Stuart & Ors v State of South Australia & Ors

[2024] HCATrans 78

[2024] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A1 of 2024

B e t w e e n -

AARON STUART

First Appellant

JOANNE WARREN

Second Appellant

GREG WARREN (SNR)

Third Appellant

PETER WATTS

Fourth Appellant

and

STATE OF SOUTH AUSTRALIA

First Respondent

DEAN AH CHEE

Second Respondent

AUDREY STEWART

Third Respondent

HUEY TJAMI

Fourth Respondent

CHRISTINE LENNON

Fifth Respondent

AIRSERVICES AUSTRALIA

Sixth Respondent

DOUGLAS GORDON LILLECRAPP

Seventh Respondent

TELSTRA CORPORATION LIMITED ABN 33 051 775 556

Eighth Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 NOVEMBER 2024, AT 9.59 AM

(Continued from 6/11/24)

Copyright in the High Court of Australia

GAGELER CJ:   Mr Golding.

MR GOLDING:   Thank you, your Honours.  Can I pick up from not quite where we finished yesterday but before we finished, and the question that was asked by your Honour – and regrettably had to be asked of me more than once because I fumbled very much the answer – in part, it was because I was confused.  I would like to clarify that as a starting point.

The first problem is that I made an error with respect to paragraph 364, which starts at the bottom of page 400 of the case book and then goes over onto 401, where there were there set out five matters referred to by Justice O’Bryan.  I erroneously described what is wrongly labelled as (a) and it should be (e) as being the same as (e) in paragraph 338.  I was wrong about that because it is the same as paragraph (f) in 338.

When your Honour’s question came back to me and you referred to paragraph 338, you of course referred to (e) because that is what I had told you but in fact it was about (f), because it is (f) that is the same as (e) in paragraph 364.  Can I answer your Honour’s question this way – and I would rather put paragraph 338 to one side and just focus on the text as it appears in (e), wrongly labelled (a), in 364.  As I apprehend your Honour’s question, when we say that the matter that was in dispute is where does that fit into the definition in 223, that is clearly – that is (e) there wrongly labelled (a) – in fact, an inquiry as to 223(1)(b), not as to 223(1)(a). 

To further then go back and look at the other items in that list, in our submission, (a), (b) and (c) are all clearly, on their face, matters associated with 223(1)(a) exclusively.  That is not to say it is not a cumulative process, and that you would need them in order to then get down to the next step in (b), but if I can draw attention (d), in my submission, (d) is an example of an amalgam or conflation of (a) and (b), and that is for the following reasons.  Because it is talking about the claimed rights and interests, we know that the claimed rights and interests are the same as in Dodd.  And if we then jump over to: 

in the Overlap Area are possessed by the Arabana –

That is clearly a reference to (a).  But the reference to “in the Overlap Area” must bring in an aspect, in my submission, of (b) in the sense that it is those rights and interests that are possessed, but then in the overlap area, because “in the Overlap Area” arises under (b) because (b) is about the connection to the land and waters by those laws and customs.

BEECH-JONES J:   Mr Golding, if the words “relation to” were added between “in” and “the” in (d), it would make clear or confirm that that paragraph is directed to (a), would it not?

MR GOLDING:   I am sorry, your Honour is suggesting insertion of the words “in relation to” after the word “interests” in that first line?

BEECH-JONES J:   Yes.  If that read “whether the claimed rights and interests” in relation to “the Overlap Area possessed by the Arabana”, et cetera, that would make it clear we are talking about (a), would it not?

MR GOLDING:   Yes, in my submission, in that what we are talking about there is just the rights and interests that are possessed.  But the problem with the way it is phrased is that it is drawing attention specifically to being about “in the Overlap Area”, which can only be understood through the lens of (b).

BEECH-JONES J:   But does (a) not have to be in relation to land and waters – the opening?

MR GOLDING:   Well, it does have to be in relation to land and waters, but this is the difficulty perhaps here.  We have land – we do not have any water, certainly, here, but we certainly have land with respect to the area that is the CD, not just in relation to the overlap area, because the point is it is the same rights and interests that are referred to in both.  So, (a), in my submission, is – I am looking at 223 now – a reference to:

rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the –

people.  That is in relation to, if I can put it this way, land or waters at large – consistent with the chapeau, land and waters, but it is when you get to (b) that it becomes indispensably specific to the actual land and waters that are the subject of the claim.

So, it must be that in (a), yes, it is in relation to land and waters, as described in the chapeau, because if it is not a right or interest in relation to land or waters simpliciter or at large, then it is not a native title right or interest.  But then the next step is, having established that, there has to be a connection to the land and waters in (b) that are the subject of the claim.  I hope that better answers both your Honour’s question as well as perhaps better articulating the State’s case.

EDELMAN J:   So, your proposition now is that in (b):

the land and waters

refers to “the land and waters” that are the subject of the claim not “the land and waters” that are the subject of paragraph (a) and the chapeau.

MR GOLDING:   No, paragraph (a) can include that because it is just at large.  The at‑large reference to “land and waters” – there is no particular reason why that has to exclude what is happening in the overlap area.  The point is that it is not a necessary requirement of (a), but it becomes a necessary requirement in (b) – it tightens.

Can I perhaps just finish off that by saying when I was fumbling that question yesterday, of course, your Honour Justice Edelman asked me about the question of the use of the present tense.  That is, of course, also specifically what is at issue here, because in terms of when we are looking at paragraph (e) in 364:

whether the Arabana have a connection –

it was accepted by the trial judge, it was accepted by the State, that the Arabana did have that connection as required by (b) historically but that it was no longer the case today, and the maintenance through to today is where the Arabana case falls down.

Can I now move back to my oral skeleton, specifically before – yesterday I was about to go on to topic 3 but I just need to finish off something on topic 2.  It really relates to what I have just said in terms of the answer to the Chief Justice’s question.  That is, in relation to (a) through to (d) in paragraph 364 of Justice O’Bryan’s judgment, there was no need for the trial judge to go through the process that might ordinarily be the case where you are starting from nothing, where you do not have a neighbouring determination – in the case of Dodd, that the matters that are referred to in terms of paragraph (a) of 223 were established in Dodd, and it was not disputed that they could be use for the purposes of this claim.

So, in relation to the decision in Dodd, which is in volume 6 of the books and commences at page 1842, what I want to draw your Honours’ attention to is, starting at paragraph 40, and then at 46 to 49, what your Honours will see there is that this is, by Justice Finn, the identification and the description of the Arabana law as applied in the CD and was accepted.  Then, moving over to paragraphs 53 through to 57, what your Honours will see is if, for example, you look at 54, he accepted that there continued to be:

detailed knowledge of the claim area, its water sources, flora and fauna, and cultural geography.

If you go to 56, that:

people still meet regularly on country for important communal events –

including funerals, et cetera.  At 57, there is still a:

transmission of knowledge from Arabana people in the oldest known generation –

down to younger people – which concludes at 58 with respect to the protection of sites occurring within the claim area.

GORDON J:   I asked Mr Lloyd this.  You accept, do you, that paragraphs 35 to 41, and not just 40, deal with what was agreed at the outset about the relevant features, and what the evidence supports in terms of kinship in 38, consequences of kinship, et cetera, and then 42, as you have identified, through to 50 deal with the connection question, and then 51 to 58 deal with the relationship between the customs and the land.

MR GOLDING:   Yes.  So, the reasons for my taking you to those – as your Honour rightly observes, Mr Lloyd had effectively taken us as far as up to 40, but your Honours need to consider what follows thereafter, as your Honour Justice Gordon has stated.

So, that being the case, that that is what was identified by Justice Finn, we then look to the trial judge, and what we see is that at 845 and 846 – sorry, they are paragraph numbers – I just need to go back a step.  It is actually starting at 844 where he says:

Earlier in these reasons, I set out the traditional laws and customs of the Arabana by which rights and interests . . . are possessed and it is unnecessary to repeat them.

In my submission, that is a reference to paragraph 101 in the reasons, which is at page 48, where your Honours will see two things occur.  One, there is a picking‑up under that heading beginning at 101 of Dodd and what Finn said, but there is also – and I will be coming back to this – a reference there to the report of Dr Fergie and Dr Lucas.

Now, just to remind your Honours why this is important, in the original determination – the Dodd determination – Drs Fergie and Lucas wrote a joint anthropological report which was accepted.  Once we got to the trial in the Oodnadatta matter, Dr Lucas had written a supplementary report that followed on from that original report, but, consistent with the notion that what had happened in Dodd had been accepted, that earlier report of Dr Fergie and Dr Lucas was admitted into evidence.  And you can see his Honour having regard to it there.

So, far from an assertion that his Honour did not engage with that underlying material, he did, in fact, engage with the underlying material, and that is one of the examples – and I will come back to another later – of where he was referring to the earlier report of Dr Fergie and Dr Lucas.

GAGELER CJ:   Mr Golding, as I perceive it, we are up to paragraph 2.1 of your outline, and in the timetable that has been agreed will have you finish at 11.00.

MR GOLDING:   Yes.

GAGELER CJ:   Are we on track?

MR GOLDING:   We are on track, because I can indicate to your Honour, as matters have tumbled out, shall we say, that I am effectively combining things that are under 4 and 5 for the purposes of what I am doing now.  I am comfortable that – famous last words – I will be done by 11.00.

GAGELER CJ:   Thank you.

MR GOLDING:   Going back to 844 and 845, there you can see at 845 and 846, his Honour picks up and accepts  those findings.  You will see he specifically refers to 40, 41 and 46 from Dodd in terms of what the content of the traditional law and custom is. 

Before I leave that, the point that I am making there is that, for the purposes of section 223(1)(a) and the things that are enumerated by Justice O’Bryan, of (a) through to (e) previously, that those that relate to 223(1)(a) and relate to what are the laws and customs, and their observance, in a general sense, by Arabana people, no further specific findings were required. Again, that is because this was not a case starting effectively at zero, but rather there was an acceptance of what is (a) through to (d) in Justice O’Bryan’s paragraph at 364, that those matters had been established.

So, the critical inquiry and consideration for the trial judge then becomes whether or not those matters can be demonstrated for the purposes of connection to the area that is the subject matter of this claim.  In that regard, I take your Honours to paragraph 905 of the trial judge’s reasons at page 231, which is item 10 of the 10 matters.  What your Honours will see there again is that his Honour again considers that underlying Fergie and Lucas report, and has engaged with that material but, having considered that, at 906 he concludes that an evaluation and review of that report is wanting with respect to being:

in relation to the Overlap Area –

So, he has turned his mind to this, and he has weighed it, and there is, in my submission, no reason to suggest that there is any error there.

What is important, then, is that the conclusions that he then draws at 913 to 915, over on page 233 – and it was, of course, only Dr Lucas that gave evidence in the Oodnadatta proceeding, and wrote the additional report; Dr Fergie was not part of that – where he says, notwithstanding that he accepts Dr Lucas to be a generally sound witness, that:

the Court heard much more detailed evidence concerning the issue of Arabana connection –

Now, it says:

then he obtained –

but I have assumed that it should be “than he obtained”:

and it is appropriate to act on the basis of that evidence, rather than his opinion.

BEECH-JONES J:   Mr Golding, the last sentence of 913, to which you direct, is that a correct statement of 223(1)(b)?

MR GOLDING: Yes, in my submission, because – and this is the problem – you do not get to (b) unless you have gone through (a). So, where your Honour may be going – I may be wrong – is that to say, is it not a conflation of the two? It is, in the sense that it mentions things that are required for the purposes of (a), but what is in (b) – which is the connection – can only be understood and achieved by the matters that are in (a). So, in that sense, yes, it is a correct statement. Your Honour will note that there is a reference to section 223 without further dividing it.

BEECH-JONES J:   But I thought you earlier accepted that – or the way you put it was, 223(1)(a) does not require that the acknowledgement and observance of the traditional laws and customs be in relation to the specific land the subject of the application.

MR GOLDING:   Yes.

BEECH-JONES J:   But it is (b) – once you have identified those laws and customs, the question is whether those laws and customs give rise to the connection.  But is not 913 saying the opposite?

MR GOLDING:   No.  In my submission, it is just that the law and custom in (b) has to be same the law and custom as established and referred to under (a).  So, acknowledgement and observance in (a) has to, for the purposes of (b) and establishing a connection, be the same laws and customs as referred to in (a), but also in relation to the land in question.

STEWARD J:   Does that mean we read (b) – the reference to “by those laws and customs” as a reference back to (a), by:

the traditional laws acknowledged, and the traditional customs observed –

In other words, it is a shorthand way of importing that concept.

MR GOLDING:   Yes.  And to take that further, your Honour, in relation to Ward – your Honours will recall yesterday I referred you to paragraphs 18 and 19 of Ward – in my submission, the other paragraph of seminal importance is paragraph 64 in Ward, which can be found at volume 5 of the books, specifically at page 1131, where what is said at the beginning of paragraph 64 is:

In its terms, section 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters. Section 223(1)(b) requires consideration of whether, by the traditional laws acknowledged and the traditional customs observed by the peoples concerned, they have a “connection” with the land or waters.

That can only be understood, in my submission, where the court is using the terms “by the traditional laws acknowledged and the traditional customs observed” as picking up what is in (a).

Can I move on and specifically then look at what was Justice White’s task at my item number 3 on my skeleton outline.  The task we have identified is that in circumstances where the only matter in dispute was in relation to the connection, and the connection as it is today, that is the lens through which Justice White then approached the 10 matters that commence at paragraph 853 of the trial judgement for the purposes of his assessment.  That is how those 10 matters that were put forth by the Arabana have to be understood.

Can I take your Honours, then, to the following – and this goes down to, really, 3.1.1 of my outline.  In circumstances where these 10 matters are put forward by the Arabana, and they were assessed, one of the things that is now put against us – and the words used by my learned opponent were that, well, our witnesses were not cross‑examined in relation to some of these matters, and in particular, he was there talking about the idea of, well, those who were living in the overlap area, why were they living there, why were they accessing the overlap area?

Two things fall.  One is, it was always, of course, for the applicant to demonstrate the connection to the overlap area, but more importantly, these issues very much were explored by cross‑examination, and that is why some of the trial judge’s findings have been made the way that they have.  So, for example, if your Honours look at 856 of the trial judgment – this is under topic (ii) of the 10 matters:

The evidence of Arabana People continuing to live in Oodnadatta is limited and gave rise to its own discrete issues.

And 857:

Only two of the six Arabana witnesses –

they are named there:

have ever resided in Oodnadatta –

There is then a discussion about the circumstances, at 858, in which Aaron Stuart came to live there for a brief period of time, namely, it was because he was a community constable in the South Australia police.  A reference there at 859 to Leonie Warren.  In relation to 860, which is Greg Warren, the Arabana opened their case on Greg Warren.  He ultimately was not called, and the trial judge drew a Jones v Dunkel inference in relation to the failure to call Greg Warren.

It continues over the page, at 862 and 863, of a consideration in relation to the matters put forward by the Arabana to establish the continuity of their connection, that so far as there was a case put forward that there continued to be Arabana people living there in more recent times, that there was very little evidence to support that in the circumstances.

What is also important here is when we get to 864 – and this gets to the point about, effectively, fairness to claimants in these circumstances – where there is a reference there to the reasons why Leonie Warren left, because of the kangaroo meat in the freezer instance.  His Honour says at the end of that:

This may account for an absence of physical presence in their cases.  I accept that this connection is not lost simply because a person feels precluded from remaining on their country.

So, that goes back to the topic that was first introduced to the matter yesterday by your Honour Justice Gleeson, that if you are not observing these things for the purposes of connection, what is the reason for that, and is it an explicable and reasonable reason in the circumstances?  Justice White is alive to that.  It is not what you might call a strict or harsh approach to an assessment of the evidence; he is alive to the issue.

What that then leads onto – and this is 3.1.3 of my outline – is what I described yesterday as there being a tipping point, where it has to be the case that the laws and customs acknowledged and observed go from, at their zenith, being observed, being practised, through to, well, perhaps haphazardly acknowledged or practised, but that there are explicable reasons for why that might not be the case – you cannot get access to the area, you are intimidated, those kinds of things; the passage I just referred to about Leonie Warren is one of them – to the next step, which is where there is what I have described as the tipping point, that it is no longer the case that what is there can amount to a connection, and that is because the laws and customs are not being observed because there is no desire to do so because the information, or the content, is not known, or is not being passed on.

In my submission, this case falls on that side of the line and we have gone past the tipping point.  I will just give your Honours two examples of that, as referred to by the trial judge.  If you look at 896, which is on page 229, your Honours will see there:

As to the giving of permission, none of the Walka Wani witnesses or Arabana witnesses said that they felt they had to seek permission to go to places in the Overlap Area.  Sydney Strangways did say that there were Arabana sites to which non‑Arabana persons could not go even with permission.  In particular, he said that non‑Arabana people do not need permission to go to the Oodnadatta Common and Hookey’s Hole but the evidence in the trial indicated that either such a requirement is not known or that it is not enforced.  To an extent, Sydney Strangways’ evidence concerning the topic of permission tended to underline the absence of continued Arabana connection.

And the rest goes on as to an explanation there for why it is no longer observed.  Critically, of course, when asked why, Mr Strangways says, it is because:

“we live under the European system”.

In my submission, that is an example, then, of having moved to the other side of the line for the purposes of this area.

STEWARD J:   Can I ask you a question about the tipping point.  Most of the findings that Justice White makes in this area are findings that the connection is – to use his Honour’s language – limited.

MR GOLDING:   Yes.

STEWARD J:   There are a couple of times he uses the word “sparse”.  That indicates to me that his Honour found that there were some connections, albeit limited.  At what stage do you tip over, in your view?

MR GOLDING:   And this is ‑ ‑ ‑

STEWARD J:   Because there is no rejection of connection.  He does not say there is no connection.  He says “limited” and on a couple of occasions, he says “sparse”.  So, what, as a matter of evidence or principle, says that they have moved across the line”, to use your expression?

MR GOLDING:   The difficulty is that it is going to be an evaluative task of taking the evidence as a whole – I toyed with whether I should this word, but it is almost “impressionistic”, in a sense, of you have to have all of the evidence and then stand back and have a look as to whether or not you are satisfied that that answers the statutory description.

STEWARD J:   But would you have us decide that if the connection is not, for example, substantive but limited, they have crossed the line – is that how it is put? 

MR GOLDING:   Well, it would have to be limited, such that it does not answer the statutory test – or the statutory word; the definition of what is meant by “connection”.  It certainly cannot be the case that, in the case of what supports connection, if there is one strand, one thing that can be said to demonstrate connection that that ‑ ‑ ‑

STEWARD J:   Well, it is just that (b) does say “have a connection”.  That is really the killing field here:  when it says “a connection”, what is a sufficient connection?

MR GOLDING:   The difficulty with when it says “a connection” is because you have to refer back to the traditional laws acknowledged and the traditional customs observed for the purposes of a connection, that those multifarious things that constitute what we have shorthand called TLCs, must together form that entity that is “a connection”.  That is what I mean by, it is not necessarily going to be enough for there to be one strand.  I would also add this.  The difficulty here is that his Honour could not relate a lot of what was said to be the connection in this case by the witnesses to the traditional laws and customs as identified in Dodd, but also as identified in this particular matter. 

So, if for example – I will do it this way.  Another example of the tipping point, as I have called it – or the line – is at 885 of his Honour’s reasons, which is about the evidence of Aaron Stuart.  I have to say, where I was talking about – 896 was about the evidence of Syd Strangways, and then 885 was about Aaron Stuart – those two witnesses together, of the six Arabana witnesses, were, without a doubt, the most comprehensive and detailed and lengthiest of the witnesses to give evidence. 

But again, what your Honours will see is that there is a lack of the transmission.  That is an example of the tipping point, in that it may be that it is still there if the laws and customs are transmitted and passed on but the younger generation, for some reason, choose not to observe them – for reasons of safety, or intimidation, or whatever.  But that is not even possible here because of there not being the transmission that is occurring.

GORDON J:   A difficulty about taking identified paragraphs like that out of context, I think, is that when one looks at 883, one has evidence of, at least according to the primary judge, protection of a site, inspection – yes, some could not remember all the details, but there was at least a finding that the activity could be directed to the protection of the Ularaka.

MR GOLDING:   Yes, and again, that – and that is an example that falls on the other side of the dichotomy that Justice Steward is trying to identify where the line is, namely, that there is some evidence there.  We are not suggesting that there was an entire absence of evidence or a void, and neither is his Honour, but his Honour is suggesting that it was not sufficient.  Perhaps ‑ ‑ ‑ 

BEECH‑JONES J:   Can I just – when you say “some evidence”, some evidence of what?  Some evidence of observance, or some evidence that the laws that are observed, their content does not extend to the overlap area?

MR GOLDING:   Some evidence of observance.  So, if we take 883, for example, which Justice Gordon referred us to, that there is some evidence there of there being an observance that gives rise to a connection ‑ ‑ ‑ 

BEECH‑JONES J:   But it is not the observance that gives rise to the connection, it is the law.

MR GOLDING:   Yes.

BEECH‑JONES J:   It is the law and the custom that is the connection, not the observance.

MR GOLDING:   Well, acknowledged and observed ‑ ‑ ‑ 

BEECH‑JONES J:   Indeed.

MR GOLDING:   ‑ ‑ ‑ and that, in this instance, it could be related to the overlap area.

GORDON J:   I think it is a bit more detailed than that, is it not?  We know that the Ularaka is part of the traditional laws and customs of the Arabana people.  That is the first thing you accept.  We have been through that.

MR GOLDING:   Yes.

GORDON J:   It says that this activity was:

directed to the protection of the Ularaka.

Which means that is, on one view, open to contend that that is a finding of observance, and it is a modern example of it in the overlap area.

MR GOLDING:   Yes.

GORDON J:   Do you accept that?

MR GOLDING:   Yes.  The question then becomes one of the evaluation of, that is one example.  Your Honour is right.  So, I have referred to 885; your Honour rightly refers to 883.  There are matters and examples going in both directions.  What is required for the purposes of “a connection” is an evaluative judgment of the accumulation of all of that evidence.

Now, our submission is that the trial judge, of course, heard this evidence, he has evaluated it, and he has reached a particular outcome.  In my submission, there is no demonstration of error on the part of the trial judge in terms of the process he has undertaken there or the outcome, in the sense of the outcome that he has come to not fitting with or answering the statutory test of “a connection” in (b).

So, yes, your Honour Justice Gordon, the State definitely accepts that there was some evidence described as “limited” or “sparse”, as your Honour Justice Steward has referred to, but that, in evaluating all of that together, the trial judge was not satisfied in those circumstances.

GAGELER CJ:   But he was not exercising a discretion, he was making a finding.

MR GOLDING:   Yes, and I do not for a moment want to suggest we go down a House v The King‑type path.  I probably chose my words badly.  He is making a finding, but the finding of “a connection” has to be in relation to the plural:

traditional laws acknowledged, and the traditional customs observed –

In my submission, one does not read (a) and (b) together as suggesting that so long as there is one, maybe two or three – it is not possible in my submission to draw an arbitrary line because different matters will have vastly different factual constellations, rather, it is a question of whether or not there is enough in the circumstances to satisfy “a connection”.

On that issue, can I take your Honours to Bodney, which is in book 6 at page 1620, and in particular at paragraphs 178 and 179, where the conclusion at 179 – and this is a phrase that has otherwise been used in the context of this case – is:

(ii)to demonstrate that connection to that area has, in reality, been substantially maintained since the time of sovereignty.

And an exploration of what is meant by, effectively, the “in reality”, is at paragraph 178.

BEECH‑JONES J:   What was the paragraph you just read from, Mr Golding?

MR GOLDING:   I read from 179.

BEECH‑JONES J:   Right.

GAGELER CJ:   Ms Webb says that Bodney is the repository of true learning on this topic.  Do you agree?

MR GOLDING:   Yes.  Without any demurrer at all.

GAGELER CJ:   Thank you.

BEECH‑JONES J:   Just in 179(ii) of this repository, the phrase “that connection”, that is the connection from ‑ ‑ ‑ 

MR GOLDING:   I am sorry, I did not hear where your Honour was reading from.

BEECH‑JONES J:   Paragraph 179(ii).

MR GOLDING:   Yes:

to demonstrate that connection –

BEECH‑JONES J:   Yes, that is the connection that arises from the traditional laws and customs – by them, not by particular acts of acknowledgment, is it?

MR GOLDING:   That is correct.

STEWARD J:   Do you say the word “maintained” in (ii) picks up “observed” and “acknowledged”?

MR GOLDING:   Yes, and that word, “maintained”, is also used by the High Court in paragraphs 18 and 19 in Ward, that I referred your Honours to yesterday.  Can I then move, with some alacrity, to the following.  One of the things that is suggested by the Arabana is in relation to a spiritual case, that this was effectively a spiritual case.

The critical aspect of the majority’s reasoning on this topic is to be found at paragraphs 105 and 106 of the majority’s reasons, which is at page 318 of the core appeal book.  Partway through paragraph 105 you will see:

It is true that the primary judge did not consider the question of whether the evidence of the asserted spiritual connection (particularly that of Mr Strangways) was itself sufficient.  However, for the purposes of this appeal it has not been shown that he was invited to do so.

Now, there is an issue there, of course, about, well, the case was as it was run and the Arabana are bound by those forensic decisions.  What I wanted to emphasise was one might be led into assuming from what is written there that his Honour did not consider a spiritual case at all, but that is not correct. 

His Honour did consider the evidence that there was in relation to a spiritual case, and if I can take your Honours to – in the trial judgment at pages 215 to 217, under the headings “Mythology” and “The Arabana evidence”, your Honours will there see a very clear setting out before he does the same for the Walka Wani at the beginning at the bottom of 217 of what were the matters for might be characterised as being spiritual and the evidence that was given about them.

I just note for clarity that – your Honours will see on this at 819 there is a reference to Mr Dodd.  Just so your Honours understand the detail, that Mr Dodd, being Reg Dodd, is the Dodd named in the Dodd consent determination that we have otherwise been referring to.  So, your Honours will see there that there is a reference to all of that, but if your Honours then go to paragraphs 907 to 914 of the trial judgment, your Honours will see that findings are made about that evidence.  So, for example, if you look at the last sentence of 907:

His acknowledgement –

“His” is a reference there to Syd Strangways:

of Arabana traditional law and observance of Arabana traditional custom in relation to the Overlap Area is now of a spiritual rather than practical kind.

At 909 – and this will be another example of what I have called the tipping point:

The Ularaka relating to the Overlap Area are not being taught –

And some reference to the evidence of Aaron Stuart there and Leonie Warren about:

“a little bit, now and then” to his own children.

If we go to 912, in my submission, on the third line there, the word “transition” only makes sense if it is read as “transmission” rather than “transition”, but the reference to:

There is a relative absence of knowledge of the Arabana normative rules relating to authority –

et cetera, and then down to the bottom of 915, the point being that there was a spiritual case that was run as part of a broader case by the Arabana, and that that case was considered by the trial judge, and he made findings about it.  So, it is not a case of saying that it was ignored or that it was not appropriately dealt with in the circumstances.

BEECH‑JONES J:   But what is the finding that traditional law and custom is now not observed?

MR GOLDING:   If your Honours go to 914:

It is the relative absence of acknowledgement of traditional law and observance of customs by which a connection . . . is maintained which is, in my opinion, fatal to the Arabana claim.

That is the conclusion.

GORDON J:   Just so I can test that, you accept, as I understand it, that what is set out in the mythology section at core appeal book 215, at paragraphs 815 and following, which you took us to, is evidence of traditional law and custom, and evidence of aspects of that.

MR GOLDING:   Yes.

GORDON J:   But you would have us read 914, the conclusion to be reached is, despite that kind of spiritual case – of course, here, we are dealing with the spiritual case, as I understand you and the way you are putting it – that that is not sufficient to give rise to continued acknowledgment and observance?

MR GOLDING:   Yes.  Yes.  To take that one step further, the evidence that I have referred to at page 215, that was evidence given in this case, but, as can be seen in the findings, that evidence there relates to Arabana law in general, in that abstract sense, but his Honour had difficulty in relating that evidence to the claim area in this particular claim.

GORDON J:   I do not know if that is right.  I had read 815 as to:

led evidence of seven Ularaka relating to the Overlap Area.  Each of these had been recorded in some detail by Hercus.  In the view it take of the matter, it is not necessary to record the Uraraka in detail.

And then set out, as I read it – I might have wrong, but that was actually in relation to the overlap area.

MR GOLDING:   This is the difficulty – and part of the difficulty is having been there for the trial – that this was put forward on that basis but that when you come to the findings, one of the difficulties is being able to relate those particular myths or stories to, specifically, the area, firstly, as opposed to the consent determination but, secondly, also, that even if it can be related to the overlap area, it is broken down in the sense that there is insufficient transmission or teaching of that occurring.

I have little time remaining.  With respect to item – what is at paragraph 4 of my skeleton, that really is about the law and about in relation to land and, in effect, that was front‑end loaded, for the purposes of my submissions, and dealt with.  I have nothing more to say about that.  With respect to item 5, I would just rely – and the topic there, specifically 5.1, about the phrase “in accordance with”.  To cut to the chase, the State embraces what fell from your Honour Justice Steward in terms of a question about, are they not, in fact, just substitutes.  What your Honour will see from the references that we have put in there at paragraph 5.1 are examples of where, clearly, it cannot be understood any other way.  That is what the court was doing when it was using the terms “in accordance with”, effectively, as a substitute for “by” in the circumstances.

Can I then look at appeal ground 2.  What is critical about appeal ground 2 is this.  Can I introduce it this way – and this again goes back to something that came from your Honour Justice Steward to my learned friend, where your Honour – and to paraphrase, as I understood, your Honour asked Mr Lloyd, do you accept that in the absence of the Walka Wani claim now – which was not the case at the time – that in fact it would be easier for the Arabana to actually make out their claim – that is as I understood your Honour’s question.  And, as I understood Mr Lloyd’s response, there was an initial equivocation, but he ultimately embraced it.

Now, in my submission, the position of the State is that in a theoretical sense, yes, that must be right that, if something is taken away, it means the weight or the value that might be given to something else that was in opposition to it may well be more. However, in applying that to this particular case, in my submission, when one has a look at the way that the trial judge treated the two claims, he did it the right way in that it was not, as we travelled along through his judgment, a direct comparison, rather, each claim was assessed according to section 223 almost in a silo, without regard to the others.

Everything we have been through with respect to the Arabana case, the equivalent was effectively done for the Walka Wani case – but, of course, we have not referred to it here – in his Honour’s judgment, and that his Honour’s assessment of the Arabana case was on its full merits as it stood, and that there was no part of his reasoning or finding in this particular instance which depended upon the presence of the Walka Wani claim as being extant and pushed on to the Arabana.  The answer to your Honour’s question is, yes, at a level of abstraction, that is definitely right, but that that is not what happened for the purposes of this particular case.

Can I just refer your Honours to the decision, then, of Blackburn, which is in the materials, and specifically that what your Honour Justice Jagot said at trial there, at page 13, was that a case – or the case, in that instance:

The case is to be determined on the evidence as presented.  In particular, I do not accept that the evidence indicative of an arguable continuing traditional connection with other areas . . . can be taken as evidence of an ongoing traditional connection with the Isabel Street land –

in that particular case:

given that it is an isolated piece of urban bushland –

The Full Court on appeal at paragraph 145, in considering that, were very clear in saying:

We consider that her Honour’s statement says no more than such evidence is not sufficient to establish native title in the Isabel Street land.

Now, in my submission, it is that same process that one, occurred here, and two, was the approach of the Full Court – in my submission, without error – in terms of assessing that approach that was taken by the trial judge.

BEECH‑JONES J:   So, you accept the consent determination can be used as evidence, but it is not sufficient in itself to prove it.

MR GOLDING:   Indeed.

BEECH‑JONES J:   And you accept that it was evidence of current observance of traditional law and custom, but you say only in relation to the determination area.

MR GOLDING:   Yes.

BEECH‑JONES J:   So, your case is:  we accept that you currently observe traditional law and custom in relation to the determination area, but you did not observe law and custom in relation to the overlap area.

MR GOLDING:   Yes.

BEECH‑JONES J:   And that turns on the supposed, and, in short, inadequacy of acts of acknowledgment in the overlap area?

MR GOLDING:   That is part of it.  Another part of is – and this could be included under that rubric, but it also might not be – for example, the breaking down of the teaching.

BEECH‑JONES J:   About the overlap area?

MR GOLDING:   About the overlap area, yes.

BEECH‑JONES J:   Which is not accepted, but that – but with no corresponding breakdown for the determination area.

MR GOLDING:   Well, that is not before the Court, and, of course, that was done as a consent determination at a different time, and it is not open to be questioned, for present purposes.

BEECH‑JONES J:   Yes.  I understand.

MR GOLDING:   I would also add that it is not just – and it may be that your Honour did not mean anything specifically by this – about acts.  It depends on what you mean by “acts”, but observance, for example, may even be as simple as thought processes.  But there is not even any evidence of that occurring here, because if something is not being transmitted, then that is nothing for the subsequent generation to have in their mind or to think about. 

Can I then turn briefly to the question of relief.  What I wanted to do – and this really falls from the questions your Honour the Chief Justice asked of my learned friend – is I just wanted to take you to the relevant passages in De Rose. 

GAGELER CJ:   In what? 

MR GOLDING:   De Rose.

GAGELER CJ:   Yes, De Rose (No 1) or De Rose (No 2)?

MR GOLDING:   De Rose (No 1), and it is page 1791 of book 6.  What your Honours there will see under the conclusion at 410: 

In the ordinary course, we would be inclined to allow the appeal, set aside the orders made by the primary judge and remit the matter to him for further proceedings consistent with this judgment.  While it is never satisfactory to expose the parties to the costs and burdens of a fresh trial, even if limited, in effect, to a reassessment of the existing evidence, there are difficulties about a Full Court attempting to revisit the voluminous evidence, even with the benefit of additional submissions.

There is then a reference to the primary judge, who was Justice O’Loughlin, as having retired by that point.

STEWARD J:   Sorry, which paragraph is this? 

MR GOLDING:   Paragraph 410.

STEWARD J:   Thank you. 

MR GOLDING:   Sorry, your Honour – at page 1791 of volume 6.  So, the trial judge, Justice O’Loughlin, had retired, and so what they decided to do was at 412, which is: 

In our view, the most appropriate course is for the parties, having considered these reasons for judgment, to identify what issues, if any, remain in dispute.  We shall then provide an opportunity for further written submissions and, if necessary, oral argument on those issues.  We have in mind that this Court will address and resolve any outstanding issues –

That is what Justice O’Bryan refers to, and that is what Justice O’Bryan has in mind, for present purposes.  In my submission, as a theoretical outcome there is nothing wrong with that, per se, and it is certainly something that can be done, but what the State says is that your Honours would only, in our submission, be moved to do that if you were otherwise satisfied that there is, in fact, the demonstration of an error with respect to either the trial judge or the Full Court.

What we say is that that has not been demonstrated, specifically because in both De Rose and Justice O’Bryan’s judgment, it appears to be predicated upon an assessment of very large amount of material and how that should be considered.  The difficulty here is that the material that was placed before the court, as has been demonstrated through argument, was all considered and there was an evaluation. 

GAGELER CJ:   You are saying there is no error.  You are not talking about relief, are you?

MR GOLDING:   I am saying we do not get to the relief, so, yes, your Honour is right.

GAGELER CJ:   Yes.

MR GOLDING:   I guess the only other thing I would say, then, is that, even if there is an error in the sense of somehow the definition was wrongly understood or the evaluation miscarried in some way, that there is a lack of utility in doing what is being suggested here, because it is not as though there were a body of evidence or things that were tended, et cetera, below that have been ignored.  There is nothing ‑ ‑ ‑

EDELMAN J:   In short, the point about relief is that, if there is an error, all the materials before this Court – so, this Court could determine it for itself ‑ ‑ ‑

MR GOLDING:   It could.

EDELMAN J:   ‑ ‑ ‑ or it could remit it for the Full Court to determine it on all the material.

MR GOLDING:   Yes.

GAGELER CJ:   Are we being asked to do the latter?

MR GOLDING:   To remit it?

GAGELER CJ:   You are not asking us to do it ourselves.

MR GOLDING:   No.

GAGELER CJ:   They seem to be the two alternatives.

MR GOLDING:   No, that is not what I am asking.  As your Honour the Chief Justice has understood from me, we say there is no error and I think I had better stop talking.  Thank you.

GAGELER CJ:   Thank you, Mr Golding.  Mr Hughston.  Now, Mr Hughston ‑ ‑ ‑ 

MR HUGHSTON:   Yes, your Honour?

GAGELER CJ:   We recognise that your clients have been made parties to the appeal.

MR HUGHSTON:   Yes, your Honour.

GAGELER CJ:   There is no application to discontinue against you.

MR HUGHSTON:   No, your Honour.

GAGELER CJ:   It would be helpful, though, if you were able to articulate, now or after the morning adjournment, what your continuing interest is in the outcome of the proceeding.

MR HUGHSTON:   Yes, your Honour.  I will do that now.  Point 9 of our outline, we note that the Walka Wani claimants were not parties to the Dodd determination.  Your Honours heard yesterday that they are comprised of two groups:  Lower Southern Arrente and Yankunytjatjara/Antakarinja people.  The Yankunytjatjara/Antakarinja people have the determination which borders the northern and the western boundaries of this small claim area, and your Honours heard yesterday that, as the trial judge said, some members of the Walka Wani could rely on that in the proceedings before him.

What he did find about them – because he found they had native title, and that was overturned on appeal – at 668 of his reasons, you will see that his Honour notes that:

It is not necessary to review in detail the matters bearing on the contemporary connection with the Walka Wani claimants claim in the Overlap Area.  Generally, their evidence on this topic was not challenged.

Now, leaving out the pre‑sovereignty origins, what that is an acceptance of by his Honour – and basically everyone heard the evidence – is that under what the Walka Wani consider to be their traditional laws and customs, they have rights and interests in this application area, and they have a strong connection with this application area.  They gave evidence about their dreaming stories going to the claimed area, they gave evidence about ceremonial sites that are still used in the claimed area.  As his Honour says at 671:

The Walka Wani consider that they are the right people to be considered as the native title holders –

Just because they cannot establish that they do not have native title because the Full Court found on the facts that the connection was not pre‑sovereignty, it was part of a migratory movement that started in the late 19th century where the Arabana moved south and the Antakirinja/Yankunytjatjara people moved west and the Lower Southern Arrernte south.  So, it was a gradual process.  Then, if I could take your Honours to ‑ ‑ ‑

BEECH-JONES J:   Is this sort of an Onus v Alcoa point?

MR HUGHSTON:   It is an Onus v Alcoa point.  The Byron Bay Environment Centre Case is one of the authorities and that makes the point that you do not have to have a legal interest to be joined as a party to a proceeding, provided you have an interest that is greater than a general member of the public.  If I could take your Honours to 837, and this is a demonstration of how the rights and interests of my clients could be affected by a determination that the Arabana people have native title, and thus it would be Arabana people who would be consulted by governments and third parties about anything that was to happen on this land.

EDELMAN J:   Which paragraph are you taking us to?

MR HUGHSTON:   Paragraph 837, Justice Edelman.  His Honour says:

During the hearing in Oodnadatta, the Court was taken to a site on the Western site –

That should be the western side:

of the Neales –

that is the Neales Creek:

at which Aaron Stuart commenced to give evidence.  This was not one of the previously arranged stopping points.  Walka Wani men interrupted, drawing to the Court’s attention the particular sacred, and secret, significance of that site to them.  The Arabana then sensibly agreed to relocate to another position.  Later, Hughie Cullinan, Allan Wilson and Peter Mungkari –

senior members of our group – senior men:

explained that they were upset that the Court party, including females, had been taken to a secret place associated with the highest Red Ochre Law.  I accept as honest and accurate what these three witnesses said, and the sincerity of the distress which they reported.

So, they have sites in this area which, under their law and custom, they have an obligation to protect.  These are ceremonial sites which they still use.  It is little wonder that their contemporary connection was not questioned, and their concern is that similar things could happen as what happened during the hearing when people – Arabana people – who do not know the significance of these places could unwittingly take people to it, they could allow development to proceed on it.

JAGOT J:   What does the determination that is being sought have to do with that?

MR HUGHSTON:   Sorry, your Honour?

JAGOT J:   I am just not following what the ‑ ‑ ‑ 

MR HUGHSTON:   What it has to do with it is that ‑ ‑ ‑ 

JAGOT J:   Well, because it could happen anyway now.  At the moment, nobody has native title rights and interests.

MR HUGHSTON:   Things could happen, but there is still the Aboriginal and Torres Strait Islander Protection Act, and there are still governments who, irrespective of whether you have native title or not these days, will want to deal with local indigenous communities.  It is the way things happen.

JAGOT J:   I am just asking what difference does the determination that is sought by the Arabana have?

MR HUGHSTON:   The determination would mean that ‑ ‑ ‑ 

JAGOT J:   It is non‑exclusive, it is ‑ ‑ ‑ 

MR HUGHSTON:   ‑ ‑ ‑ the inquiries by government of local indigenous people would be through the native title holders, the Arabana people.

JAGOT J:   To the exclusion, you say, of your ‑ ‑ ‑ 

MR HUGHSTON:   To the exclusion of our people.

JAGOT J:   Okay.

MR HUGHSTON:   It would make sense, your Honour, if you have a PBC – prescribed body corporate – representing the native title holders of an area, that is the place that governments and developers would go to.  They would ‑ ‑ ‑ 

EDELMAN J:   So, this is by way of saying, then, that your interest is an interest that is antagonistic to that of the Arabana in relation to the determination.

MR HUGHSTON:   It is antagonistic, your Honour, yes.  That is why we have the competing claims.

GORDON J:   Can I just ask one question.  Is that right, because the native title rights and interests claimed by the Arabana were non‑exclusive, so they recognised that they had to be non‑exclusive?  So, is your answer to Justice Jagot right?

MR HUGHSTON:   It is, because once that determination is made, they are the only native title holders.  No one else can assert that they hold native title.  Whether it is exclusive or whether it is non‑exclusive, governments and third parties would deal with them, and there are rights which were given under the Native Title Act in respect of future acts where native title holders are notified of certain acts that a government proposes to do.  They are given an opportunity to comment; often they have a right to negotiate over it and the like.

BEECH‑JONES J:   But Mr Hughston, legally, you do not get them anyway.

MR HUGHSTON:   No, we do not, your Honour, but ‑ ‑ ‑

GLEESON J:   But you prefer them not to have native title.

MR HUGHSTON:   We would prefer them not to have that because we have a strong presence in Oodnadatta and, as I indicated, we are not living in pre‑Native Title Act days.  These days governments and even developers – mining companies and the like – want to get local Aboriginal people on side before they do anything with their land.  If there are no native title holders ‑ ‑ ‑

EDELMAN J: You are walking a very fine line between antagonism to the appellants and, on the other hand – I assume – a desire not to further dilute native title rights and interests under section 223.

MR HUGHSTON:   Yes, your Honour.

STEWARD J:   Is your concern really that, in the future, if the Arabana were exercising their statutory right to negotiate with, say, a mining company, that that will prejudice your clients?

MR HUGHSTON:   Your Honours, there could be mining on that ceremonial site.

STEWARD J:   Yes.

MR HUGHSTON:   Again at 678, his Honour says that:

If the resolution of this case turned only on the establishment of contemporary connection . . . the Walka Wani case would be strong.

And he quotes from Dr Lucas, who is the anthropologist for the Arabana, who says:

I have absolutely no problem in acknowledging that the Walka Wani claimants have long term intergenerational connection with the area through residence and as a consequence of that, through children having been born over multiple generations, and that at some point in time . . . that Western Desert people have come to the area and performed ceremony and ritual at a site in the claim area . . . I perfectly understand that people would feel strong connection to the place that they and family and their grandparents and whatever have lived in and used –

So, there is a concession by the anthropologist about this intergenerational connection over many, many years, and it is under their law and their custom.  Now, the common law will not recognise their native title because they are rights and interests which were created post‑sovereignty, but they still have a vital, normative system – a vital system of law and custom under which they consider that they are the traditional owners of this country.

GAGELER CJ:   Thank you, Mr Hughston.

MR HUGHSTON:   If your Honour pleases.

GAGELER CJ:   Have you finished addressing that point?

MR HUGHSTON:   I have, your Honour.

GAGELER CJ:   Yes.  We will take the morning adjournment.  Thank you.

MR HUGHSTON:   If your Honour pleases.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

MR HUGHSTON:   May it please the Court.  My friends from South Australia have during the break advised me that they have an Aboriginal Heritage Act 1988, which has recently been amended with the addition of section 19H which deals with the negotiation of agreement with recognised Aboriginal representative bodies.  Sorry, I have the wrong – section 19B, which appoints:

Recognised Aboriginal Representative Bodies –

And subsection (4) provides that: 

Subject to this Part, a registered native title body corporate (within the meaning of the Native Title Act 1993 –

And a registered native title body corporate is the corporation which holds the native title on trust for, or is agent for, the native title holders:

will be taken to be appointed as the Recognised Aboriginal Representative Body in respect of that area that is the subject of the relevant native title determination –

Your Honours, I am not familiar with the Act, and that is all I can say, but it is indicative of the type of things that I was saying earlier, that governments will look to those who hold native title when something is to be done on that land.

If I could take your Honours to section 223 of the Native Title Act.  Both in our outline and in our written submissions we refer to the fact that there are three characteristics of the “native title” that is defined there.  The first characteristic is that rights and interests are:

rights and interests . . . in relation to land or waters –

And then, under 223(1)(a):

the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed –

And under (b):

the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters –

In our submission, if the possession of a native title right or interest necessarily provides a connection with the land, then subsection (1)(b) has no work to do.  So, it is a reference, if you like, to different elements of the same body of law and custom.  Subsection 223(1)(a) are those laws and customs under which people possess rights or interests in the land, and 223(1)(b) are those laws and customs which provide them with a “connection with the land”.

And that is well‑illustrated in Northern Territory v Griffiths.  If I could take your Honours to that decision, that is in volume 4, tab 12, paragraph 22.  It sets out, basically, what the definition of “native title” is in 223(1), and then says, in 23:

The first and second of those characteristics –

That is, the characteristics under paragraphs (a) and (b):

that native title is a bundle of rights and interests possessed under traditional laws and customs and that, by those laws and customs, Aboriginal peoples have a connection with the land or waters – reflect that native title rights and interests have a physical or material aspect (the right to do something in relation to land or waters) and a cultural or spiritual aspect (the connection with the land or waters).

So, what was front and centre in the case before the trial judge is whether there had been continuity of those traditional laws and customs under which the Arabana people had that cultural or spiritual connection with the land.

Then later on, at paragraph 44, in the judgment of the plurality, their Honours make the point they are dealing with section 51(1) of the Native Title Act, which deals with the entitlement to compensation.  They say that subsection:

in its terms, recognises the existence of the two aspects of native title rights and interests identified in s 223(1) to which reference has already been made – the physical or material aspect (the right to do something in relation to land) and the cultural or spiritual aspect (the connection with the land) –

Then their Honours go on to consider just what this cultural or spiritual aspect is at paragraph 152.  When dealing with compensation, their Honours said, well, there is going to be compensation for economic loss, which is the effect of the particular act on the rights and interests, the rights to do things in relation to the land, but then there is compensation for cultural loss.  Their Honours say at 152:

This part of these reasons is concerned with compensation for the non‑economic effect of the compensable acts, consistently with the second of the inquiries required by the statutory definition of native title – the native title holders’ connection with the land by reason of their laws and customs.

What they then do is quote from the passage in Western Australia v Ward, which makes the point that:

“the connection which Aboriginal peoples have with ‘country’ is essentially spiritual.

They go on to say:

There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole’.  It is a relationship which sometimes is spoken of as having to care for, and being able to ‘speak for’, country.

In Federal Court judgments where there have been contested native title claims, it is evidence of that sort which is referred to as justifying the connection which Aboriginal people have been found to have with their traditional land.

In our submission, there has to be continuity of the acknowledgment and observance not just of the laws and customs under which the rights and interests are possessed but also of the laws and customs under which that connection with the land has been maintained.  If I could take your Honours to Yorta Yorta, in volume 4 of the authorities, to paragraph 34.  Paragraphs 32 and 33, their Honours in the plurality judgment make the points that I was making earlier.  Then at 34:

Secondly, the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have “a connection with” the land or waters.

So, it is not just 223(1)(a) laws and customs which much continue to be acknowledged and observed.  You have to continue to acknowledge and observe those 223(1)(b) laws and customs which provide you with that complex, if you like, spiritual connection with the land.

STEWARD J:   Is that paragraph 34 consistent with reading 223(1)(b):

by those laws and customs –

as being by those traditional laws acknowledged, and those traditional customs observed?

MR HUGHSTON:   Yes, your Honour.  That is clearly the way they have read it there.  I will not take your Honours to it, but the same point is made in Western Australia v Ward at paragraph 64.  If I could take your Honours to paragraph 82 of Yorta Yorta – and this is important in relation to the questions that your Honour Justice Gordon was asking – what their Honours are saying there is that you have to demonstrate:

the content of pre‑sovereignty traditional laws and customs –

and that:

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  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.

There is no “single bright line test”, and their Honours say at the end:

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.

BEECH‑JONES J:   Mr Hughston, what paragraph was that, again?

MR HUGHSTON:   I am sorry, your Honour?

BEECH‑JONES J:   What paragraph?

MR HUGHSTON:   That is paragraph 82, your Honour.

BEECH‑JONES J:   Paragraph 82.

MR HUGHSTON:   And then in paragraph 83 they say:

What is clear, however, is that demonstrating some change, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal –

So, their Honours are indicating that even the discontinuity or adaptation of some law or custom may, in fact, be fatal.  And it gets back to what they are saying in 82, that it is an evaluative exercise in terms of how much change has there been, how much has been lost, looking at what remains and what changes there have been, can it still be said that they are the traditional laws and customs that were acknowledged and observed by the ancestors of the claim group?

So, of course, you are going to have cases, as with the Arabana, where there is some knowledge of law and there are some laws and customs, and there has obviously been some significant loss and some significant adaptation and change.  And then there is the difficult evaluative task for the trial judge, having heard and seen all of that evidence, to decide whether those laws and customs, as have been described, are still “traditional” in the sense that they are still the laws and customs acknowledged and observed, and by “traditional” also, as Yorta Yorta makes clear, that there has been continuous acknowledgment and observance of those laws and customs.

GORDON J:   Is that right?  If you go on to read paragraph 84, it deals with interruption in a way which is, I think, not in dispute, and identifies at the end of 84: 

Those statutory questions are directed to possession of the rights or interests, not their exercise, and are directed also to the existence of a relevant connection between the claimants and the land or waters in question.

MR HUGHSTON:   Yes. 

GORDON J:   You do not dispute that; you accept those principles. 

MR HUGHSTON:   No, I do not dispute that, your Honour.

GORDON J:   Thank you. 

STEWARD J:   All of that is well and good, Mr Hughston, but then the question becomes:  what do we do with the findings on the 10 matters, where the finding of Justice White is, alternatively, that the evidence was limited for the most part, and in a couple of instances, sparse?  How do we evaluate that? 

MR HUGHSTON:   That is, quintessentially, a task for the trial judge to evaluate the evidence, which he or she has before them, as to what are the laws and customs currently acknowledged and observed, can they be seen to be traditional laws and customs, and has there been continuous acknowledgment and observance of those laws and customs?  The importance of that is perhaps addressed in paragraph 47 of Yorta Yorta, where their Honours say that: 

the reference to rights or interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed . . . requires that the normative system under which the rights and interests are possessed (the traditional laws and customs) is a system that has had a continuous existence and vitality since sovereignty.

When you have difficult cases like his Honour had where it is clear there has been significant loss and significant change, he has to evaluate whether what he has before him in the evidence does establish this normative system which has continued to be acknowledged and observed from a time pre‑sovereignty. 

Your Honour, could I, perhaps, illustrate this by going to the trial judge’s judgment at paragraph 815 about Ularaka that Justice Gordon was asking questions about.  There, as your Honour noted, there is a list of Ularaka, about which evidence was given.  Again, looking at that evaluative process of whether there is a normative system acknowledged and observed by this group of people, we can see in 816 that there are only two witnesses who gave evidence about “The Frog Ularaka”.  There is only one who gave evidence about “The Night Owls”.  There is only one who gave evidence about “the rain maker” and, again, it is the same witness each time – it is Mr Strangways, and he is joined by Mr Stuart for the Frog Ularaka.  Then there are three who give evidence about “The Kangaroo Story” – again with Mr Strangways and Mr Stuart.

Again, over the page, it is only Mr Stuart who talks about “The Two Snakes”.  It is only Mr Stuart who talks about “The Turkey Ularaka” and it is only Mr Stuart who talks about the “The Emu Ularaka”.  Then if we go to 872 ‑ ‑ ‑

GORDON J:   I am sorry to ask about that.  If it is limited to the people, what do we do about 818 where, for example, the rain maker is record in detail by Hercus, and then we have the general matters relating to the Arabana mythology evidence?  Do we put that to one side?  Is that what you are contending?

MR HUGHSTON:   No, it is part of the evidence that was before his Honour, but it is only part of the evidence that was before his Honour.  Hercus has not recorded this today.  Hercus was not a witness.  Hercus, who passed away some time ago, was a linguist who worked, I think, in the 1960s and the 1950s with Arabana and recorded their myths, and they are now in her book which is available.

GORDON J:   Thank you.

MR HUGHSTON:   But if we could go to 846, your Honours will see there that his Honour is talking about the Dodd decision and what Justice Finn found in relation to Ularaka.  He found that there was:

maintenance of knowledge of the traditional Ularaka and the normative rules related to those Ularaka –

And, if your Honours would look at the top of the page, there is a quote from Dodd where his Honour Justice Finn says:

some individuals or families are recognised as having special knowledge of and responsibility for particular areas and their Ularaka, including related songs.

Now, there were no families claiming responsibility for Ularaka that were described in 815, there certainly were not any related songs to those Ularaka, and there was not any evidence of normative rules related to those Ularaka.

Then if we go to 872, his Honour there is dealing with the 10 matters which the Arabana submitted would demonstrate that they had maintained their connection with this claim area in accordance with their laws and customs.  His Honour says on the:

Continuity of learning, respecting and teaching the Ularaka

The evidence on this topic was limited.  Aaron Stuart said that, in respect of his own children, he had taught them the Ularaka “a little bit, now and then”.  He also said that it is the role of an uncle or grandfather to teach the Ularaka, but did not say whether that had occurred in his family.  He accepted that he himself had a responsibility to teach and said, with respect to his grandchildren, that he was “starting with just language”.

EDELMAN J:   I am just wondering – I mean, is not all of this, on one view, entirely beside the point?  I mean, you – I think, quite rightly – say that these sorts of findings are quintessentially the role of the trial judge.

MR HUGHSTON:   Yes.

EDELMAN J: But that is not really the question that section 223 is concerned with. Section 223 is concerned with a much higher level of generality. It is the paragraph 47 of Yorta Yorta that you took us to, which is – it is a systemic question.  It is at the high level of system:  is there still a systemic notion of normative rules?  Not at this level of particularity.

MR HUGHSTON:   Yes.  It is not the notion of the existence of rules.  Knowledge of what the rules were is not the same as the acknowledgment and observance of the rules.  So, the fact that people might know that there is an Ularaka story for this, or an Ularaka story for that, of its own, may not take you very far.  It may depend on other evidence.  What we are looking for is acknowledgment and observance, not just knowledge.

EDELMAN J:   No, but acknowledgment and observance of a system of rules.

MR HUGHSTON:   Yes.

EDELMAN J:   Not acknowledgment and observance of particular songs, or particular practices – that is just evidence that there is the system that extends over this particular area.

MR HUGHSTON:   As your Honour just said, that is the evidence that the system extends ‑ ‑ ‑ 

EDELMAN J:   Some of the evidence.

MR HUGHSTON:   ‑ ‑ ‑ over this area.  Yes.  And what we are pointing out is that there is not evidence, or there is insufficient evidence – there is some evidence, but his Honour was of the view that there was not sufficient evidence.

GAGELER CJ:   One way of putting is that there are fragments of memory ‑ ‑ ‑ 

MR HUGHSTON:   Yes.

GAGELER CJ:   ‑ ‑ ‑ but they do not add up to a continuing, normative system.

MR HUGHSTON:   No, your Honour.  And there are only six witnesses, we make the point in our submissions.  We refer to where their evidence is summarised, and we make the submission that it is far from impressive.

JAGOT J:   Did you not also have the report from 2010 which was tendered in the proceedings?  That was evidence, was it not?

MR HUGHSTON:   The report certainly was, but ‑ ‑ ‑ 

JAGOT J:   That had far more extensive evidence.

MR HUGHSTON:   It is, but in our submission, when it comes to making findings on whether there is contemporary law and custom, and whether it is acknowledged and observed, the best evidence is the indigenous evidence.

JAGOT J:   But that is indigenous evidence, in that report – there are loads of quotes from indigenous people.

MR HUGHSTON:   Well, your Honour, they did not come along and give that evidence in this case.

JAGOT J:   No, but their evidence in the report was in, for all purposes, so that was evidence of indigenous people.  It is recorded.

MR HUGHSTON:   It is a question then of weight, your Honour.  If, as you say, yes, the evidence is in, even though those witnesses were not called, and that report obviously has as its focus the Dodd determination area and not Oodnadatta.

JAGOT J:   But at lot of it related to Oodnadatta because – for the bronco.  I mean, for example, at 905 of the trial judge’s decision there is this reference to “bronco brandings and gymkhanas”, those kinds of things.  He says:

the evidence that this occurs as a manifestation of Arabana traditional law and custom is sparse.

He then refers to what I take to be the same report ‑ ‑ ‑ 

MR HUGHSTON:   Yes.

JAGOT J:   ‑ ‑ ‑ even though it says 2011 – the version that we have seems to be 2010, but anyway, that is a mystery.  I mean, that seems to be directly at odds with that report, which is emphasising that that is a coming together as Arabana people.

MR HUGHSTON:   Again, quintessentially a matter for the trial judge which evidence he is to prefer, and this trial judge did indicate that he generally accepted the evidence of Dr Lucas who, of course, is the co‑author of that report and did a supplementary report, and he said at 915:

I am conscious that a conclusion that the Arabana have not maintained connection with the Overlap Area is inconsistent with the opinion of Lucas, who I thought generally was a sound witness.  However, the Court heard much more detailed evidence concerning the issue of Arabana connection then he obtained, and it is appropriate to act on the basis of that evidence, rather than his opinion.

So, his Honour could have acted on the opinions expressed in that 2010 report, and there is nothing that my clients could have done about that if he preferred that evidence, but having heard the evidence of the Aboriginal witnesses who gave evidence before, him he preferred that evidence of connection to what was being provided by Dr Lucas.

JAGOT J:   But they were not inconsistent, they were cumulative, evidence.  That is what I am struggling to understand.  There was no evidence to the contrary of that expressed by Dr Lucas, that they were coming together as Arabana people.  I am just not quite following the reasoning that says, well, then I can say they were not coming together as Arabana people.  I mean, the witnesses who did come and give evidence did not say anything to the contrary of that, so I am not sure how you prefer one over the other because they were just a cumulative body of evidence.

MR HUGHSTON:   They are cumulative bodies of evidence, but it is a question of weight.  And he obviously gave more weight, as the trial judge, to the evidence from the witnesses he saw and heard.  And he saw and heard Dr Lucas, as well as having seen and heard the Aboriginal witnesses.  Dr Lucas would have given the same evidence ‑ ‑ ‑ 

JAGOT J:   Well, that would make sense to me, if some witness had given evidence that no, those bronco meetings, they are not really anything to do with Arabana culture, they are just us getting together, they have nothing to do with traditional ‑ ‑ ‑ 

MR HUGHSTON:   Yes.

JAGOT J:   But all of the evidence, it was all cumulative in one direction, so I am just not sure how you say you can prefer, then – it is not a matter of ‑ ‑ ‑ 

MR HUGHSTON:   Because it is an interpretation of the evidence.  Now, clearly, Dr Lucas has a particular interpretation on that evidence, and his Honour gives it a different interpretation.  His Honour is not bound to accept Dr Lucas’ interpretation of the reason why people are going to gymkhanas and bronco brandings and the like.

JAGOT J:   No, but it might be rather indicative of a misinterpretation or a search for something that is not the relevant test.

MR HUGHSTON:   Well, he set out the relevant test on numerous occasions, you know, mostly ‑ ‑ ‑ 

JAGOT J:   We have been around that, yes.

STEWARD J:   Can I ask you, Mr Hughston, the point you are making here is that it is not for this Court to redo the evaluative task.

MR HUGHSTON:   Yes.

STEWARD J:   It was the task for Mr Lloyd to show that his Honour erred in undertaking that evaluative task.  And you say there is no error.

MR HUGHSTON:   Yes.  That is right, your Honour.  Again, the evaluation of the facts, the weight that is to be put on the evidence, which evidence is to be preferred, is the prerogative of the trial judge.  If there are factual mistakes, they can be corrected by the Full Court on appeal.  This Court obviously does not deal with factual mistakes.

GORDON J:   We do, sometimes.

MR HUGHSTON:   Hopefully not on this one, your Honour.  No, I should not have said that.  In our submission, there are no factual mistakes.

BEECH-JONES J:   Mr Hughston, the principal case, as I understand it, is not so much that his Honour did not evaluate the evidence, but his Honour did not evaluate it from the right basis – specifically, including 911 and 913 – his Honour did not actually ask whether traditional laws and traditional customs that were observed gave rise to the connection.

MR HUGHSTON:   He starts his consideration of the Arabana evidence at 847, setting out the legal principles for connection.  So, he has not misdirected himself as to the law that he says he is going to apply when he considers the matters which are advanced by the Arabana.

BEECH-JONES J:   It is said, reaching its high point, he did all that – his Honour did all that – but his Honour misapplied it, and I think a significant part of that is said to be at 911 and 913.  So, all evaluation of facts, I think you said, on one argument, that is all great ‑ ‑ ‑

MR HUGHSTON:   Yes.

BEECH-JONES J:   ‑ ‑ ‑ but unless you are asking the right ultimate question, the inquiry goes astray.

MR HUGHSTON:   Your Honour, what is in 911 is perhaps a shorthand expression of the correct tests, which his Honour has already set out.  It is dealt with in our written submissions, I think, at paragraphs 35 and 36.

EDELMAN J:   You are starting, though – and the trial judge never put it in these terms – but you are starting with a very, very strong basis to draw an inference, which is, 69,000 square kilometres where there is already accepted to be a normative system under which rights and interests in the land and waters, or in the land, are possessed under the terms of section 223. And so, the only question is whether that system extends to the overlap area.

MR HUGHSTON: No, not necessarily, your Honour. As we say in relation to ground 2, a native title determination is highly geographically specific, it relates only to that land. Could I take your Honour to section 225 of the Native Title Act.

GORDON J:   Before you do that, can I just add to that.  I do not know that the error is just – that may be put against you, it is not just 911 and 913.  It starts, really, at paragraph 56 – and this was put by Mr Lloyd yesterday – where the issue is identified and is put in terms which arguably – I think it is described by Justice O’Bryan as, in effect, paraphrasing or misstating the text of the language you are about to take us to.  It then comes back again at paragraph 843, where his Honour identifies and describes it as “the principal issue”.

MR HUGHSTON:   Yes.

GORDON J:   Again, it is put against you in terms which are not consistent with the statute.  Then one gets to 911, 912 and 913 – I just want to be clear that I think that same idea arises in a number of places.

MR HUGHSTON:   Mr Lloyd can correct me in reply if I am wrong about this, but my recollection is that there was no appeal against the correctness of what was said in paragraphs 56 and 843.  So, they were not agitated in the notice of appeal.

GORDON J:   I thought that that is what Justice O’Bryan relied on.  That is what we were discussing yesterday, with both those paragraphs.

MR HUGHSTON:   Justice O’Bryan relied on a number of paragraphs which were not the subject of the notice of appeal.

BEECH‑JONES J:   I must say, I thought it was just the one error, as manifested by the paragraphs Justice Gordon took you to.  That is what the search is, rather than a ‑ ‑ ‑

MR HUGHSTON:   Which – sorry, that was paragraphs 843 and ‑ ‑ ‑

GORDON J:   I will give them to you again.  The ones that I understood typify the one error, as Justice Beech‑Jones has just put to you, were initially paragraph 56, then 843, and then the ones that you have taken us to, which are 911 through to 915 or 916, but specifically 911 and 913, I think.

MR HUGHSTON:   Okay.

GORDON J:   It may not matter.  I just wanted to make sure that we understood that that, I think, was the way it was put.

MR HUGHSTON:   Yes.  All right.  I will just check again with 56, and see if I have said anything about that.

GORDON J:   That is on page 38 of the core appeal book and 843 is at page 220.

MR HUGHSTON:   Thank you, your Honour.  That is the “in accordance with” – that is addressed in our written submissions and the outline.  Can I deal with that in a little time?

GORDON J:   Yes, please.

MR HUGHSTON:   First, just going back to 913 and then I will come to the “in accordance with”.  At 913, his Honour’s last sentence there:

However, as indicated, the connection required by s 223 is a connection arising from the continuing acknowledgement of traditional laws and traditional customs observed by the claimant group.

We would say that that is a correct statement of the law.  I took your Honour earlier to paragraph 34 of Yorta Yorta, which made it abundantly clear that there has to be continuous acknowledgment and observance of the laws and customs described in 223(1)(b).  Then, in 914, his Honour says:

It is the relative absence of acknowledgment of traditional law and observance of customs by which –

and “by which” are the words used in 223(1)(b):

a connection by the Arabana to the Overlap Area is maintained which is, in my opinion, fatal to the Arabana claim.

Now, he has used the correct statutory language there, and on those findings of fact, the Arabana claim must fail – on those factual proceedings, it must fail.  Before I go on to “in accordance”, if we go over the page, his Honour then says, at 916:

For these reasons, I am not satisfied that the Arabana have established the maintenance of their connection with the Overlap Area in accordance with the traditional laws acknowledged and traditional customs observed by them.

I think his Honour has added that extra paragraph – unnecessarily, because 914 deals with it – but he has added it because that is the case that was presented by the Arabana to him, that they had a connection in accordance with their traditional laws and customs.  His Honour says as much at paragraph 852 of his reasons, where he says:

The Arabana submitted that 10 matters indicated the continuity of their connection with the Overlap Area in accordance with their traditional laws and customs.

Of course, that statement was not the subject of any appeal in the notice of appeal, and, in fact, the notice of appeal – I think it is at paragraph 43 of the Full Court’s decision:

Issues arising on the appeal

By ground 1 of their Further Amended Notice of Appeal . . . the Arabana contend that the primary judge “erred in finding at [916] that the Arabana had not established the maintenance of their connection with the [Overlap Area] in accordance with traditional laws acknowledged and traditional customs –

And we give several other references in our written submissions.  If I could take your Honours to the first respondent’s book of further materials, and in this they have included, at page 7, schedule F from the Form 1.  The Form 1 is the application for a determination of native title.  Your Honours will see that:

The factual basis of the claim is as follows –

In (c):

native title has been continuously held in accordance with those traditional laws and customs of the native title claim group –

And then, if we go to the first applicant’s outline of submissions before the trial judge – it commences at page 20 – and then we have, at the end of the submissions, page 23.  This comes under a section C, main issues in dispute, and 52 was that the Arabana identify the following as the main issues in the dispute.  Paragraph 53:

Which claim group or groups –

In other words, Arabana, Walka Wani or both:

b.had connection with the claim area in accordance with the traditional laws and customs of the claim area at sovereignty –

And then at 54, the next main issue:

Which claim group of groups:

a.now has connection with the claim area in accordance with the traditional laws and customs of the claim area –

So, his Honour has simply tried to address the way they have framed their case in 916, but he has, in 914, applied 223(1)(b) to indicate that that is the reason why the evidence has not satisfied him that they have continuously – or they had continued to acknowledge and observe the traditional laws and customs under which they would have had a 223(1)(b) connection.

Dealing with the Dodd determination and its effect, if I could go now to section 225 of the Native Title Act – perhaps if we start at 94A.  Now, your Honours are aware that the Federal Court, under section 81, has exclusive jurisdiction to deal with matters arising under this Act.  And section 94A sets out the matters which must be included in a determination of native title.  It says:

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

Then if we go to 225, this is what a determination of native title determines – this and only this:

A determination of native title is a determination whether or not native title exists in relation to a particular area –

So, it is area‑specific:

(the determination area) of land or waters and, if it does exist, a determination of –

Firstly:

who the persons, or each group of persons –

are who hold the native title rights and interest.  Secondly:

the nature and extent of the native title rights and interests –

Thirdly:

the nature and extent of any other interests in relation to the determination area –

Again, all specific to determination area; (d):

the relationship between the rights and interests in paragraphs (b) and (c) –

In other words, the non‑native title and the native title rights and interests; and (e): 

to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title –

confers effectively a right of exclusive possession.  So, they are the matters which are determined by a native title determination.  They are clearly specific to the area of the determination.  There is no reference in there to a determination of native title identifying a particular society or a native title determination identifying particular laws and customs.

Now, no one could call into issue the fact that the Arabana have native title in that adjoining determination area, but that does not indicate that they have a body of laws and customs, which would make them a society, if you like, for the purposes of the adjoining area of land. If one wants to adopt something more from native title proceedings – in other words, if you want to get something more out of the determination of native title in an application over an adjoining area, then you are going to section 86 of the Native Title Act, because under section 86 of the Native Title Act the Court may adopt any finding or any evidence in other proceedings.

So, if you wanted this court to make a finding about the nature of contemporary Arabana laws and customs based upon what are described as Justice Finn’s findings, then one would make an application under section 86. That would then enable parties like my party, who were not part of the consent determination process, to have our say to be given – if you like – procedural fairness, so that before the court adopts those findings, clients like mine, who were respondents to this proceeding, would have the opportunity to oppose that grant.

We have referred, in our written submissions, to a decision of his Honour Justice Hely in the Bandjalang Case, Bandjalang People v Department of Land and Water Conservation, and that was a situation where the Bandjalang people made two claims over adjoining land. One was basically national park, and the other was land which had non‑indigenous interests: farming interests, pastoral interests. They wanted to – the farmers, who wanted to be joined as parties to the adjoining claim, saying that any decisions that the court might make in that adjoining claim would have a binding effect on them, or would have an effect on them, and Justice Hely said no, because section 86 would have to be relied upon to adopt those findings, and you will have the opportunity then to say whether those findings should or should not be adopted.

But it is fundamentally wrong that a person with an interest or an asserted interest in land should be bound by findings in proceedings where they were not parties, so that the Arabana can come along and say, well, you cannot question the fact that we are a society, that we have all these contemporary laws and customs which we acknowledge and observe – we have never had an opportunity to test that.

GORDON J:   Can I ask a question about that.  The first matter of the 10 matters was the determination.

MR HUGHSTON:   Yes.

GORDON J:   So, that was an issue at trial, and you were at trial.  Did you put that submission at trial?

MR HUGHSTON:   I cannot recall exactly what submissions I made.  I know we were fighting the case pretty hard.

GORDON J:   I can imagine.

MR HUGHSTON:   I know we did not – yes, thank you, Justice Gordon – I think ‑ ‑ ‑ 

GORDON J:   What I am saying is, that issue was a live issue because it was the first of the 10 matters.

EDELMAN J:   And in addition to that, in paragraph 101, the trial judge picks up the Dodd determination.

MR HUGHSTON:   Yes.

EDELMAN J:   And you did not suggest that there was a denial of procedural fairness in adopting all of those parts of the Dodd determination.

MR HUGHSTON:   No.  His Honour is not adopting them so much as setting out what they were, and ‑ ‑ ‑ 

EDELMAN J:   He says:

I accept it as appropriate –

MR HUGHSTON:   Yes, he has accepted it as appropriate, yes.  But it is a summary in relation to the laws and customs for the adjoining area, it is not – it has no application to our area.  Could I perhaps take your Honours to Warrie – I will come back to this, but Warrie deals with this point.

STEWARD J:   Can I just ask you, before you get to that, Mr Hughston, do we know, procedurally, at what stage the claim – the original claim made by the Arabana people – excised the overlap area?  Was the claim in court by then or was it pre‑court?

MR HUGHSTON:   I think Mr Lloyd addressed on that, and my recollection is that it was not included in the first native title claim, but I stand to be corrected.  Yes, there was a common law claim in 1993 which included it, but in the native title claim in 1998 it was excluded.

STEWARD J:   Thank you to you both.

MR HUGHSTON:   I think Mr Golding took your Honours to a paragraph of the trial judge’s reasons, where the explanation was given as to why that was done, because the Dunjiba Corporation representing the residents of Oodnadatta was going to get a fee simple grant, and most of the residents of Oodnadatta are not Arabana.  It is at paragraphs 42 and 43.

STEWARD J:   Thank you.

JAGOT J:   Mr Hughston, you have said a number of times that your client had no opportunity to be heard in relation to the 2012 determination, but if your clients had asserted some right or interest in relation to any part of that area, they would have had an opportunity, would they not?  Did they not get notified, and they could have ‑ ‑ ‑ 

MR HUGHSTON:   Not that I am aware of.  They certainly were not parties to ‑ ‑ ‑ 

JAGOT J:   No, I know they were not, but they could have applied to be, could they not, if they asserted, under the Native Title Act, that they had a right or interest in the 2012 determination area – they could have applied, could they not, to be heard?

MR HUGHSTON:   They are not saying that they have an interest in that determination area.  Can I say, your Honour, most – they are a very traditional people, mostly living in and around Oodnadatta, not well educated ‑ ‑ ‑ 

JAGOT J:   No, no, but they are represented by the South Australian Native Title Service.

MR HUGHSTON:   They are now; they were not, back then.

JAGOT J:   Yes – but – somehow that must have come – anyway, my point is simply that you have been saying they never had an opportunity to be heard in relation to the 2012 ‑ ‑ ‑ 

MR HUGHSTON:   Yes.

JAGOT J:   But such claims, as I understand it, have notified any person who thinks they have a right or interest in relation to the claim area, can come along and be heard.

MR HUGHSTON:   Your Honour, we are not asserting that we have a right or interest in what is the Arabana determination area.

JAGOT J:   So, what does it matter that you were not heard, then, in relation to the 2012 determination?

MR HUGHSTON:   If everything was adopted and it was as my learned friend says, significant probative weight was given to those findings, that is the unfairness – that we have not had an opportunity to test that evidence when it was given.

JAGOT J:   I am struggling to see any unfairness there, but maybe that is my issue.

BEECH-JONES J:   So, your complaint is about the reliance on that determination in relation to their claim for the overlap area?

MR HUGHSTON:   I am sorry, your Honour?

BEECH-JONES J:   Your complaint is that you have not been heard about the proposed reliance on that.

MR HUGHSTON:   Yes.

BEECH-JONES J:   And I thought, in answer to Justice Edelman’s question, you say, but you were at the hearing, and the Arabana people put this to the forefront of their case, did they not?  So, you were able to recontest the evidence then, because they tendered all the evidence in support of it.

MR HUGHSTON:   Yes, your Honour.  They submitted a lot of other evidence as well.  That was only one of the matters.  They did not give the determination the weight, if you like, that was given to it in the Full Court.  It was just one of the 10 matters that was relied upon.  But can I ‑ ‑ ‑

EDELMAN J:   Have you got a notice of determination that said that the Full Court – that there was any denial of procedural fairness in the Full Court?

MR HUGHSTON:   Can I indicate to your Honours that your Honours’ decision is not just going to be in relation to this case, it will relate to the future – and think about it in the future.  Is it the case that where a native title claim group puts a claim over a small area of its country – it might be in a national park, it might be an area where no one else has any interests at all; the State, as it is encouraged to do by the Native Title Act, negotiates to give them a consent determination – it is not going to affect anybody; they get their consent determination; and then they put a claim on over much larger areas of land involving many, many other interests and say, you have to accept that this determination, which was made by consent, has determined that we are a society, acknowledge traditional laws and customs, et cetera, et cetera.

BEECH‑JONES J:   Is that what is being said, or is it being said that it is evidence of that?

MR HUGHSTON:   Sorry, your Honour?

BEECH‑JONES J:   Is that what is being said – it is determinative – or that it is evidence of that?

MR HUGHSTON:   It is being put that it is very strong evidence of that.

GLEESON J:   The language is that it should have been applied.

MR HUGHSTON: Yes, should have been applied. But it is also two things. It is inconsistent with the legislative intention, that if you want to rely upon evidence, and you want to rely upon findings of another native title proceeding, as set down in 86, you make an application to the court for the court to adopt those findings. No section 86 application was made in this proceeding.

GAGELER CJ: Evidence was received in this proceeding that had been tendered in the earlier proceeding. Is that not, in substance, what section 86(1)(b) allows for?

EDELMAN J: It could only have been done under section 86.

MR HUGHSTON:   Yes.  Well, I think it probably just went in by consent, with no one thinking about 86, because Dr Lucas was going to be called to speak to that report.

GAGELER CJ: Whether you thought about it or not, what was done was in accordance with section 86.

MR HUGHSTON:   Yes.  It was not inconsistent with it, your Honour.

GAGELER CJ:   So, faced with that evidence, the same evidence as was before Justice Finn, can some weight not be given to the fact that the evidence was acted upon, accepted by Justice Finn, in weighing it in these proceedings?

MR HUGHSTON:   No, your Honour, because a different test applies when the court makes a consent determination.  We could go to them ‑ ‑ ‑

GORDON J:   But even if you took into account that there is – if one accepts there is a different test ‑ ‑ ‑

MR HUGHSTON:   Yes.

GORDON J:   So, assume that; that may go to weight.  Is it not the position that they received into evidence the Dodd determination, accepting it was identified and agreed by consent, and given approval by the court on a different basis, that you were at the hearing, that the evidence – as I understand it, not only was the Dodd determination put at least at the forefront, or at least as number 1 of the 10 matters, but, moreover, the evidence which it refers to, itself, was tendered as part of Arabana’s case.  So, you had an opportunity at that point to address it.

MR HUGHSTON:   Yes.

GORDON J:   That is, both the Dodd determination and the underlying reports upon which the determination was based.

MR HUGHSTON:   The Dodd determination was not tendered, as such; it is a judgment of the Court. 

GORDON J:   Received into evidence – it was part of the record of the court, which was before the court, and relied upon expressly by the Arabana people, as well as – I think you have agreed – the underlying reports.

MR HUGHSTON:   It was.  But as Justice Finn makes it abundantly clear in that case, he was relying upon the State being satisfied on the evidence it had reviewed that there was a credible basis for the application, because that was what has come to be accepted in the Federal Court as the appropriate standard for determining whether the court will make a consent determination.  The court relies upon the State party, or the Territory party, to examine the evidence itself and then to decide whether that it provides a credible basis for the application.

The Federal Court has said – and we have Widjabul and Western Bundjalung, but most of the cases are referred to in Dodd itself – that the State is not expected to satisfy itself that the evidence would establish native title on the balance of probabilities; and, in fact, it would be wrong of the State to insist on evidence that was necessarily admissible and would necessarily satisfy 223.  All the State is required to do – and not just required, when one reads the Full Court’s decision in Widjabul, the State has to accept evidence which establishes no more than a credible basis, because the Native Title Act encourages the settlement of native title claims by conciliation and negotiation.  That is set out in the preamble.  It has been said many times in the Federal Court as to what the objects of the Native Title Act are.

So, what Justice Finn has set out are not, strictly, findings of fact that have been adjudicated after a dispute; they are more statements of the evidence that has been put before him to establish that there was a credible basis for the application.  In those circumstances, the determination should not be given a great deal of weight.  But in any event, as I have indicated to your Honours, it certainly does not establish anything other than the matters set out in 225.  That is all it establishes.  The rest of it is a question of how much of it can we adopt, or adapt, or whatever.  But Justice Finn in ‑ ‑ ‑ 

GAGELER CJ:   Are we going to Dodd?

MR HUGHSTON:   I am looking for it, your Honour.  If I can find it, I will go to Dodd, but I seem to have misplaced it.

STEWARD J:   Tab 23, volume 6.

MR HUGHSTON:   Volume 6, thank you, your Honour.  Your Honours will see at paragraph 20 that his Honour is quoting from Justice North in the Lovett Case and the Lovett Case has been frequently cited both by first‑instance Federal Court judges and by the Full Court.  At the end of paragraph 37 of what Justice North has said:

Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application –

STEWARD J:   Sorry, what paragraph was that in Dodd?

MR HUGHSTON:   It is in paragraph 20 in Dodd.

GORDON J:   In Dodd?  I do not think so.

GAGELER CJ:   Yes, it is in Dodd, page 1894.

BEECH‑JONES J:   It is an extract from Dodd, paragraph 4.

GORDON J:   It is an extract from Dodd in the Dodd determination?

MR HUGHSTON:   I am sorry, your Honours.

GORDON J:   It is an extract of Lovett in the Dodd determination.

MR HUGHSTON:   Yes, that is right, yes.  I think it is page 385 of the authorities.

GAGELER CJ:   There are numbers everywhere, but that is one of the many numbers on the page, yes.

MR HUGHSTON:   Yes – 1894 at the top.

STEWARD J:   It is a quote from Chief Justice Keane in King v South Australia.

MR HUGHSTON:   No, Justice North ‑ ‑ ‑ 

STEWARD J:   No, no, Justice Keane is quoting Justice North in Lovett.

MR HUGHSTON:   Yes, he is.

STEWARD J:   Yes.

MR HUGHSTON:   And Lovett is, if you like, the seminal case which first dictated this approach to the settlement of native title claims, to the court’s power, in section 87, to make orders by consent.  In paragraph 21, his Honour Justice Finn says, about four lines down:

However, it –

the Court:

might consider that evidence for the limited purpose of being satisfied that the state is acting in good faith and rationally –

So, his Honour Justice Finn is considering that evidence, but only to satisfy himself that the State is acting in good faith and rationally when the State says, there is a credible basis for this application.

STEWARD J:   But that is not Justice Finn, that is Chief Justice Keane saying that.

MR HUGHSTON:   Yes, yes, your Honour.

STEWARD J:   Quoted by Justice Finn.

MR HUGHSTON:   Yes, sorry, your Honour.  Then, at paragraph 23 – this is quoting from his Honour Justice Reeves in paragraph 12 of Nelson, in the second paragraph:

There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application.

Then, in the next paragraph:

The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court.  The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court.  Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application.  The Act contemplates a more flexible process than is often undertaken in some cases.”

GAGELER CJ:   And you probably want to refer to the conclusion at the top of page 1907 as well.

MR HUGHSTON:   Yes, your Honour.  Yes.  So, that is the conclusion that the State could be properly satisfied:

that there was a credible basis for the Arabana’s application.

Therefore, here it is.  And he set out the evidence, but they are not really findings, as such.  There has been no contest here, there has been no assessment on the balance of probabilities.  His Honour is simply saying, this is evidence which the State has looked at and said it provides a credible basis, I am satisfied that they have done the job.

As I have indicated to your Honour, it may have less importance in this case than it would in the application in other areas, where, if people do not bring all of their claims at once – in other words, you do not claim the entirety of your traditional country – there may be very real reservations on the part of a State party or a government party in terms of resolving something like an area where there are no third‑party interests, it is unallocated or vacant Crown land, or it is a national park, and the State is more than happy to say, yes, there is a credible basis.

But if the State was of the view that that is then going to come back, in terms of the State being bound to say, yes, they are a society, they do have traditional laws and customs under which they possess rights and interests in land, there has been continuity, et cetera, all those things which section 225 does not say, there is a real chance that there will be a reluctance on the part of State parties to do what the Native Title Act encourages them to do, which is to resolve these claims through negotiation rather than litigation, and to resolve them quickly.

BEECH‑JONES J:   So, what is the appropriate principle that should be adopted with respect to this?  That it is some evidence, and the weight of the evidence depends upon the particular case?  Or it is no evidence?  Or – what?

MR HUGHSTON:   Your Honour, in this case, his Honour has accepted the summary of Justice Finn’s findings.  It is not really evidence as such, but his Honour nonetheless has said, I accept this summary of the laws and customs of that determination area – although he also makes it equally clear that the determination of the application which is before him would depend upon the evidence that is put before him.

If we could look at what the case was in relation to the traditional laws and customs, we deal in our submissions with the so‑called failure to make findings as to the content of traditional laws and customs, and mention paragraph 40.  His Honour ‑ ‑ ‑

JAGOT J:   Mr Hughston, the things you said about the State, if there is a determination – whether it is by consent or not, there is a determination under 225 ‑ ‑ ‑

MR HUGHSTON:   Yes.

JAGOT J:   ‑ ‑ ‑ which involves the determination – say, that that particular group are a society that existed at sovereignty, and it is satisfied, and, yes, it relates to that particular land ‑ ‑ ‑

MR HUGHSTON:   Yes.

JAGOT J:   ‑ ‑ ‑ how can that – is good?  The consent status of it does not change the fact that it is a determination.  How is anyone then free to say, no, the basic fact, there was no society.  I do not follow what you are saying about how the State might be discouraged, because once the State has agreed there was a society ‑ ‑ ‑

MR HUGHSTON:   Yes.

JAGOT J:   ‑ ‑ ‑ true it is that the determination relates to particular land, but it is hardly open to the State then to say, actually, there was no society at all because that is ‑ ‑ ‑

MR HUGHSTON:   That is what I am saying, your Honour.  If it has that effect, one could well imagine that State parties would insist on whole of country claims rather than allowing some small area where no one has interest apart from the Crown to be resolved by consent.  If it then means when there is a claim over areas where the State has ‑ ‑ ‑

JAGOT J:   So, you are saying a determination is not in rem – it does not ‑ ‑ ‑

MR HUGHSTON: It is in rem. It determines the matters that are set out in 225(a). It says nothing about a society. It simply determines the matters that are in section 225 ‑ ‑ ‑

JAGOT J:   But fundamentally underlying that has to be the existence of the native title claim group that must satisfy the 223 requirements.  I am just not ‑ ‑ ‑

MR HUGHSTON:   Only in relation to that land.

JAGOT J:   Yes, I know.  But if you say there is a society in relation to this land here, it is not open to anyone to say that that society does not exist.  That is a given.  What you are putting is, to me, completely contrary to the once‑and‑for‑all nature of a native title determination.

MR HUGHSTON:   You could not put in issue that that society does not exist in relation to that determination area.  Certainly, you could not put that.  But you certainly put it in issue if they put a claim over another or a different area of land.

JAGOT J:   You could not put in issue that the society does not exist.  Maybe you are using it as shorthand.  You could put in issue that, under their traditional laws and customs, there were no rights and interests that relate to this other land; you could put that, by those laws and customs, there is no connection to the other land; but what you could not put – but what nobody could put – and this is the whole purpose of the Native Title Act – nobody could say that the society itself did not exist, because that is a fundamental fact, irrespective of no judicial finding.

MR HUGHSTON:   Yes, your Honour.

JAGOT J:   A consent determination is a determination under 225, just like any determination, and it has certain essential facts that are integral to it that then operate as against the whole world.  True, that not all of them – true, that it relates to particular land, but you are not suggesting that a State could turn around and then deny the very existence of a society that they were prepared to accept?

MR HUGHSTON:   Yes, I am, your Honour.  The word “society” does not appear anywhere in the Native Title Act.  It is simply a tool, if you like, for the application of that definition of native title.  And it is a society only in terms of ‑ ‑ ‑ 

JAGOT J:   All right.  Well, let us avoid “society” – that there is a communal group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land, and, yes, I accept that it is in relation to land ‑ ‑ ‑ 

MR HUGHSTON:   Yes.

JAGOT J:   ‑ ‑ ‑ but it is essential to that that there is the people.  The people exist.  You cannot turn around and undo that.

MR HUGHSTON:   Your Honour, most – no, I will not talk about most determinations.

JAGOT J:   Well, you cannot ‑ ‑ ‑ 

MR HUGHSTON:   All I can say, your Honour, is, again, that the determination, under 225, does not say this particular society exists.

JAGOT J:   But it says who the persons are who hold the common law group rights comprising the native title.  Okay.  So, let us avoid the word “society”.

MR HUGHSTON:   Yes.

JAGOT J:   There is then, as good against the whole world, that there were such persons, and there are such persons, so ‑ ‑ ‑ 

MR HUGHSTON:   Your Honour, native title can be communal, group or individual rights and interests.  That is the definition.  The communal would be, perhaps, a society, but people can apply for group rights.  Not all claims that are made are made as whole of society claims.

JAGOT J:   No, I understand that, but in this case, it was a communal group right for everybody in the area ‑ ‑ ‑ 

MR HUGHSTON:   It was in this case, yes.

JAGOT J:   ‑ ‑ ‑ and there is a determination that these people existed as a community at sovereignty, and that they had rights and interests, et cetera.  Yes, in relation to the land, but essential to that is that they did exist, and still exist.  My point is simply that no one then can say that is not true because that is essential to the determination.  It does not matter if it is by consent.

EDELMAN J:   Mr Hughston, you may want to think about whether this submission is consistent with the interests of those instructing you and your ultimate clients. 

MR HUGHSTON:   Yes, I am aware of that, your Honour, thank you.  I only have the one client.  They are the respondents in this matter, and they are the ones whose interests I must pursue, but I am aware of what your Honour is saying.

GAGELER CJ:   Mr Hughston, we are dealing with ground 2.  Are we finished? 

MR HUGHSTON:   Sorry? 

GAGELER CJ:   Are you finished? 

MR HUGHSTON:   With ground 2? 

GAGELER CJ:   Yes. 

MR HUGHSTON:   Could I take your Honours to Warrie – the Fortescue v Warrie case – which I think it is in volume 8, but I will just check. 

GAGELER CJ:   Volume 8, tab 25. 

MR HUGHSTON:   Thank you, your Honour.  This was a decision of five justices:  Justices Jagot, Robertson, Griffiths, Mortimer and White.  There are a number of issues, but the issues that are of interest here are – this was a case where the Yindjibarndi people had obtained a determination of native title over an area known as the Daniel area – back in 2005, I think it was – and the finding that was made there was that they had only non‑exclusive rights and interests under their traditional laws and customs.  After that determination was made, they made a subsequent claim over an adjoining area of land in which they claimed rights of exclusive possession, and ultimately Justice Rares did find that they had rights of exclusive possession. 

One of the points raised by the Fortescue Metals Group was that it was allegedly an abuse of process for the native title claimants, the Yindijbarndi people, to claim that they had different rights and interests in the Yindijbarndi area – in other words, exclusive rights – to those that they had been found to hold in the contested Daniel determination, even though the laws and customs were extensively the same.  In a joint judgment of their Honours Justices Jagot and Mortimer – the other Justices agreed with this – we have first, at paragraph 80, their Honours saying that:

The reasoning of the primary judge . . . about the nature of a determination of native title as a recognition of the content of a set of existing rights, over a specific area of land and waters, is critical to the conclusion we have reached.  As his Honour also observes at [357] (albeit in the context of discussing issue estoppel), different land and waters are involved in the Warrie proceeding from those in Daniel and Moses.

In particular, how Yindjibarndi law and custom operates to give rise to rights and interests is likely to vary because it is different land and waters –

And they go on to say, four lines from the bottom:

All will depend on the evidence.

So, there is no binding finding, if you like, made by the adjoining, contested determination.  We are dealing with different land.  All that was determined in Daniel was what rights and interests exist in that area of land, and although it is the same people, it is the same laws and customs, we are now dealing with a different area of land, and so whether they have rights and interests and what those rights and interests are will depend upon the evidence.

JAGOT J:   We are at one as to that.  But nobody in this case was saying that there were no Yindjibarndi people who held a communal right.  That is the point I am making.

MR HUGHSTON:   Yes.

JAGOT J:   You seem to be going much further, in saying that this case is just about they were a communal group who, on one determination on one area of land, it was said they are non‑exclusive, and they said, but this other area, it is exclusive.  But none of that involves conflicting with a fundamental, factual premise – because exclusivity or non‑exclusivity is, obviously, land‑dependant.  People – existence of people, the existence of traditional laws and customs may relate to land, but are not necessarily confined to land.  Nobody here was saying that the Yindjibarndi did not exist or that they did not have traditional laws or customs.

MR HUGHSTON:   Can I take your Honour to paragraph 107 – perhaps, starting at 106:

A further aspect of s 223, fundamental to the Native Title Act and to the decision in Mabo (No 2), should be recalled.  At [77], the plurality in Yorta Yorta relevantly expressed it thus:

The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected.  It is those rights and interests which are “recognised” in the common law.

At 107:

The “processes of the new legal order” are the processes established by the Native Title Act.  Those processes are structured around a claim over a specifically identified area of land and waters, and proof of native title “in relation to” that land and waters.

Skipping down three or four lines:

The Native Title Act in terms does not require establishment of some overarching “society” that can only be described in one way and with which members of a claim group are forever fixed in relation to any other land and waters over which they assert native title.  Neither Yorta Yorta, nor any other decision binding on this Court, requires such an approach.

That is the point I am making, that there will be, if you like, a need to establish a society for every claim that is made, because it is dependent upon the specific area of land, because the definition of “native title” is tied to a particular area of land.  It is the rights and interests which are possessed by the Aboriginal or Torres Strait Islander people in relation to land under laws which they acknowledge and observe and by which they have a connection.

So, it is those laws and customs that relate to that specific land which will define the society.  You look to see, well, who are the people who acknowledge and observe those 223(1)(a) and 223(1)(b) laws and customs in relation to this area?  And then, for the purposes of the application of the definition, following what the plurality did in Yorta Yorta, you look to see, well, that will be the society or the community – that we are now going to look to see whether that society or community have continuously, interrupted, acknowledged and observed the relevant laws and customs.

So, society can and will change, depending upon the land that is involved, because it is not an overriding generic definition that lasts forever.  It is specific, and specific only to the land that is claimed.  While I am on Warrie – and this really relates more to ground 2 – paragraph 112 ‑ ‑ ‑

GAGELER CJ:   We are dealing with ground 2, are we not?

MR HUGHSTON:   Pardon, your Honour.

GAGELER CJ:   We are dealing with ground 2.

MR HUGHSTON:   Sorry, your Honour, yes.  Paragraph 112:

The exercise of judicial power in Daniel/Moses created, to use the language in Tomlinson . . . a “new charter by reference to which [the question of native title in the Daniel/Moses land and waters] is in future to be decided as between” those who were parties to that claim, and a new charter in rem, in relation to that land and waters.

So, it is in rem in relation to the land and waters, and it is binding but only binding in relation to those with interests in that land.  Your Honours go on to say, midway through that paragraph:

However the “charter” was as to that land and waters, and as to all existing and future interest holders in that land and waters.  In terms of then existing proprietary interest holders, this did not include the appellant.

So, Fortescue Metals did not have any interests in the Daniel area:

The Daniel/Moses determinations “quelled” the controversy about native title in relation to that land and waters. A determination under s 225 could not reach beyond the land and waters which were the subject of the claim . . . Again, we do not accept this outcome has any automatic or inevitable impact on the claim to the Warrie land and waters, or on the myriad of (different) sets of persons who have, or may have in the future, proprietary interests in the Warrie claim area.

So, again, specificity – all it does is it binds the parties, those with the interests in that land are bound by that determination, and it is in rem in relation to the status of interests in that land, but it does not operate at all with people who do not have interests in that land or in relation to land that is outside that determination area.

GAGELER CJ:   Does that conclude your submissions, Mr Hughston?

MR HUGHSTON:   Your Honours, I was going to go on a little bit longer.

GAGELER CJ:   On what topic?

MR HUGHSTON:   On the topic of the case which was presented.  It is ground 1, the ‑ ‑ ‑

GAGELER CJ:   Going back to ground 1?

MR HUGHSTON:   Going back to ground 1, and it relates to the 10 matters, the allegation that the judge looked for these physical acts of connection when he should not have.  I think it has already been run past your Honours, but I wanted to, again, make sure that your Honours understood that ‑ ‑ ‑

GAGELER CJ:   We have been over the 10 grounds pretty thoroughly.

MR HUGHSTON:   Yes.

GAGELER CJ:   I will not stop you from making those submissions, but after lunch.

MR HUGHSTON:   If your Honour pleases.

GAGELER CJ:   We will take the luncheon adjournment.

AT 12.56 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

GAGELER CJ:   Mr Hughston.

MR HUGHSTON: Your Honours, I think either I have covered – or Mr Golding has covered – all of the matters in my outline of argument, apart from perhaps paragraph 13. Paragraph 13 is merely drawing your Honour’s attention to those provisions in the Native Title Act, which make it clear that there is a geographic specificity about applications, and which also ensure that anyone who may have an interest in the area of an application has an opportunity to be joined as a party. 

Unless there are any further questions from your Honours, they are the submissions on behalf of my clients. 

GAGELER CJ:   Thank you very much, Mr Hughston.  Mr Lloyd.

MR LLOYD:   Your Honours, I have – sticking with my client’s mode in this proceeding – 10 matters.  I propose to rely upon them independently and cumulatively.  The first matter is a response to a question that several of the Bar table have been asked as to:  is there an example of a case when a right passes (a) but not (b)?  We can give an example. 

Under some traditional laws and customs, spouses of native title holders get rights to reside on land, or perhaps hunt and fish on the land of their spouse.  They do not, however, become part of the native title holding group.  Those rights are sometimes called contingent rights or personal rights; they do arise under, and are conferred by, a traditional law and custom; they do relate to land, but they do not create a connection between the spouse and the land to make them native title rights.  An example with such a case is AB (deceased) (on behalf of theNgarla People) v Western Australia [2012] FCA 1268. It is a horrendously long case, but we would refer the Court to paragraphs 548 and 876.

The second issue is your Honour Justice Beech‑Jones asked whether a consent determination – asked, I think, my friend Ms Webb – could constitute prima facie evidence.  We submitted in the court below that there is authority that an in rem order can serve as prima facie evidence of the findings that are essential to the validity of the order.  The court below – the majority at least, but I think the court below at paragraph 71 seems to accept that proposition in paragraph 71 because they cite the two cases that we relied upon for the proposition.  That then raised the question as to what are the facts that are essential to the validity of the Dodd determination, and their Honours set out our submissions at 83.

Perhaps I should make a point here in passing.  A couple of the respondents or interveners have said, well, there is a difference between consent determinations and litigated determinations, and that in consent determinations the sort of observations made by Justice Finn are not really findings.  But our case has always been it is not those paragraphs of Justice Finn’s judgment that we say are the matters that are actually essential for the determination of native title.  In paragraph 83, in that quote there, there is a setting out of those matters.

Then in 84 and 85, their Honours seemed to accept that some of those matters are essential for the validity.  They do not reject any of the matters we put forward for validity, but at 86 they say that they are all geographically specific.  Then at 88 it was said that the trial judge’s conclusion:

that the requisite connection with the Overlap Area had not been proven did not involve a denial that the Arabana . . . laws and customs that continues to have vitality . . . in neighbouring land.

That is true.  Our point was that the Dodd determination identified the content and nature of the native title and interests over land that is Arabana country.  The holdings of those particular rights and interests are of a kind that creates a connection between the holder and the land.  The Dodd determination did not determine that the overlap area was Arabana country.  We never said that.  However, the trial judge’s finding in this case was that the Arabana at sovereignty had such rights and interests and thus connection.  So, that was really filling the gap such that the matters that were essential facts that supported the determination was at least prima facie evidence of those matters that we relied upon and, for that reason, should be given the weight we have said it should have been given.

BEECH‑JONES J:   Do you say that principle operates independently of section 86?

MR LLOYD: Section 86 is much broader, so we say it works ‑ ‑ ‑

BEECH‑JONES J:   They are complementary.

MR LLOYD:   They complement each other.  I was going to say something else, but I wanted to address a point which I think Mr Golding made in response to some questions of the Court.  We would agree that – and we think that Yorta Yorta, in relation to section 223(1), gives an exposition of some of the elements in there. So, my friend Mr Hughston says, nowhere in the Act does it mention society. Well, that is true. However, this Court has explained that paragraph (a) is, in effect, about finding a normative system of rules. This Court has said they cannot exist in a vacuum.

The expression “society” can be understood as just a reference to those people who follow the normative system of rules.  It is not a statutory concept, but – the word “society” is not a statutory concept, but implicit in the notion that there is a normative system of rules which is a statutory concept is the idea that there will be some people who follow that.  So, paragraph (a) is about, at least in part, whether there is a normative system of rules which is observed by some group, which then becomes called the society, and then are the rights and interests which are being advanced as native title rights and interests – are they rights and interests that are possessed under that normative rule?  So, that is (a).

Then (b) is looking for a connection between the Aboriginal people, again being in effect the society – whether they “have a connection with the land”.  We apprehend – and I think it is not materially different to what the State says – that the reference to:

in relation to land or waters –

in the chapeau is somewhat at large. It is there to say the Commonwealth Parliament is recognising through this Act native title rights that are in relation to land or waters, not native title rights that are in relation to a marriage or in relation to copyright, or anything else – it is just in relation to land or waters. The particularity of the land and waters is picked up in section 225 where it actually expressly says the determination is about:

a particular area –

As my friend Mr Hughston drew attention to. Then when one is using this definition in the context of section 225, the reference in (b) to:

have a connection with the land or waters –

It is the land or waters that would be the subject of the determination.  I do not think that is materially different to what the State says.  It is consistent with our case.  We are not saying something radical.

GAGELER CJ:   Is what you are saying exactly what is said in Bodney or is it something different?

MR LLOYD:   Bodney says a lot of things.  I do not know that I necessarily want to embrace everything.

GAGELER CJ:   Paragraph 179 says something very similar.  It seems to be the critical paragraph.

MR LLOYD:   We do not say 179 is wrong and we are not disagreeing with 179.

GORDON J:   Sorry, just so I am clear, I think you accepted yesterday that that is what Justice O’Bryan set out at 290 when he picks up 179 of Bodney.

MR LLOYD:   That is so.

GORDON J:   Thank you.

MR LLOYD:   So, the (a) limb, at least in part, is the identification of the normative system of rules.  I think your Honour Justice Steward had asked whether or not the words “acknowledged” and “observed” should be read into paragraph (b).  We would say no to that.  It depends exactly on what your Honour means.  It is the same normative system, but we do not say there is an acknowledged and observed test in (a) and in (b) – it has to be the normative system that is acknowledged and observed, and then the connection has to be by that system.  It has to be acknowledged – so, I am not trying to walk away from the fact that it has to be acknowledged and observed, I just say that this really the part (a) test.  The part (b) test, or the paragraph (b) test, is slightly different.

BEECH-JONES J:   Do you mean by that that the acknowledgment and the observance is not – that is not specifically tied to the particular land?

MR LLOYD:   Exactly so.

BEECH-JONES J:   Yes.

MR LLOYD:   Which is why, if you have a single society – like the Arabana people – who have a big claim and a little, tiny claim, a determination can determine that there is such a people who is a society who has a normative system and has had a normative system that has carried through.  That does not say that that normative system applies to that country – the new country; that has to be proved in the overlap area case, which is what we did.

The third point relates to the Fortescue Case, which my friend took the Court to.  It is in volume 8, tab 25.  We say it is not inconsistent with our arguments or the cases we have relied upon.  Fortescue was a case where a group with a determination over one area wanted to argue that they had different rights arising from their laws and customs in a different area.  That is crucial because that kind of law and custom is capable of being geographically specific.  You can have different rights in different areas. 

All they wanted to do was argue that they had different rights in different areas.  Fortescue argued that they could not do this – they were bound by their first determination, and they could not argue for something different.  The court did not think it was beyond argument that laws and customs could be different in a different area or could – as the court said – “manifest itself differently”.  Rights are able to differ in different areas and thus can be geographically specific. 

In the present case, my clients claim that the laws were the same throughout its country, so it was not in that area.  The Walka Wani was not running a case that our laws were different; their case was that we had not sufficiently acknowledged and observed in the overlap area.  So, we say Fortescue is quite different.  In particular, we draw the Court’s attention to paragraphs 141 through to 148 – but, in particular, 14 – where the court is looking at Dale and Wyman.  Those are cases where the ruling in one area had an impact on a different area.  The court is making clear in that judgment – their Honours are making clear that what was being decided in Fortescue was not inconsistent with those cases.  So, we say, in the same way, they are not inconsistent with this case. 

My fourth point deals with the suggestion that we are bound by our forensic decisions.  We are not exactly sure what forensic decision it is we are meant to be bound by.  There is some obscurity about that.  We say we relied upon the so‑called 10 matters to inform the identification of traditional laws and customs.  We never made a forensic decision that – so that the court could not consider them separately, nor do we make a forensic decision that the test was not by traditional laws and customs.  I accept, as my friends have pointed out, that in one or two places we use the expression “in accordance with”, but that was always in conjunction with another sentence nearby saying “by”, and we meant “by” by it.  It is not a forensic decision or judgment.  We say that that principle has no application here.

My friend Mr Golding suggested that the Arabana claim was siloed from the Walka Wani claim so that the rejection of the Walka Wani claim could have no effect on the trial judge’s reasoning in my client’s case.  We say that submission should be rejected, having regard to what was said at 848 to 850, which are central paragraphs that I have taken the Court to already in relation to ground 2.  The point was that our determination was treated as having no particularly useful weight, because the same thing could have been said about this other determination which, somewhat ironically, my friends relied upon.  We say your Honour should not accept that.

My friend Mr Hughston said at one point – or at least I heard that he said something along the lines that there was no evidence that the Arabana people had obligations to protect Ularaka.  We would say that is clearly not right.  First of all, at paragraph 618 of the trial judge judgment, there is reference to that in the evidence of Mr Strangways, at the end of that:

He said it was for Arabana people to protect sites by visiting them –

So, that is evidence of obligation.  Also from paragraph 877 for about the next 15 paragraphs, the trial judge refers to our evidence about protecting Ularaka.  I accept he was not sufficiently impressed by it, but it is not like there was not any. 

Then, in the judgment of the court below, at 112 their Honours set out our summary of Mr Strangways’ evidence in relation to Ularaka, and at 113 – perhaps it does not quite say this, but I suggest that a fair reading of that is they accept the summary as a fair summary.  There is a fair bit in there, but the first main one is associated with – the Hookey’s Hole Ularaka is:

Associated with his frog totem, he is under an obligation to ensure that –

So, that is even an example of somebody knowing that they have a family obligation to protect a particular site.  So, to the extent that my friend said there was no such obligation, we say there was evidence of that.

GAGELER CJ:   I think it is really put against you that one or two of these stories is not enough to establish a normative system.  I think that is what is being said.

MR LLOYD:   I understand that that is ultimately their case.  We say we have to show that there is a connection.  We do not accept that there is only one or two, because part of the issue is there has to be an acknowledgement of traditional laws and customs.  We have said that is a normative system and the Arabana people have a normative system, and all of the evidence that pertains to the neighbouring area is still evidence about acknowledging traditional laws and customs.

Now, admittedly that does not necessarily apply to the overlap area, but if we do have a system of following, acknowledging and observing a normative system of rules, then the remaining question – or at least the main question for the overlap area – is whether or not we have a connection to that there.  So, the assessment should have been on the basis of, well, they have this system and they do believe in protecting Ularaka, but maybe they have not done it as much as they might have otherwise done if it was nearer to them.  Then that should have been the assessment.

We would say we do not agree with the tipping point theory.  It is not a test.  I mean, I think my friend was asked, what is the test for the tipping point, and I think he said it was an evaluative judgment for the trial judge.  I do not think that can be the principle of law, that it is an evaluative judgment for a trial judge ‑ ‑ ‑ 

EDELMAN J:   Well, it may be right to have a tipping point‑type system where you are looking at if there is a normative system of rules at all, but the question here, as I understand your submission, is that it is one about the boundaries of that system, not about the existence of that system.

MR LLOYD:   That is true.  That is what we are, in effect, saying.  The system is alive and well.  Certainly, it may well be that if all we had was the evidence that related to the overlap area and nothing else and we were making a claim just with respect to the overlap area and there was no other finding that we had in the system, a court might say, well, that is not enough, you do not do enough.  But where we said, in the court below, that the mistake was, was that they, in effect, doing that approach when they should have been looking at whether or not there was a normative system that belonged to our people and then, did that normative system extend to and create a connection with this country.

If the answer to that is yes, then the new question is, well, if you have a group of people who have a normative system which is actually being acknowledged and observed, what has to happen, especially in a desert environment, for you to lose that?  If you do not hunt somewhere for a year, do you not do it?  What if you do not hunt there for a hundred years?  Maybe it is a bad hunting area.  Under your laws and customs, you have the right to hunt there.  That is the important thing.  You do not have to hunt there to do it.  And so we say that that is – that was the nature of the error.

The ninth matter I had was, my friend Mr Hughston sought to renew his complaint that he had run in the court below about our notice of appeal not mentioning all the paragraphs where we said the error could be seen.  I think – I have not checked this, but I am sure he is right that in our notice of appeal we did not mention that 56 revealed error, but in our submission to the court below we said that section 56 was an example of somewhere you could see the error that we had pleaded.  We say we did not have to mention every paragraph, and a failure to mention a paragraph where you could see the error is nothing.  And the court below does not deal with that at all in the sense that they were untroubled by my friends’ concerns, and we say your Honours should be equally untroubled.

That brings me to the 10th matter as to section 86. We say that no application is required. If your Honours have the judgment of the court below handy, I just draw your Honours’ attention to paragraph 247 because we were not the only people who advanced a determination and sought to rely upon it. The Walka Wani also advanced a determination and also sought to rely upon it and its in rem nature as establishing and supporting their society that they said had already been establishing. As one sees recited in 247, we say that what we did is what they did, and what we both did was a legitimate thing to do, and the Court should find as much.

GAGELER CJ:   It might be the only common ground in the case.

MR LLOYD:   It is not a common ground because they now say we should not have done it.

EDELMAN J: Can I just ask you, just on this point, you answered the Chief Justice earlier and you said that independently of section 86 there would be a power to receive into evidence and rely upon the evidence of the consent determination, where does that power come from?

MR LLOYD:   In my submission, it would be – like in those cases that I have cited, there is Harvey v The King and Hill v Clifford, they were both cases in which a decision of either a court or a body that had jurisdiction to determine something was tendered in a subsequent proceeding where the decision was an in rem decision – not about land but about the status of a person.  I think one was a lunacy finding and another one was, maybe, marriage – I cannot quite remember the facts of it now.

Those cases said that it is wrong to have rejected evidence of that and that that evidence should have been seen as prima facie evidence of the matters that were necessary. So, if there was no section 86 but there were determinations, we would say that that could be tendered and used as, at least, prima facie evidence for that purpose.

EDELMAN J:   The common law principle of evidence.

MR LLOYD:   I suppose it is a – I am not sure exactly that it is a principle of evidence.  I would say it is relevant and the idea that it is prima facie evidence, I suppose, is a common law principle of evidence – yes, I suppose.

EDELMAN J:   It is hearsay.  You are right, it is an in rem determination.  It is an in rem determination because a judge has said it is an in rem determination.

MR LLOYD:   Yes, yes.

EDELMAN J:   It may not matter because we have section 86, but I am just wondering because the basis upon which you put it – you said that 86 is a more specific example of a much broader principle and I am just grappling with what a broader principle is.

MR LLOYD: Sorry, what I meant was section 86 – I thought I had said the opposite. I think section 86 is broader than this principle.

EDELMAN J:   I see.

MR LLOYD: Section 86 allows you to not only put previous court decisions but findings of the tribunal, findings of other bodies – in effect, anything that is within the court’s discretion under section 86 to allow it to receive it. So, all I am saying is that when an in rem determination is tendered – consistently with section 86 – then this principle could be given weight.

BEECH-JONES J: Outside of section 86, I think section 91 of the – this was governed by the Evidence Act, was it not?  Section 91 of the Evidence Act deals with trying to align earlier findings.

There was no debate about that.  Yes, there is exclusion of evidence of judgments in 91.  We are opening up a hornet’s nest that was not previously opened up, is that the ‑ ‑ ‑

MR LLOYD:   I am not in a position to comment on section 91.  There was not anything raised by any party below.  In fact, my understanding – I was not there, but my understanding is that no one objected to any tenders of these materials.

BEECH-JONES J:   There is an exception for judgments in rem, so I stand corrected – 93B.

MR LLOYD:   Thank you.  May it please the Court, they are the submissions of the Arabana.

GAGELER CJ:   Thank you, Mr Lloyd.  The Court will consider its decision in this matter and will adjourn until Tuesday, 12 November at 10.00 am.

AT 2.43 PM THE MATTER WAS ADJOURNED