Stuart & Ors v State of South Australia & Ors

[2024] HCATrans 77

[2024] HCATrans 077

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 WEDNESDAY, 6 NOVEMBER 2024, AT 10.08 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC:   May it please the Court, I appear with MS A.L. SIBREE and MS L.J.A. HERWEIJER for the appellants.  (instructed by Camatta Lempens Pty Ltd)

MR T.N. GOLDING, KC:   May it please the Court, I appear with MR W.V. AMBROSE for the State of South Australia, the first respondent.  (instructed by Crown Solicitor’s Office (SA))

MR V.B. HUGHSTON, SC:   May it please the Court, I appear with my learned friend MS T.L. JOWETT, SC for the second, third, fourth and fifth respondents.  (instructed by South Australian Native Title Services Inc.)

MS R.J. WEBB, KC:   May it please the Court, I appear for the Attorney‑General of the Commonwealth of Australia as intervener.  (instructed by Australian Government Solicitor)

GAGELER CJ:   Thank you.  I note there are submitting appearances for the sixth, seventh and eighth respondents.  Mr Lloyd.

MR LLOYD: This appeal concerns two issues. Ground 1 concerns the correct construction of section 223(1)(b) of the Native Title Act. Ground 2 concerns the role of prior native title determinations involving the same claim group. Section 223(1) can be found in the first volume of the joint book at page 114.

GAGELER CJ:   Mr Lloyd, just take it that we are working from pamphlet copies.  You do not need to give us the page references.

MR LLOYD:   Thank you, your Honour.  Subsection (1), of course, defines “native title”.  The section identifies three conditions or circumstances that must be satisfied for:

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

to be native title.  Paragraph (a) contains a number of elements.  Without seeking to be exhaustive, they include there must be laws that are acknowledged and customs that are observed by the relevant Aboriginal people or Torres Strait Islanders.  Second, those laws and customs must be able to be characterised as “traditional”, and that word, “traditional”, carries with it, inter alia, a need for the laws and customs to date back to pre‑sovereignty times.  Further, those laws and customs must be normative, and thus create rights and interests that can be possessed under those laws. 

All of that is in paragraph (a).  Paragraph (b), about which this case is concerned, requires that the relevant Aboriginal or Torres Strait Islander group or society:

have a connection with the land or waters –

and that connection must be one that arises “by” the traditional laws and customs mentioned in paragraph (a). The word “connection” is not qualified by adjectives. We will submit “a connection” means simply a relationship with the land or waters. What makes the present case unusual is that the application of section 223(1)(b) arises in a context where the court found that the “at sovereignty” and “at effective sovereignty” forebears of the claim group had native title rights and interests at that time. That is, and that necessarily means, for them to have had native title rights and interests at the time, that they had “a connection” at that time.

Now, this is not a case where it is said the group’s rights were extinguished, so that can be put aside.  It is not a case where the claim group had ceased to exist, so that can be put aside.  It is not a case where they cease to acknowledge and observe the traditional laws and customs, at least not in toto.  It is not said that the laws and customs have changed to a degree that makes them not traditional.  None of that is said.

It is said that the surviving native title holding group, which has maintained its connection to 99.8 per cent of its country, has somehow lost connection with that one small area of its at‑sovereignty estate. So, this case uniquely throws up the question of the right approach for a court to determine whether section 223(1)(b) is satisfied in circumstances where the group has accepted to have once had a connection with the land.

Now, I wish to canvass some contextual matters first.  This is important because part of the respondents’ case – indeed, a significant part of their case – is that what we say is an error in construction was caused by the way the case was run and how the Arabana put its case.  So, I will spend a little bit of time explaining how the pieces fit together.  First of all, there will be a bit where I should say I have created two books, one with the judgment of the court below and one with the judgment of the trial judge.  I will be going between them a bit.  I hope that is not too inconvenient for the Court.

So, if I start by, first of all, talking about the relationship between the overlap area and the surrounding claims and claim groups.  The best place to start is map 3, which is in the core appeal book on page 23, under paragraph 19.  In the middle of that map and slightly to the south of the centre is a small area marked “Arabana #2”, in which is identified the town of Oodnadatta.  It is slightly coloured, or hexed, or something.  Now, that claim area is 150 square kilometres.  The area is roughly 25 kilometres east‑west and around 7 kilometres north‑south.  A more detailed map of the area is at page 19, but I do not need to go to it. 

To the south and east of the overlap area, the Court will see the words “Arabana”, in fact, printed twice, but there is a sort of a darkish border on the south‑east corner of the map, that is the Dodd determination, that is what I will refer to it as, the “Arabana #1” claim.  The citation for it is mentioned in paragraph 17 of the judgment.  I will go to that case later – the Dodd Case – but for now I do not need to go to it.

Map 3 does not indicate the full size of that area.  It is slightly less than 69,000 square kilometres.  At paragraph 333 of Justice O’Bryan’s reasons, he describes the overlap area as a:

small area . . . carved out of the north‑western corner –

of the Dodd determination area representing 0.2 per cent of the Arabana country.  If the Court looks at the Oodnadatta overlap area, to the immediate north and west of that, there is a determination called the Yankunytjatjara‑Antakirinja determination.  Some of those members of that group were included in the Walka Wani claim group.  Further to the north of that claim, the Court will see a reference to “Eringa” and also “Eringa #2”. 

The groups that share in the Native Title for these two groups are not identical to each other.  That is explained in paragraph 18, but I do not need to go to that.  The group now called the Walka Wani is comprised in the same way as the Eringa number 1 group.  That is said in the trial judgment reasons at paragraph 37.  In that way, the Walka Wani claim included a combination of claimants, some of whom had rights in the area adjoining the overlap area and some of whom had no rights to the north until they got to the Eringa claim further but 25 kilometres or so further north.

So, the trial judge was faced with applications from two separate claim groups each seeking a native title determination over the same area of land. Justice White made an order, as he was required to do under section 67 of the Native Title Act, to deal with the three applications in the same proceeding.  That was done by making the Arabana applicant the first applicant and the Walka Wani applicant became the second and third applicants, because they have two applications.  The Walka Wani applications were over the overlap area, but they had two separate applications which together, cumulatively, covered the overlap area.  The reference to that order is in paragraph 11 of Justice White’s judgment. 

Ultimately, the trial judge made orders on 21 December 2021 dismissing the Arabana application.  I do not need to take the Court to it, but for the record it is page 267 of the court book.  Two days later, which was just before his Honour’s retirement, orders were made in the Walka Wani application comprising a native title determination.  Now, that determination has been set aside; it is not in the appeal books. 

Now, my client lodged an appeal from the dismissal of its application and from the orders made benefit in the Walka Wani.  That appeal starts at page 271 – I do not need to go it.  The second to the fifth respondents – there was some issue in the Full Court as to exactly how, when there is a joint proceeding of this kind, one deals with respondents.  The way the court below dealt with it was that we would appeal against, in effect, the two orders from the three proceedings and the second to the fifth respondents were made respondents to our appeal.  They also were made respondents to the State’s appeal, who also separately appealed from the order pertaining to Walka Wani.

The second to fifth respondents are what is called, under section 61(2), “the applicant”. They are jointly the applicant under section 61(2)(c) of the Native Title Act.  The named applicants become “the applicant”, so, although they are now individuals, they had a function under the Native Title Act when they their own claim to be “the applicant”.

Part of our appeal against the Walka Wani determination was successful.  It was set aside.  Their applications were dismissed, and there is no appeal from that.  So, the remaining native title claim group is my clients, the Arabana, the group descended from the people found to have held the native title rights and interests in the overlap area at the time of sovereignty.  That is at paragraph 842, but I will come to that later.

The second to fifth respondents can now, further, be characterised as persons who no longer have an extant native title to the overlap area.  I should say, one of those respondents is now deceased, but nothing, from my point of view, turns on that, nor is there any evidence that those four individuals have any ongoing legal interests in the claim area, nor do we say it is apparent that they have any interests that may be “genuinely, demonstrably, and not indirectly affected” – to use the language from the decision of the Full Federal Court in Byron Environment Centre Inc v Arakwal People – by a native title determination in favour of our client.

GAGELER CJ:   You have joined them to the appeal.  They are here, represented.  You are not saying they should not be heard?

MR LLOYD:   What I was about to say was, it is a matter for the Court.  We joined them because we had to join them, because of the joint proceedings in the court below, and then we had to name them in this proceeding, because this Court requires us to name everybody who was in the proceeding in the court below.  But we do say that those three remaining persons no longer have the same function, because they are not “the applicant” for the Walka Wani people, and that claim no longer exists as an ongoing claim.  So, it is a matter for the Court, whether the Court hears them or what the Court does.  We do not want to put it further than that.

EDELMAN J:   You said they have no interest in the proceedings, although they are a party.

MR LLOYD:   They are a party because, of course, they did have an interest because they did have a favourable determination of native title.

EDELMAN J:   But before this Court, their rights are unaffected by any decision that this Court could make.

MR LLOYD:   We say their rights are unaffected by any decision that this Court would make.  That is so.  We are not saying we accept that – not necessarily those three people, but we accept that some Walka Wani people have had a long historical connection to the overlap area.  We are not denying that, but their claimed right was a native title right which has now been dismissed.  So, their connection is a historical connection which we would say is not enough to be a party to a proceeding that is not going to affect the historical connection.

Now I turn to Justice White’s reasons to just highlight some matters about how the matter proceeded and some key findings.  Starting in the core appeal book at page 7, if I note at paragraph 9, the case ran principally on the basis that each group claimed native title rights and interests to the exclusion of the other.  Then, turning to paragraphs 29 and 30, the Arabana claim group has the same identical description – this is said in 30 – to the group in the Dodd determination – so, it is the same group.  And 31 to 32, they asserted, in substance, the same rights and interests.

Moving to 42, the Arabana first made the native title claim in May 1993, so really very shortly after the Mabo decision.  And at that time, they claimed the Oodnadatta area, but they discontinued those proceedings once the Native Title Act was enacted, and it apparently seemed – I would say wrongly – a more attractive vehicle to make a claim.  Then in 1998, in paragraph 43, the Dodd claim was begun.  Paragraph 43 explains the circumstances of the overlap in that area, and that was that the State had had, at that time, a plan to transfer that are to a local Aboriginal corporation.  The Arabana did not want to stand in the way of that, so they did not include that in their claim to the 2012 Dodd determination.

After the Dodd determination, in 2013 – this is paragraph 44 – my client then made a claim over the overlap area because it was clear that the State was not going to proceed with their previously planned arrangements for that area.  That application – the 2013 application – is the present proceeding, in effect, or it is an appeal from the determination.

In paragraph 54 of the judgment, Justice White turns to consider the effect of the existing determinations in the present proceedings.  The determinations meant that it was not possible to call:

into question in the present proceedings –

that the claim groups either comprised a society of:

people holding rights and interests –

that is in paragraph 54.  Further:

the Court should not attach any weight to evidence which is directly inconsistent with those determined facts –

That is in paragraph 55.  We agree with those statements.  Then in paragraph 56, it is more important, his Honour identifies:

the principal question on each application is whether either or both the Arabana and the Walka Wani establish, in accordance with s 223(1)(b) of the NT Act –

So, I will just stop there.  The focus of, really, the remaining issue is seen as a 223(1)(b) issue, and it is:

that their NTRI extend to the Overlap Area –

at all, and then:

if so, whether they have continued –

So, the approach taken by the court was, in effect, to consider whether it extended there at sovereignty and then to see whether it continued.  We do not say that that is an approach which is not open to a court, but we do say that that second limb, the “if so, whether they have continued” – that is to say, whether their rights and interests:

have continued to be possessed by the current societies in accordance with an acknowledgement of their respective traditional laws and an observance of their respective traditional customs.

I withdraw that.  I will not develop that point.  What we say is required under 223(1)(b) – and I do not think this is actually at issue between the parties, it is what this Court said in Ward – is that, first, there has to be an identification of the traditional laws and customs said to relate to the area of land, and then, secondly, to consider whether the effect is such as to give rise to a connection between the claim group and the land.

The laws and customs of a given society need not vary between different areas of land.  We accept that at a micro level they may vary.  So, there might be an area which is a special women’s area or a special men’s area and different people will have different rights.  But, at a higher level, there is certainly no necessary need for the laws and customs to vary, especially not insofar as the laws and customs are understood at the level of the group has kinship relations between people, the kinship relations govern the roles of how people and the group interact with each other and inform what rights people have or what stages of their lives over land, what roles they have, what authority they have to speak for land, et cetera.

We say that section 223(1)(b) does ask whether by those laws the society has a connection with the relevant land. Section 223(1)(b) does not ask whether the native title rights and interests have continued to be possessed in accordance with the acknowledgment and observance of traditional laws and customs. That is, we think, is a misreading or a misformulation of section 223(1)(b). Evidence as to acknowledgment and observance may be relevant to the statutory test, but it is not essential. The reformulation, we say, was wrong and is apt to distract from the correct approach. So, at 56 ‑ ‑ ‑

EDELMAN J:   Is the submission, really, one about levels of generality; that if one characterises traditional laws and customs at too low a level of generality or too high a level of specificity, then the continuity will almost inevitably be disrupted?  In other words, any laws and customs are inevitably changing at what you describe as a very micro level.  If one characterised the laws and customs at that micro level, then there would not be continuity of the same laws and customs. 

MR LLOYD:   Yes.  I mean, that is no doubt true.  There are probably a couple of things involved with that.  There is a version of an evolution of the content of laws and customs over time, and there has certainly been an evolution of the content of the laws and customs for the Arabana group.  So, for example, at effective sovereignty, there was probably a clan system in place where members of a particular clan had particular rights over particular areas.  It was determined in the Dodd determination that that system has not survived to the present day, so now the Arabana see all members of the Arabana group as having rights over all of the Arabana country.

So, that is a change that, if one was looking at a very specific level, you would see a change and a lack of continuity, but we say that the word “traditional” accepts a measure of change.  That measure of change that I just mentioned was accepted by Justice Finn in the Dodd determination as being an acceptable measure of change and no one in this case said it was not an acceptable measure of change.

At that level, it may have some significance but, ultimately, we would say – in all native title cases, there is a question as to what the core things you need to prove are.  One will inevitably have a situation where in 1788, say, there would have been a rich detail of laws and customs that much of which has been lost over time.  So, the question in all native title cases is:  what has to have survived for native title to have survived?

There are different iterations of that.  I think, Professor Sutton has his “three‑planks” theory.  I think, Professor McCaul – or Dr McCaul – has a “four‑plank” theory.  We are not in that area now but, we say, we had enough laws and customs to get a recognition of native title rights and interests in the Dodd determination.  At the level that that was established – I will bring the Court to this, but there was a kinship system, there was a definition of group membership, and so on – that was sufficient to sustain the rights over time.  So, we say, that is the continuity that is anticipated in the word “traditional”.  It allows for that evolution.

I now move on to the Arabana contentions.  They are set out in paragraph 57 of the judgment.  The Arabana claim to be the “same group” as in the Dodd determination – one sees that in paragraph (a).  They asserted the same rights as found in the Dodd determination – that is mentioned in (d) and (e).  That necessarily implied the same material, or materially the same, content of traditional laws and customs.  Those matters, also, were not the subject of contest, at least not in that way.

The real contest was whether, at sovereignty, the overlap area was subject to Arabana native title rights and interests.  That was the most hotly‑contested issue and what the vast bulk of the case is about.  The Walka Wani said it was their land at sovereignty and not ours.  We said it was our land and not theirs.  Then, later on – and the court makes reference to this – the Walka Wani, partway through the hearing – I do not mean actually during a hearing; the hearing process went for many years, affected by COVID – at some point in the middle of that, the Walka Wani amended their case to say, it is ours, but if it is theirs, it is also ours.  So, ultimately, there was subtle change in relation to that, but the main focus – and that is shown by paragraph 56 – was who had the rights at the time of sovereignty.

GAGELER CJ:   Is that a relevant question, for the purpose of the definition in section 223?

MR LLOYD:   Who had it at sovereignty?

GAGELER CJ:   Who had rights in this land at sovereignty.

MR LLOYD:   It is not sufficient, but it is certainly relevant in the sense that the word “traditional” carries with it traditional to pre‑sovereignty times.

GAGELER CJ:   The tradition is attached to the customs and laws.

MR LLOYD:   Indeed.  So, there has to have been customs and laws that existed at pre‑sovereignty times, which have to be sufficiently the same as the current one so as to have continuity through them.  And if they did exist at that time and if they were of a kind – which is the paragraph (a) question – the laws are of a kind that gives rise to – or I think the words used – which the group can possess rights under, then that must have been true at sovereignty as well as today.

GAGELER CJ:   Well, groups can move.  I mean, this is really what the case is about, groups moving, is it not?

MR LLOYD:   Well, we would certainly say that post‑sovereignty, there is limited scope for new rights to be created under a traditional law system.  So, you are looking at rights that existed over particular land at sovereignty.  Now, there is an elaborate set of – I do not know what to call it – case law that has a notion of succession, so if one group is killed off but the adjoining group knows all their stories about their land, and they are part of a larger regional grouping, then sometimes the adjoining group can fill the void under a broader, regional legal system, and in that sense they can move, but they are really filling a void from the at‑sovereignty rights.

We have not asked, and no one – I should say, this case is not a succession case.  No one claimed to have succeeded, partially, I think, because the legal systems – my clients are from what is called a Lakes society system of law, and the Walka Wani are from the Western Desert system of law.  They clearly do not have some overarching regional system of law which recognises succession as between them, and so that case was never run in this case.

This is a case where, logically, it was somebody’s at sovereignty.  It could conceivably have been both, at least according to their separate laws.  There are so many cases one sees – although they have never actually got to be litigated – where group A says, we own this area of land; group B says, according to our law, we own it; and then, there is a question as to what the common law would recognise if they were actually mutually inconsistent rights at sovereignty over that area of land.  Again, that is not this case.  It could conceivably have been this case, but now the Walka Wani claim has been dismissed, it is not this case. 

This case is really just about:  my clients’ forebears were found to have had, as a fact, along the way towards answering 223(1)(b), native title rights and interests in this area at effective sovereignty, and therefore by inference at sovereignty.  The question is:  do they still have those rights and interests, and what are the things that would make you lose such rights and interests? 

GAGELER CJ:   Mr Lloyd, maybe I am misunderstanding the definition.  My current understanding of the definition is that one looks for laws or customs that are traditional in the sense that the laws or customs have existed at sovereignty and had a continuity since then.  One then asks, having found the laws and customs that are traditional in that sense:  is there a connection with the land pursuant to or by those laws and customs?  Is that the wrong way of looking at it?  Are we looking for a connection with the land at sovereignty, necessarily? 

MR LLOYD:   I cannot remember exactly the case names now, but there are some cases which sort of said that you – it is wrong for the court to have a bookend approach, where you find what the position was at the date of sovereignty, and you find what the position is now and just infer that it has been.  You have to show what has happened in the meantime.  But it is certainly commonplace in the realm of native title to seek to establish native title over a particular area of land, and therefore connection, from the time of sovereignty.  But I accept that this case is also unusual in a different respect, which is the amount of ethnographic evidence was at a high level.

Often, it is not the case, and so often how it starts – which is perhaps what your Honour has seen and is thinking about – it starts with the current applicants saying, these are what our current traditional laws and customs are, these are how they currently work, and then you should infer that we had them at the time of sovereignty.  In this case, the court has looked at it the other way around.  We do not say that is an error, they both need to be there, and obviously we rely upon the factual finding that our people were there at sovereignty and had native title rights and interests at sovereignty, which – to fall within the definition of native title rights and interests – means that they must have had a connection at sovereignty.

So, the question, as a practical matter in order to answer 223(1)(b), is if we had it then, what has happened to make us lose it?  Of course, we could lose it in a number of ways.  Our people could have died off.  They could also have just lost interest in the land, they could have stopped telling stories about that land over 200 years, and no longer see it as theirs.  Even if it was theirs at the time, they might no longer think it is theirs, they might not know the stories about it, they might not assert a right over it.  That would be enough.  There could be acts of extinguishment.  There are various ways in which it could be lost.

GORDON J:   Does that not compel that what the Chief Justice has put to you is right?  That you have to identify first what are the traditional laws and customs as a body of customs that are owned – practiced by – and then determine whether or not those customs existed at sovereignty, and then the transformation of those as a result of events that have happened and determining whether or not there is a connection with the land over which you claim an area.  For this reason that, if one looks at the way Justice O’Bryan at least considered it, there are matters which are not physical; they may be non‑physical traditional laws and customs.  So, one has to identify with some particularity what it is that is the subject matter of the (a) definition.

MR LLOYD: I certainly do not want to be understood to be suggesting that we say anything obverse to that. We entirely embrace the idea that in order to answer section 223(1) the first thing to do is to find out what the traditional laws and customs are. That means the laws and customs currently and that they are traditional so that they date back to pre‑sovereignty times. We accept that they are both elements. Ultimately, what Justice O’Bryan found, and what we embrace, is that Justice White did not do that. He did not look at what the current traditional laws and customs were, at least not at the level of specificity required. That is ground 1 in a nutshell.

A lot of the judgment is about expert evidence.  It runs, in fact, from 86 to 537.  I do not propose to go to almost any of that.  None of it was the subject of an appeal, but if I just draw to your Honours’ attention that the main findings from the ethnographic evidence at 409, on 121 of the court book, through to 414.  And at 410, his Honour expressed the view that:

the ethnographical‑historical evidence overwhelmingly supports the conclusion that the Overlap Area was Arabana country at the time of effective sovereignty.

And at 411, did not see the contrary evidence as being credible.  Then from 415, there is a lengthy discussion about linguistic evidence.  The conclusion of that is on page 149, in paragraph 537.  His Honour expresses the view that:

the weight of the linguistic evidence which I accept points to Arabana having been the language of the Overlap Area at effective sovereignty –

There is then a discussion of the migration of people, from 538 to 580.  If I just go to 580, which is on page 158, his Honour found that it was:

generally consistent with the views of Lucas –

Lucas was the expert my client advanced – or one of them:

Sackett –

was the State’s expert.  They both agreed that it was Arabana land at sovereignty.  Then from 581, there is a discussion of “the Arabana lay evidence”.  I do not need to go to ‑ ‑ ‑

GAGELER CJ:   Is there a summary of the migration pattern somewhere?

MR LLOYD:   It is discussed in that section, from 538 to 580, but I think the gist of it is that at or around affected sovereignty there was a generally southwards or south‑eastward movement of Aboriginal groups.  My clients’ group was generally moving towards the south‑east of its country – and certainly the bulk of my clients do live in Maree or that sort region, which is in the south‑east of their country – and then the desert people were moving south‑east and some of them moved to Oodnadatta.  I think there was evidence of – I will be corrected if I am wrong, but I think Yumpy Jack, who was one of the Walka Wani forebears, who was famously the first desert person born in Oodnadatta in 1903.  So, there is that kind of suggestion.

GAGELER CJ:   Just for my own interest, was there anything that suggested to have been driving that south‑easterly movement? 

MR LLOYD:   Yes, I think there is some reference to droughts.

STEWARD J:   At 561, I think, Justice White talks about:

“a retreat of Arabana . . . towards to the safety, rations and employment provided by the stations at Anna Creek, Stuart’s Creek –

And so on.

MR LLOYD:   Yes, employment opportunities and droughts.

GAGELER CJ:   Thank you.

MR LLOYD:   I do not need to go to much of the lay evidence, but if I just stop off at one point.  It is paragraph 627.  This is talking about the evidence of Dr Arbon.  His Honour says at the second last sentence of 627: 

It did not suggest a connection with the Overlap Area through acknowledgment and observance of traditional law and custom.

Ultimately, we say what his Honour has done is, by using other prepositions rather than “by” – “through” here, in accordance with and other places – his Honour has put a different focal point on it on the test, and a sort of narrower and, we would say, wrong focal point on the test.  So, one sees it represented here a little bit, the “it” that is referred to is a little bit of ambiguity, but it seems to be the same “it” in the last sentence: 

It did suggest an attempt to establish connection with Oodnadatta –

And the “it” seems to be Dr Arbon’s evidence about reviving the Arabana language, which is referred to in 626.  The “it” did not suggest a connection, so her evidence:

did not suggest a connection with the Overlap Area through acknowledgment and observance –

So, the court is looking for acts of acknowledgment and observance to show the connection.

STEWARD J:   It is suggested that you make too much of the use of the words “in accordance with”, because that is the language you used yourself in your notice of appeal to the Full Federal Court.  Is it not just a substitute for “by”?

MR LLOYD:   Well, maybe in some instances it could be.  When we used it, that is probably what we meant by it.  We apprehend, however, it is not what his Honour understood it to mean, because – and I will go to this ‑ ‑ ‑ 

STEWARD J:   Well, he summarises the principles at paragraph 847, and at (d) he does not use the words “in accordance with”, he says:

the assessment of connection requires, first, an identification of . . . traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” –

Is there anything wrong with that expression of principle?

MR LLOYD:   In 847?

STEWARD J:   Paragraph 847(d).  I might add, his Honour recognises at (c) that the connection may be “non‑physical”.

MR LLOYD:   So, 847(d) is citing what this Court said in Ward.

STEWARD J:   Yes.

MR LLOYD:   We say that that is right.  That is what our submission was to his Honour.  I will take the Court to that ‑ ‑ ‑ 

STEWARD J:   He seems to be adopting it, though.

MR LLOYD:   He does seem to be adopting it, but we say ‑ ‑ ‑ 

STEWARD J:   You say he misapplied it, though?

MR LLOYD:   He does not actually adopt it.

STEWARD J:   I see.  I understand.

MR LLOYD:   So, it says you should first identify the content of the traditional laws and customs.  We say his Honour did not actually do that, and that is what Justice O’Bryan found, and we say correctly found.

STEWARD J:   Your case is there is a disconnect between the articulation of principle and its application?

MR LLOYD:   And the application of it.  Exactly.

STEWARD J:   Yes, I see.

MR LLOYD:   So, the summary of my clients’ lay evidence begins at 658.  It makes the point that none of the current witnesses were presently resident in Oodnadatta.  A bit further down, it makes the point that physical connection of witnesses was:

when they were passing through . . . visiting relatives . . . or when attending functions such as races and gymkhanas.

It accepts that there is some:

evidence of contemporary camping, hunting and gathering –

Over in the next paragraph, “some” evidence of:

familiarity with Arabana law and culture –

Some teaching of that law and custom to younger generations, but then, over the page:

little evidence of actual protection of sites –

And we say that that suggests a focus upon looking for these acts, acts of acknowledgment and observance of the laws, doing things in accordance with the laws, rather than looking at the relationship forged by the laws.

GAGELER CJ:   You do not quibble with it as a finding of fact, do you?

MR LLOYD:   No.  I mean, we ‑ ‑ ‑ 

GLEESON J:   But it could be evidence of the subsistence of the laws.

MR LLOYD:   Sorry, your Honour?

GLEESON J:   It could be evidence of the subsistence of the laws, whether there was actual protection of sites or teaching of the laws.

MR LLOYD:   We accept that if there had been evidence of lots of acts, that would have been positive evidence of the existence of the laws, and that is why we advanced that evidence of some of those things as positive evidence that the laws were, you know, actually being done in the area.  We do not say it had to be done in the area, but there was some evidence of it having been done in the area.

There was some evidence of Arabana people living in the area.  We accept that the witnesses were not Arabana people from Oodnadatta.  I mean, some of them had lived in Oodnadatta at various points in time but they were not currently resident in Oodnadatta, but they gave evidence of other people who were currently resident.  It is not the position that all people from Arabana had left Oodnadatta.

The next point I would draw the Court’s attention to is, from 698, there is a lengthy discussion about what is generally referred to as “the1996 map”.  The trial court considered evidence pertaining to the map which was drawn in 1996.  The evidence concerned a meeting in 1996 in which the senior men from the Arabana and other regional Aboriginal groups came together to agree boundaries of the Arabana land.

Now, whether or not the evidence establishes that there was a regional agreement on the boundaries, we say it does unambiguously show that the Arabana, both internally and externally, claimed that the land included the overlap area.  So, one sees on map 29, which is on page 186, part of the map in which Oodnadatta is in the north‑west corner as being inside the 1996 map.  Ultimately, at paragraph 741, his Honour accepted that the evidence as bearing some weight at least as to an agreement of knowledgeable senior members – “senior men” – as to what was recognised as Arabana boundaries in 1996.

BEECH‑JONES J:   Sorry, Mr Lloyd, what paragraph was that?

MR LLOYD:   Paragraph 741.

BEECH‑JONES J:   Thank you.

MR LLOYD:   Then from 745 to 795, there is then discussion of the anthropological evidence as contrast with the ethnographic evidence, although the witnesses were overlapping.  If I note along the way, at 772, this is the evidence of Lucas and Sackett.  Now, that was not joint evidence.  As I indicated, Dr Lucas was the witness my client advanced, Dr Sackett was the witness the State advanced, but they said similar things, so they are addressed together to some degree.  They were addressing, in this point, the position “at effective sovereignty” in 772, and in (f) there was a statement of Dr Lucas’:

understanding of the way in which responsibility for Arabana land has changed with the “depopulation” of Arabana people.

Then, at 773, first of all, it starts with a note that Dr Lucas accepted that the laws do not continue “in their full traditional scope” – to use the language of the trial judge. 

GORDON J:   May I ask where you are reading, Mr Lloyd, at the moment, please? 

MR LLOYD:   Paragraph 773, in the third paragraph.

GORDON J:   Thank you.

MR LLOYD:   The words, “in their full traditional scope”.  Then there is an extract from the report of Dr Lucas.  I draw, in particular, attention to paragraph [252] of that extract.  This pertained to a “contemporary expression” of Arabana laws and customs.  So, I draw attention to this because there is not much discussion of contemporary Arabana laws and customs.  This is one of the mentions, and it is mentioned by Justice O’Bryan.  It explains Dr Lucas’ views as to the effect of depopulation and how that led to an evolution of the laws and customs, but not one that departed from – or sufficiently departed from – the classical model to cease to be traditional.  Then, at paragraph 778, there is a reference there to Dr Sackett agreeing with that conclusion. 

So, we say, that was a key part of our argument in the trial.  I will take the Court to our submissions to the trial a bit later, but one sees reference to that kind of assertion that the current laws are still traditional.  I would like to take the Court now to the decision of Justice Finn in Dodd, or at least the reasons given in Dodd.  That is in the joint book of authorities at volume 6, tab 23.  The case starts at page 1842.  Orders, as they often do, ran for 50 pages, so his Honour’s reasons begin at page 1892.  I draw attention, in paragraph 12, to the evidence.  So, this was a consent determination – I make that clear.  The consent determination was based upon a report by Drs Fergie and Lucas.

So, the State, having read that report, were satisfied that all of the elements of native title for this area were made out, and that led to the ability of the consent determination.  So, 12 was simply referring to that evidence.  That evidence was tendered in the current proceedings.  So, it is not like we asked the court below to just rely upon the determination, we also put in the evidence that supported the determination.

EDELMAN J:   Was the evidence of Drs Lucas and Sackett that you took us to accepted by the trial judge?

MR LLOYD:   Yes.  I should have taken your Honours to that.  At paragraphs 794 and 795, his Honour says:

the opinions of Lucas and Sackett were generally soundly based and reasoned.

EDELMAN J:   Thank you.

MR LLOYD:   His Honour rejects the evidence of Cane, Graham and Liebelt.  Going back to Dodd and to paragraph 35 in Dodd, there is a heading above that:  “Has there been substantially uninterrupted observance of traditional laws and customs since sovereignty?”  And it starts at 35 with the position at sovereignty, the classical position.  We draw attention to (ii):

A division into small localised groups with particular association –

So, that was the position at sovereignty.  And then, at 36, there is a reference to:

The traditional customs and laws concerning social organisation and group membership have transformed since settlement –

And a reference there to the “depopulation” or “demographic pressures”.  Then at 37, the experts found that the key aspects of traditional law and customs had evolved in a way that was:

founded in and consistent with the classical system.

That is extracted.  And skipping down to 40:

The evidence suggests that the classical system of landholding by localised groups based on patrafilial Ularaka . . . is no longer observed.  Contemporary Arabana people consider that all of Arabana country belongs to Arabana people generally.

Then in 41, it is noted that:

In the context of negotiations for a consent determination, the State could properly accept that the changes in traditional rules . . . have their basis in traditional law and custom.

Now, on that basis consent determination and became what I refer to as the Dodd determination.

The State did not argue in the present case that the changes in contemporary law were too great to sustain native title, nor did the Walka Wani.  The same evidence that formed the foundation for the orders in Dodd was not the subject of challenge in this case.  As will be seen, the focus of the trial judge was not on whether the contemporary traditional laws and customs were sufficient to maintain Arabana connection to the land by those laws and customs, but rather focused upon the sufficiency of acts said to show acknowledgement and observance.

If I just finish off the last remaining of the elements of the judgment.  From 815, there is a section called ‑ ‑ ‑

GORDON J:   Sorry, just before you leave, are you going to come back to the Dodd decision?

MR LLOYD:   I will come back to mention it when I get to ground 2.

GORDON J:   Given your answer to Justice Steward about the fact that you accept that Justice White identified the principles correctly, but it was a misapplication of them, do we see – although it is a consent determination – the proper approach to be adopted in the Dodd determination, given the judicial method adopted by Justice Finn, in the sense that if one looks at paragraph 30, one has relationship, one then goes to 35, identifying what are the traditional laws and customs, and then we move to the (b) analysis?

MR LLOYD:   I think it would be fair to say that Justice Finn does it correctly in identifying the traditional laws and customs, including the contemporary traditional laws and customs.  One of the points made by Justice O’Bryan is that, even though it is a consent determination, there is more discussion and analysis of the contemporary laws and customs in Justice Finn’s judgment than there is in the trial judge’s judgment.

From 815 to 822, there is a reference to my clients’ mythology – actually, more than that; up to 828.  Two things – one is, for reasons which are somewhat elusive, his Honour said at 815: 

In the view I take of the matter, it is not necessary to record the Uraraka in detail. 

That seems to suggest that however detailed he did record it, it would not have made a difference to his Honour’s outcome.  That is what we apprehend his Honour must have meant by that.

We say that this is nonetheless evidence of seven stories over an area which is 0.2 per cent of my clients’ country; it is not like there was nothing there.  Finally, we get to 842, which is the “Assessment of the Arabana claim”.  The starting point was a finding at 842: 

that the Arabana had had NTRI at effective sovereignty in the Overlap Area –

I do not want to be understood as saying that he had to make that finding.  I am not saying that that was something you have to do on the way.  In fact, it is probably pretty unusual to make that finding.  But, nonetheless, his Honour satisfied himself of that on the basis of extensive evidence and that then informed what his Honour saw as the principal question in 843.  I should perhaps say before moving on from 842, the reference that: 

It was common ground in the final submissions –

I think that is a reference to the fact that early on, the Walka Wani had completely opposed my clients as having ever been there, and then later on they moved to this alternative argument that if we were there, then they were also there.  So, at that point, his Honour obviously perceived there to be some kind of acceptance that our people were there.  Whether that is exactly common ground or not I am not sure. 

At 843, his Honour is sort of looking at what is left to be resolved, having satisfied himself that my client had native title rights and interests at effective sovereignty: 

This means that, for the purposes of assessing the Arabana claim, the principal issue is whether they have established that they have continued to possess the rights and interests in the Overlap Area under the traditional laws acknowledged and traditional customs observed by them and have thereby maintained connection with the Overlap Area.

The first part of that:

continued to possess the rights and interests in the Overlap Area under the traditional laws acknowledged and traditional customs observed –

That is a 223(1)(a) element.  His Honour is saying that that, itself, is the issue for connection as well – that is as we apprehend what his Honour is saying in 843.  This passage was considered by Justice O’Bryan on page 394 of the appeal book, in paragraph 341. His Honour describes it as involving:

an unfortunate paraphrase of the statutory definition in s 223(1). It is an amalgam or “fusion” –

of elements:

of the two inquires required by paragraphs (a) and (b) . . . suggesting that . . . the Arabana will have maintained connection –

That by continuing to possess rights and interests, they will have maintained connection:

As observed by the Full Court in Bodney . . . the required connection is not by the possession (or exercise) of rights or interests, it is by the laws and customs acknowledged and observed –

We embrace that.  Then, back to 843, his Honour – and this is a point also made by Justice O’Bryan – refers to a shorthand of “continued connection”.  The expression “continued connection”, or iterations of that dual expression, is then frequently used by his Honour.  But if it represents a wrong view of the test, then it shows frequent error, which is what we say. 

GAGELER CJ:   Even though you say, in 847, he states the law correctly?

MR LLOYD:   Yes, your Honour.  Yes.  And what he says at 847, his Honour has also said earlier, I think, at paragraph 51.  We accept that he has stated the law correctly, that the first thing to do is:

an identification of the content of the traditional laws and customs –

but that is not what he did first.  That is the first point.  So, he had the right principles, and I do not think the parties before this Court disagree with that.  I mean, that is more or less a quote from this Court’s judgment in Ward.  So, no one was disagreeing with that; the question is what that involved.

What we say it involved is, first of all, identifying the content and nature of the traditional laws and customs.  That is the first phase.  So, that is kind of a factual inquiry as to the traditional laws and customs of a group.  Then, secondly, a characterisation question, having regard to the effect of those laws and customs as giving rise to a relationship between the people and the land.

Now, I accept – I will come back to it.  We clearly advanced – and your Honours will hear this this afternoon and tomorrow – the so‑called 10 matters, and most of those matters pertained to things that my clients did in or around the overlap area.  But we say all of that was advanced for the purpose of making out what contemporary law and custom was, and what his Honour has seen it as being for is to show that these things were kind of acts of connection, and he felt we had an inadequate number of acts of connection.

What we say his Honour should have done was, having regard to however many acts and whatever, and having regard to the bulk of the evidence pertaining to the Arabana country as a whole, he should have made a finding about what Arabana law and custom was as a whole – if it was the same law and custom throughout, as we said it was, which was not something that our witnesses were cross‑examined about.

So, we say he should have started with that, and then done the characterisation test, rather than look at the so‑called 10 matters and say, well, you say that you are hunting and fishing; I accept you do hunting and fishing, but I do not think you are doing it for a traditional purpose – whatever the traditional purpose of hunting and fishing is, one might have thought it was to obtain sustenance, which would have been still the purpose, one might have expected.

But his Honour was looking to see – another one was whether my clients – some of them still lived in Oodnadatta, but what was the manner of the living in Oodnadatta?  And because we had not shown that we did it traditionally, that was counted against us.  And we say all of that was erroneous, and caused by the wrong test.  I will come to that.

GAGELER CJ:   Mr Lloyd, that might be a convenient time for us to take the morning adjournment.

MR LLOYD:   Thank you, your Honour.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

MR LLOYD:   Your Honours, the next part of the trial judge’s judgment I will go to is 844 to 846.  That is a section which begins with the heading:

Have the Arabana maintained connection with the Overlap Area in accordance with the traditional laws acknowledged and traditional customs observed by them?

I repeat what I have said about that.  We say “in accordance with” has some ambiguity.  In our parlance, we understood it to mean “by”, but we apprehend that his Honour has taken a different view to it and is looking for an acknowledgment or observance that “accords with”, in the sense of complies with, and I will seek to make that good.  At 844, Justice White says he has earlier:

set out the traditional laws and customs of the Arabana –

It is not entirely clear what his Honour is referring to there.  Justice O’Bryan, at paragraph 312, considers that his Honour is referring to paragraphs 101 to 110 – that is about the classical Arabana laws and customs.  Then 773 and 778 – I took your Honours to those.  They are the two references – paragraph 773 includes the passage from Lucas and 778 is Dr Sackett agreeing with that passage, and it is just about the one aspect of the contemporary law which has added all:

Arabana country belongs to all Arabana –

people.

BEECH‑JONES J:   So, does 844 extend to the overlap area:

by which rights and interests in land are possessed –

Does it include that land?  Or is it not clear?

MR LLOYD:   It is not clear what his Honour is referring to, but his Honour has said – it does not say in the heading that he is talking about the overlap area, so I think his Honour is thinking that he – I mean, insofar as it must, at least, be referring to the 101 to 110, which is the classical Arabana at sovereignty laws and customs, we say that would be – I mean, our case always was and continues to be that we do not have a law for 99.8 per cent of our country and a different law for 0.2 per cent of the country.  It was always just the one law; the one law at sovereignty is the one law now.

So, his Honour is drawing that out, I suppose, and he is saying – he has referred to his discussion, which is at least the 101 to 110, and possibly also the stuff at 773, but that is also the main Arabana claim.  That is what that pertained to, evidence in the Dodd determination that was being referred to – or at least it was evidence in this case, I think, that was picked up on evidence in the Dodd determination.

Now, Justice O’Bryan considers this at paragraphs 306 to 319. There is a lot of analysis in that section. I will not take the Court through it all, but we respectfully adopt it all. We draw attention, in particular, to 316, the test created by 223(1)(b) required a “more extensive” analysis, we say, of the Arabana current laws and customs. And we adopt what his Honour says, that the lack of that analysis “bespeaks error” – that is at the end of 316. And then, also, in 319, while certain matters were referred to briefly, they were not things assessed under section 223(1). So, 319 says:

although the primary judge took account of those matters, they ultimately formed no part of his Honour’s assessment –

and we embrace that as well, and what is said at the end of that paragraph as well, about the test applied at paragraph 854.  We say that what Justice O’Bryan is saying is that Justice White did the wrong approach, and we embrace that.  Then, that point is reiterated, actually, by Justice O’Bryan at paragraph 343, on page 394, in dealing with those same paragraphs as 844 to 846.  We embrace what is said at 343. 

The Court has referred me several times to what is said 847 about the principles.  As I have indicated, we do not take issue with those principles.  Those principles, in fact, closely accord with our written submissions – I will take the Court, shortly, to our written submissions – but that key principle at paragraph (d) is taken from the reasons of this Court in Ward.  I will just go to that paragraph – paragraph 64 of Ward, which is in tthe joint book of authorities, volume 5, at page 1131 of the authorities, or page 85 of the report.  This Court says:

In its terms, s 223(1)(b) is not directed to how Aboriginal peoples use or occupy land or waters.

Then, further down, what it requires is:

first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters –

So, that is where it comes from.  The Court then goes on to say that it is not saying anything definitive, as it were, about what is a “connection”.

For our part, as I said earlier, we say that the common meaning of “connection” that is apt – or an ordinary meaning of “connection” which is apt – is just something like a relationship or association.  It could, of course, be – you could put an adjective in front of it which would give some life to it – a spiritual connection or a physical connection – but, we say, that the reference to connection without a qualifier allows for any of those connections.  So, one is looking to see if the content of traditional laws and customs and their effects create a relationship between the people who adhere to those laws and customs and some area of land.

STEWARD J:   Can I ask you two questions arising from that.  First question is:  looking at the famous last sentence of 64, do you say that a spiritual connection would be sufficient without Moore? 

MR LLOYD:   We would say it could be, yes. 

STEWARD J:   And the second question is:  in this case, I take it that you rely upon what you will bring us to, both physical and spiritual connections to the overlap area, or is your case one which is only spiritual?

MR LLOYD:   No, it was not only spiritual.  We gave examples of it.  One of the areas, we say, is that the focus of in the court below – maybe we contributed to it a little bit, but not in what I think is a material way – was on activities done in the overlap area.  The proper test should have been to look at the traditional laws and customs of the Arabana as a whole, and then to see a relationship between that.  The focus on the overlap area, obviously, is helpful in some respects, but was unnecessary in other respects. 

STEWARD J:   Will you give the Court a list at some point of all the relevant connections that you rely upon? 

MR LLOYD:   Yes.  What I would say ultimately is ‑ ‑ 

STEWARD J:   In other words, is it going to differ from the 10 things that were put to Justice White, or not?

MR LLOYD:   No.  Part of the way I would ask the question is we would say – maybe it is a danger we created for ourselves, but we say there is only one connection:  there just has to be a relationship between the people and the lands.  Seeing those things as acts of connections or little kinds of connection is apt to mislead.

STEWARD J:   Or evidence of connection.

MR LLOYD:   It is just evidence from which you can make findings about traditional laws and customs.  Then here is a question of characterisation of that:  is there a relationship between it?  If your traditional laws and customs give you rights or obligations in relation to land, then we would say that that clearly would be a relationship.  If the basis of that is because you feel that you belong to it, or because you know stories about the land or whatever, that has a spiritual aspect to it, and that would be enough.

So even if you were in, if I put it this way, “spiritual default” – I am not saying that my people were in spiritual default – but even if a group was obliged under laws and customs to do acts and they were not doing them, the fact that they feel obliged to do it is still a relationship with the land.

GLEESON J:   So, that might be breaching the laws but there might be another circumstance in which it turns out that the laws no longer apply.

MR LLOYD:   I think the answer to that is yes, but if you have the sense that you are under an obligation to do something then that is enough.  That means there is a law and you have a relationship because you feel like you should be doing it.  Now, maybe you are too old and you do not in fact do it, but the fact that you think that you are obliged to do it under a law, that would be a law that creates a relationship and a connection to the land.

BEECH‑JONES J:   If you are not doing it, that might mean it is not being observed.  If you are not complying with that traditional law, it would be a 223(1)(a) problem, would it not?

MR LLOYD:   It could be.

BEECH‑JONES J:   It could be.  It is not determinative.

MR LLOYD:   If I put this way, 223(1)(a), we would say, again looks at the relationship of the group with all of its country.  So, let us say, you know, my clients’ claim is a very large area.  If they predominantly live in one area and they do a lot of activities in the 100 kilometres around that area, and do relatively infrequent activities in other parts of the area, so long as – I mean, they are acknowledging and observing their traditional laws and customs, they are not gone.  They are unambiguously acknowledging and observing them.  If they are not doing it in one particular location because it is just too far, we would say you could still meet (a) and you still have a connection with (b).

EDELMAN J:   Provided that there is something about laws and customs that extend to that further area.

MR LLOYD:   Certainly.  If you know stories about it, if you teach people that it is yours – you assert to other people that it is yours – that would all be part of it.

GORDON J:   Is another way of putting it that if you adopt a proper approach to (a), sometimes (b) will already be answered?  In other words, if you have a set of traditional laws and customs which are of the kind you have just described, then that of itself might describe the connection with a particular area over which you have the land.

MR LLOYD:   I would accept that there could certainly be instances where you have found that laws and customs have given you rights over particular areas of land; those rights would be a “relationship” with that land.

GORDON J:   Or a “connection”.

MR LLOYD:   And “connection”.

GAGELER CJ:   Mr Lloyd, am I right in understanding that the rights and interests that you claimed in relation to the overlap area are the same as those declared by Justice Finn in relation to the larger area?

MR LLOYD:   Yes.  Sorry, I think I referred your Honour to that – I think it is paragraphs 32 and 33 of the trial judge’s reasons.  There was no contest about the content of those rights and interests, so no one said they were a wrong formulation.

GAGELER CJ:   So, we can look at the consent determination in Dodd and we can see ‑ ‑ ‑ 

MR LLOYD:   Yes – sorry, I think the trial judge sets it out, to my recollection, at 32 and 33.  Paragraph 31, sorry.

GLEESON J:   And they are all referable – all of those are rights and interests that are referable to land or waters?

MR LLOYD:   They would have to be, in order to be native title rights or interests.  If they were referable to something other than land or waters, they would not be native title rights and interests within 223(1).

GLEESON J:   So, that makes out what Justice Gordon suggested.

MR LLOYD:   Yes.  Sorry, I am not trying to avoid the idea that if you have native title rights and interests, you would have connection, but the problem is, in many cases – I mean, in our case, the fact that the court got to the point of saying we had native title rights and interests at sovereignty necessarily meant – that is what I have already said – that we had connection, if you have rights and interests.

Normally you are starting from a position of wanting to get rights and interests, and you are building it up by showing connection first, and how your laws connect you to the land.  One of them might be evidence that, you know, your law – you know stories about the land, you are meant to do certain things with the land, people have to ask you permission for the land, and those laws and customs are what form the content of the rights and interests.  Once you have the rights and interests – I mean, I cannot ‑ ‑ ‑ 

EDELMAN J:   It is not a concept that is even foreign to the common law, though.  Livery of seisin was 1,000 years old, and it was the same notion of delivering some soil over land that you may never visit, but the notion that it was yours was a notion that came from a custom or a law or a practice.

MR LLOYD:   I do not want to disagree with that, your Honour.  I am not familiar with that, I have to accept.  All I am saying is that section 223 is a definition of native title, and ultimately, under 225, you are trying to get a determination of native title, so you are wanting to get that list of rights.  You get the list of rights by getting evidence about the content of the laws and customs, and it is the content of the laws and customs that allow you to extract out, from the laws and customs, what the common law recognises as rights pertaining to the laws and customs, but not, as everyone knows, the obligations.

So, the obligations that people have in relation to the land are no part of the determination of native title – at least, generally – and so, laws and customs can go beyond rights and interests, but if you had rights and interests – I cannot think of a situation where you could have rights and interests and not have a connection, because ‑ ‑ ‑ 

GAGELER CJ:   So, that is the fundamental point, is it not?

MR LLOYD:   Exactly.

GAGELER CJ:   A customary right to do something on the land is a connection for the purpose of paragraph (b).

MR LLOYD:   Exactly.

GAGELER CJ:   And it does not matter if the right – it does not matter conceptually – whether the right is being exercised currently or not.

MR LLOYD:   Yes.  So, typically, you would start off by saying to a group:  what are your current traditional laws and customs?  Then you would have some ethnographic evidence as to what the – at sovereignty – early laws and customs of that group were.  You would show the similarities between the early laws and customs and the current laws and customs.  Then, on that basis, you would persuade the court that the laws and customs were traditional within the Yorta Yorta meaning of “traditional”, and having done that you then extract out from the laws and customs, the rights and interests.

GLEESON J:   It is a bit hard to understand what (b) adds to (a), on that construction.

MR LLOYD:   We would say, this is an unusual case where the court found that the rights and interests were held at the time of sovereignty, or the time of effective sovereignty, but normally you start with the laws and customs and you extract the rights and interests from the laws and customs.  In that circumstance, part of what you are doing is saying, on the basis of this law and custom, does a law in this form allow you to possess a right?  It could be that the law does not allow you to possess a right in relation to land.  It might be – by careful understanding of the law – that, actually, your right is against your spouse and not in relation to the land.  So, it can be more sophisticated.  Whether or not the laws and customs give rights in relation to land and water is, itself ‑ ‑ ‑

EDELMAN J:   And (b) is also concerned with which land and waters it gives you a connection with, or the extent of the land and waters that it gives you a connection with.  There is always going to be some limit.

MR LLOYD:   Subsections (a) and (b) are ultimately both related to the land and waters in the chapeau to 223.  They both have to – 223 itself is just a definition which fits to 225.  We are not saying there is no geographical element to these issues, we are just saying – this is not really ground 2, but we are just saying it is not all geographical.

BEECH‑JONES J:   Mr Lloyd, just to help me, can you just – and you may not be able to off the top of your head – think of an example where you have rights and interests possessed under traditional laws in relation to land and waters and they are being observed, but you do not, by those laws and customs, have a connection.  Is there some particular classic example of when you, in other words, satisfy (a) but not (b), because (a) has to be in relation to land and waters?

MR LLOYD:   I think it is more a matter of – not that you would have a situation where you would satisfy (a), not (b), but you would – I mean, if you have rights under the Land Rights Act, which are not native title, they could be communal rights in relation to land and waters, they could connect you to the land, but they would not be traditional.  The main traditional element is in (a) ‑ ‑ ‑

BEECH‑JONES J:   That is a (b), not (a), case.  I was just wondering if there was an (a), not (b), case, but maybe – as I am understanding you to say, typically most cases start with identification of contemporary laws and customs observed, establish the rights, and then embark upon an inquiry as to whether they are traditional, and you are saying I think this case seems to have started on the reverse process and stopped.

MR LLOYD:   Well, I guess what we say is that normally – because you are wanting to have a determination of native title rights and interests for 225 purposes, you go to 223 to see what a native title right is, and you start with the traditional laws and customs, then (a) requires you to show that those are acknowledged and observed – that is an (a) question – and then there are two further questions that resolve.  They have to be acknowledged and observed, then they have to be of a kind under which rights can be possessed, and they must be of a kind that connect you to the land.

EDELMAN J:   But they are already in relation to the land and waters, which was your earlier response.  So, you have to have – in order for (b) to do any work, there has to be examples of rights and interests that are observed in relation to land or waters but which do not give rise to a connection with the land or waters.

MR LLOYD:   I will see over lunch if I can think of an example of something that – I mean, part of the problem is that the first bit of (a):

the rights and interests –

is the definition.  If you have those, you have to figure what rights and interests, and if they are, say, rights and interests over design or over songs, they would not in relation to land and waters.

GLEESON J:   Is one ‑ ‑ ‑

MR LLOYD:   In that sense, there is a kind of an overlap between issues.  I am sorry, your Honour, I was just going to say that even (b) somewhat overlaps with (a) because it talks about “those” traditional “laws and customs” in (a) which are the ones that are – you test whether they are acknowledged and observed under (a).  So, I do not think they are homogenous in that sense.

GORDON J:   Putting the overlap to one side – accepting that there is the overlap between (a) and (b) – is one example where it would fall out in relation to (b) where you have traditional laws and customs identified, you have identification of rights in relation to those traditional laws and customs, and you have a connection with a very large area of land, but not in respect of a subset of that land.  You could take, for example, a particular right of the bundle of rights and say, I have traditional laws and customs, I have identified them, I identify they give rise to rights, they are in a connection to land, just not this bit.

MR LLOYD:   There will be some places where, for example, women might have rights over a particular area of land that men do not have, and that might connect them to an area of land that men maybe are precluded to go to.  So, they might not have any rights in relation to area of land because their connection is – the Arabana people as a whole would have rights over the land, but individual members would not.

The other thing to say is I appreciate your Honours are grappling with making sense of a definition, and I accept that it is part of a statute and has to be construed as part of a statute, but I do not think this Court, and certainly the Federal Court, has acknowledged the reality that these are words of Justice Brennan taken from Mabo, and his Honour was not using the words as two purely homogenised ideas.  It was in part of a sentence and the Parliament has elaborated them in paragraphs, but the real function of 223(1) is to say this is the same native title that Justice Brennan was talking about in Mabo, not something new.  But we want to regulate that this Act is about regulating that thing that this Court found existed in Mabo.  So, the idea of giving (b) work to do instead of (a) – it is the matter of reading them together, we would say.

GAGELER CJ:   An example you almost gave of a design or a song might be an example of a right that could at least arguably fall within the chapeau and fall within (a) but would not fall within (b), because (b) is focused on the connection that the rights create between the native title holder and the physical land.

MR LLOYD:   Yes, I suppose that – also, I should focus upon the fact that the chapeau includes individual rights.  You have to be able to read it – it could be that an individual might not have a connection to an area because the individual is male, or something.  So, that might be an example of where (b) excludes somebody.  I just finished 847.

Then, in relation to that, if I can take your Honour to the reasons of Justice O’Bryan at 345.  So, at 344, his Honour sets out paragraph 847, and then at 345, we say, his Honour correctly determined that principle (d) was not undertaken by the trial judge.  His Honour, we say, correctly observed that the findings about whether the Arabana lived on the land, or did activities described as “traditional” was not the right approach.  I will come to those examples, but we say that is all part of where one sees the error. 

At 346, Justice O’Bryan found that the trial judge erred in his approach by not undertaking the correct 223(1)(b) inquiry. That is about the middle of that paragraph. Then, at 347, his Honour said that the 10 matters might evidence whether the Arabana community continued to acknowledge traditional laws and customs. However, that is not the section 223(1)(b) question.

BEECH-JONES J:   Sorry, what paragraph did you read from then, Mr Lloyd? 

MR LLOYD:   I was referring to 347, but not reading from 347.

BEECH-JONES J:   I see.  All right. 

MR LLOYD:   At the end:

Respectfully, his Honour’s reformulation of the statutory language concerning connection, and the exercise undertaken, involved error.

So, now, if I move on to the 10 matters where we say one sees the error.  I will not go to all 10 matters – there is not enough time – but we embrace what Justice O’Bryan says in relation to them all.  These are addressed by the trial judge from 852 to 906.

Perhaps, first, I should take the Court to our written submissions, our final – whatever they are called – closing submissions in the court below.  This is in the appellants’ book of further materials, on page 8.  There is an extract from the closing submissions, which were very lengthy.  This is the heading:

ARABANA CONTINUING CONNECTION TO THE CLAIM AREA –

Paragraph 323 notes the focus being “have a connection” – that is what this whole set of submissions was about, the connection.  At 324, there is a set of principles, and 324.2 is the passage which I said is completely consistent with our submissions – that was from paragraph 847 of his Honour’s judgment, or at least in similar terms.  And, indeed, many of the matters in 324 are in similar terms to those elements.

GORDON J:   You do not say that 847 is omitting anything from your paragraph 324, do you?

MR LLOYD:   No, we are not saying there was an error.  I mean, I think, technically, it does, but I am not saying that his Honour had to say everything we said.  So, we make the point in 324 that the task is identification.  The first task is identification, and then we have the heading “Identification of the content”.  So, the rest of this is us making submissions under that heading of, this is what you should find to be the content of Arabana traditional laws and customs.  At 325, it says that the content is the same as for all of the rest of Arabana country, and it notes that:

No party has contested this proposition.

At 326 is a reference to the expert reports.  So, there are two reports.  There is the report by Fergie and Lucas; that was the report that was prepared for the Arabana 1, the Dodd determination, that was tendered in this case, and then Dr Lucas did a separate report for this case.

Paragraph 327 refers to a table in relation to classical and contemporary laws and customs, and then that table was then set out over the next two or three pages.  I should say something about the table.  The table was set out in the – putting aside the numbered first column, the next column is the evidence pertaining to the classical form; the next column is the evidence pertaining to the contemporary form of Arabana law and customs, relating to the same thing as the previous column; and then the last column was the evidence we relied upon in relation to those laws and customs.

Paragraph 328 submits the laws and customs still followed are classical, but in a modified form, which is what Finn found, accepting the evidence of Dr Lucas and Dr Fergie.  Going down to 330, 330, in substance, summarises what the key elements are of contemporary law and customs of the Arabana people from the Arabana 1 consent determination.  So, those elements, we say, are what was enough to sustain native title over the centuries supporting the consent determination.  Then we come to 331.

BEECH‑JONES J:   Can I stop you there, Mr Lloyd.  Which part of this, if any, is specifically directed to that part of (1)(a) that is directed to “in relation to land or waters”, being the overlap area?  Is that point 8 on page 11?

MR LLOYD:   No, the whole submission is about – as I indicated earlier, we said that we had the same traditional laws and customs throughout Arabana country ‑ ‑ ‑ 

BEECH‑JONES J:   So, the fact that it was Arabana country?

MR LLOYD:   Arabana country.

BEECH‑JONES J:   Yes.  The connection to the overlap area, at least for (a), was it is all Arabana country and, therefore, that establishes, at least in relation to land and waters in the overlap area.

MR LLOYD:   Yes, we say it is exactly the same laws and customs throughout Arabana country and so, therefore, all of this stuff found for the consent determination should be found here as well.  Then there is the summary of what was found in the consent determination at 330.  Then in 331, we then have the so‑called 10 matters and:

It is submitted that the continuity of Arabana connection . . . is readily established –

STEWARD J:   Do you still rely on those 10 matters?

MR LLOYD:   Yes, but can I – I mean, it is perhaps unfortunate they are called 10 matters.  The first matter is everything that has been determined for Arabana country as a whole.

STEWARD J:   Well, the first matter is more your ground 2.

MR LLOYD:   It relates to ground 2, but it sort of relates to ground 1.  We are saying what we are relying upon there is all of the content of traditional law and custom that has already been determined in that determination.  We are relying upon all of that, then, in addition, here are some specific things that are more pertaining to the overlap area.

So, we rely upon all 10 matters, but one of those matters is everything that was determined in the consent determination.  So, it is not like there are 10 matters that pertain, as it were, specifically to the overlap area.  There is one which pertains to all Arabana country and then there are – the balance of them are mostly directed to the overlap area.

So, that was how we put our case.  My friends say we relied upon those 10 matters to establish it.  We did.  But the first of those 10 matters is what we would say is, in effect, everything that was established in relation to Arabana country as a whole.  Bearing in mind, the things determined in that case was enough to sustain the connection of the Arabana people in relation to Arabana country. 

STEWARD J:   Yes.

MR LLOYD:   So, if those things in paragraph 330 do apply to the 150 square kilometres around Oodnadatta, that should be enough without the others, just logically.  I should say while I have it open, the majority seemed to put it as – they do not quite say this, but there is a suggestion that we, somehow, said we had to prove all 10 of those matters.  They say, we did not invite the court to just consider that one or more of them might be enough in itself.  We say, that, itself, misapprehends the task.  The task here is to identify the traditional laws and customs.  You either find these things – help in identifying them – or you do not.  At least, everything in the consent determination should help because they go directly to the issues that were important in making the consent determination.

His Honour should have considered all 10 of the matters and then made findings about which of those things he accepted, putting aside ground 2 and whether he was bound by anything.  He should have made findings about those matters.  Then comes the characterisation question.  All of this has been ‑ ‑ ‑

GORDON J:   Could you identify when you get to which paragraph you contend the majority made that error?

MR LLOYD:   I will.

GORDON J:   Thank you.

MR LLOYD:   Now, if I just go to some of the 10 matters to see how the trial judge dealt with them.  The first one begins at 852.  The first one, of course, his Honour puts as:

The matters established for the 2012 Arabana Determination –

Technically, the first one was the matters established for that and summarised in paragraph 330 – which is some substantial matters.  His Honour summarises some of that in 853.  We say some of these things – while I am going through it, we make this observation – are not geographically specific.  So, having a kinship system and how a kinship system works is not geographically specific; it is about relations between people.  Whether person A is descended from person B is not geographically specific.  It is just a matter of fact – you have to be satisfied that there is sufficient genealogy, and the evidence is sufficient.

STEWARD J:   It may not be geographically specific, but nonetheless, you need to tie it, somehow, to the claimed area.

MR LLOYD:   I will return to this when I get to ground 2, but we say that some of these matters are just matters – I mean, I have matter I am going to get to, but in substance we say that the Act itself – and, for various practical reasons, it is actually what – one aspect of this case is unique, another aspect of this case is very commonplace.  The aspect which is very commonplace is that there is a substantial pre‑existing determination of native title – it might be consent, it might not be – and then there is a subsequent small claim.  And the Act more or less mandates that.

It might seem like a strange thing to say, but under section 61A(2), I am going to say, it says that you cannot put in a native title determination over an area covered by a previous exclusive possession act.  But section 61A(4) says you can do it if one of the section 47 suites allows you to disregard that extinguishment.  Now, sometimes – and by “sometimes”, I mean very frequently – there are instances where you cannot make a claim at a point in time, but then later, the section 47 – that act is removed, and section 47A or B or whatever allows you to put in a claim later.

So, it is quite common, and it will be common for decades to come, for claims to be made by people who have existing – maybe, like in this case, massive determinations, and they are just claiming some extra, little bits.  Sometimes, those bits will be islands completely within the area, sometimes they will be at the edge of the area.  But there is a kind of question as to – and this is something the Court appreciates – native title litigation is very long‑running and very expensive.  And so, my client started this proceeding in, I think, 1998 or 1999, had a determination in 2012 – so, that was a 13‑ or 14‑year episode – then started this proceeding over a very small area, and it has now run for 11 years to get to this point.

And a question arises:  to what extent does somebody making a claim over a small area have to redo everything they did for the first one?  Now, we tendered all the evidence generated for the first one, which was sufficient to allow the State to do a consent determination over a massive area.  We say that, relevant to the second ground, if not binding, should at least be a very weighty consideration to these matters, and what we have here ‑ ‑ ‑

STEWARD J:   But is that really going to ground 2?

MR LLOYD:   It does go to ground 2 but it is relevant to 853 because ‑ ‑ ‑

STEWARD J:   Is it as simple as saying this, that, given the totality of the evidence that was found in Dodd, there is an open inference available to the court to say that, but for the excision of this small amount, it would have clearly been included in the original claim, and accepted by consent?

MR LLOYD:   We would like to say that.  It could be, to be fair to the Walka Wani, if we had have included it in 1998, they might have done an overlapping claim in 1998.  That was not why we did not include it in 1998 ‑ ‑ ‑

STEWARD J:   No, I understand.

MR LLOYD:   ‑ ‑ ‑ and in fact, they did not ultimately put in a claim over the whole area until 2018, I think.  They put a partial overlapping claim in 2013.  That is why there are two Walka Wani claims.  The rest came in 2018.  If we had it on this claim earlier, they may not have because some of their elders were involved in that 1996 map, which did include Oodnadatta.  We do not know.

What we do say is that this was a very important matter and the trial judge refers to it in 854.  There is a very brief definition – a summary of it – that says:

I have accepted these matters but the requisite continuity of connection of the Arabana in the Overlap Area in accordance with traditional law and custom must be established by the evidence in these proceedings.

Of course, we did tender all of the evidence from those proceedings in these proceedings.  So, I am not entirely sure what that meant, and that is it – that is the full totality of the weight attached to everything in the Dodd determination.  We say that that does not suggest that his Honour is doing the task Ward suggested should be done – he is doing something else.

BEECH‑JONES J:   Mr Lloyd, is part of your case – at least on ground 2 – that with paragraph 1, his Honour appears to accept that the Dodd determination included findings about Arabana country?  And so, what was left to demonstrate – or at least that was evidence for which if you just further demonstrated that the overlap area was Arabana country, you would at least appear to get to be home, as it were.

MR LLOYD:   Exactly.  So, we say his Honour found – now, we did not know his Honour was going to find this, of course, but his Honour had at this stage already found that it was our country, and no one even disputed our traditional laws and customs from the Dodd – I mean, the content of them, and the like.  So, we thought that should be it.  But his Honour does say, well, we had to do it:

by the evidence in these proceedings.

Now, it could be that his Honour just did not appreciate that he had before him the Fergie and Lucas evidence, or it could be – which we think it probably more likely is – he wanted to see acts of acknowledgement in the overlap area.

STEWARD J:   Can I ask a question with that Fergie and Lucas evidence that was before Dodd, did they identify as Arabana land, land that includes the overlap, or were they instructed to exclude it?

MR LLOYD:   Sorry, your Honour.  I cannot say that I have read it myself, but I am instructed that the report does refer to some Arabana people talking about Oodnadatta as their country, but it was not advanced as a claim over Oodnadatta.  I do not want to suggest it was the focus.  I am not saying that his Honour made a finding about it ‑ ‑ ‑ 

STEWARD J:   But there was no generic definition of Arabana country in the reports?

MR LLOYD:   I do not think so.  I will check at lunchtime, your Honour.

STEWARD J:   Thank you for that.

MR LLOYD:   I am not sure.  The 1996 map was probably in, was it not?  Maybe not.  It is also complicated because there was a consent determination, so one has to, at that point, just put on enough evidence to show Justice Finn that it was an appropriate order to make.

JAGOT J:   You got an express finding in this matter by the primary judge that the land at sovereignty was part of your clients’ traditional ‑ ‑ ‑

MR LLOYD:   Yes.  That is certainly true.

JAGOT J:   Yes.

MR LLOYD:   So, I think the next – that is enough about 853 and 854.  I will go on to:

(ii) The continuity of Arabana people living in Oodnadatta –

That is addressed from 855 to 864.  Paragraphs 855 to 862 and 864 in fact make some findings on issues.  His Honour accepts that some Arabana people lived in Oodnadatta, albeit that they did not give evidence.  His Honour accepted that some people had been made to feel uncomfortable and left as a result of that.  That is at 864.

That is, I think, mostly referable to an incident between one of our witnesses who was living in Oodnadatta but had, I think, refrigerated a kangaroo in a way that was upsetting to other people.  But 863 I draw more attention to, in particular the first and last sentences – the first is: 

There is no evidence those Arabana who continue to live in Oodnadatta do so because they are Arabana, or that they continue to observe Arabana law and custom, or that their manner of living derives from, or is influenced by, or reflects an acknowledgment or observance of, Arabana traditional law and custom.

And then at the end: 

The younger cohort of Arabana witnesses did not indicate any familiarity with the principles in Arabana law and culture by which persons acquire rights and interests –

Now, that paragraph is concerned with the Arabana people who do live in Oodnadatta and whether they continue to acknowledge traditional law and customs. That is especially clear from the first sentence. We make two points: that is not a part of the section 223(1)(b) question; secondly, the relevant question is whether the members of the Arabana society, the people who – whether the claim group continues to acknowledge – so this is within the realms of 223(1)(a) – the question is whether the people claiming it continue to acknowledge and observe traditional laws and customs, not whether the subset of people who live at a particular area do so.

GAGELER CJ:   Mr Lloyd, you bowled this consideration up to the trial judge.  What should the trial judge have found? 

MR LLOYD:   That there are still Arabana people living in Oodnadatta and that some of those people were doing things such as hunting and gathering and the like.  The point is the Arabana people had not abandoned entirely Oodnadatta.  It is not like there were no Arabana people there anymore; there were still people there.  His Honour should have proceeded on the idea that when he was working out what traditional laws and customs of the Arabana people were, that the Arabana people continued to live in and about Oodnadatta to some extent.

GAGELER CJ:   So, all of these considerations perhaps just go to there being no abandonment of this claim area.  Is that it? 

MR LLOYD:   I do not want to put it ‑ ‑ ‑

GAGELER CJ:   I just wonder how you expected the trial judge to assimilate these nine points that you specifically put to me. 

MR LLOYD:   If your Honour appreciates this, normally in a native title case, and including this case, we do not know that a finding is going to be made that at sovereignty we were the right people.  Normally, what you do is you say, this is the group – if we had have done a claim over the whole of the Arabana country, including the overlap area, we would have said these are the right people for this area; they know stories about it; they acknowledge traditional laws and customs somewhere, these are examples of them doing it; and you should infer that at sovereignty this was also their area because, for example, they know stories about places, and they are doing things in places, and they help you draw an inference that this is the right people for this area.

At sovereignty, you can show that.  Now we, as it turned out, had already won that point on the ethnographic evidence alone, but at the time of advancing it, it was to show that our people continued to have an ongoing relationship with this area. 

BEECH-JONES J:   So, your paragraph 331 of your submissions was about the continuity of Arabana connection.  Are you saying, we were really putting this forward on the continuity basis, and his Honour sees on it to look at the connection basis?  Is that really where we get to? 

MR LLOYD:   I do not want to suggest we were not putting it for connection as well, but we did not know obviously at the time that his Honour was going to make a favourable finding under ethnographic evidence alone.

BEECH-JONES J:   How would the fact that some Arabana people live in Oodnadatta ‑ ‑ ‑

MR LLOYD:   I agree that it is probably, predominantly, a continuity issue.  I will take your Honours to what Justice O’Bryan said in his reasons on this issue.  It is at 352, we are starting at 351.  We draw attention to 352, and in particular the second half of that:

Further, if a finding were to be made on that issue, it should be based on evidence concerning the Arabana community as a whole, including –

This is the issue being whether the Arabana have continued to acknowledge traditional laws and customs.  So, that issue should have been addressed by reference to the Arabana community as a whole:

including such evidence as is afforded by the 2012 Arabana Determination –

The Dodd determination:

and not merely the evidence of members of the community who live within the Overlap Area.  If the Arabana community as a whole, including persons who live outside the Overlap Area, continue to acknowledge traditional laws and observe traditional customs and by those laws and customs have a connection with the Overlap Area . . . connection would be established.

Now, we would say we did that by putting in all the evidence from the Dodd determination which did relate to other areas.

STEWARD J:   But possibly the reality is that you relied upon the continuity of the Arabana people living in Oodnadatta as a fact and the primary judge addressed it in these paragraphs in response to what you relied upon – not you personally, but your predecessor.

MR LLOYD:   I accept that, your Honour, but ultimately his Honour still has to apply the law, and the law is he should have found what the traditional – if he thought, as he may well have thought, well, this does not tell me anything about traditional laws and customs, that is fine.  But then ‑ ‑ ‑

STEWARD J:   Was that put to him though?

MR LLOYD:   We say it was put to him.  We say that in the paragraphs that we took the Court to already in our written submissions, we were asking the court to identify what the traditional laws and customs were of the Arabana people.  We relied upon everything which had been done under determination, and then some specific additional matters.

Now, if he did not accept one or more of the traditional matters, then he would not have seen that as informing the question of the identification of traditional laws and customs, but that is what it was advanced for.  If he thought it did not go to it, fine.

GAGELER CJ:   What is wrong with the sentence at paragraph 863?  He seems to be specifically addressing that.

MR LLOYD:   Sorry, the second sentence?

GAGELER CJ:   No, the first.

MR LLOYD:   The one, “That is especially so”?

GAGELER CJ:   No, “There is no evidence” – 863.

STEWARD J:   Of the primary judge

GAGELER CJ:   Of the primary judge.

GORDON J:   Page 224 of the core appeal book.

MR LLOYD:   Yes, I am looking at that.  Sorry, I thought I you said the third sentence.  The first sentence:

There is no evidence those Arabana who continue to live in Oodnadatta do so because they are Arabana –

We say there that his Honour is looking to see whether or not the living is being done there, as it were, for traditional purposes, and you could only know if it was for traditional purposes if you had made a finding about what the traditional law and customs required, and this is a point made maybe not in this particular respect by Justice O’Bryan, but in other respects.  There is a premise there that there might have been traditional laws and customs that said what the manner of living was, for example.  That is clearest example.  He said that there is no evidence of their manner of living.

I will put it this way.  We said what our traditional laws and customs were in the Dodd determination material, and the things that are summarised in paragraph 330 of that evidence.  We did not say that it was part of traditional law and custom to live in any particular place, in any particular manner.  So, therefore, a finding that we did not live there in the manner that accords with, or that reflects an acknowledgment, or observant of traditional laws and customs, does not, we submit, go to what the content and nature of the traditional laws and customs are.

GAGELER CJ:   I am just trying to understand what your positive case was.  You said somehow the judge is meant to take into account the continuity of Arabana people living in Oodnadatta. 

MR LLOYD:   Yes.  So, our positive case was, we identified our traditional law and customs in Dodd, paragraph 330.  Then, we have instances of showing that those traditional laws and customs are apt for the Arabana people, and those Arabana people have continued to be in and about Oodnadatta as well.

GORDON J:   Mr Lloyd, I do not seek to ask for more paper, but in paragraph 332, the evidence for each of these matters is said to be set out and summarised.  We do not have that.  Is that the exercise that the Chief Justice just asked you about, or not?

MR LLOYD:   Sorry, paragraph 332 of the trial judge’s reasons?

GORDON J:   No, no, I am talking about your book of further materials.

MR LLOYD:   Sorry, yes.

GORDON J:   After you identified these 10 matters, paragraph 332 says:

The evidence for continuing connection under each of these criteria will be considered in turn.

It then says it is set out in a table.

MR LLOYD:   Yes.

GORDON J:   I do not ask you to hand it up, but is that the sort of exercise that was undertaken in response to the answer to the Chief Justice?

MR LLOYD:   Yes.  There was a very lengthy table which related what all of the evidence was on the 10 topics.  We can provide that to the Court, if that would assist.

GORDON J:   I do not know whether it will assist.  I just wanted to know what the exercise that was undertaken, in the sense of if it was – each of these matters, as you point out, is dealt with in a few paragraphs.

MR LLOYD:   Yes.  This was the introduction, and then there was a table – 20 or 30 pages which then, I think, in my recollection, was in tabular form, which says in relation to, you know, issue 2, this is the evidence we are relying upon, and gives little summaries of that evidence.  And it pursued those topics chronologically, so – Arabana people living there over a period of time – or each of the 10 matters, over different periods of time.

GAGELER CJ:   I am sorry to keep harping on this, but it seems to be, to me, that his Honour is simply saying, in response to your reliance on the continuity of Arabana people living in Oodnadatta, that there is nothing to connect that to the continuity of law and custom, nothing in the evidence that you put up that connects that to the continuing law and custom.

MR LLOYD:   Well, I am not sure that I can say much more than I have said.  This particular element was advanced to show the continuity of a relationship of my people with the country, including the fact that they were living there, that being on country was at least in some support for the view that they were the people at sovereignty and that they had not abandoned it.

I am not saying that living there, per se, shows a content of traditional law and custom, but we had separately already identified, in the first element, what were the elements of traditional law and custom we relied upon, along with, of course, the content of the rights also in the Dodd determination.  So, we said that is the content of it and here are indicia that show that this small overlap area was really ours as well, and this one was:  we still have people living here.

I think I had just taken the Court to 352 of Justice O’Bryan’s judgment.  Now, if I go back to 353, what his Honour says there about the “manner of living”, we would embrace that as well.  So, it says:

It is unclear what his Honour meant by that finding.  As his Honour did not make any clear findings with respect to Arabana laws and customs, it cannot be known how Arabana laws and customs might influence an Arabana person’s “manner of living” and it cannot be known whether the Arabana witnesses’ “manner of living” was or was not derived from or influenced by Arabana laws and customs.

We suggest that the notion of the “manner of living” suggests that the language of “in accordance with” meant that his Honour was looking for evidence to show that they had complied with traditional laws and customs in some way.  So, he was looking for adopting a compliance with standard rather than a standard of looking for just the content of the laws and customs.

The next element is the third point, which is continued use of natural resources.  It was addressed from 865 to 871 by the trial judge:

There was some evidence of the use of natural resources –

At 871, his Honour said:

Hunting and gathering of food is a recognised NTRI but the evidence that this was done in traditional ways or for traditional purposes was limited.

We say, that suggests his Honour – we, of course, claim that the content of the native title rights and interests include hunting and fishing – which his Honour seems to have appreciated – but then it was somehow lacking because we could not show that it was done either in a traditional way or for traditional purposes.  So, it gets diminished for some reason.  Whereas, his Honour should have said, here are the people who are the descendants of a people from that at‑sovereignty time, part of their traditional laws and customs was to hunt and fish, and here they are hunting and fishing.

So, that would suggest that this is Arabana country because they are still doing it in Arabana country, and that would suggest that the content of the laws and customs that allowed for hunting and fishing applied in this area as well – and to reinforce the idea that Arabana laws and customs extended equally throughout the area. 

Then, the fourth one – and I will stop at the fourth one because they tend to get repetitive – it is convenient to consider it – I can probably just go to what Justice O’Bryan says about it at 356.  It is “Continuity of learning, respecting and teaching the Ularaka”.  His Honour mentions that the trial judge considered: 

the evidence on this topic was limited.

Justice O’Bryan also observed that this evidence pertained to the question of whether the Arabana community was acknowledging and observing traditional laws and customs.  There was no finding that they were not.  It would be hard to find that they were not when the Dodd determination had determined that, in fact, they had been doing so for two centuries.

Justice O’Bryan recognises this implicitly when saying it is possible that the Arabana might acknowledge and observe laws and customs under which they hold native title rights and interests in Dodd, but not the overlap area.  This is in the sentence over the page: 

It must be accepted that there is a possibility that the Arabana continue to acknowledge and observe traditional laws and customs under which they hold rights and interests . . . but not the Overlap Area.

His Honour continues: 

But that question requires findings to be made with respect to the content and character of the traditional laws and customs that continue to be acknowledged and observed by the Arabana community.  Respectfully, the primary judge’s findings were not directed to that issue.

Given the time, I will not go through the remaining ones, but we embrace what his Honour says from 357 through to 363; they are similar in content.  Then, going back to the trial judge’s reasons at 907, you have the conclusions.  They start at 907.  We draw particular attention to three paragraphs here – paragraph 911, first of all.  And so, here, we say, referring to section 223, it says:

Section 223 requires not just that the traditional laws and customs be known but that rights in land in this case the Overlap Area, be possessed by the acknowledgement and observance respectively of those laws and customs.  It is by that acknowledgment and observance that the connection . . . must be shown.

We say that that is not what the Act says.  It is by the laws and customs, not by the acknowledgment and observance of the laws and customs:

Knowledge of what used to be the case is insufficient.

And then, in the last sentence:

Aaron Stuart’s evidence showed some knowledge of Arabana traditional law and customs but relatively little by way of actual acknowledgment and observance –

And we say that word, “actual”, suggests again that his Honour is looking for acts of observance and acknowledgement in the overlap area, and the absence of those is decisive against us.  Whereas, we say, it was enough that the Arabana people acknowledge and observe it in Arabana country, and that Arabana country included the overlap area.  And one sees similar points in 913:

There is of course a connection with the Overlap Area which arises from having been taught that it is Arabana country or from having been taught that one is Arabana and that Oodnadatta is Arabana country.

Now, if I stop there – we agree with that.  There is a connection from that.  So, if you are doing that pursuant to a law or a custom, that is it.  That should be enough.  But his Honour says:

It was connections of this kind which in the main were asserted by the Arabana witnesses.

That is true.  That is true, at least that they asserted those things:

However, as indicated, the connection required by s 223 is a connection arising from the continuing acknowledgment of traditional laws and traditional customs –

So, again his Honour is looking for something beyond just a connection arising from custom to something arising from the sort of actual acts of acknowledgment and observance.  And again in 914:

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

We say, the reason why we lost is because we were not doing enough acknowledgment or observance in the overlap area.  And we say so long as it was our country at sovereignty, and so long as we have not disappeared as a people, and we have continued to have traditional laws and customs in relation to Arabana country, and so long as we continue to think that it is ours, claim that it is ours – no stories about it – that should have been enough.

And if his Honour had have done the 223(1)(b) test of first identifying the content, and those factors I have just said, then even if some of those 10 matters were considered not to be of assistance, it would not have made a difference because the connection – even that identified in 913, is a connection, and it is a connection which arises from custom with country.  I note the time, your Honours.

GAGELER CJ:   We will take the luncheon adjournment, thank you.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

MR LLOYD:   Before the break, I was asked about whether the Fergie and Lucas report had a definition of “Arabana country”.  It certainly is not presented as a definition.  I am proposing that overnight we will do a supplementary book of further materials which includes the report.  What we do say is it refers to Oodnadatta 75 times.  It relies to show what Arabana laws and customs are on things done in Oodnadatta, so there are photographs of my clients doing things in Oodnadatta.  So, it was part of the evidence, but it was not a claim of Oodnadatta, so it was not posited there.  In terms of ethnographic material, it refers to ethnographic material, so at the time of sovereignty it included Oodnadatta.

Your Honour the Chief Justice asked me what was the purpose of the living in Oodnadatta evidence.  I am sorry my answer was not as fulsome as it could have been – I was reminded of people who know better than me what the purpose of it was.  In that Fergie report, there is a discussion of people who – they say one way that my clients express connection to country is where they say they feel comfort there; where they have inherited country, they feel comfort living in the country.  The evidence of some of our witnesses, such as Leonie Warren, was to the effect that she felt connected to, and comfortable, living in Oodnadatta, so it was in that sense exemplifying traditional law and custom. 

I did not – especially given time constraints – want to say anything further about where we say the errors are in ground 1.  We basically adopt, with respect, Justice O’Bryan’s analysis.  We say if this Court accepts that what his Honour said should have been done was not done, that is really the end of the matter; and we say the court below erred by failing to find that what should have been done was not done.  However, I will say a few things more about what the majority in the court below said on this ground 1 issue, but I will be briefer than I was going to be on that topic.

If I can go to paragraph 100 on page 317 of the core appeal book.  Paragraph 94, there is a number of particulars addressed together – obviously, the majority justices felt they belong together.  We would say that particular 1 was an allegation of the kind that was adopted and embraced by Justice O’Bryan.  Particular 2 was a more specific thing, which was more or less on an alternative basis to 1.  In any event, then, there was the failing referred to in 2.  I say that because particular 2 is important to the Full Court’s, or the majority’s, way of disposing of the matter. 

If I go to paragraph 101, their Honours extract a portion of the Arabana submissions to the effect that paragraph 911 misstated the statutory elements.  At 101, their Honours accept that it was:

not strictly in accordance with the language –

So, that is something of an acknowledgment of some kind of error.  But then, at 102, their Honours do not accept that that unfortunate articulation of the expression ultimately led to an erroneous result.  The majority did not accept that the trial judge placed an:

emphasis on a geographic component –

Now, that is not to say that they deny that the trial judge placed a geographic emphasis.  As we will see, their Honours considered that all elements of section 223 are geographically focused.  So, what their Honours are saying there is that in having a geographical focus on each of the elements, that was not an error.  And we take issue with the idea that everything is geographically focused.

The second and separate point is that even though the trial judge’s formulation departed from the language of the statute, their Honours did not accept the manner in which the trial judge dealt with the evidence revealed error as to the proper understanding of the law.  That can be understood, we say, as their Honours rejecting the analysis of Justice O’Bryan.  We say that that is wrong.

Then at 104 and 105, their Honours, in substance, summarise why they say what was done was okay.  There are a number of elements to what is in 104 and 105.  The first is the proposition that:

the Arabana ran a case based –

on:

10 matters in or in relation to the Overlap Area –

But, as I have tried to say to this Court, okay, yes, there were 10 matters.  The first matter was something which pertained to the whole of Arabana country, so it was not just in relation to the overlap area, and “based on 10 matters” is part of the issue which I think I have to respond to Justice Gordon’s question about where I got the point that they in effect said one was not enough.  What one gets from 104 and 105 is this idea that we advance 10 matters and then they say, we never invited them to consider the matters individually. 

I acknowledge, in the court below, I could not point to somewhere where we said, can you look at the matters individually?  But I have already taken the Court to those submissions.  We say that the job was to look at all of the evidence pertaining to laws and customs and then make findings on laws and customs, having regard to what was accepted or not accepted.  No fair reading of our written submissions could ever say something like, we relied upon all 10 or nothing.  It was just – if that is what their Honours are suggesting, we say that that is just unfair and is not accurate.  The next point they make in 104 is:

those factors asserted the connection largely by reference to tangible acts of –

omission.  So, that is to say, these are the 10 matters we advanced.  Now, there is a lot of work being done by the word “largely” there.  If one is counting the matters and which matters pertain to tangible acts, then it is true that certainly more than half would be tangible acts relating to the overlap area.

The first one – the first matter – is everything pertaining to the main Arabana country, to the determination country.  So, if one looks at, for example, how much evidence there was, the vast bulk of the evidence in terms of length of documents, would have been the Fergie report.  So, it is somewhat harsh a description.  Then it is said that:

the case presented at trial intermingled the issues –

pertaining to 223(1)(a) and 223(1)(b).  The difficulty there is that the evidence in the 10 matters, or let us say the two to 10 of the 10 matters, they are relevant to more than one of those issues.  We were, at that point, advancing them to assist the court to identify what the traditional laws and customs were.  At that point, we were not intermingling them.  We were saying, this evidence, we say, is relevant to the identification of the laws and customs.  That is what we identified in the principles, that is what the heading said it was for, and the fact that some of those matters were also relevant to whether or not the Arabana people continue to acknowledge and observe laws and customs, the (a) issue, does not mean that we intermingled them in a way.

I accept we may have confused the trial judge, but we say not in a way that would mean that somehow, if he had made the error that Justice O’Bryan found, that was our fault and we should be denied relief.  I mean, if this Court finds that Justice O’Bryan is correct and Justice White made the error alleged, we are not aware of any principle that says that – well, that somehow changes the law, and even though he got the law wrong because we confused him, relief should not be granted.  So, we say that that should be put aside.

Then there was this point that the trial judge was invited to consider the evidence pertaining to all 10 matters – yes, of course he was – and then he was not invited to consider it in relation to any one of those matters.  Well, not expressly, we accept, but we say, in context, his Honour could not have understood – or, at least, could not have fairly understood; if he understood it, it was not as a result of our doing – that if he rejected one or more of them, we were saying the whole thing fails.

So, that is our main answer to what the majority of the court below said on ground 1.  I will now say a few introductory things about ground 2, and then address ground 2.  Some of these I have said, so I am going to try and avoid saying them again.

GAGELER CJ:   Mr Lloyd, your estimate was two hours.

MR LLOYD:   Yes, your Honour.  The parties have agreed an order and a timetable.  I am trying to stick to that.  On that timetable, I have until 2.45 plus, I would say, the time it took for the Court to deliver judgment this morning.  And I should say that, between us in the timetable we have divided, we have left an hour, so it is not like we are running to the absolute limit of the time.

GAGELER CJ:   It would be useful to provide the Court with a copy of the agreed timetable.  When does it conclude, according to your agreement?

MR LLOYD:   If no one went beyond time, at 3.15 tomorrow.

GAGELER CJ:   Thank you.

MR LLOYD:   So, just to be clear, I had until 2.45, then Ms Webb for the Commonwealth would have half an hour, and the State would begin and finish tomorrow morning, then Mr Hughston and Ms Jowett.

GAGELER CJ:   Thank you.  We will treat that explanation as part of your time.

MR LLOYD:   Thank you.  Thank you, your Honour.  Now, if I just go to ground 2.  An issue arises as to the significance that the existing determination of native title has in respect of a new claim.  The court below – and I will call it “the court below” now rather than the majority because Justice O’Bryan concurred in these matters – at paragraph 68 sets out principles relevant to that question.  We do not take issue with any of those principles.

We would say that there these binding effects arise whether the determination – where there is a binding effect, it arises whether the determination is a consent determination.  For example, the reference to the “in rem” binding effect in principle (1), it is binding whether or not it is a consent determination or a litigated determination.  Then at 69, it indicates a determination may constrain later litigation by reason of abusive process or issue estoppel.

We referred the Court yesterday to a decision in the Federal Court, Wyman on behalf of the Bidjara People [2016] FCA 777. This is a case which was kind of a reverse of the present case. There was an overlap hearing first. In the overlap hearing, one of the overlapping groups, the Bidjara – it was found to be Bidjara country. However, the Bidjara claim was rejected. One sees what I am saying at paragraphs 25 to 27, then ultimately 31 – I will not read from it to save time.

The gist of it was that the court found in the overlap claim that the Bidjara were the right people but that they did not continue to comply – they were not united in the acknowledgment and observance of the traditional laws.  Then the Bidjara said, fine, that is why we lose that claim.  But they had other claims where there was not an overlap and they came back and said, we want to litigate these other claims; that ruling that we did not follow traditional laws and customs does not bind us here in these other claims.  And the State of Queensland said, well, it would be an abuse of process or an issue estoppel for you to now seek to relitigate that.  As shown in 31, that was a position that was ultimately upheld.

We only just draw attention to this because that is an example of a matter which was about the claim group.  There was a finding that the claim group did not continue to acknowledge and observe traditional laws and customs, and that binding was, in fact, applicable outside the area.  So, we say that there is scope for these determinations to have an important function outside the area, as it should do, because this litigation is lengthy and expensive.

A determination made in one matter – especially once there is a positive determination.  In order to make a positive determination, there is a number of things that have to be determined, and some of those things simply are not geographically linked.  Whether some people are descended from other people is not geographically linked; their kinship relationship is not geographically linked; whether the law that has changed for one period of time to another period of time is sort of a natural evolution of the law, or is it too much of a change?  That is not geographically linked.  That was, really, the essence of – in Wyman it was not geographically linked.

We say that the converse should also be true that where some things are found about a group – that it is a necessary and essential finding to a native title determination – that that matter is either binding as an in rem determination of matters that are essential to it, or at least, matters of such weight that more was required than was done by the trial judge in this case – at 853, I think it was. 

In the court below, we contended the Dodd determination and its necessary and express findings were critically important to addressing the remaining connection issues after finding connection at effective sovereignty.  It determined that the current claim group formed a society that has continued to observe and acknowledge pre‑sovereignty laws and customs.  This was a necessary finding for the Dodd determination.  It found that the Arabana laws and customs are traditional.  That was a necessary finding.  It found that the laws are of a kind capable of giving rise to native title rights and interests.  That was a necessary and, indeed, express finding of the determination, because it expressed what the rights and interests were.  It found that the laws are of a kind that can effect a connection between Arabana and their land – another requirement that is essential.

The Arabana then contended – and this is in the court below – that the trial judge had negated or wrongly diminished the probative force of the determination; that is mentioned by the court below at 56.  Then at paragraph 60, their Honours acknowledged that the trial judge had incorrectly implied that the two prior determinations should have the same force.  So, what had happened is that we had said, because of our determination, it carried a lot of weight, and you should find these things in our favour.  The issue was whether or not the Walka Wani could rely upon the northern side of the determination to the same effect.  And the judge said, well, the same thing could be said for both of them, and, in effect, appeared to dismiss them or diminish them, because the same point could be made in respect of both of them.

The Full Court here, we say, at 60, seems to acknowledge that that was an error, because they were not both the same, because the Dodd determination was applicable in a couple of respects.  One was it was applicable to a group that was entirely adjoining and had been found to have native title rights and interests in the area, and the Walka Wani, at least part of their people, were not joining and had not been found to have native title rights and interests.  So, there is no reason to have treated them as the same.  The court seems to have thought that, but ‑ ‑ ‑ 

STEWARD J:   Mr Lloyd, may I ask you a question.  Do you rely, for the purposes of this ground, to any extent, on the fact that there has been a change in circumstance since the hearing below, namely, that there is now no longer a rival claim to this small section of land?

MR LLOYD:   It is not an essential part of our point.  I mean, we ran this in the court below when there was not only a rival claim, but a rival determination, which we said was wrong – and it was wrong, and that seems to be not contested any more – but it is even stronger now that there is no rival determination.  Our point was that they were never parallels, because the completely adjoining YA determination did not embrace all of the same people as the Walka Wani claim, so it was never in the same position.  I think that, to be fair, the court below accepted that, they just did not think that it mattered.  And that seems to be, if one goes to paragraph 70:

However, it remains that the factual matters essential to a valid determination of native title are geographically specific –

Now, we apprehend that the “the” does not – I mean, it is doing important work, it means all of the factual matters are geographically specific, and we get that not just from the word “the” ‑ ‑ ‑ 

GORDON J:   Do you take with that as a proposition?

MR LLOYD:   We take issue with that, yes.  We say some of the matters are not geographically specific, like the ones I have already directed the Court to, and the fact that they mean all of them is clearer when one reads the last sentence of 86, because literally, there, they talk about:

All of it is geographically specific.

Now, we acknowledge that this raises an interesting question of – sort of a higher level question for this Court to determine.  There are, I accept, balancing principles on both sides.  The Walka Wani will say, we were not in that case, should we not get a chance to challenge everything?  And maybe your Honours will say, yes, it should not be binding; there should not be an in rem determination of something which is binding.  Alternatively, we would say that Parliament has set up this system so that people can go through in this way to make in rem determinations, and that is something which is determined by it, and it should be binding.

But our case – and I need to make this absolutely clear – does not turn on that issue.  That is an issue that the Court may legitimately address, but we say it is enough that it has to be, at least, of more probative value, and had to be treated more thoroughly than the trial judge did.  The way that it was ‑ ‑ ‑

GORDON J:   Is that because the determination itself was relied upon by the trial judge as evidence of the traditional laws and customs, or is it more than that?

MR LLOYD:   The trial judge seemed to accept that it was traditional laws and customs of our people, but for a different area, and, therefore, of no great weight or consequence.  He wanted to see what the evidence was, as he put it, in this case.  We accept that, but the evidence in this case included that.

GAGELER CJ:   Mr Lloyd, can I just break this down.  You are not relying on a res judicata?

MR LLOYD:   Not a res judicata, no.

GAGELER CJ:   And you are not relying on issue estoppel.

MR LLOYD:   No.

GAGELER CJ:   So, you are relying, to some extent, on the evidence that underlaid the original determination, the consent determination.  You put all of that ‑ ‑ ‑ 

MR LLOYD:   We certainly rely upon that, yes.

GAGELER CJ:   Yes.  But you say that there is some greater weight to be put on that evidence, by reason of it having been acted upon by Justice Finn in the consent determination.  Is that right?

MR LLOYD:   We do say that, yes.

GAGELER CJ:   Are you saying something more?

MR LLOYD:   Well, the only additional thing is – your Honour said it is not res judicata.  We say it is not res judicata in the sense that the Dodd determination clearly did not determine what the rights and interests were in the overlap area.

GAGELER CJ:   Correct.

MR LLOYD:   So, therefore, it is not a res judicata.

GAGELER CJ:   So far as there is discussion of that, a determination operating in rem, it means res judicata with respect to the particular area to which the determination is directed.  That is what it means, is it not?

MR LLOYD:   I accept that it – well, in rem means in relation to the matters that are determined by it ‑ ‑ ‑ 

GAGELER CJ:   Which is the existence of native title rights and interests in a particular area.

MR LLOYD:   But it also determines other matters as well, such as, for example, whether the laws and customs of those people are traditional in the relevant sense.  So, that has to be determined in that determination.  We would say that if the court accepted, for example, that the same traditional laws and customs applied in this other area, as was our case and was not the subject of cross‑examination, then it would not be open to the court.

I mean, on the in rem point, it would not be open to the court, if the court accepted that it was in rem, to find contrary to that, otherwise it is saying to litigants in every one of these little small – what are called in the trade – “cheese hole cases”, filling in the cheese holes, every one of them, you have to run it all again because you cannot risk the possibility that someone is going to say you have not proved enough.

We say we put on all of the evidence.  That was the evidence in the main case.  It was sufficient in that case to satisfy the State – of the standard required for a consent determination of the judge – of a number of elements, and then that was made a determination, and then that determination expresses things and those things include, for example, that my people are a people who are native title, they are an organisation, or a group of persons, who comprised together are a society that holds native title.  We would say in later litigation it should not be open to people to dispute that.

GAGELER CJ:   But by what doctrine do you get there, or by what steps of reasoning do you get there?

MR LLOYD:   So, let me put it in two ways.  So, the first way is just that when it has been determined by a court in another proceeding, it should have been given very significant weight in this proceeding and you would need something clear to displace it.  So, if it is not binding ‑ ‑ ‑ 

GAGELER CJ:   What is the “it” in that proposition?

MR LLOYD:   The finding or conclusion that has been embraced in the other proceeding and is the subject of evidence in this proceeding.

BEECH‑JONES J:   Is that section 86?

MR LLOYD:   So, section 86 is a mechanism for it, for sure.  And so, section 86 is something that the court could have used in this case to have done that.  So, that is on a discretionary basis ‑ ‑ ‑ 

GORDON J:   But it did not do it.

MR LLOYD:   The court here did not refer to 86, and, to be fair, I do not think we referred to section 86.

GORDON J:   So, can I just break down the Dodd determination.  Yes, it was in respect of a particular area of land, but the findings that you refer to are the more granular findings.  Is that the way it is put?  That is, that what you would say to us was either determined by that in that proceeding, the “that” being that the Arabana people are a people, that they are a society that holds native title rights and interests, that has laws and customs, and laws and customs which are capable of being categorised as “traditional”.

MR LLOYD:   Yes.

GORDON J:   That is the granularity you would have us look at it.

MR LLOYD:   All things that are necessary matters of fact to be determined for that successful determination.  And we accept that, on this view – I think I have muddied the case, but I did not finish answering the Chief Justice’s question.  On the section 86 position, it should at least be a matter of very substantial weight, when this has happened, and the error in this case is that the court here did not treat it that way at all.  So, that is one way we put it, and that would be sufficient, for our purposes, for ground 2.

The alternative way we put it is that the determination is an in rem determination against all the world of the matters that it determines, and that includes all matters that are necessary to the determination.  And so, insofar that the Arabana society is descended from the original Arabana society, that would be necessary.  Now, that does not mean that the State or the Walka Wani are not capable of resisting us.  They put below, and the majority, I think, more or less accepted – I think at one point they said, we said that the Dodd determination is, in itself, enough to win the overlap case.  That was never our case.

Obviously, we would have to have shown that we had some basis for rights and interests in the overlap area.  But then, having done that and having satisfied his Honour of that at the time of sovereignty – so, there was that.  If the Walka Wani had been successful in showing that we were not there ever, then we would have lost, and the Dodd determination would not have been anything.

But if, as turned out to be the case, our people were the people who were on the overlap area, then, we say, the Dodd determination, at that point, becomes – from an in rem determination of the issues that are necessarily determined by the first determination, it pretty much determines the balance of the things.  It determines the content of the traditional laws and customs.  They could have been different, but we did not argue they were different.  No one argued against us that they were different.  So, I am not saying they necessarily had to be exactly the same, but there was no evidence suggesting they were not – the only evidence suggested they were.  So, that is in the bag, as it were. 

We are the descended people.  We define ourselves in exactly the same way as in the Arabana determination, and there was no dispute that we descended from the same group, or that we wanted different laws and customs, or any of the other elements in section 223.  So, in that sense – this is on the second argument – we say that the determination should be seen as binding of those issues that are determined in the first matter because, otherwise ‑ ‑ ‑

GAGELER CJ:   But they do not get you your connection with this disputed land, do they?  There is the extra step that is necessary for you to make out – accepting all of that in your favour.

MR LLOYD:   Absolutely.  But the extra step we make out ‑ ‑ ‑

EDELMAN J:   You are back to ground 1.

MR LLOYD:   ‑ ‑ ‑ with the issue in ground 1 is ‑ ‑ ‑

GAGELER CJ:   Yes, of course.  I am just not sure all of those things that you say you have in your favour from the earlier determination are seriously in dispute, are they?

MR LLOYD:   They were certainly not seen by the trial judge or the court below as being sufficient.  We are saying, on the basis that the court has found that my people, at effective sovereignty, had a connection and had rights and interests, then, at that point, all the things that are determined in the Dodd determination are all the remaining things that need to be determined – unless there is, obviously, extinguishment.  But, otherwise, my people have been found to continue to observe traditional laws and customs – the Arabana laws and customs.  Given that they were the same laws and customs as applied to the overlap area at the time of sovereignty and they are continuing to observe those laws and customs, there is nothing else.

STEWARD J:   Is the missing link just the inference – an inference?  So, it was part of your land at sovereignty; it was part of your original native title claim but got excised for another reason, which ended up not going anywhere; you have the findings in the Dodd report; and then you have the clear links, that I think Justice White accepted, of people associated with it, and cultural links and so on; and finally you have no one else, now, claiming it as their land – you would just infer that it was part of their land.

MR LLOYD:   We certainly say that that is what should have happened.  I see the time.  I think that is really what I wanted to say about ground 2.  There is also the question of relief.  I should perhaps say something about that.  In relation to ground 1, at least, the order we seek is something which is consistent with what Justice O’Bryan said in ground 1.

Although we would say, especially from what we have just said, that we have already showed enough to get a favourable determination of native title, we are content for the Court to remit it to the Court of Appeal – sorry, the Full Federal Court for them to hear argument, as Justice O’Bryan, on the ground 1 issue – he, of course, rejected our ground 2 argument – thought it would be appropriate to hear further argument, as he has explained it, on the basis on the evidence in the trial.

GAGELER CJ:   So, who are you asking for it to be remitted to?  Is it the Full Court or to a trial judge?

MR LLOYD:   Yes, that is why I raise it.  Justice White is, of course, retired.  In De Rose, which is, I think, the case that Justice O’Bryan refers to, the matter was resolved – the issue came back to the Full Court, and the Full Court made the determination.

GAGELER CJ:   So, you are asking for it to go to the Full Court?

MR LLOYD:   That is so.

GAGELER CJ:   And who would be entitled to be heard on the form of the relief?  Everybody at the Bar table?

MR LLOYD:   We would say, not the Walka Wani, but we would say that your Honours could leave that to the wisdom of the Full Court.  If they put on evidence to show that they still have actual and ongoing legitimate interest in the area, that is, of a kind that would entitle them to be a party, we would say that they should not be able to be a party just because they used to have a claim.  Used to have a claim should not be enough.

May it please the Court, they are our submissions.

GAGELER CJ:   Thank you, Mr Lloyd.  Ms Webb.  Ms Webb, I think there is a device that comes out from the lectern that you can put your computer on, I think.

GORDON J:   On the right side of the lectern.

MS WEBB:   On the right side?

GORDON J:   Up on the top of the actual lectern itself.

MS WEBB:   Thank you.  I did not look closely enough, your Honour, thank you.

GAGELER CJ:   We have had some renovations done.

MS WEBB: Innovations are amazing. I am also told there is a pedal, but I think I am okay. If the Court pleases, the Attorney‑General of the Commonwealth of Australia intervenes to seek from this Court elucidation or confirmation of the legal principles to be applied in determining whether Aboriginal peoples or Torres Strait Islanders have a “connection” to land or waters by traditional laws and customs, and that is the for the purpose of deciding whether or not the rights and interests that are held by those persons, under those traditional laws and customs, are native title rights and interests as described in section 223(1) of the Native Title Act.

The principles the Attorney‑General invites the Court to endorse as an authoritative statement relevant to that connection inquiry in section 223(1)(b) are set out in Justice O’Bryan’s reasons at paragraph 290, and they are based on, fundamentally, the Full Court decision of Bodney v Bennell in 2008.

The connection element of the definition of native title was the primary focus of the trial judge in respect of the overlap area, and his Honour approached the question in terms of whether the Arabana had demonstrated continued connection to the overlap area, but then concluded, at paragraph 916, that he was:

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.

Relevantly, the principle question that the trial judge asked in respect of Arabana connection with that overlap area was in the terms that he set out in paragraph 56, and they were whether the Arabana:

establish, in accordance with s 223(1)(b) of the NT Act, that their NTRI extend to the Overlap Area and if so, whether they have continued to be possessed by the current societies in accordance with an acknowledgment of their respective traditional laws and an observance of their respective traditional customs.

Now, as Justice O’Bryan pointed out – and Justice O’Bryan was in dissent in the Full Court on this issue – section 223(1)(b) does not refer to acknowledgment of traditional laws and observance of traditional customs, but that is the language of section 223(1)(a). His Honour refers to that in paragraph 296 – and he refers to that as:

an unfortunate paraphrase . . . that does not reflect the statutory language and which has an uncertain meaning.

There is further perhaps conflation or confusion that appears to continue in the primary judge’s reasons at paragraph 911 – and your Honours have been taken to that paragraph, and also to where the majority acknowledged that that:

The language . . . is not strictly in accordance with the language of s 223(1)(b) –

at paragraph 101, but then did not go further and consider the relevance of perhaps that misstatement or confusion which appears to conflate the operation of the two subsections, and really does not accurately reflect either element of the definition.  But then, we accept that in paragraph 147, the primary judge does set out the principles correctly, and we have no difficulty with that at all.

Justice O’Bryan, in his reasons, aptly exposes the various misstatements of the statutory definition in section 223(1) and the apparent confusion in the approach that is taken to “connection” by the primary judge. That is at paragraphs 340 to 345. We are not here to argue whether or not the judge understood and correctly applied the test or whether he misunderstood it and did not correctly apply it. Our concern is to have this apparent confusion and conflation, at least in the expression of the test, clarified in this Court so that the legal principles that apply to the connection requirement in section 223(1)(b) of the Native Title Act have the authoritative stamp of the High Court.

If we go to section 223(1), there are three elements to it. The first is that whether there are:

rights and interests –

that:

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

the claimants.  That is 223(1)(a).  The second is whether the claimants:

by those laws and customs, have a connection with the land or waters –

claimed.  That is 223(1)(b).  The third is whether:

the rights and interests are recognised by the common law –

And for there to be a determination of native title, each of the elements of section 223(1) have work to do. Now, native title can be determined not to exist when they cannot be established, as a matter of fact, because the claimants cannot establish that they possess the rights and interests under traditional laws and customs and they cannot establish that they have a connection by those laws and customs with the land and waters claimed Conversely, if they establish both of those elements, then they get to the next step, which is they have to be able to establish, as a matter of law:

the rights and interests are recognised –

or, conversely, they cannot be established as a matter of law, because the rights and interests are not recognised by the common law of Australia.  We are not concerned with that step in this case.

The important point is that both questions under 223(1)(a) and (b) have work to do, and they must be answered.  There must be both possession of rights and interests under traditional laws and customs and a connection with the land and waters claimed by those laws and customs; both must be established.  In very simple terms, the questions might be expressed as considering two aspects of the relationship of claimants with a claimed area:  whether they have rights and interests, as distinct from a continuing connection to an area.  Both, together, will give rights and interests in a particular area.

If “connection”, by traditional law and custom, is not conceived of as merely a set of defined rights and interests being claimed – that is, by subsections (a) and (b) being conflated and being dependent on each other – “connection” can then be established by reference to other facts; for example, existence of stories that are linked to an area, or, perhaps, even the assertion of boundaries with other groups.  This is a parallel approach of those two subsections, whether they are two inquiries – although they may depend, and often do depend, on the same facts – but they are two separate inquiries.

GAGELER CJ:   Ms Webb, can I just ask a really simple question, to try to tease out these submissions?

MS WEBB:   Yes.

GAGELER CJ:   Assume that under traditional laws and customs, I, as a native title holder, have a right to hunt on land.  Is that right to hunt on specific land the “connection”, or are you looking for something more when you talk about “connection”?

MS WEBB:   The answer to that, your Honour, is when your Honour said “on specific land”, that is the test.  If they have a right to hunt on specific land, that is land that the traditional laws and customs give them a connection to.  If they have a right to hunt, under traditional laws and customs, the connection tells you where you can hunt.  So, if there is a claim that says, we have, under our traditional laws and customs, a right to hunt, the connection tells you where.

GAGELER CJ:   But the connection lies in the existence of the right under traditional laws and customs.

MS WEBB:   In that particular case, as to the geographic extent of the right.

GAGELER CJ:   Yes.  Thank you.

MS WEBB:   But it is still – the right and the interest is a right to hunt.  Where that is, that relationship with the land is the connection.

GAGELER CJ:   That answers the (b) question.

MS WEBB:   Yes.

GAGELER CJ:   Yes.  Thank you.

GORDON J:   Can I take another example.  If I have stories, as part of my traditional laws and customs, and those stories are connected to a particular piece of land, is that sufficient?

MS WEBB:   For connection, yes.

GORDON J:   I might not visit there.

MS WEBB:   You may not visit there at all, and, indeed, there are cases that – the Full Court in De Rose was a case in particular where “connection” was separate from anybody doing anything on the land.  In fact, people had not been there.  There are other cases where the connection is the story, and, in fact, it may be that people do not go there, cannot go there, for various reasons, but the story will give the connection.

STEWARD J:   Can I test that out, just a little bit, Ms Webb, whilst we have you?  In (a), the description is:

laws acknowledged, and the traditional customs observed –

For the purposes of (a), just looking at customs, do we need to read “customs observed” as a requirement that the customs are presently practiced?  So, in storytelling, it would be telling stories and so on and so forth.  So, there is something that has to be done.

MS WEBB:   Yes.

STEWARD J:   It is not enough that it has been recorded in a book somewhere, it has to be something ‑ ‑ ‑

MS WEBB:   It has to be known to the people.

STEWARD J:   And they have to be doing something, whatever that might be.

MS WEBB:   There has got to be ‑ ‑ ‑

STEWARD J:   Whatever the custom is.

MS WEBB:   Sorry, your Honour, I did not mean to cut across.

STEWARD J:   No, that is all right.

MS WEBB:   There has to be a reality of connection.

STEWARD J:   Yes.

MS WEBB:   Yes.  I suppose that is the best way to put it.  So, if it is in a book but the people themselves do not know about it, and it is not something that is being, in essence, passed on ‑ ‑ ‑

STEWARD J:   So, if the custom was to hunt – to use the Chief Justice’s example ‑ ‑ ‑

MS WEBB:   Yes.

STEWARD J:   ‑ ‑ ‑ you would observe the custom of hunting by some form of hunting, would you not?

MS WEBB:   That is moving into that area of what is the right that you might have under your law and custom.  What we are talking about what is the relationship is.

STEWARD J:   I am just looking at (a) at the moment, just trying to flesh‑out the phrase, “customs observed”.  What do you need to do?  You have to have a custom and you have to observe it, in any event.  Then we get to (b), and the next question I have for you is, the reference to the phrase “by those laws and customs”, is that a reference to the composite phrases in (a):

traditional laws acknowledged, and the traditional customs observed –

Should we read it that way or read it differently?

MS WEBB:   The way that it should be read is – if we go to Yorta Yorta, those traditional laws and customs, acknowledged and observed, are described as a normative system.  So, it is basically if you say, traditional laws and customs, acknowledged and observed, what does the normative system say about the rights and interests that people have?  What does the normative system say about where people are connected or what people are connected with what areas of land?  That is the way I best understand it, your Honour.

STEWARD J:   So, just with (b), we do not read “those laws and customs” as those “traditional laws acknowledged, and the traditional customs observed” but just extracted from a concept of observance and acknowledgment?

MS WEBB:   That is, in my respectful submission, the normative system.

STEWARD J:   Okay.  Thank you.

MS WEBB:   They may not necessarily be the same laws and customs that give rights and interest that give you a connection with the land, and I think that is the important point.  They may be, but not always.

GLEESON J:   Are there any cases where (a) has been found to be satisfied and (b) has failed?

MS WEBB:   One, in fact, was Bodney v Bennel – which was the point of Bodney v Bennel – where Chief Justice Wilcox – there were two claims combined and heard together, and Chief Justice Wilcox found that there were rights and interests over the entire Noongar country, and from that, said there was a connection to the entire Noongar country, but did not inquire as to the connection to the Perth metro area.  And that was the context in which the Full Court set out their principles of what the connection inquiry required.  So that, in fact, was the context there.

There may be cases – and I am sorry, your Honour, I cannot think of a particular one at the moment – where there will be, within an area of country, an out of boundary – there will be areas that are not the country of those surrounding claims.  There are certainly places like that in the Northern Territory.

This parallel approach, if I could just go back to that – the two inquiries – that has support from Ward in the High Court at paragraph 64. That was where the High Court said that section 223(1)(b) is not directed to how land and waters are used, that whether there is a connection of the relevant people with the land and waters:

by the traditional laws acknowledged and the traditional customs observed . . . requires first an identification of the content of traditional laws and customs and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters –

So, going back to this question of recent use, the High Court there said:

absence of . . . recent use . . . does not, of itself –

mean:

there can be no relevant connection.

And your Honours might also note paragraphs 18 and 19 of Ward, which also goes to that point.  Even though it was in a different context, and that is the criteria of determining compensation, but relevant to the different inquiries that are required by sections 223(1)(a) and (b), the plurality in Northern Territory v Griffiths at paragraph 23 seem to support that parallel approach to the two inquiries.  And it is worth just recording what they said:

The first and second of those characteristics – that native title is a bundle of rights and interests possessed under traditional laws 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, if you take that parallel approach, and treating the rights and interests inquiry and the connection inquiry as separate inquiries – albeit often relying on the same evidential basis – there are three criteria when you go to section 223(1)(b) and you are looking at “connection”.

The first:  there has to be a connection with the land and waters.  The second is that the connection has to be held by particular Aboriginal persons or Torres Strait Islanders who possess the rights and interests that are referred to in 223(1)(a).  The third is that that connection has to be by those laws and customs that are referred to in 223(1)(a).  They are the three criteria.  So, if you ask the question in 223(1)(b) by reference to acknowledgment and observance of traditional laws and customs, without identifying the content of those laws and customs, and characterising the effect as a connection, that conflates the operation of those two subsections.  Now, there has been ‑ ‑ ‑ 

GAGELER CJ:   I must say, I am having difficulty understanding what you are – what the content of the notion of “connection” is beyond the right or interest under traditional laws or customs that allows you to do something on the land, or with the land.

MS WEBB:   It tells you where you can do it.

GAGELER CJ:   It is just a geographical specificity, is it?

MS WEBB:   It is really, your Honour.  It is really.

GAGELER CJ:   All right.

EDELMAN J:   You do already have that, though, because it has to be “in relation to land or waters”.

MS WEBB:   Well, in relation to what the land and waters are claimed, but it does not mean that in relation to the land and waters, that all of the land and waters claimed, that you have a connection, and it is the connection that confines where the rights and interests can be exercised – or sometimes not exercised, but that ‑ ‑ ‑ 

EDELMAN J:   Except (b) does say, in “connection with the land or waters”.

MS WEBB:   The land and waters.

EDELMAN J:   The land and waters.

MS WEBB:   Yes.

EDELMAN J:   There is a reference to the land or waters in which the interests are in relation to.

MS WEBB:   But you have to have both.  You can have – sorry, your Honour, perhaps if I can put it this way.  You can have rights and interests under traditional laws and customs that are not in relation to land and waters, and that was an issue in Ward in the High Court, where there were rights and interests in relation to protection of artworks and paintings and that kind of thing, and that is not a native title right, because it is not in relation to land and waters.  That is the work that ‑ ‑ ‑ 

EDELMAN J:   But that would not fall within (a) either.

MS WEBB:   Yes.

EDELMAN J:   Yes.

MS WEBB:   That is the work that “land and waters” does in that section, and it is the connection inquiry that limits it to which land and waters.  The Full Court has had a look at “connection” over the years.  I have mentioned De Rose.  We have considered De Rose, the two De Rose Full Courts, in our submissions at paragraphs 15 to 19.  I will not repeat it here on my feet, but there the Full Court relied on comments made – those comments made by the majority in Ward, High Court, about the distinction between the two paragraphs being critical.

I have already mentioned Peter De Rose, who was understood to be Nguraritja under traditional laws and customs and have a connection, had never – had not been to De Rose Hill Station for, I think, many years, because they were not able to get there but, nonetheless, a failure to exercise rights or obligations did not negate a connection.  So, in short, what you could say is a “connection” is a function of acknowledged traditional laws and customs rather than a function of actual compliance with those laws and customs.  But you have to have both; you have to have both rights and interests and “connection” to get to the next step.

GLEESON J:   Ms Webb, in Sampi, Justice French, at 1078 and 1079, seems to draw a distinction between rights and interests and “connection”, on the basis that connection is, primarily, a spiritual affair rather than a bundle of rights.  Is that relevant for the argument here?

MS WEBB:   Yes, indeed.  In fact, that goes back to what was said by the plurality in Griffiths, that there are two aspects to it:  there is the right to use land and waters; and there is the “connection”, which can be spiritual or cultural.  That has been a theme through the cases and, in fact, it does get picked up in Bodney v Bennell in the Full Court, and that is, in fact, the most recent Full Court case that has given detailed consideration to “connection” matters, and the principles in that case are what have largely followed in the courts since, when determining “connection”.

I think it suffices to ask your Honours to read those paragraphs in Bodney v Bennell.  They begin at paragraph 164, where the Full Court refers to:

the connection concept is multifaceted –

which, indeed, it is:

with differing aspects of it being emphasised in differing factual contexts.

Do your Honours need the reference in the book?

GAGELER CJ:   Do you want us to turn it up now?

MS WEBB:   Not particularly, your Honour.  I was just inviting your Honours to read it.  There is quite a lengthy passage – it goes from 165 to 176, but I will just summarise what the five points that are made in Bodney v Bennell are.

GORDON J:   Before you do that, could I ask, are they the same five points that you are about to take us to that Justice O’Bryan sets out in paragraph 290?

MS WEBB:   They are indeed, and in fact I probably do not need to ‑ ‑ ‑

GORDON J:   No, I do not seek to dissuade you, I just want to make sure I am following along – whether they are the same principles.

MS WEBB:   They are.  They are, in essence, because what Justice O’Bryan sets out as the principles in 290 are in fact derived from the principles in Bodney v Bennell.

GORDON J:   Thank you.

MS WEBB:   And they are, in essence, the same principles, and they are the ones that we would ask this Court to, basically, authoritatively place your stamp on, because it is an important aspect of native title claims going forward.  I am content to leave it for your Honours to read those, or to go through and summarise – whichever your Honours would prefer.

GAGELER CJ:   If you are content with Justice O’Bryan’s summary, we will leave it at that.

MS WEBB:   Indeed.  And that is in fact what we say correctly is the approach that we would ask this Court to confirm.

GAGELER CJ:   Part of the theme of the argument put by Mr Lloyd is to focus on rights and interests said to exist or found to exist in this claim area as at sovereignty, and then to say the traditional laws and customs continue, and there is nothing to show that there has been an abandonment of those rights and interests that existed at sovereignty.

MS WEBB:   Yes.

GAGELER CJ:   Is that a legitimate way of reasoning, from your perspective?  Is that asking the right question, in terms of the statute?

MS WEBB:   The inquiry still has to be:  is there a connection with that area?  Even though it is a small area surrounded by – and if I could perhaps answer your Honour’s question by going to a question your Honour Justice Gordon asked about Justice Finn’s approach in Dodd to connection, and your Honour said, was it the correct approach?  His Honour dealt with “connection” in Dodd at paragraphs 42 to 50, and Justice O’Bryan refers to Justice Finn’s approach to “continuing connection” at paragraph 315 of the Full Court judgment.  And he refers to it as proceeding:

in an orthodox manner –

which is hardly surprising, given that Justice Finn was the senior judge in Bodney v Bennell, that he applied that approach which Justice O’Bryan endorses.  But the principles that were carefully explained in Bodney v Bennell, of course, arose in the context of saying, you need to look at this aspect; not as some general rights and interests that people have under traditional law and custom, but whether they have it in relation to that particular area.

That is the answer to your Honour the Chief Justice’s question – you need to look at it in respect of the particular area, which, of course, does lead to the second ground, because Dodd was a consent determination, not a litigated outcome.  Does that answer your Honour’s question?

GAGELER CJ:   I think so.  Yes, thank you.

MS WEBB:   Thank you.  Ground 2, and the significance of prior consent determinations, highlights a tension between determinations of native title that are made by consent following agreements between parties and determinations following a litigated hearing.  But this is not a tension that need disturb or disrupt the present practice of seeking content outcomes through the processes that are provided for in the Native Title Act, nor need it concern or disturb those in rem determinations already made.  What it does explain is why a litigated outcome needs to be, and will always raise, different considerations to a consent determination.

Nonetheless, the principles for what native title is under the Native Title Act remain the same.  What is different is the evidentiary basis or threshold for satisfaction required for a consent determination and a litigated determination.  Both types of determination have the same juridical nature; they are both approved determinations of native title under the Native Title Act; they bind all parties to a claim and operate in rem as to the existence of native title in the area of the determination and the identity of the person or groups of persons who hold native title in that area.

Where the tension arises is because the making of the consent determination, although judicial in nature, does not require the court to make findings of fact that underpin the determination.  Rather, the primary consideration of the court when it is exercising its discretion to make a consent determination is to determine whether there is an agreement between the parties and whether that agreement was freely entered into on an informed basis.  This process is not disturbed or frustrated in any way by the confirmation of the principles for determining native title that the Attorney‑General invites this Court to make on this appeal.

It would continue undisturbed and able to remain the primary way in which a court and many parties seek to resolve native title determination applications made under the Native Title Act.  Consent outcomes are very important, and the very strong preference of the Attorney‑General, and they are provided for in the Act for this reason.

Existing in rem determinations would not be disturbed either.  The legal principles that apply to section 223 apply equally to consent determinations and litigated outcomes.  The principles remain the same.  What is different, and what would remain appropriately different, is that in the consent determination context, parties put forward an agreement to the court for consideration in line with the requirements of sections 87 and 87A for the court to make a determination so as to avoid the commencement of, or sometimes the completion of, a litigated hearing.

Now, the Native Title Act permits this, and this process is supported and endorsed by the statutory scheme that is at the core of the operation of the Native Title Act.  While this inquiry, for the purposes of a consent determination, inevitably directs the court to the evidentiary foundation upon which the consent determination agreement is based, it is clear that an informed basis necessarily requires a body of evidence materially less than that which would be required to persuade the court at trial on the balance of probabilities that a determination of native title can be made.

That is part of the bargain that parties make to resolve an application by consent and to avoid the need and expense of a hearing, or the conclusion of a hearing if one has commenced.  Should it be the case, as here, that there is an opposition to a determination of native title where there have been adjacent determinations by consent, the court must determine the existence of native title based upon material properly before it and on available inferences.

While there may be areas where the proximity of a particular native title holding group enables it to be inferred that they are the holders of native title in adjacent country, where there is a contested hearing over a particular area, any inferences that may otherwise be drawn to extend native title into that area, based on a consent determination over adjoining country, may be defeated by evidence to the contrary.  The Attorney‑General does not say that this is inappropriate or problematic, rather it is an outcome of the application of correct legal principle that remain the same but which are assessed at a different threshold because of the context in which the Court is being asked to make a determination of native title under the Act.

Unless there are any questions, those are our submissions.

BEECH-JONES J:   Just to be clear, you say it is a basis for an inference.

MS WEBB:   Yes.

BEECH-JONES J:   A consent determination is a basis for an inference but it is not conclusive.  Does it create a prima facie case?

MS WEBB:   Yes, indeed.

BEECH-JONES J:   It does.

MS WEBB:   Sorry, your Honour.

BEECH-JONES J:   Does it create a prima facie case?

MS WEBB:   A consent determination?

BEECH-JONES J:   Yes.

MS WEBB:   It operates as in rem in respect of the two matters:  the existence of native title in the area where the determination is made and

who holds that native title in respect of that area.  There may be strong inferences, but evidence may defeat that.  But we would not say more than that.  If your Honour pleases.

GAGELER CJ:   Thank you, Ms Webb.  Mr Golding.

MR GOLDING:   Thank you, your Honours.  Can I commence by reference to my learned friend Mr Lloyd’s characterisation of the case at the beginning of his submissions, which was to say that somehow the Arabana lost connection to 0.2 per cent of its land which it otherwise had at sovereignty and was part of what we have generically been referring to as approximately 68,000 square kilometres.  That would tend to suggest in isolation, in my submission, that something has gone wrong here.  In my submission, what that does is ignores the context in which this dispute over what is 0.2 per cent of the land area actually occurred.

The first point is, with respect to the adjoining land area, that that was a consent determination.  I will not repeat what my learned friend Ms Webb has said about that, but rather adopt what she says, that there are not factual findings as such, it is nevertheless an in rem determination.  Perhaps, for the purposes of this matter, where the problem arises is that when, of course, one prints out a decision of this Court on a consent determination, they are rather slimmer than the adjudicated determinations.  And that must necessarily be so because, of course, there is no dispute as such in the consent determination, and one does not necessarily get the full flavour and assessment that arises from disputed litigation.  So, that is the first point.

The second point of context is that it was the plaintiff – it was the Arabana, in this instance – who voluntarily excluded the Oodnadatta common from their original claim.  Can I take your Honours to paragraph 43 of the trial judgment.  You have already been taken here, but in relation to the top aspect of it, which is that:

In 1998, the Arabana commenced the application for a determination of native title which resulted in the 2012 Arabana Determination.

Which is Dodd:

They did not include the Overlap Area in that claim because the State had previously indicated that it intended to transfer the Oodnadatta Common to the ALT –

The ALT is short for the Aboriginal Lands Trust, which is a statutory body in South Australia that predates the establishment of native title:

with a view to the ALT then providing a long term lease of the Common –

Oodnadatta:

to the Dunjiba Community Council –

What is important is the last two sentences, which is that the judge found:

The Arabana recognised that, as many of the residents of Oodnadatta at the time were not Arabana, Dunjiba was more representative of its residents and they did not wish to create an impediment to the State transferring the land to the ALT.

So, two things arise from that.  Firstly, there was a forensic decision effectively made by the Arabana not to include the 0.2 per cent of the bigger land area, and the rationale for doing that is, right from the start, a recognition that, in my submission, we must be at the very edge or the border of what is Arabana land, because of the presence at that time and certainly thereafter of many people who are not identifying as Arabana.

Consistent with that, what I will an intra-indigenous dispute arose, effectively, in relation to the 0.2 per cent, where you have the Walka Wani and the Arabana each having competing claims.  Notwithstanding years of negotiation, it was unable to be resolved, and so the parties – by that, I mean both of the indigenous parties – were effectively put to proof at an adjudicatorial hearing of the Federal Court before Justice White.  Of course, it is that adjudicatorial hearing and that process that produces his Honour’s judgment that is very different to what one gets in a consent determination and what is produced by a court in those circumstances.

Finally, the last bit of context here is that it is true and it is accepted that what I will call western concepts of boundaries do not translate very well, if at all, into traditional Aboriginal concepts.  In this case, the experts talked about what they called – and this was their agreed phrase, in the end – a zone of intra-penetration where, rather than there being a specific longitudinal and latitudinal line that can be plotted – as in the 1996 map, for example, where lines were drawn – that, rather, you have a fading‑in and fading‑out.

Now, there is obviously a disjunct there, because the Native Title Act itself – section 67, I think – requires there to be the longitudinal and latitudinal precision which, of course, does not necessarily translate exactly in an apples-for-apples kind of way – I am told the section is 225, I do not know why I was thinking of 67 – which translates into a situation that is not apples‑for‑apples in the abutting of western law and traditional Aboriginal law. In those circumstances, and because of the requirement of the Native Title Act, 0.2 per cent of something is always going to have to fall on the wrong side, or the other side of the line, or the side of the line that does not necessarily line up with somebody’s desired case, and that is no more complex than that it is simply a case of that is what the Act requires.

So, it is in that context that this all occurred and why we have ended up, ultimately, where we have ended up.  This is not your traditional claim whereby there is an Aboriginal group who establish that there is a society, they do not already have a consent determination, and they identify an area, and that the parties are then that group against the relevant State or Territory in the circumstances and that the matter is worked out between those two.  This is very different to that situation.  That would be what I might call the classical, for want of a better expression, native title dispute, which is that there is an overlap where there is disagreement between the Aboriginal groups.

Can I then move to – and this is now moving into some of the detail in my skeleton outline and paragraph 1, that it is because of that context that I have just explained that we ended up in a situation where the only live issue, effectively, for the Arabana claim was whether or not the connection to the overlap area that arose by laws and customs that were acknowledged and observed continued to today.  This was a case about time more than anything else.

If your Honours can turn to page 400 of the core appeal book, paragraph 364, there we have the conclusion of Justice O’Bryan.  If one goes up, then, over to 401 and looks at (a) through to – now, the copy that I have, and I assume everyone’s is the same, says that after (d) we go back to (a), but that is meant to be (e), and I have taken that to be so – that it was, in fact, only (e) – wrongly labelled (a) – that was, in fact, in dispute in this matter.  That itself is drawn from, if your Honours then turn back to paragraph 338 in Justice O’Bryan’s judgment, that there – correctly labelled (e) – is the same reference.

What is important when looking at 338(a) through to (f) is the emphasis on how it is in fact that this is a case that was about time and the movement of time.  When looking at (a), we are dealing with:

whether at sovereignty –

that is the starting point.  That was not in dispute.  Whether it comes from Dodd or whether it comes from the parties in this particular instance – sorry, I have overstated that.  The State did not dispute (a) at trial, but in my memory, the Walka Wani did dispute that.  So, when I say that was not in dispute, I am talking about in an inter partes sense, between the State and the Arabana.  But in any event, the trial judge found that, in fact, that was the case at sovereignty.  Then, going to (b), if we look at, in line 2:

has continued to exist throughout that period –

Then, if we go to (c), the emphasis is:

(c)whether the laws and customs acknowledged and observed by the Arabana society today . . . 

(d)the content and nature of the laws and customs of the Arabana that are acknowledged and observed today;

(e)whether the claimed rights and interests in the Overlap Area are possessed by the Arabana under those laws and customs that are acknowledged and observed today; and

(f)whether the Arabana have a connection to the Overlap Area . . . that are acknowledged and observed today.

BEECH‑JONES J:   Do you say (d) was not in dispute before the primary judge?

MR GOLDING:   No – there are two aspects to it.  What was in dispute, effectively – the content and nature of the laws of the Arabana were not, effectively, in dispute, but their acknowledgment and observance today was in dispute with respect to the overlap area.

BEECH‑JONES J:   I see.

MR GOLDING:   So, in my submission, a lot is made, if one then turns over to paragraph 342 and the reference there from his Honour Justice O’Bryan, about:

The parties apparently referred to this amalgamated enquiry by the shorthand “continued connection”.

Now, the issue, really, in my submission, was one of its continuity, not so much of its “connection”.  Now, obviously, I have a lot to say, as I develop this, about “connection” and how that is worked through under section 223(b).

But what I am doing is emphasising that is squarely the basis upon which this case was run, that effectively we had a situation where we had one group for whom there was an abundance of evidence – ethnographic evidence – that they had a connection at sovereignty, but that, for a variety of reasons, some of which I will take you to, that that was lost over time and that we reach a point today and in the recent past where it no longer existed.

Conversely, that we had a group that were unable to demonstrate, on the ethnographic record, that they were there at sovereignty, but that in more recent times – and, again, for some of the reasons that I will take your Honours to – that they now have a presence and observance of the traditional laws and customs that relate to their society, over which they have a consent, or multiple consent determinations, because the Walka Wani are an agglomeration of several groups, as my learned friend Mr Lloyd explained, that now exist in Oodnadatta.

Your Honour the Chief Justice asked of my learned friend Mr Lloyd about whether or not there were any findings or reflections on or how it is that it came to be that what I have effectively described there as “the movement” actually occurred.  In my submission, it is important to understand that context, and I will give your Honours some references and take you to some of those specific parts.

In terms of the movement of Aboriginal people, whilst we are talking about sovereignty as being 1788 – it being on the eastern side of the diving line, and therefore not 1825 – the concept of effective sovereignty that we talk about in native title whereby there is first contact, as such, obviously, in this location, was not in 1788 but rather is around the 1870s and coincides with the putting through of the telegraph line from Adelaide to Darwin.

The background with respect to this can be found at paragraphs 71 and 75 of the trial judge’s judgment.  That that is the beginning of the relationship between settlement and the traditional Aboriginal people located in the area.  From there, there is then a finding about the impacts that that European settlement brought with respect to – and these might start to move into what we describe as the push‑pull factors, which is the impact of the presence of food being a pull factor but the flipside of that being the impact, of course, of disease being one of depopulation in the circumstances.

The next important step is the railway.  Of course, the railway takes a different path now, but up until 1980, the railway to Alice Springs, as it then was that the terminus in 1980, actually went through Oodnadatta, but after 1980 it took a different path.  The railway was put through in 1891.  Paragraphs 82 to 85 deal with that.  Not unlike the telegraph line, that had a similar impact with respect to the push and the pull factors.

The result is, then – and this is dealt with at paragraphs 539 to 560 of the his Honour trial judge’s reasoning – that what can be described as a general movement of Western Desert cultural bloc people from the north‑west in a south‑easterly direction with the Lakes people – constituted by the Arabana in this particular instance – being forced out and/or suffering from some of the ill effects of the diseases, for example, that were introduced, such that there was effectively a retreat south into other parts of Arabana country.

Of course, this 0.2 per cent we are talking about is at the far north‑western extreme of the Arabana consent determination, and that effectively, over time there has been a movement – and we would say shrinkage – of what is Arabana country such that Oodnadatta is no longer caught.

Looking at paragraph 539 in particular, there is a summary there, which is gone into in a lot of detail in the subsequent paragraphs.  We are looking about drought, degradation of water sources, the appearance of ration depots, disease – as I have mentioned – that some of the experts described as being both the attraction but also the perils of the bright lights in an around Oodnadatta from the time of settlement.

So, what we see is that these factors apply to the Walka Wani and to the Arabana.  They had, ultimately, perhaps it might be said, greater effect on the Arabana in that they appear to suffer more of the brunt of it as opposed to what might then be described as an advantage or some kind of opportunism of the Western Desert, then moving into this particular area.  As my learned friend Mr Lloyd has already said, this might not be an issue if we were dealing with two Lakes Group societies, or two Western Desert Group societies, but we are dealing with significant fault lines – for want of a better word – with respect to very different cultural groups that is not necessarily the case when you have groups that are otherwise from the same cultural group but are identifiably different.

The other paragraphs, as time moves by, that I would refer to, are paragraphs 628, for example, which talks about, specifically, the disease of the Spanish Flu in the 1920s that is believed to have come down the railway line, effectively, and also the attraction to Anna Creek Station, which is to the south.  Where we end up is the concluding point, 561, where Lucas, who was the expert anthropologist called by the Arabana, concluded that there was:

a retreat of Arabana from the northern extent of their country –

So, in my submission, that is the context in which this occurred, and they are the findings that the trial judge made with respect to how we got to where we were today, in a very sort of general sense of abstraction, as to why certain people moved.

That, of course, is not the answer to the native title question necessarily, but provides an explanation and a background as to why certain realities are the way they are.  But we then have to go down to the next step, which is, of course, looking at the issue of what is required by section 223(1)(a) and (1)(b) in terms of the competing groups at trial, now only the Arabana, in terms of their native title rights and interests.

Moving, then, to paragraph 2 of my outline, I want to refer your Honours to – my learned friend Ms Webb has done this by referring to the paragraphs, but I would like to take your Honours to these paragraphs.  Firstly, in the decision of Ward, which is in volume 5, I am looking at paragraphs 18 and 19 of that decision.  In my submission, what is contained there, at paragraphs 18 and 19, is the current statement of the law with respect to the understanding and interpretation of (a) and (b), and in my submission – and perhaps to borrow from my learned friend Ms Webb – whether or not your Honours seek to confirm that or re‑elucidate it, that is where the law currently stands.

In having a look at that, what is important is to see that, at paragraph 18, it is clear that the Court is concerned that there may be a temptation not to draw a distinction between (a) and (b), but that – and in some cases, and I will get to this when I get to the next case, which is De Rose, that may well be appropriate, and that may not matter, but in other cases it will.  So, for example, in the present case, in Ward, in paragraph 19, where it says:

The distinction is critical for any attempt (as is made in this litigation) to treat the maintenance and protection of cultural knowledge of native title holders as a matter with which the NTA is concerned.  The cultural knowledge in question may be possessed under the traditional laws acknowledged and traditional customs observed by the relevant peoples.  The issue which then arises is whether, by those laws and customs, there is “a connection with” the land or waters in question.

So, there clearly is a two‑step process.  But if we then move to a decision such as De Rose, in volume 6 – and this is what I will call “De Rose (No 1)” – at page 1769 of the case books and, at paragraph 305, it says:

At first glance, it may not be evident what para (b) of s 223(1) adds to para (a). If Aboriginal people possess rights and interests in relation to land under the traditional laws acknowledged and the traditional customs observed by them, it would seem to be a small step to conclude that the people, by those laws and customs, have a connection with the land. In the present case, for example, the evidence suggests that where Aboriginal people, under the traditional laws and customs of the Western Desert Bloc acknowledged and observed by them, are recognised as Nguraritja for particular land, they have certain “rights” and responsibilities under those traditional laws and customs. Thus, as his Honour found, the Nguraritja are able to live and hunt on the land and also have a special responsibility for the “constellation” of sacred locations on the site. Given that these rights and responsibilities are referable to particular land or sites, it would seem to follow that there is a “connection” –

picking that up from (b):

by the traditional laws and customs between the Nguraritja and “their” land.  It is difficult to conceive of a construction of the word “connection” that would not be satisfied in these circumstances.

In my submission, the critical bit of that is, of course, the last bit.  The court then goes on to, of course, refer to paragraph 19 in Ward that I just referred your Honours to.  But the critical bit is that what their Honours are effectively saying is that, in this particular case – and I would venture as far to say, as in many native title cases, because of the nature of many Aboriginal laws and customs – that the question of “connection” is often drawn in terms of satisfied by the same evidence.  That, in fact, satisfies the first limb, (a), which is the establishment of those rights and interests. 

Your Honour the Chief Justice talked about hunting, for example.  Hunting, of its nature, is – I would not say every time, but overwhelmingly likely to be concerned with land, because it is difficult to conceive of the engagement in hunting that does not involve it actually taking place in a geographical location.  That is not to say that at the very edges of that right of hunting, depending upon its content, depending upon how it is characterised, as to whether it will always necessarily have a land component.

An aspect of hunting may well be the teaching, in an oral sense, of techniques about hunting, for example.  Now, that may be characterised as being a law about hunting, but it also may be characterised as being a law that is not necessarily just about hunting but about the passing on of traditional knowledge.  The point I am making is that in that context, there does not necessarily have to be quite the same “connection” with land as if you are actually out there, hunting.

Another example that comes to mind is that of what I will call marriage relations and kinship rights.  They will be related to land, ultimately, in the sense that they are related to a claim and a claim has to be about an area, and so we are talking about those rights within that claim area.  But other than that, marriage rights, kinship rights, are not in and of themselves necessarily bound by land or stuck to a certain place.

Now, I have to say that – and I certainly do not profess to be any expert with respect to native title – but certainly in my experience, it is the case that, overwhelmingly, you can categorise a lot of the native title rights as being related specifically to land, such as hunting, for example; such as specific sites that need to be protected; or even songs, where those songs are about a specific site, for example, and that without the site, the song either does not have a meaning or loses an aspect of its meaning.  It is the case that the majority are going to fall on the side of being inherently, of their nature, connected to land, but I would not close it off and say that it is necessarily going to be the case with every right.  Those examples that I have given are examples, in my submission, of where you move away from land.

Now, I will develop this more as we go on, but in my submission, this case is not a case where the rights that we were talking about fall into that rarer category that I was talking about of being not necessarily related to land.  The rights we are talking about that were accepted in Dodd and were brought to the trial judge in this matter by the Arabana are overwhelmingly – although not exclusively – rights that do relate to land.

And so that is why that is important in this context, of yes, we are talking about 0.2 per cent, but his Honour in response, effectively, to the Arabana case, was searching for and assessing and evaluating whether or not the evidence that was led about those rights and customs, their acknowledgment and observance, had in fact occurred in the overlap area, because they were rights and customs that were overwhelmingly connected to land in this particular instance.

So, in my submission, there is no error with respect to what his Honour has done there both in terms of an application of section 223 and what it requires, but also, more fundamentally, in the case of an adversarial dispute between parties, that he did not do anything that this particular plaintiff did not put before him or did not effectively ask him to do, in the circumstances.  So, it is appropriate, in my submission, at this point to then turn to some of the things that the trial judge did.  So, in the core appeal book ‑ ‑ ‑ 

GAGELER CJ:   Perhaps before we get there, you took us, I think, to a couple of paragraphs in Justice O’Bryan’s judgment.  One of them was paragraph 338.  I think you were saying that the only real issue in the case was that identified in subparagraph (e).  Is that right?

MR GOLDING:   Yes.  What I would say, though, is I would qualify that with the answer that I gave to the question from Justice Beech‑Jones, and that is that (e) was definitely in contest; there were aspects of the others that were in contest, but only to the extent of the question of today.

GAGELER CJ:   So, what I wanted you to do, please, was, can you relate (e) as the crystallised issue to the definition of native title that you have just been expounding?  Is it a 223(1)(a) issue, or a (b) issue, or an amalgam of the two?

MR GOLDING:   Well, it is definitely an (a) issue, and it can be a (b) issue, but the difficulty is that this is expressed perhaps at a higher level of abstraction, and it gets back to the issue of whether or not the content and the substance of the rights and interests that we are talking about are actually ones that are related to land, firstly; and secondly, whether their nature, in and of themselves, is one that could not possibly be understood in any other way than having a relationship with land; then, of course, finally, the issue of today.  I fear I have not answered your Honour’s question.

EDELMAN J:   I understood your case, really – as you opened it, at least – to be that it is both (a) and (b), but only in respect of the fact that both are expressed in the present tense – it is “have a connection” and “are possessed”.

MR GOLDING:   Yes.

EDELMAN J:   But otherwise, you accepted that there were those rights in relation to land or waters, at least at effective sovereignty, and there was the connection with land and waters, at least at effective sovereignty.

MR GOLDING:   Yes.

EDELMAN J:   So, really, the only point in (a) and (b) that you are making is the present tense, is it not?

MR GOLDING:   Yes.  I agree with the characterisation that your Honour Justice Edelman has just made of our case, and that is what I am intending to put.  What I am also saying, though, is that if you look at (e), perhaps the best way to do this is in contrast to the others that are in (a) through to (f), and hopefully this will answer your Honour’s question.  Paragraph (a) is about “at sovereignty”, so it is not about today, and it was not in dispute – well, as between the State and the Arabana – because the State had accepted that there was a consent determination next door, and the question of society had been answered by that, and society in isolation does not have to be geographically specific.  And then (b) is ‑ ‑ ‑ 

GORDON J:   Just before you leave (a), I had understood (a) was not in dispute with you because (a) says:

giving the members of the society rights and interests in the Overlap Area –

So, (a) does have a geographic limit.

MR GOLDING:   Sorry – yes, but tied to sovereignty.

GORDON J:   So, at sovereignty, you accept that the:

Arabana society “united in and by its acknowledgment and observance of a body of law and customs” –

gave the members of that society rights and interests in the overlap area?

MR GOLDING:   Yes.

GORDON J:   Thank you.

MR GOLDING:   Subparagraph (b) is whether or not it:

has continued to exist throughout that period –

that particular period.  Now, there is some difficulty with that in the sense that it probably cannot be understood in isolation, because “period”, at its widest, will be from sovereignty to today, but what follows at (c), (d), (e) and (f) are, in fact, really, about today, which is where the issue in dispute arises.  With respect to (c), which is about:

adaptations that may have been made –

Again, whilst we have a difficulty with the “today” issue, we do not have a difficulty with the substance of that paragraph, which is that, to the extent there have been adaptations, that there is no problem with that.  Next, that:

the content and nature of the laws and customs of the Arabana that are acknowledged and observed today –

Now, that is not geographically specific, and so long as that is read as applying to the area that had been determined in Dodd, then there is no problem with that.  I will jump over (e) to (f):

whether the Arabana have a connection to the Overlap Area by those laws and customs that are acknowledged and observed today.

Again, the issue there is “today”.  If the substance of that, which is the “connection”, in my submission, is to be seen as relating to a period of time that is before “today”, then there is no problem with that.  But (e) – where, in my submission, the substance of (e) is that:

rights and interests in the Overlap Area are possessed by the Arabana under those laws and customs that are acknowledged and observed today –

That the essence of that is the overlap area “today”; and that that is where the case for the Arabana falls down, in the circumstances.

GAGELER CJ:   I get all of that.

MR GOLDING:   Yes.

GAGELER CJ:   I just wanted you to relate it to what you have told us about the content of paragraphs (a) and (b) of the statutory definition of “native title”.

MR GOLDING:   Well, that, as referred to by Justice Edelman, that it is in the present tense, and that we are talking about the rights and interests that “are possessed” and that they “have a connection”, that that is clearly intended to mean and include those factual matters, but as they exist today.  And one also takes that from – in the chapeau, on the third line – the reference to:

in relation to land or waters –

that you cannot read that as being a reference to either just at sovereignty or at some particular time after sovereignty, or at just today, that what the Act is concerned with and is recognising there, by use of the present tense, is something that started in the past and is continuing now and into the future.

EDELMAN J:   It is not your case though, is it, that a southward movement, for example, by itself would necessarily break a connection?

MR GOLDING:   Not necessarily.  It will depend on the facts and circumstances of the case and the evidence led in the circumstances.  There is no magic line, so to speak, and that it is a question of an accumulation of the evidence in any given matter.  It may well be that some bits of evidence are more important than others as being demonstrative of an ongoing connection.  Perhaps, if I can answer that by reference to a couple of questions that I have interpreted as going in a particular direction from your Honour Justice Gleeson, and that is this issue about what do we mean by “observance” if in fact the people have moved out of the area – they still know the laws and they are still being passed on, but they are not being practised or observed for some particular reason.

A classic example of that is, actually, De Rose, where even though Peter De Rose had not actually been to the relevant area for a very long period of time, that is because he was effectively prevented by a leasehold interest, but he knew that he was supposed to, and he knew that that was his obligation.  So, in that instance, the failure was not enough to defeat the right.

In my submission, there has to be a tipping point where, if it is more than just, I know I am supposed to do this, or I know this is my cultural obligation, but I cannot do it or if I do it, it is too risky or it is too far, or whatever the reason might be, to eventually getting to a point where in fact it is no longer being passed down or I am aware that I am supposed to do this but I am not interested – it does not bother me to particularly observe it in the circumstances – until you eventually over time might reach a point where in fact very few – or no one – knows these things that are not being done.  So, there is no bright line so much as just, at some point – in what I will describe there as a decline – there has to be a tipping point at which it is no longer continuous, there is no longer a connection that it has actually been ‑ ‑ ‑

BEECH‑JONES J:   But are you not saying that means under (1)(a) the laws are no longer being acknowledged and the customs are no longer being observed, as opposed to no connection?  You are saying it falls into such disuse and ignorance that they are no longer acknowledged and observed.

MR GOLDING:   Well – and this is the difficulty – the evidentiary examples that I was giving there could apply to both, but just because they apply to both in that particular instance does not, in my submission, change the inquiry.

BEECH‑JONES J:   Well, the inquiry – once you have the laws acknowledged and observed, the question is the connection from the laws and customs ‑ ‑ ‑ 

MR GOLDING:   Yes.

BEECH‑JONES J:   ‑ ‑ ‑ not their exercise.

MR GOLDING:   Well ‑ ‑ ‑ 

BEECH‑JONES J:   The exercise is just evidence of their acknowledgment and observance, is it not?

MR GOLDING:   Well, yes, and that it will be, in my submission, a stronger case if you have that evidence and you will more easily satisfy ‑ ‑ ‑ 

BEECH‑JONES J:   What?  Which paragraph?

MR GOLDING:   Well, both; the existence of the laws and the connection.  It will depend upon what level of dispute there is about the existence and/or content of the laws.  It may well be that – anthropologists, for example, on both sides agree as to the existence and the content of the law.  That does not always happen, but it may well be the case, but then the question of observance really then only ‑ ‑ ‑ 

BEECH‑JONES J:   It only kicks in at (a) then, does it not?

MR GOLDING:   Well, it does, but that gets back to the point that I made in answer to the Chief Justice, that it depends on the nature of the law that we are talking about in the circumstances and whether it inherently has a connection to land or not, or whether we are talking about, say, a marriage right, for example, which may not have a – where, for example, you get particularly complicated rules about patrilineal and matrilineal affiliation and moieties and therefore who you can and cannot marry.  It may well be that nobody involved in this potential marriage actually lives on any of the land, but they nevertheless still have that understanding, notwithstanding they live in, say, Sydney or Brisbane.  That would be perhaps an extreme example of it not being a right or a law that is of its nature intrinsically connected to land.

GAGELER CJ:   Mr Golding, is that a convenient time to adjourn?

MR GOLDING:   Yes, thank you, your Honour.

GAGELER CJ:   The Court will adjourn until 10.00 am tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 7 NOVEMBER 2024