions, Mr Hiley?

MR HILEY:   I will try not to be repetitious, your Honour.

HAYNE J:   You will not be repetitious, please.

MR HILEY:   Yes.  One, your Honour, in response to your Honour Justice Kirby’s points regarding the recency or otherwise of the interruption, and your Honour, of course, is aware that Yorta Yorta was late 19th century, we are now talking about a period in the 20th century.  The facts in that case, however, did turn around a certain period of time, during the mission period, it was only a period of 10 or 15 or 20 years, so in a sense it was an interruption that occurred during a short period of time, and that, of course, had ‑ ‑ ‑

KIRBY J:   It was in the 19th century.

MR HILEY:   It was in the late 19th century.

KIRBY J:   Whereas this is - they are talking about something between 1910 and 1950, as I understand it.

MR HILEY:   Yes, yes, so late 19th century.  What I mean is, I think it was 1890-ish through to ‑ ‑ ‑

KIRBY J:   Well, even in 2002 there were not many people alive who had lived in the 19th century.

MR HILEY:   No, but it is only really a 20 or 30 year difference in that sense, but the key point we would make is that there was the interruption, and once the interruption, be it interruption for 10, 20 years or 50 years, once interrupted it could not be revived.

KIRBY J:   Yes.

MR HILEY:   The second point I wanted to make in relation to your Honour’s comments was that one could say because there are, or were at the time of trial, people still alive that may have memories going back that far, all the more reason one would think to attach greater weight to his Honour’s conclusions because he had the benefit of hearing a lot of these people.  As you can see from Mr Gageler’s timeline, a lot of them gave evidence, and there was also a lot of other contemporary material – or sorry I should say there was evidence given during the Kenbi land claim some 10 years back by other people in the blue part of Mr Gageler’s timeline who had since passed away.

So, the trial judge did have the benefit of evidence of people that were alive during those periods of interruption, as found by him, as distinct from the Yorta Yorta situation where all the trial judge could rely upon really was documentary and historical material.  So, our submission there is that all the more reason to pay the added deference to his Honour’s conclusions.

KIRBY J:   But can I ask you from your experience, because we have not seen a land claim recently, this is actually the cutting edge, this is the pointy end of the issue of land native title now, is it not?

MR HILEY:   Yes.

KIRBY J:   The application of the Yorta Yorta principles in particular factual circumstances.

MR HILEY:   Yes.

KIRBY J:   This would be the most important problem that the Federal Court is grappling with in native title claims, is it not?

MR HILEY:   Yes, quite so.

KIRBY J:   So that makes this decision quite an important decision, especially if it is not disturbed by this Court on an application, for the way the Federal Court will look at these cases as they are now coming in greater numbers to the Federal Court.

MR HILEY:   Yes, your Honour, but ‑ ‑ ‑

KIRBY J:   Does that not make it important for this Court to make sure in this significant claim of a community in the Darwin area, of an uncontested Aboriginal community, that the Federal Court is going about it in the right way?

MR HILEY:   Your Honour, no, with respect, because the Full Federal Court is already in the process of entertaining other appeals, but in broad terms on a similar point, that is, we call it the connection point, I suppose.  I think there are three decisions pending in the Full Federal Court, and I think – I stand to be corrected – all of them deal largely with the Yorta Yorta, the identification of society, substantial interruption, what is needed to prove that important connection element.

So this, with respect, is no different or no more meritorious than any of those other decisions.  Until such time as the Full Court has had the opportunity to deal with those we would submit that it is not appropriate for the High Court to then have to get really down into what appears to be more factual circumstances and to attempt to further draw this bright line or whatever it is that the Court says cannot be drawn.

KIRBY J:   We have it from Mr Hughston that the issue here is one which this Court should not get into because it is just the application of Yorta Yorta ‑ ‑ ‑

MR HILEY:   Yes.

KIRBY J:   ‑ ‑ ‑ but we have it from Mr Gageler on the second point that there is a gap in the judge’s reasoning, and Mr Hughston says that is just process, but process is very important in cases of this kind, is it not?  Doing things in the right way you are more likely to come to the right conclusion.

MR HILEY:   Quite so, with respect.  However, the Full Court has dealt at length with these questions, whether they be called process questions, or whether it is the primary appeal point that is sought to be run.  It has dealt at length with the factual point, including at paragraph 72.  The Full Court went through all the evidence about interruption.  I think it started at paragraph 27, it spent about 40 or 50 paragraphs going right back into the evidence, doing its own analysis of the evidence.  It reached its own conclusion which happened to be supported the same as the trial judge’s conclusion.  On the other ‑ ‑ ‑

KIRBY J:   Yes, well, I understand that.  If I were to say to you now that your time is up, would that lead to a complaint about process?

MR HILEY:   No, your Honour, because I am almost finished.

KIRBY J:   Yes, all right.  Well, we will see what - I think Mr Pettit is the next respondent.

MR HILEY:   If your Honour pleases.

KIRBY J:   I do not think you should assume you will have a full 20 minutes because otherwise it is very unfair to the applicants that the respondents get three times the time that they had.  There is a limit to inequality in this country.

MR PETTIT:   Your Honours, can I first address what was referred to by your Honour as the alleged gap in the reasoning of the trial judge?

HAYNE J:   Can you, before doing that, explain to me what the interest of the Commonwealth is that is separate from and different from that which has already been articulated by other respondents?

MR PETTIT:   Does your Honour mean that question to explain the intervention in the first place or our appearance today?

HAYNE J:   I understand you were an intervener below.  This is an application for leave, why is the Commonwealth appearing to make substantive submissions in opposition to the grant?

MR PETTIT:   There is no separate interest, your Honours, but the points that the Commonwealth Attorney wishes to advance are distinct from those which have been advanced already.  Your Honours, as to the gap point that ‑ ‑ ‑

KIRBY J:   Do you assert that you appear as of right on this application?

MR PETTIT:   Yes, your Honour.

KIRBY J:   I have seen some suggestion that – well, I will not go there.  A lot of money is paid for interventions of this kind.

MR PETTIT:   Not in this case, your Honour.

KIRBY J:   It comes out of a particular fund, as I understand it.  Anyway, proceed, but briefly.

MR PETTIT:   Yes, I will, your Honour.  Before the Full Court, as your Honours have already heard, the complaint was a process type complaint, and about that it was complained by the applicants today that there was a failure of the judge to consider and evaluate.  With respect, the Full Court’s reasons amply demonstrate that that evidence, the oral evidence, was considered.  So before your Honours the complaint is that it was not evaluated.

The submission I wish to make on behalf of the Commonwealth is this, that there plainly was an evaluation and it plainly starts at paragraph 820 and proceeds through for about 20 paragraphs, as your Honours have noted.  The crucial point though, your Honours, is this, that the evaluation of that oral evidence was not on the grounds pressed by my learned friend for the applicant.  It was entirely on the grounds of the interruption point.  His Honour’s reasoning ‑ ‑ ‑

KIRBY J:   I thought Mr Hughston made that point.

MR PETTIT:   Well, not quite, your Honour.  If I could just have a little leniency on this point?  His Honour’s reasoning went like this.  The documentary evidence, which included eyewitness accounts in the period of the interruption, was direct evidence, there is no inference about it at all, and that showed an interruption.  The oral evidence was relevant in his Honour’s judgment for the inference in a sense backwards from this, because the oral evidence of today and the previous 20, 30 years was inconsistent, lacked cogency, and there were gaps in it, those three things.  Because that is the case now and for the past couple of decades, from that one draws the inference that there was indeed the interruption, and there has been a subsequent effort to revive it.

Now, in other words, to put it more crisply, there was an inference but the inference was not as my learned friend has said of interruption from change, the inference was interruption from lack of cogency.  Now, that is very important, your Honours, because ‑ ‑ ‑

KIRBY J:   What is your answer to the suggestion that I thought I read in the papers that there was a thread, it was not numerous, but there was a thread that there is no dispute that there was a Larrakia people at sovereignty, at Federation, at Territory establishment, and that all of this was established, and that there were elders through the 20th century?  Now, if that is established why is that not enough?

MR PETTIT:   Because, your Honour, Yorta Yorta is perfectly clear on that point, and with great respect, the logic of Yorta Yorta in it is unanswerable.  It runs like this, that what one has to show is not the continuation of laws and customs per se.  What one has to show is the continuation of rights.  Laws and customs are relevant only to the extent that they support the rights through the generations.  Once you are looking at the rights, it is the continuation of the rights ‑ ‑ ‑

KIRBY J:   Yes, but if we seek to prove easements, leave aside register - the Torrens system, then they are quite often established by imperfect evidence of occasional usage over long periods, and it is not perfect evidence, you do not establish it in a perfect way, but you establish it sufficiently to establish the continuity.

MR PETTIT:   Your Honour, of course there is an inference available, but it is a rebuttable inference in all cases, in the case of an easement, as is in the case of native title.  One shows that presently the laws and customs are sufficient to produce rights then there might be an inference, but in this case it is a rebuttable inference and it was rebutted.  The comparison, with respect ‑ ‑ ‑

KIRBY J:   It sounds to me as though the Commonwealth has a theory about this that is very similar, as I said, to Jana Pittman.  You have to jump over lots of hurdles.  It was not I think what the Court meant in Mabo, and I do not think, at least arguably, it is what the Native Title Act says.

MR PETTIT:   Your Honour, it is what Yorta Yorta says, with respect, though.  The last thing I want to say, your Honours, is this, that particularly in the reply of the applicants the case for the applicants for special leave has now changed, with respect to my learned friend, to become one focused on the concept of present day laws and customs having their origin in traditional laws and customs.  Can I preface these remarks by saying that what one has to show, what the applicants had to show and failed to show, is that whatever was going on in the interruption period was sustainable as traditional law.

Now, my learned friend before this Court, particularly in the reply, says that all one has to show is that it had its origins.  Now, about that - is that laws and customs had their origins.  There are a number of things to be said about that, but the most important of them are these.  First of all, your Honours, this was not the way the matter was distinctly put before the Full Court.  There is no discussion by the Full Court about that point.  It was all to do with the issue of interruption and whether or not there was a period in which these laws and customs were not observed to any extent.

When the Full Court mentions the – I think it is 820 - the prospect that there was some correspondence between present day laws and customs, that was simply in the context of saying, but there are inconsistencies, but there is this, all which shows that ‑ ‑ ‑

KIRBY J:   I think you are receiving a little help from the other respondents.

MR PETTIT:   There is a limit to how much I can comprehend at this stage.  That is the first thing to say about the line taken by the applicants, your Honours.  The second thing to say is that because that was not the way it was argued before – in fact, I might add, your Honours, that the

Commonwealth perceiving at that stage that the case might go off on that tangent, it made submissions about this, but it was ruled not to arise on the way the argument was presented.

KIRBY J:   Well, we have read your written submissions to that effect.  We understand that.

MR PETTIT:   So the reason this is not a good case ‑ ‑ ‑

KIRBY J:   Mr Gageler relies on the fact that you intervened to say that the Federal Court was getting it wrong, but you say that your intervention put the Federal Court on the right path and they got it right in this case.  We understand all that, we have read all that material.

MR PETTIT:   Your Honours, we never said that this Court had got it wrong.

KIRBY J:   No, we know that, we have read that written submission.

MR PETTIT:   Yes.

KIRBY J:   Anything new, otherwise forever hold your peace?

MR PETTIT:   Yes, well, the last point, your Honours, is simply that this is not a suitable vehicle.  There is no assistance to this Court on the point of principle now alleged to be in the case, that is, is it sufficient merely for laws and customs to have their origin in the past, or is there something more?  That point - your Honours will not find assistance in the trial judge on that point and will not find assistance in the Full Court on that point, simply because it was not raised in that context.

KIRBY J:   Very well, thank you very much, Mr Pettit.  Now, back to you, Mr Gageler.

MR GAGELER:   Three or four points, three or four minutes, your Honours.  Point number one, where is the golden thread?  Bearing in mind that part of our complaint is about the inadequacy of factual analysis, there is a hint of the golden thread at pages 249 through to pages 250 - 249 line 5:

the social structure of the Larrakia people seems to have been preserved to some degree -

He seems to be talking about the period up to the 1970s.  Third‑last line:

During this period –

which appears to be around World War II, probably afterwards –

there is evidence of the continued identity of persons as Larrakia, and that the group had an elder structure -

Then across the page, which is the beginning of the land rights movement, second line, the land claim that he refers to is about 1971:

indicates that by the1970s there was a small group of full‑descent people identified as Larrakia pursuing such a claim.

So there is the golden thread.  Second point ‑ ‑ ‑

HAYNE J:   A thread of what?

MR GAGELER:   A thread of continuity of tradition in ‑ ‑ ‑

HAYNE J:   Of acknowledgment and observance of the laws and customs?

MR GAGELER:   Well, your Honour, our complaint is that there was not sufficient analysis of that question during the relevant period, but if one is looking for a kernel, a thread of persons who may have been the custodians of that law and custom, they were there, there were not a lot of them, but they were there.

HAYNE J:   But do you accept that the critical question that had to be addressed was whether acknowledgment and observance of the laws and customs had continued substantially uninterrupted?

MR GAGELER:   I address that that was the critical question.  That, however, is not to accept the proposition that is put against me – this is my second point – that this was a case all about interruption and not about the identity of the laws and customs.  That is not what the trial judge said.  He said at page 255, line 28:

My focus has been upon whether the current Larrakia society has the traditional laws and customs of the society which existed at sovereignty.

The Full Court said pretty much the same thing at page 331 to 332 where they quote at the bottom of the page, “In Yorta Yorta at [56]”. This is quite important what they go on to say:

In order to carry out this inquiry it will be necessary, insofar as the evidence allows it, to examine the course of the claimant group’s observance of traditional customs and –

et cetera.  But why - look at the end of the sentence:

in order to determine if they are the same laws and customs at both times.

They spell that out more, next page, line 10.  They are looking for an identity of laws and they are using the existence or non‑existence of some break in their observance as a key to whether there is the identity of the laws.

Second‑last point, and it is very cheap, I have to make it.  The Commonwealth now appears before this Court to say that this case is not important and the principles in Yorta Yorta are clear.  It appeared before the Full Court to say precisely the opposite, and your Honours have seen that.  I will end on that ‑ ‑ ‑

KIRBY J:   Yes, but in their written submissions they say that they were concerned that the Federal Court was not approaching the matter in the right way.  They appeared and the Federal Court did approach this one in the right way.  That is what they say.

MR GAGELER:   Well, what they are pointing to, if your Honours turn to page 307 of the application book, you will see the way in which they presented before the Full Court ‑ ‑ ‑

KIRBY J:   Anyway, this is a rather barren argument, is it not, really?

MR GAGELER:   Well, no, because it probably leads to something.  I was not going to say but I really should say, there are a number of cases about urban Aboriginals where the principles in Yorta Yorta need to be examined and expounded. That is what the Commonwealth was saying to the Full Court, as recorded at page 307.

KIRBY J:   That was the reason for the Commonwealth’s intervention?

MR GAGELER:   Effectively.  They referred to a couple of cases in particular, Rubibi, which is concerned with Broome, and Bennell, which is concerned with Perth.  This is the first one to make its way up the hierarchy.  The others are in the pipeline.  This is a suitable vehicle and it is a very important question, witness what the Commonwealth was saying to the Full Court.  If the Court pleases.

KIRBY J:   So the proof of the pudding is in the eating.  The Commonwealth intervened because it was important and now ‑ ‑ ‑

MR GAGELER:   It is an interesting tactical decision to come along to a special leave application to stress how unimportant the case is, if you are on the respondent’s side.

KIRBY J:   Yes, all right.  Forensic point made.  Well, we will adjourn briefly to consider this application.

AT 10.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.51 AM:

KIRBY J:   In this matter I would grant special leave.  However, it is the view of the majority that special leave should be refused, and the reasons of the Court will be given by Justice Hayne.

HAYNE J:   The applicants do not seek to dispute any of the principles stated in Yorta Yortav Victoria (2002) 214 CLR 422. They seek to argue that the trial judge erred in certain findings: first, about the content of what are alleged to be traditional laws and customs; and second, about whether there had been demonstrated:

continuity in acknowledgment and observance of the normative rules in which the claimed rights and interests are said to find their foundations before sovereignty -.

Yorta Yorta (2002) 214 CLR 422 at 456 [88]. It is to be noticed that the reference in Yorta Yorta is to acknowledgment and observance of the relevant rules, not simply maintenance of knowledge about the content of those rules.

We are not persuaded that it is arguable that the trial judge applied wrong principles.  The applicant’s contentions about errors in fact finding at first instance were examined comprehensively in the Full Court.  An appeal would enjoy insufficient prospects to warrant a grant of special leave.  We would refuse special leave to appeal.

KIRBY J:   Mr Pettit, we assume the Commonwealth does not seek a separate order for costs in its favour, is that the correct assumption, but that the Northern Territory of Australia and the Darwin City Council seek their costs.  Is that correct, or not?

MR PETTIT:   Yes, your Honour.

KIRBY J:   The order of the Court is that the application is dismissed.  The applicants must pay the costs of the first and second respondents.

AT 10.53 AM THE MATTER WAS CONCLUDED